dismissed H-1B Case: Computer Science

MATTER OF E-C-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 10,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer consulting firm, seeks to temporarily employ the Beneficiary as a 
"programmer analyst" under the H-1 B 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-lB 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 record did not 
establish that: (1) the proffered position qualifies as a specialty occupation; and (2) the Beneficiary 
is qualified to perform services in a specialty occupation. 
On appeal, the Petitioner asserts that the Director erred in denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. 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. 
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: 
Matter of E-C-, Inc. 
(I) . 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 that is directly related to the 
proposed position. See Royal Siam Corp. v. Cherto.ff, 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). 
II. PROFFERED POSITION 
In its initial letter of support and itinerary, the Petitioner stated the Beneficiary will perform the 
following duties in the proffered position: 
• Partner with internal teams to define and prioritize informational requirements. 
• Create reports and data extracts against large data sets using SQL/Tableau. 
• Stay current with technical best practices and industry trends and advise and 
educate management on their importance. 
• Work with teams to improve our reporting and analysis of our customers, 
products, or marketing programs. 
• Visualizing and reporting data findings creatively in a variety of formats. 
• Design AlB tests to evaluate behaviors. 
• Evaluate third-party analysis tools for possible use within the project. 
• Write Customize Framework for application. Provide Weekly Status to Project 
Manager. 
• Attend Daily serum meetings. 
In the same letter, the Petitioner stated that the position requires a "bachelor's degree or a closely 
related field, or the equivalent" to perform the job duties. 
In response to the request for evidence (RFE), the Petitioner submitted a new job description 1: 
1 
For clarity, we modified the format of the job description into a chart. 
2 
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Matter of E-C-, Inc. 
Duties Percentage of Time 
Ensures use requirements fit m with the overall 5% 
development approach 
Provide senior-level analytical, design, development, 20% 
testing, implementation, and initial production support 
services 
Develop within the technical framework of the client 20% 
Completes and finalizes the technical functional 5% 
specifications of assigned tasks 
Assists DBAs in remodeling the database schema and 10% 
migration of data 
Creates class and activity diagrams as needed for assigned 10% 
modules 
Writes clean code following standard guidelines for the 10% 
project including comments describing blocks of code and 
develops stored procedures, triggers, and view using T-
SQL on SQL Server 2008 R2 
Provide requirement specifications, design documentation, 10% 
application code, test cases and scripts, test results, user 
documentation, training material, and implementation 
plans 
Perform unit testing, integration testing and system testing 5% 
check-out as part of application development 
Provide weekly status reports as required by the project's 5% 
Project Manager 
The Petitioner indicated that the Beneficiary will work in-house on a project for the 
In a letter provided on the Petitioner's 
letterhead, "CIO" of the ' 
'' states that the Petitioner has a contract with and listed the duties of programmer 
analysts working on the project.
2 
The letter also states that "it is anticipated that those 
working on this project will have a minimum of bachelor's degrees in computer science, engineering 
(any)[,] information technology, management information systems, business administrat[ion] or 
related degree." 
2 This letter signed by the client is on the Petitioner ' s letterhead rather than the letterhead of the client company. On 
appeal, the Petitioner submits the exact same letter but with a different date and on the client's letterhead . The Petitioner 
did not provide an explanation and we are unable to reconcile this oddity. 
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Matter of E-C-, Inc. 
III. SPECIALTY OCCUPATION 
Upon review, we have determined that the Petitioner has not demonstrated that the proffered 
position qualifies as a specialty occupation. Specifically, the record does not establish that the job 
duties require an educational background, or its equivalent, commensurate with a specialty 
. 3 
occupatiOn. 
A. Description of Duties 
A crucial aspect of this matter is whether the Petitioner has described the duties of the proffered 
position such that we may discern the nature of the position. The Petitioner has not done so here. 
For instance, the initial job description stated that the Beneficiary will "partner with teams," and 
"work with teams," but these statements lack adequate information to determine the Beneficiary's 
role, as well as how much independent judgement is required from him - and the amount of 
supervision he will receive. 
Furthermore, the job description submitted in response to the RFE substantially differs from the 
initial job description: every task ~s different. For example, the second job description does not state 
that the Beneficiary will work with teams, as mentioned twice in the initial description. Further, the 
new description indicated that Beneficiary will provide "senior-level analytical, design, 
development, testing, implementation, and initial production support services." The initial 
description did not mention these "senior-lever" services.4 The Petitioner does ·not explain the 
reason for these variances in the job duties for the proffered position. 
I 
In addition, in response to the RFE, the Petitioner explained that depending on the need of the 
clients, the "Beneficiary will either work in house on the project or on [the Petitioner's] 
proprietary project, ' The Petitioner provided a document regarding an project but it 
is not clear if this is the same project as the referenced In addition, the project outline did 
not indicate that the Petitioner will require the services of a programmer analyst, or the Beneficiary 
specifically. 
Overall, the Petitioner has not provided a sufficient explanation of the demands, level of 
responsibilities, complexity, or requirements necessary for the performance of these duties. The 
3 The Petitioner submitted documentation to support 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. 
4 The Petitioner has not established that the Beneficiary's performance of these "senior-level" services is consistent with 
its claim that the prOffered position is a Level II position within the occupational category. The Petitioner is required to 
submit a certified LCA to USCIS 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 qualifications who are perfonning the same services. See Matter of Simeio 
Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
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Matter ~~ E-C-, Inc. 
Petitioner must substantiate that it has H-IB caliber work for the Beneficiary. Here, the Petitioner 
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. 
B. Position Requirements 
Further, the requirements for the position as stated in the record raise a number of issues. 
First, the Petitioner claimed that the proffered position requires an individual with a "bachelor ' s 
degree or a closely related field, or the equivalent." We interpret the degree requirement at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
position. However, in this case, the Petitioner did not indicate a bachelor's degree in a specific 
specialty was required for the position. Thus , for this reason the petition cannot be approved. 
Second , the record contains inconsistent information regarding the minimum requirements for the 
proffered position. More specifically , the Petitioner's statement in the support letter varies 
considerably from the client's ( , who reports that "it is anticipated that those working on this 
project will have a minimum of bachelor ' s degrees in computer science , engineering (any)[,] 
information technology, management information systems, business administrat[ion] or related 
degree." The Petitioner did not provide an explanation for the variances in the record as to the type 
of bachelor's degree required for the position. 
Third, it does not appear that the client has any specific educational requirements for the position as 
it states that such credentials are simply "anticipated. " A preference for high-caliber employees is 
not sufficient to establish a position as a specialty occupation . 
Fourth, the client stated that a degree in business administration is acceptable for the proffered 
position. Since there must be a close correlation between the required specialized studies and the 
position, the requirement of a degree with a generalized title, such as business administration , 
without further specification, does not establish the position as a specialty occupation. C./." Matter of 
Michael Hertz Assocs ., 19 I&N Dec. 558, 560 (Comm 'r 1988). 
5 
Matter of E-C-, Inc. 
Thus, for the above reasons, the petition cannot be approved. Nevertheless, we will perform a 
comprehensive analysis of the evidence provided pursuant to the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 5 
C. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), 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 the U.S. Department of 
Labor's (DOL) 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 labor condition application (LCA) 7 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 15-1131.8 
The Handbook 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 (20 16-17 ed. ). Thus, the 
Handbook's report is insufficient to conclude that simply by virtue of its occupational classification 
the position qualifies as a specialty occupation. 
On appeal, the Petitioner cites to DOL's Occupational Information Network (O*NET) summary 
report. The summary report for "Computer Programmers" provides general information regarding 
5 Although some aspects oftne regulatory criteria may overlap, we will address each of the criteria individually. 
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. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and we regularly review the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfY the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
7 The Petitioner is required to submit a certified LCA to us 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 qualifications who are performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 l&N Dec. 542, 545-46 (AAO 20 15). 
8 The Petitioner classified the proffered position at a Level II wage. 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 Level II wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to 
have attained, either through education or experience, a good understanding of the occupation, but who will only perform 
moderately complex tasks that require limited judgment. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC_Guidance_Revised_ll_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. 
6 
Matter of E-C-, Inc. 
the occupation; however, it does not support the Petitioner's assertion regarding the educational 
requirements for these positions. 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. 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.9 
In response to the RFE, the Petitioner notes that the O*NET indicated that 78% of respondents have 
a bachelor's degree or higher. But this does not account for 100% of the "respondents," and 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)(J). 
D. 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. 
1. First Prong 
To satisfy the 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 we often consider 
include: whether the Handbook (or another independent, authoritative source) 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. 
9 
For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/ 
online/svp. 
7 
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Matter of E-C-, Inc. 
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)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative sources) reports an industry-wide 
requirement for at least a bachelor's deg.ree in a specific specialty, or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. Also, there are no submissions from 
the industry's professional association indicating that it has made a degree a minimum entry 
requirement. Furthermore, the Petitioner did not submit any letters or affidavits from similar firms 
or individuals in the Petitioner's industry attesting that such firms "routinely employ and recruit only 
degreed individuals." 
In support of this criterion, the Petitioner submitted copies of job announcements placed by other 
employers. However, upon review of the documents, we find that the Petitioner's reliante on the job 
announc~ments is misplaced. First, we note that some of the job postings do not appear to involve 
organizations similar to the Petitioner. For example, the Petitioner is an information technology 
firm, 10 whereas the advertising organizations include, for example, an online retailer. 
Furthermore, some of the postings appear to be for staffing agencies and/or provide little or no 
information regarding the hiring employers. The Petitioner did not supplement the record of 
proceedings to establish that these advertising organizations are similar. 
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 b<;1sis 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.11 The Petitioner 
has not sufficiently established 
that the primary duties and responsibilities of the advertised positions 
are parallel to the proffered position. 
10 
The Petitioner designated its business operations under the North American Industry Classification System code 
541511, which is for "Custom Computer Programming Services" and is described as an "industry comprise[d] of 
establishments primarily engaged in writing, modifying, testing, and supporting software to meet the needs of a 
particular customer." For additional information see https://www.census.gov/cgi-bin/sssd/naics/naicsrch. 
11 
For instance, the posting for requires a degree and 3-5 years of experience in software engineering: 
the postings for and require a degree and at least 5 years of technical 
experience; and the postings for and require a degree and 
experience with specifically listed technologies. 
8 
Matter of E-C-, Inc. 
In addition, some of the postings do not indicate that at least a bachelor's degree in a directly related 
specific specialty (or its equivalent) is required. 12 The job postings suggest, at best, that although a 
bachelor's degree is sometimes required for computer programmer positions, a bachelor's degree in 
a spec!fic specialty (or its equivalent) is not.13 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. 14 That is, not every deficit of every job posting has been addressed. 
For these reasons, it cannot be found that the advertisements support a finding that a bachelor's or 
higher degree in a specific specialty, or its equivalent, is common to the industry in parallel positions 
among similar organizations. The Petitioner has not satisfied the criterion of the first alternative 
prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
2. 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 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of the petition, the Petitioner provided a job description for the proffered position and 
information regarding its business operations. However, the Petitioner did not sufficiently develop 
relative complexity or uniqueness as an aspect of the duties of the position, and it did not identify 
12 
As discussed, the degree requirement set by the statutory and regulatory framework of the H-1 B program is not just a 
bachelor's or higher degree, but a bachelor's degree in a specific specialty that is directly related to the duties of the 
position. See section 214(i)(l)(b) ofthe Act and 8C.F.R. §214.2(h)(4)(ii). Since there must be a close correlation 
between the required "body of highly specialized knowledge" and the position, a minimum entry requirement of a degree 
in disparate fields would not meet the statutory requirement that the degree be "in the specific specialty," 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. Section 214(i)(I)(B) ofthe Act (emphasis added). 
13 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 
generally 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 estimates of error"). 
14 
The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
9 
Matter qf E-C-, Inc. 
any tasks that are so complex or unique that only a specifically degreed individual could perform 
them. 
First, the record does not credibly demonstrate exactly what the Beneficiary will do on a day-to-day 
basis such that complexity or uniqueness can even be determined. That is, while the Petitioner 
claims that the position involves focusing on "[p]rovid[ing]. senior-level analytical, design, 
development, testing, implementation, and initial production support services" and "[ d]evelop[ing] 
within the technical framework of the client," 15 the Petitioner does not demonstrate how the 
programmer analyst's duties described require the theoretical and practical application of a body of 
highly specialized knowledge such that a bachelor's or higher degree in a specific specialty, or its 
equivalent, is required to perform them. 
Further, the Petitioner specifically states that the Beneficiary will provide "senior-level" services; 
however, the Petitioner has designated the proffered position as a wage Level II on the LCA, a wage 
level that only requires a moderate understanding of the occupation, which is in contrast to this 
particular duty. The LCA submitted by the Petitioner indicates that, relative to other positions 
located within the "Computer Programmers" occupational category, the Beneficiary would perform 
only moderately complex tasks that require limited judgment. Without further evidence, the 
evidence does not demonstrate that the proffered position is so complex or unique as such a position 
falling under this occupational category would likely be classified at a higher-level, such as a Level 
III (experienced) or Level IV (fully competent) position. 16 
Furthermore, as discussed, the Petitioner has not established in the record its actual educational 
requirements for the proffered position. Further, while skills and abilities may be beneficial, or even 
essential, in performing certain duties of a programmer analyst position, the Petitioner has not 
demonstrated how an established curriculum of the related courses leading to a baccalaureate or 
higher degree in a specific specialty, or its equivalent, is required to perform the duties of the 
proffered position. 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references the 
Beneficiary's credentials as evidence that the proffered position is a specialty occupation. However, 
the test to establish a position as a specialty occupation is not the edu~ation or experience of a 
proposed beneficiary, but whether the position itself requires at least a bachelor's degree in a specific 
15 According to the Petitioner's list of job duties, these duties would amount to 40% ofthe Beneficiary's time. 
16 
The issue here is that the Petitioner's designation of this position as a Level II position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level II wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), such a 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 if that 
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 consideration but is not a substitute for a detennination 
of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
10 
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Matter of E-C-, Inc. 
specialty, or its equivalent. Here, the Petitioner did not sufficiently develop relative complexity or 
uniqueness as an aspect of the d,uties 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. Thus, it cannot 
be concluded that the Petitioner has satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.P.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 . .lvfeissner, 201 F.3d at 387-88. Were we limited solely to reviewing the Petitioner's 
claimed self-imposed requirements, any individual with a bachelor's degree could be brought to the 
United States to perform any occupation as long as the Petitioner created a token degree 
requirement. Id. 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 provided two of its own job postings, both of which require state academic 
requirements that differ from the information provided to U.S. Citizenship and Immigration 
Services. Here, it appears that the job advertisements are not consistent with the information 
provided for the proffered position. This inconsistency raises concerns about the Petitioner's actual 
academic requirements for the proffered position. 
According to the Petitioner, its business operations were established in 2000 and that it has 4 
7 
employees. In response to the RFE, the Petitioner submitted evidence relevant to nine individuals 
(specifically, copies of their degrees 17 and a few pay stubs18). The Petitioner did not state how many 
programmer analysts it currently or in the past has employed. It has only provided evidence with 
respect to nine of its employees. It cannot be determined how representative the credentials of these 
few individuals are of the Petitioner's practices over a sixteen year period. 
Further, the evidence does not establish that these individuals were hired into positions that are the 
same or similar to the one offered to the Beneficiary. For example, the Petitioner did not provide the 
job duties and day-to-day responsibilities for these individuals. The Petitioner also did not submit 
any information regarding the complexity of the job duties, supervisory duties (if any), independent 
17 
We note that all of the individuals' degrees are from foreign institutions and the Petitioner only submitted U.S. 
equivalency evaluations for three of the nine individuals. 
18 
The Petitioner also provided a letter from the to five of the nine 
individuals advising them of their H 1 B approval. 
II 
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Matter of E-C-, Inc. 
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. 
Based on a review of the pay stubs that the Petitioner provided, it appears that many of the 
individuals are paid a significantly higher salary than the one offered to the Beneficiary at $60,000 
per year. For example: = $73,008; = $82,500; = $84,000; and 
= $93,712. Thus, this strongly suggests that these individuals are employed in 
different positions than the proffered position. The Petitioner did not provide an explanation for the 
variances in the wages. 
We therefore 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). 
D. 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. 
The Petitioner asserts that the job duties of the proffered position are specialized and complex. We 
refer to our earlier comments and findings with regard to the implication of the Petitioner's 
designation ·Of the proffered position in the LCA as a Level U wage, and hence one not likely 
distinguishable by relatively specialized and complex duties. We have also reviewed the Petitioner ' s 
description of duties for the proffered position, including the Petitioner's expanded version of the 
description submitted in respol).se to the RFE that correlates to its job postings for the same position. 
While we understand that the Beneficiary must have technical knowledge in order to perform these 
duties, the Petitioner has not sufficiently explained how these duties require the theoretical and 
practical application of a body of highly specialized knowledge, and the 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 record of proceedings does not include sufficient probative 
evidence that the duties require more than technical proficiency in the computer programming field. 
The Petitioner has not demonstrated in the record that its proffered position is one with duties 
sufficiently 
specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
As the Petitioner has not established that it satisfies any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. 
12 
Matter of E-C-, Inc. 
IV. BENEFICIARY QUALIFICATIONS 
The Director also found that the Beneficiary would not be qualified to perform the duties of the 
proffered position if the job had been determined to be a specialty occupation. However, a 
beneficiary's credentials to perform a particular job are relevant only when the job is found to be a 
specialty occupation. As discussed in this decision, the proffered position does not require a 
baccalaureate or higher degree in a specific specialty, or its equivalent. Therefore, we will not 
address the Beneficiary's qualifications further. 
V. CONCLUSION 
The appeal must be dismissed because the Petitioner did not establish that the proffered position 
qualifies as a specialty occupation. 19 · 
ORDER: The appeal is dismissed. 
Cite as Matter of E-C-, Inc., ID# 420188 (AAO Aug. 10, 20 17) 
19 
Because this issue precludes approval of the petition we will not address the additional issues we have observed in our 
de novo review of this matter. 
13