dismissed H-1B Case: Computer Science

identifying data deleted to
prevent clearly unwarranted
invasionofpersonalprivacy
PUBLICcopy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: EAC 06 13650960 Office: VERMONT SERVICE CENTER Date: SEP 1 2 2001
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
EAC 06 13650960
Page 2
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will
be denied.
The petitioner is a travel and tour company that seeks to employ the beneficiary as a computer information
systems engineer. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty
occupation pursuant to section IOI(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C.
§ 1101(a)(l5)(H)(i)(b).
The director denied the petition because the proffered position does not qualify as a specialty occupation. On
appeal, counsel submits a brief stating that the offered position qualifies as a specialty occupation.
The issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty
occupation.
Section IOI(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. § 1 IOI(a)(l5)(H)(i)(b), provides, in part, for the
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform
services in a specialty occupation.
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(1), 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.
The term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as:
[A]n occupation which requires theoretical and practical application of a body of highly
specialized knowledge in fields of human endeavor including, but not limited to, architecture,
engineering, mathematics, physical sciences, social sciences, medicine and health, education,
business specialties, accounting, law, theology, and the arts, and which requires the attainment of
a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry
into the occupation in the United States.
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of
the following criteria:
(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;
EAC 06 13650960
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(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties are so specialized and complex that knowledge required
to perform the duties is usually associated with the attainment of a baccalaureate or
higher degree.
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R.
§ 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is
directly related to the proffered position.
The record of proceeding before the AAO contains: (1) the Form 1-129 and supporting documentation; (2)
the director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the
director's denial letter; and (5) the Form 1-290B with supporting documentation. The AAO reviewed the
record in its entirety before issuing its decision.
The petitioner is seeking the beneficiary's services as a computer information systems engineer. Evidence of
the beneficiary's duties includes the Form 1-129 petition with attachment and the petitioner's response to the
director's request for evidence. According to this evidence the beneficiary would:
• Analyze the computer systems needs of the petitioner;
• Design, construct, test, and maintain all of the petitioner's computer software and systems to track
inventory, employees, clientele, arrivals, dates of tours, hotel accommodations needed and available
for each group, departure dates of tours, tour coordinators and their availability, and driver
availability for each tour; and
• Design and maintain the company web site.
Upon review of the record, the petitioner has· failed to establish that the proffered position qualifies as a
specialty occupation. The AAO routinely consults the Department of Labor's Occupational Outlook
Handbook (Handbook) for information about the duties and educational requirements of particular
occupations. The duties of the proffered position are essentially those of network administrators and
computer systems administrators. Network administrators and computer systems administrators design,
install, and support an organization's local-area network (LAN), wide-area network (WAN), network
segment, Internet, or intranet system. They provide day-to-day onsite administrative support for software
users in a variety of work environments, including professional offices, small businesses, government, and
large corporations. The Handbook notes that there is no universally accepted way to prepare for a job as a
systems administrator, but that many employers prefer to hire persons with some formal college education. A
bachelor's degree in computer science or information systems is a prerequisite for some jobs; however, other
jobs may require only a computer-related associate degree. For systems administrators, many employers seek
applicants with bachelor's degrees, although not necessarily in a computer-related field. The petitioner has
not, therefore, established that a baccalaureate or higher degree in a specific specialty, or its equivalent, is
normally the minimum requirement for entry into the proffered position. 8 C.F.R. § 214.2(h)(4)(iii)(A)(1).
EAC 06 13650960
Page 4
Although some employers may require a baccalaureate level education for these positions, many are regularly
filled with individuals having less than a baccalaureate level education, and employees with degrees in a
variety of majors find employment in the occupation.
The petitioner has not established that a degree requirement in a specific specialty is common to the industry
in parallel positions among similar organizations, or that it normally requires a degree in a specific specialty .
for the position, and offers no evidence in this regard. The petitioner has, therefore, failed to establish either
of the referenced criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) or (3).
Finally, the duties of the offered position are not so complex or unique that they can be performed only by an
individual with a degree in a particular specialty. Nor are they so specialized and complex that knowledge
required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a
specific specialty. The duties are described in general and nonspecific terms. It cannot be determined from
the duty description provided by the petitioner, that the duties are any more unique, specialized or complex
than those performed by computer systems administrators in the industry who are employed with less than a
baccalaureate degree. For example, the petitioner states that the petitioner will: design, construct, test, and
maintain all computer software systems to track inventory, employees, clientele, tour arrival dates, hotel
accommodations required and available for each tour group, departure dates of tours, tour coordinators and
their availability, and the availability of tour drivers. The record does not establish that these duties are
specialized, complex or unique in the industry, or that computer applications necessary to perform and/or
monitor those tasks require knowledge that can only be obtained with a minimum of a baccalaureate level
education in a related field. As noted in the Handbook, while some jobs require a bachelor's degree, others
require only an associate's degree. The petitioner has failed to submit sufficient evidence to establish that the
proffered position qualifies as a specialty occupation under the referenced criteria at 8 C.F.R.
§§ 214.2(h)(4)(iii)(A)(2) or (4).
The petitioner has failed to establish that the offered position meets any of the criteria listed at 8 C.F.R.
§ 214.2(h)(4)(iii)(A). Accordingly, the AAO shall not disturb the director's denial of the petition.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C.
§ 1361. The petitioner has not sustained that burden and the appeal shall accordingly be dismissed.
ORDER: The appeal is dismissed. The petition is denied.