dismissed H-1B Case: Computer Science

MATTER OF L- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 3, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer company, seeks to temporarily employ the Beneficiary as a "programmer 
analyst" under the H-1B nonimmigrant classification for specialty occupations. See Immigration 
and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The 
H-1B program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body ofhighly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the evidence of 
record does not establish that: ( 1) the proffered position is a specialty occupation; and (2) the 
Petitioner will engage the Beneficiary in an employer-employee relationship. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in the 
decision. Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
We will first determine whether the record of proceedings establishes that the proffered position 
qualifies as a specialty occupation. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
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Matter of L- Inc. 
The regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the· industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty thai is directly related to the 
proposed position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing 
"a degree requirement in a specific specialty" as "one that relates directly to the duties and 
responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Contractual Succession 
The Petitioner asserts that the end-client is as the Beneficiary will be working at 
their offices in Iowa. However, has a contract with the 
to provide maintenance and technical support to 
According to the contract, ' shall have the right to any time during 
the Contract term to direct that the services of Vendor be fully or partially suspended or 
stopped, if the deliverables or services fail to conform to applicable specifications and requirements 
in this Contract." It appears that the entity dictating the terms of the 
project is Thus, the path of contractual succession is as follows: Petitioner 7 
(vendor) 7 (end-client). Therefore, throughout our decision, we will refer to as the 
end-client and as the vendor. 
C. Proffered Position 
In the H-IB petition, the Petitioner stated that the Beneficiary will serve as a "programmer analyst" 
for the vendor located at m Iowa. 
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Matter of L- Inc. 
On appeal, the Petitioner submits a letter from the vendor, which provides the following job duties 
for the position: 1 
• Modify existing software to correct errors, allow it to adapt to new hardware, or to 
improve its performance. 
• Develop and direct software system testing and validation procedures, 
programming, and documentation. 
• Confer with systems analysts, engineers, programmers and others to design 
system and to obtain information on project limitations and capabilities, 
performance requirements and interfaces. 
• Analyze user needs and software requirements to determine feasibility of design 
within time and cost constraints. 
• Design, develop and modify software systems, using scientific analysis and 
mathematical models to predict and measure outcome and consequences of 
design. 
• Store, retrieve, and ·manipulate data for analysis of system capabilities and 
requirements. 
• Consult with customers about software system design and maintenance. 
• Supervise the work of programmers, technologists and technicians and other 
engineering and scientific personnel. 
• Coordinate software system installation and monitor equipment functioning to 
ensure specifications are met. 
• Programming using, but not limited to, Java, J2EE, Java Design Patterns, Spring, 
Struts, JSP, JavaScript, SVN, Oracle, Portal, LDAP, POI, Web Services. 
• Understand functional/business requirements from the project documents 
provided. 
• Work closely with the technical a~chitect to understand the flowcharts, database, 
schemes, various tools used for connectivity. 
• Provide regular status reports on tasks assigned, tasks completed and tasks which 
are m progress. 
• Understand various sub tasks assigned as part of main tasks. 
• Provide screen designs and database designs. 
• Work closely with the software tester in preparing test cases/test scenarios. 
• Participate in preparing stories/scripts for submission to the project sponsor. 
• Work with Serum Master in understanding the functional specifications of each of 
the stories/scripts. 
• Help in moving code to the test and QA environment. 
1 Some of the duties provided by the vendor for the proffered position on appeal are taken almost verbatim from the 
Occupational Information Network (O*NET) OnLine Summary Report's list of tasks associated with the occupational 
category "Software Developers, Applications." For additional information, see O*NET OnLine, available at 
http://www.onetonline.org/link/summary/15-1132.00 (last visited June 30, 20 17). 
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Matter of L- Inc. 
' 
• Maintain different versions using SVN. 
D. Analysis 
For the reasons set out below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. 2 
1. Labor Condition Application 
The labor condition application (LCA)3 submitted in support of the H-1B petition, in which the 
Petitioner designated the proffered position under the occupational category "Computer 
Programmers" corresponding to the Standard Occupational Classification (SOC) code 15-1131 at a 
Level I. However, some of the duties are recited from the O*NET OnLine Summary Report's list of 
tasks associated with the occupational category "Software Developers, Applications." 
While these occupational categories may have some general duties in common, they are distinct and 
separate occupational categories. When the duties of the proffered position involve more than one 
occupational category, the U.S. Department of Labor (DOL) provides guidance for selecting the 
most relevant Occupational Information Network (O*NET) code classification. The "Prevailing 
Wage Determination Policy Guidance" by DOL states the following: 
In determining the nature of the job offer, the first order is to review the requirements 
of the employer's job offer and determine the appropriate occupational classification. 
The O*NET description that corresponds to the employer's job offer shall be used to 
identify the appropriate occupational classification . . . . If the employer's job 
opportunity has worker requirements described in a combination of O*NET 
occupations, the [determiner] should default directly to the relevant O*NET-SOC 
occupational code for the highest paying occupation. For example, if the employer's 
job offer is for an engineer-pilot, the [determiner] shall use the education, skill and 
experience levels. for the higher paying occupation when making the wage level 
determination. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert. 
doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf. 
2 
The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either 
the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the 
employer to other employees with similar experience and qualificqtions who are performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
4 
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Matter of L- Inc. 
Thus, if the Petitioner believed its position was described as a combination of occupations, then 
according to DOL guidance, the Petitioner should have chosen the relevant occupational code for the 
highest paying occupation. The prevailing wage for "Computer Programmers" is lower than the 
prevailing wage for "Software Developers, Applications." 
Occupational Category Prevailing Wage: Prevailing Wage: 
Iowa Virginia 
Computer Programmers $47,
965 $60,549 
Software Developers, Applications $60,694 $69,638 
Under the H-1 B program, a petitioner must offer the Beneficiary wages that are at least the actual 
wage level paid by the Petitioner to all other individuals with similar experience and qualifications 
for the specific employment in question, or the prevailing wage level for the occupational 
classification in the area of employment, whichever is greater, based on the best information 
available as of the time of filing the application. See section 212(n)(l)(A) of the Act, 
8 U.S.C. § 1182(n)(l)(A). 
As such, the Petitioner has not established (1) that it submitted a certified LCA that properly 
corresponds to the claimed occupation and duties of the proffered position; and (2) that it would pay 
the Beneficiary an adequate salary for his work, as required under the Act, if the petition were 
granted. These issues preclude the approval of the petition. 
2. Position Requirements 
As a preliminary matter, the Petitioner has provided inconsistent information regarding the minimum 
requirements for the proffered position. The table below summarizes the variances in the 
educational requirements. 
Record of Proceedings Acceptable Fields of Study 
Petitioner's Initial Letter of Support information technology or a computer related field and 
analytical, methodical, and resourceful approaches to 
problem solving 
Petitioner's RFE Response 1) computer engineering or a related field or the equivalent 
(page 3) 
2) computer science engineering or a related field (page 3) 
3) computer science or related field (page 4) 
4) computer science, engineering or related field (page 4) 
Appeal Brief 1) computer science, engineering or related fiel~ (page 1) 
2) computer science or related field (page 3) 
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Matter of L- Inc. 
Petitioner's Job Posting computer science, engineering, business, mathematics or 
related field and a minimum of four years of related work 
experience 
Vendor's Letters computer science 
The Petitioner did not provide an explanation for the variances in the requirements. 
3. Bachelor's Degree in Business 
The Petitioner states that a bachelor's degree in business is sufficient for the proffered position. A 
petitioner must demonstrate that the proffered position requires a precise and specific course of study 
that relates directly and closely to the position in question. There must be a close correlation 
between the required specialized studies and the position; thus, the mere requirement of a general 
degree, such as business, without further specification, does not establish the position as a specialty 
occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere 
requirement of a college degree for the sake of general education, or to obtain what an employer 
perceives to be a higher caliber employee, also does not establish eligibility."). Thus, while a 
general-purpose bachelor's degree in business may be a legitimate prerequisite for a particular 
position, requiring such a degree, without more, will not justify a finding that a particular position 
qualifies for classification as a specialty occupation. Royal Siam Corp., 484 F .3d at 14 7. 4 
4. Bachelor's Degree in Disparate Fields 
The Petitioner stated that a degree in one of several disparate fields (e.g., computer science, 
engineering, business, mathematics) is sufficient for the position. In general, provided the 
specialties are closely related, a minimum of a bachelor's or higher degree in more than one 
specialty is recognized as satisfying the "degree in the specific specialty (or its equivalent)" 
requirement of section 214(i)(l)(B) of the Act. In such a case, the required "body of highly 
specialized knowledge" would essentially be the same. 
A minimum entry requirement of degrees in disparate fields, however, would not meet the statutory 
requirement that the degree be "in the specific specialty (or its equivalent)," unless the Petitioner 
establishes how each field is directly related to the duties and responsibilities of the particular 
position such that the required "body of highly specialized knowledge" is essentially an 
amalgamation of these different specialties. 5 Section 214(i)(l )(B) of the Act (emphasis added). The 
Petitioner has not made this showing. 
4 A general degree requirement does not necessarily preclude a proffered position rrom qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience may, in certain instances, quality the proffered position as a specialty 
occupation. In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher 
degree in a specific specialty that is directly related to the proffered position. 
5 While the statutory "the" and the regulatory "a" both denote a singular "specialty," we do not so narrowly interpret 
6 
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Matter of L- Inc. 
5. Job Description 
As discussed above, the wording of some of the duties provided by the vendor for the proffered 
position is taken almost verbatim from the O*NET OnLine Summary Report... It is generally not 
sufficient to copy job duties from DOL to support a contention that a position is a specialty 
occupation. While such a description may be appropriate when defining the range of duties that are 
performed within an occupation, such a generic description generally cannot be relied upon by the 
Petitioner when discussing the duties attached to specific employment for H-1 B approval because 
the description must include sufficient details to substantiate that the Petitioner (or end-client) has 
H-1B caliber work for the Beneficiary. 
Moreover, as recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to 
provide sufficient information regarding the proposed job duties to be performed at its location(s) in 
order to properly ascertain the minimum educational requirements necessary to perform those duties. 
In other words, as the employees in that case would provide services to the end-client and not to the 
petitioning staffing company , the Petitioner-provided job duties and alleged requirements to perform 
those duties were irrelevant to a specialty occupation determination. See id. 
Here, the record lacks sufficient substantive documentation from the end-client regarding not only 
the specific job duties to be performed by the Beneficiary, but also information regarding whatever 
the client may or may not have specified with regard to the educational credentials of persons to be 
assigned to its project. The record does not contain sufficient probative documentation on this issue 
from (or endorsed by) the company that will actually be utilizing the Beneficiary's services 
that establishes any particular academic requirements for the proffered position. 
The Petitioner , thus, has not established the substantive nature of the work to be performed by the 
Beneficiary, which precludes a finding that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) , because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for 
a common degree requirement , under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position , which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. 
these provisions to exclude positions from qualifying as specialty occupations if they permit, as a minimum entry 
requirement, degrees in more than one closely related specialty . See section 214(i)( I )(B) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii). This also includes even seemingly disparate specialties prov iding, again, the evidence of record 
establishes how each acceptable , specific field of study is directly related to the duties and responsibilities of the 
particular position. 
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Matter of L- Inc. 
Nevertheless, assuming, for the sake of argument, that the proffered duties as described in the record 
would in fact be the duties to be performed by the Beneficiary, we will analyze them and the 
evidence of record to determine whether the proffered position as described would qualify as a 
specialty occupation pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A). 
6. First Criterion 
We now tum to the criterion at 8 C.F .R. § 214.2(h)( 4 )(iii)(A)( 1), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize DOL's Occupational 
Outlook Handbook (Handbook) as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses.6 
On the LCA submitted in support of the H -1 B petition, the Petitioner designated the proffered 
position under the occupational category "Computer Programmers" corresponding to the Standard 
Occupational Classification code 15-1131.7 . 
The Handbook ·s subchapter entitled "How to Become a Computer Programmer" states, in pertinent 
part, that "some employers hire workers with an associate's degree." Bureau of Labor Statistics, 
U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers (2016-17 ed.). 
Thus, the Handbook does not support the Petitioner's assertion that a bachelor's degree is required 
for entry into this occupation. The Handbook reports that the occupation accommodates a wide 
spectrum of educational credentials, including less than a bachelor's degree. 
In response to the RFE, the Petitioner referenced the O*NET OnLine Summary Report for 
"Computer Programmers." The summary report provides general information regarding the 
occupation; however, it does not support the Petitioner's assertion regarding the educational 
requirements for the occupation. For example, the Specialized Vocational Preparation (SVP) rating 
cited within O*NET's Job Zone designates this occupation as 7 < 8. An SVP rating of 7 to less than 
("<") 8 indicates that the occupation requires "over 2 years up to and including 4 years" of training. 
6 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive. source of relevant 
information. 
7 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Levell wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding ofthe occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
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Matter of L- Inc. 
While the SVP rating indicates the total number of years of vocational preparation required for a 
particular position, it is important to note that it does not describe how those years are to be divided 
among training, formal education, and experience - and it does not specify the particular type of 
degree, if any, that a position would require. 8 
Further, the summary report provides the educational requirements of "respondents," but does not 
account for 100% of the "respondents." The respondents' positions within the occupation are not 
distinguished by career level (e.g., entry-level, mid-level, senior-level). Additionally, the graph in 
the summary report does not indicate that the "education level" for the respondents must be in a 
specific specialty. 
In the instant matter, the Petitioner has not provided sufficient documentation from a probative 
source to substantiate its assertion regarding the minimum requirement for entry into this particular 
position. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(l). 
7. Second Criterion 
The second criterion presents two alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
a. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among. similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by us 
include: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits· from firms or individuals in the industry attest that such firms "routinely employ and 
recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or other authoritative source, reports a requirement for at least a bachelor's degree in 
8 
For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org 
/help/online/svp. 
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Matter of L- Inc. 
a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on 
the matter. 
In support of this criterion, the Petitioner submitted copies of job announcements placed by other 
employers. However, the Petitioner's reliance on the job announcements is misplaced. First, the 
Petitioner has not established that the organizations are similar to the Petitioner. For example, some 
of the postings appear to be for staffing agencies for which little or no information is provided 
regarding the hiring employers. The Petitioner did not supplement the record of proceedings to 
establish that these advertising organizations are similar to the Petitioner. 
) 
When determining whether the Petitioner and the organization share the same general 
characteristics, such factors may include information regarding the nature or type of organization, 
and, when pertinent, the particular scope of operations, as well as the level of revenue and staffing 
(to list just a few elements that may be considered). It is not sufficient for the Petitioner to claim that 
an organization is similar and in the same industry without providing a legitimate basis for such an 
assertion. 
Moreover, many of the advertisements do not appear to be for parallel positions. For example, some 
of the positions appear to be for more senior positions than the proffered position.9 More 
importantly, the Petitioner has not sufficiently established that the primary duties and responsibilities 
of the advertised positions are parallel to the proffered position. 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's 
degree in a specific specialty, or its equivalent, is common to the industry in parallel positions 
among similar organizations. 10 Thus, the Petitioner has not satisfied the first alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
b. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
9 For instance, the posting for requires a degree and four years of applications programming 
experience or six years of applications programming experience . In addition , the advertisement for 
requires a degree and two to five years of experience working as an application developer. However , the 
Petitioner indicated that the proffered position is an entry-level position (on the LCA). 
10 It must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a specific 
specialty is common to the industry in parallel positions among similar organizations (which they do not), the Petitioner 
has not demonstrated what statistically valid inferences , if any, can be drawn from the advertisements with regard to 
determining the common educational requirements for entry into parallel positions in similar organizations. See 
gen erally Earl Babbie, The Practice of Social Research 186-228 ( 1995). Moreover, given that there is no indication that 
the advertisements were randomly selected, the validity of any such inferences could not be accurately determined even 
if the sampling unit were sufficiently large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] 
process [of probability sampling]" and that "random selection offers access to the body of probability theory , which 
provides the basis for estimates of population parameters and esti~ates of error"). 
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Matter of L- Inc. 
performed only by an individual with at least a bachelor's degree m a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered pos1t10n qualifies as a specialty occupation, the 
Petitioner described the proffered position and 
1
its business operations, as well as the vendor's 
business operations. In response to the RFE, the Petitioner stated that the "job responsibilities [of 
the proffered position] are complex, sophisticated, and require the theoretical and practical 
application of a body of high specialized knowledge." However, the Petitioner designated the 
proffered position as an entry-level position within the occupational category by selecting a Levell 
wage. 11 This designation, when read in combination with the evidence presented and the 
Handbook's account of the requirements for this occupation, suggests that the particular position is 
not so complex or unique that the duties can only be performed by an individual with bachelor's 
degree or higher in a specific specialty, or its equivalent. 12 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references the 
Beneficiary's qualifications. However, the test to establish a position as a specialty occupation is not 
the education or experience of a proposed beneficiary, but whether the position itself requires at least 
a bachelor's degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently 
develop relative complexity or uniqueness as an aspect of the duties of the position, and it did not 
identify any tasks that are so complex or unique that only a specifically degreed individual could 
perform them. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
8. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 
See Defensor v. Meissner, 201 F.3d at 387-88. Were we limited solely to reviewing a petitioner's 
claimed self-imposed requirements, an organization could bring any individual with a bachelor's 
11 
The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or' 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation ifthat higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
12 
The evidence of record does not establish that this position is significantly different from other positions within the 
occupational category such that it refutes the Handbook's information to the effect that some courses are advantageous to 
obtaining such a position, but not specifying that the degree must be in a specific specialty. 
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Matter of L- Inc. 
degree to the United States to perform any occupation as long as the petitioning entity created a 
token degree requirement. !d. Evidence provided in support of this criterion may include, but is not 
limited to, documentation regarding the Petitioner's past recruitment and hiring practices, as well as 
information regarding employees who previously held the position. 
The Petitioner submitted documentation in support of this criterion including (1) a list with the 
names of individuals and their degrees; 13 and, (2) quarterly wage reports. The list does not provide 
the individuals' job titles, and the record does not include evidence establishing that these 
individuals are employed by the Petitioner as programmer analysts. The record lacks evidence 
establishing that their work has the same or similar substantive responsibilities, duties, and 
performance requirements as the proffered position. The Petitioner did not submit any information 
regarding the complexity of the job duties, supervisory duties (if any), independent judgment 
required or the amount of supervision received. Accordingly, it is unclear whether the duties and 
responsibilities of these individuals are the same or similar to the proffered position. 
Moreover, as previously discussed, the Petitioner has provided inconsistent information as to its 
requirements within the record. The Petitioner's list indicates that some of the individuals possess 
degrees in business, business management, and commerce. This further suggests that the Petitioner 
does not require a degree in a specific specialty (or its equivalent). 
On appeal, the Petitioner submits a printout of its own advertisement for the position of programmer 
analyst. However, the Petitioner posted this notice after the petition was filed - and after the 
Director's RFE was issued. Evidence that the Petitioner creates after a petition is filed will generally 
not be considered independent and objective evidence. Necessarily, independent and obj~ctive 
evidence would be evidence that is contemporaneous with the event to be proven and existent at the 
time of filing. 
We conclude that the Petitioner did not provide sufficient documentary evidence to support the 
assertion that it normally requires at least a bachelor's degree in a specific specialty, or its 
equivalent, directly related to the duties of the position. The Petitioner has not satisfied the third 
criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
9. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
13 The Petitioner did not provide further evidence of these individuals' credentials or employment with the Petitioner 
(e.g., diplomas, transcripts, pay statements, Form W-2, Wage and Tax Statements). 
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Matter of L- Inc. 
Here, relative specialization and complexity have not been sufficiently developed by the Petitioner 
as an aspect of the proffered position. The Petitioner does not establish how the g~nerally descfibed 
· duties elevate the proffered position to a specialty occupation. We again refer to our comments 
regarding the implications of the Petitioner's designation of the proffered position at a Level I wage 
level. 
For the reasons discussed above, the evidence of record does not satisfy the fourth criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
Finally, we will briefly address the issue of whether or not the Petitioner will have a valid employer­
employee relationship with the Beneficiary. Upon review, we find that the record of proceedings 
lacks sufficient documentation evidencing what exactly the Beneficiary would do for the period of 
time requested or where exactly and for whom the Beneficiary would be providing services. 
With the initial petition and in response to the RFE, the Petitioner provided a Support Services 
Agreement (SSA) between itself and the vendor. The SSA states that the "Term of this Agreement 
shall begin on Date shown in Exhibit "A" and shall continue for the term specified in Exhibit "A", at 
which time it may be extended as agreed to by both parties." The Petitioner submitted an Exhibit A 
- Work Order, which states that the Beneficiary 's services as a programmer analyst will begin in 
October 2016 and "Term: Initial term of 24-30 months extendable upon mutually agreed terms." 
Neither the end-client nor the project is listed on the document. 
On appeal, the Petitioner 
provides a Master Agreement between the vendor and the end-client. 
Notably, the agreement is not signeq by the end-client. In addition, the Petitioner 
provides a 
statement of work (SOW) for the project between the vendor and the 
end-client, executed in March 2015. The SOW states: "The term of this Contract shall be for one 
year from March 30, 20 IS through March 26, 2016, unless terminated earlier in accordance with the 
Termination section of this Contract." The Petitioner also provides a second SOW executed in 
January 2017. This SOW states that the "term of this SOW is from December 1, 2015 through :Apffi 
301,2016 September 30, 2016 December 31 , 2016 June 30, 2017." 
Moreover, the Petitioner submits a letter from the vendor on appeal. The letter states: "The first 
phase of the project [is] scheduled through June 2017, and is extendable for five 
years after." However, the vendor's statement is not corroborated by documentation indicating that 
an ongoing project exists that will generate employment for the Beneficiary 's services until 
September 2018. 
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.
. Matter of L- Inc. 
Furthermore, we note that the vendor letter to the Petitioner, submitted with the initial petition, 
states: 
Vendor has several engagements and with our increased workload on projects with 
our clients have additional needs for resources. This letter is to outline some of the 
projects we are working on, need assistance on, and the various skills sets that are 
required. 
Based on our history with your firm and candidates we are confident that you will be 
able to assist us with these resources. 
According to the letter, the Beneficiary may be placed on various projects and not necessarily on the 
project as indicated in the record of proceedings. 
The Petitioner requested the Beneficiary be granted H-1 B classification from October 2016, to 
September 2018. However, the record of proceedings does not establish that the 
project will continue through September 2018 - and it is the only project claimed by the 
Petitioner in this filing. Thus, without more, the record does not demonstrate that the Petitioner will 
have sufficient work and that it will maintain an employer-employee relationship for the duration of 
the validity of the requested period. 
A petition must be filed for non-speculative work for the Beneficiary, for the entire period requested, 
that existed as of the time of the petition's filing. Our regulations affirmatively require a petitioner 
to establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. 
§ 103 .2(b )( 1 ). A visa petition may not be approved based on speculation of future eligibility or after 
the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248. Therefore, the appeal is dismissed for this additional reason. 
III. CONCLUSION 
For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fL- Inc., ID# 554818 (AAO July 3, 2017) 
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