dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 27,2017 
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-lB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 11 Ol(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 of highly 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 the proffered position is a specialty occupation. 
On appeal, the Petitioner asserts that the Director erred in the decision. 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: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
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Matter of A-S-, Inc. 
(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. 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). 
II. PROFFERED POSITION 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as a "programmer analyst."' 
In its letter of support, the Petitioner stated that the Beneficiary would work on a project for its client 
located at m Florida. 
Thereafter, in response to the Director's request for evidence (RFE), the Petitioner stated that the 
Beneficiary "is assigned to work on a project for [hereinafter which will be 
performed at our office premises." In addition, the Petitioner provided the following job duties for 
the position: 
Analysis: 30% of the time 
• Write, analyze, review, and rewrite programs, using workflow chart and 
diagram, and applying knowledge of computer capabilities, subject matter, and 
symbolic logic 
• Consult with managerial, engineering, and technical personnel to clarify 
program intent, identify problems, and suggest 
changes 
• Perform systems analysis and programming tasks to maintain and control the 
use of computer systems software as a systems programmer analyst 
1 The Petitioner has provided inconsistent information regarding the Beneficiary's rate of pay. In the H-1 B petition and 
the labor condition application (LCA), the Petitioner stated that the Beneficiary would be paid $60,000 per year. 
However, the employment offer letter states the Beneficiary's salary as $62,000 per year. The Petitioner did not provide 
an explanation for this inconsistency. 
2 
Matter of A-S-, Inc. 
• Consult with and assist computer operators or system analysts to define and 
resolve problems in running computer programs 
• Work from specifications drawn up by software developers or other IT 
professionals 
• Analyzing requirements 
• Determining technical approach and technical design 
• Determining effort and providing deliverables dates for projects and 
enhancement requests 
• Collaborating with Technology team member to design and develop middle­
tier and some web backend systems 
• Researching and prototyping new technologies and providing 
recommendations for application improvement 
• Assist software developers by analyzing user needs and designing software 
solutions 
• Understand and implement the requirements ':"ithout overshooting the 
deadlines 
• Identifying the limitations and analyzing alternative ways to address 
requirements and recommend the most effective and efficient solution 
. Development and Design: 50% of the time 
• Creating efficient design and developing user interaction screens using CSS#, 
JavaScript, JQuery, AJAX and JSON 
• Design and develop Bash shell scripts that processes input data files through 
generating delta Master files and ftp'ing to downstream systems for 
consumption 
• Responsible for creating efficient design and developing user interaction 
screens using HTML5 
• Writing and modifying procedures, Queries, Views and Trippers and calling 
them from JavaScript using the location application framework 
• Work on Git hub to maintain the repository and used for the Version Control to 
track checkins and rollback code 
• Use Twitter Bootstrap framework for developing customized and fully 
responsive for various screen sizes 
• Research and prototype new technologies and provide recommendations for 
application development 
• Write, update, and maintain computer programs or software packages to 
handle specific jobs such as tracking inventory, storing or retrieving data, or 
controlling other equipment 
• Perform or direct revision, repair, or expansion of existing programs to 
increase operating efficiency or adapt to new requirements 
3 
Matter of A-S-, Inc. 
• Compile and write documentation of program development and subsequent 
revisions, inserting comments in the coded instructions so others can 
understand the program 
• Prepare detailed workflow charts and diagrams that describe input, output, and 
logical operation, and convert them into a series of instructions coded in a 
computer language 
• Create, modify, and test the code, forms, and script that allow computer 
applications to run 
• Develop and write computer programs to store, locate, and retrieve documents, 
data, and information 
• Designing technical specifications, developing and maintain middle tier, 
analyzing and troubleshooting 
• Documenting product functionality 
• Supporting QA and deployment activities 
• Troubleshooting production defects 
• Develop web applications for different projects 
• Work from specifications drawn up by software developers or other 
individuals 
Testing: 20% of the time 
• Correct errors by making appropriate changes and rechecking the program to 
ensure that the desired results are produced 
• Conduct trial runs of programs and software applications to be sure they will 
produce the desired information and that the instructions are correct 
• Creation, Modification and testing of the code, forms and script that allow 
computer applications to run 
• Coordinate project deliverables with project team including requirements 
definition, application design, development and testing 
• Development and performance improvement through code fix and testing on 
existing applications 
Miscellaneous: as needed 
• May assist software developers py analyzing user needs and designing 
software solutions 
III. 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. Specifically, the record does not establish that 
4 
.
Matter of A-S-, Inc. 
the job duties require an educational background, or its equivalent, commensurate with a specialty 
. 2 
occupatiOn. 
A. Job Location 
As a preliminary matter, we find that the Petitioner has provided inconsistent information regarding 
the Beneficiary's place of employment. For instance, the Petitioner provided the following 
information on the H-IB petition: 3 
3. Address where the beneficinry(ie<;) will work if different from address in Part 1. 
Street Nmnber and Name 
4. Did you include an itinerary with the petition? 
5. Will the beneficiary(ies) work for you off-site at another company or organization's location? 
I. TI1e beneficiary of this petition will be assigned to work at an off-site location for all or pmt of the 
period for which H-IB classil:ication sought. 
If no. do not complete Item Numbers 2. and 3. 
2. Placement of the beneficimy otT-site during the pe1iod of employment will comply \Vith the statutoty 
and regulat01y requirements of the· H-1 B nonimmigrant classification. 
3. TI1e beneficimy will be paid the higher of the prevailing m actual wage at any and all ofT-site locmions. 
[8] Yes 
IX Yes 
~!Yes 0No 
As noted above, the Petitioner initially stated that the Beneficiary would work off-site m 
Florida. 
No 
No 
The Petitioner also provided a labor condition application (LCA) with the H-IB petition, which lists 
the Beneficiary's place of employment as m New Jersey (the 
Petitioner's business address), and Florida. · 
In response to the RFE, the Petitioner stated the following: 
The Beneficiary is assigned to work on a project for [hereinafter 
which will be performed at our office premises. We included office location 
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 Although the Petitioner indicated on this form that it included an itinerary with the initial filing, we observe that the 
Petitioner did not submit an itinerary until it responded to the RFE. 
5 
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Matter of A-S-, Inc. 
in the LCA in the rare event the Beneficiary needs to visit the Client for on-site 
implementation or on-site training of the program. 
However, on appeal, the Petitioner states the following: 
At the time of filing, it was determined that the Petitioner's employees would be 
working at the location. However with the number of petitions which were 
accepted for processing and subsequently approved, the client and the Petitioner 
determined that it would be more beneficial for the Petitioner to have all of this 
employees assigned to this project work from the Petitioner's office instead of the 
location. 
The Petitioner did not provide an explanation for the reason its response in the RFE is inconsistent 
with its statement on appeal as to the Beneficiary's work site location. 
B. Position Requirements 
In addition, the Petitioner has provided inconsistent information regarding the m1mmum 
requirements for the proffered position. The Petitioner initially stated that the proffered position 
requires a bachelor's degree in science, engineering or computer science. However, in response to 
the RFE, the Petitioner stated that the position requires a bachelor's degree in computer science, 
engineering,· computer information systems, information technology, technology, computer 
applications, or a related quantitative discipline. The Petitioner did not provide an explanation for 
the variances in the requirements. 
C. Job Description 
Moreover, a crucial aspect of this matter is whether the Petitioner has sufficiently described the 
duties of the proffered position such that we may discern the nature of the position and whether the 
position actually requires the theoretical and practical application of a body of highly specialized 
knowledge attained through at least a baccalaureate degree in a specific discipline. We find that the 
Petitioner has not done so. 
For example, the Petitioner's job description submitted in response to the RFE is recited virtually 
verbatim from Occupational Information Network (O*NET) OnLine Summary Report's list of 
duties associated with a computer programmer. 4 Providing job duties for a proffered position from 
O*NET is generally not sufficient for establishing H-lB eligibility. That is, while this type of 
description may be appropriate when defining the range of duties that may be performed within an 
occupational category, it cannot be relied upon by the Petitioner when discussing the duties attached 
to specific employment for H-lB approval as this type of generic description fails to adequately 
4 For additional information, see O*NET OnLine, available at https://www.onetonline.org/link/summary/ 15-1131.00 
(last 
visited July 26, 20 17). 
6 
Matter of A-S-, Inc. 
convey the substantive work that the Beneficiary will perform on a day-to-day basis. In establishing 
a position as qualifying as a specialty occupation, a petitioner must describe the specific duties and 
responsibilities to be performed by a beneficiary in the context of its business operations, 
demonstrate that a legitimate need for an employee exists, and substantiate that it has H-lB caliber 
work for the beneficiary for the period of employment requested in the petition. 
Furthermore, although the Petitioner provides a number of service agreements and statements of 
work (SOWs) between itself and various clients, the Petitioner has not specifically explained the 
duties and role of the proffered position in the context of any of these projects or information about 
the Beneficiary (e.g., name and job title) are not mentioned in these documents. We must review the 
actual duties the Beneficiary will be expecte.d to perform to ascertain whether those duties require at 
least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as 
a specialty occupation. To accomplish that task in this matter, we must analyze the actual duties in 
conjunction with the specific project(s) to which the Beneficiary will be assigned. To allow 
otherwise, results in generic descriptions of duties that, while they may appear (in some instances) to 
comprise the duties of a specialty occupation, are not related to any actual services the Beneficiary is 
expected to provide. 
In addition, the SOWs indicate that the services will end prior to the end of the requested H-1 B 
validity 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 tiling. 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. 
Here, the Petitioner has not provided sufficient details regarding the nature and scope of the 
Beneficiary's employment or substantive evidence regarding the actual work that the Beneficiary 
would perform. Without a meaningful job description, the record lacks evidence sufficiently 
concrete and informative to demonstrate that the proffered position requires a specialty occupation's 
level of knowledge in a specific specialty. The tasks as described do not communicate: ( 1) the 
actual work that the Beneficiary would perform; (2) the complexity, uniqueness or specialization of 
the tasks; or (3) the correlation between that work and a need for a particular level of knowledge in a 
specific specialty. 
As the Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, this 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 
complex~ty 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 
Matter of A-S-, Inc. 
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. 
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 qualifies as a specialty 
occupation pursuant to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
D. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), 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. 5 
On the LCA,6 the Petitioner designated the proffered position under the occupational category 
"Computer Programmers" corresponding to the Standard Occupational Classification code 15-1131.7 
Thus, we reviewed the Handbook's subchapter entitled "How to Become a Computer Programmer," 
which 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 does not support the Petitioner's assertion that a 
bachelor's degree is required for entry into this occupation. 
In the instant matter, the Petitioner has not provided 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). 
5 All of our references are to the 2016-17 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. 
6 
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 qualifications who are performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 l&N Dec. 542, 545-546 (AAO 20 15). 
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 Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the 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://flcdatacenter.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. 
.
Matter of A-S-, Inc. 
E. 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 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. Mi.nn. 
l999)(quotingHird/BlakerCorp. v. Sava, 712F. 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 another authoritative source, reports a requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent. We incorporate by reference the previous discussion on the 
matter. 
In support of this criterion, the Petitioner provided copies of job announcements placed by other 
employers. However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements 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 a 22-person, information 
technology consulting firm, whereas the advertising organizations include: 
• - an auto and home insurance company; 
• - a multi-industry, capital goods manufacturer with over 115 
manufacturing, distributions, and service facilities in 24 countries; 
• -
a health care system with 22 hospitals; and 
• - a transportation services provider. 
Furthermore, 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. 
9 
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Matter of A-S-, Inc. 
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 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, experienced employment than the proffered position.8 
Some of the postings do not include the duties and responsibilities for the advertised positions. 
Thus, it is not possible to determine important aspects of the jobs, such as the day-to-day 
responsibilities, complexity of the·job duties, supervisory duties (if any), independent judgment 
required or the amount of supervision received. Therefore, the Petitioner has not sufficiently 
established that the primary duties and responsibilities of the advertised positions are parallel to the 
proffered position. 
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.9 The job postings suggest, at best, that although a 
bachelor's degree is sometimes required for programmer analyst positions, a bachelor's degree in a 
spec[fic specialty (or its equivalent) is not.10 
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. 11 Th~t is, not every deficit of every job posting has been addressed. 
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 
8 For instance, the advertisement for requires a degree and three to five years of 
software development experience. In addition, the posting for requires a degree and three to five years of 
experience in development and implementation of technical specifications for applications. However, the Petitioner 
indicated that the proffered position is an entry-level position (on the LCA). 
9 
As discussed, the degree requirement ~et 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) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
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 
generally Earl Babbie, The Practice ofSocial 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"). 
11 
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. 
10 
Matter of A-S-, Inc. 
among similar organizations. Thus, the Petitioner has not satisfied the first alternative prong of 
8 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. 
While the Petitioner may believe that the position meets this prong of the regulations, we note, 
however, the record lacks evidence supporting the Petitioner's claim. For example, as discussed, the 
Petitioner designated the proffered position as an entry-level position within the occupational 
category by selecting a Level I wage.12 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 an 
individual with bachelor's degree or higher in a specific specialty, or its equivalent. 13 While related 
courses may be beneficial in performing certain duties of the position, the Petitioner has not 
demonstrated how an established curriculum of 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 his 
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). 
12 
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 an advanced 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 relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
13 
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 an associate's degree is 
acceptable for these positions. 
II 
Matter of A-S-, Inc. 
F. 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. 
In support of this criterion, the Petitioner submitted the degree certificates and Forms W-2, Wage 
and Tax Statement, of several individuals. However, the evidence that the Petitioner provided does 
not establish that these individuals were hired into programmer analyst positions that are the same or 
similar to the one offered to the Beneficiary. Based on a review of the Forms W-2, it appears that 
several of the individuals were paid a significantly higher salary than the one offered to the 
Beneficiary and some were paid less than the salary offered to the Beneficiary. Thus, this strongly 
suggests that they were employed in different positions. The Petitioner did not provide an 
explanation for the variances in the wages. 
Further, 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 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. 
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. Therefore, the Petitioner has not satisfied the third criterion of 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
G. 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. 
In the instant case, 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 
generally described 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. 
Upon review of the totality of the record, the Petitioner has not established that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 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). 
12 
Matter of A-S-, Inc. 
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. 
IV. BENEFICIARY'S QUALIFICATIONS 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need 
not fully address other issues evident in the record. That said, we wish to identify an additional issue 
to inform the Petitioner that this matter should be addressed in any future proceedings. 14 
Specifically, the Petitioner did not submit an evaluation of the Beneficiary's foreign degree or 
sufficient evidence to establish that his degree is equivalent to a U.S. bachelor's degree in a specific 
specialty. As such, since evidence was not presented that the Beneficiary has at least a 'U.S. 
bachelor's degree in a specific specialty, or its equivalent, the petition could not be approved even if 
eligibility for the benefit sought had been otherwise established. 
V. CONCLUSION 
For the reasons discussed above, the Petitioner has not established eligibility for the benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-S-, Inc., ID# 547055 (AAO July 27, 2017) 
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In reviewing a matter de novo, we may identify additional issues not addressed in the Director's decision. See Spencer 
Enterprises, Inc. v. United States, 229 F. Supp. 2d I 025, I 043 (E. D. Cal. 200 I), affd, 345 F.3d 683 (9th Cir. 2003) 
("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
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