dismissed H-1B Case: Computer Science

MATTEROFN-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY31,2016 
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 an 
"applications systems engineer" under the H-lB nonimmigrant classification for specialty occupations. 
See Immigration and Nationality Act (the Act)§ 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 1 10l(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, California Service Center, denied the petition. The Director concluded that the 
evidence of record is insufficient to establish that the proffered position qualifies as a specialty 
occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director's 
conclusion is erroneous. 
Upon de novo review, the appeal will be dismissed. 
I. 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. 
Maller of N-, Inc. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an 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 [(2)] 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 quality as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent ts normally the mtmmum 
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 J so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and suflicient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
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Matter of N-, Inc. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently 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. See 
Royal Siam Corp. v. Chert off, 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"). Applying this standard, US CIS regularly approves H-1 B petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-IB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
We note that, as recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. See Defensor v. Meissner, 201 F.3d at 387-88. The court held that the former Immigration 
and Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis of the requirements imposed by the entities using the beneficiary's services. !d. Such evidence 
must be sutliciently detailed to demonstrate the type and educational level of highly specialized 
knowledge in a specific discipline that is necessary to perform that particular work. 
B. The Proffered Position 
On the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner described itself as a 22-
employee software services company. The Petitioner seeks to employ the Beneficiary as an 
"applications systems engineer" from October I, 2015, to July 22, 2018, at a salary of $62,000 per 
year. The Petitioner indicated that the Beneficiary will work off-site in Michigan. 
The labor condition application (LGA) submitted to support the visa petition states that the proffered 
position corresponds to Standard Occupational Classification (SOC) code and occupation title 
15-1121, "Computer Systems Analysts," from the Occupational Information Network (O*NET). 
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(b)(6).·. 
Matter of N-, Inc. 
The LCA further states that the proffered position is a Level I, entry-level, position. The LCA lists 
the sole place of employment as the Michigan address. 
In its cover letter, the Petitioner stated that the Ben~ficiary "will be designated to primarily work at 
[the Petitioner's] End-Client's business premises located [in] MI This 
assignnient is based on [the Petitioner's] direct contract with [the End-Client]." The Petitioner then 
described the proffered position as follows (verbatim): 
[The Beneficiary] will be responsible for analyzing users' needs and overseeing 
development of framework for network analytics and enterprise business applications. 
His duties will include identifying departmental needs and making suggestions 
regarding technical direction; Designing and implementing system security and data 
assurance; Designing and developing software and testing software applications and 
systems; Developing different types of software, including computer games, business 
applications, operating. systems, network control systems, and middleware; and· 
Creating proposal documents, framing requirements and feasibility studies. 
In response to the Director's request for evidence (RFE), the Petitioner elaborated upon the duties of 
the proffered position, as well as the time spent on each duty, as follows (verbatim): 
Tasks Difficulty %Time 
Level to be 
·Spent 
1. Lead and synchronize teams of information systems professionals in 
the maturity of software and integrated information systems, process 4 30% 
control software and additional embedded software control systems. 
Provide guidance and leadership to new engineers 
2. Evaluate, troubleshoot, document, upgrade and build up maintenance 
procedures for operating systems, communications environments and 4 30% 
software 
3. Frequently work together with customer and functional colleagues in 4 10% 
addition to management 
4. Examine and select methods and procedures used for obtaining 4 10% 
solutions. Research, appraise and create technical information to 
design 
5. Develop and test automated systems, Develop data, procedure and 3 10% 
network models to optimize structural design and to assess the 
performance and consistency of designs 
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(b)(6)
,•. .. .. 
Matter of N-, Inc. 
6. Plan, design and organize the progress, installation, integration and 4 10% 
function of computer-based systems. Follow the corporation 
regulations for application implementation 
Notes on Difficulty Level 
1 Novice 
2 Some Exposure 
3 Familiarity with Computers 
4 Bachelor's 
5 Master's 
The Petitioner stated that the proffered position requires a bachelor's degree in computer science, 
electronics engineering, computer information systems, or a related field, plus a minimum of two to 
four years of related experience. 
In Support of the petition, the Petitioner submitted two Employment Agreements with the 
Beneficiary which provide the following description of duties (verbatim): 1 
[The Beneficiary] will be responsible for Engineering, design, and evaluation of new 
and current production applications systems and supporting infrastructure,Operational 
planning, design and implementation for new and updated programs, inclusive of 
effectively utilizing tier partners,Systems ·analysis and support for Internet-based 
solutions,Provide extensive troubleshooting and technical expertise in identifying 
issues that impact service delivery,Provide comprehensive troubleshooting and 
recommend fixes for application issues, including batch jobs, data store, application 
functionality and presentation layers,Provide design requirements, feedback and 
guidance· to software development teams for operational best practices,Analysis, 
stability and support of a specific subset Expedia productions systems,Operational 
support as application SME for 24x7 systems, including on call rotation 
duties,Utilizing your enterprise technical expertise to drive the improvements of 
production systems,Utilizing your support expertise to set and improve existing 
standards for system administration,such as process builds, monitoring, reporting and 
documentation. 
The Petitioner also submitted a letter from the claimed end-client stating that the Beneficiary will 
work at its business premises in Michigan as an applications systems engineer "for the project 
entitled The end-client letter lists job duties similar to those listed in the 
Petitioner's cover letter and RFE response. The same end-client letter stated that the company has 
"never recruited for [the proffered] position for less than a Bachelor's degree iri the following fields 
1 The Petitioner submitted an "amended" Employment Agreement in response to the Director's RFE which had noted 
several 
impermissible provisions relating to the LCA in the original Employment Agreement. Both Employment 
Agreements contain the same description of duties. 
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' . 
Matter of N-, Inc. 
Computer Science, Computer Applications, Information Technology, Mathematics, Business or a 
closely related field [sic]," along with at least two to three years of related experience. 
C. Analysis 
As a preliminary matter, the end-client's assertion that a bachelor's degree in "Business" is a 
sufficient minimum requirement for entry into the proffered position is inadequate to establish that 
the proposed position qualifies as a specialty occupation? 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. 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," 
does not establish the position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 
I&N Dec. 558, 560 (Comm'r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed supra, USCIS interprets 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 
posttton. Although a general-purpose business degree 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. v. Chertojf, 484 
F.3d at 147.3 Without more, a degree requirement in "Business," alone, indicates that the proffered 
position is not in fact a specialty occupation. 
2 While the Petitioner's list of acceptable degrees does not contain a degree in business, the Petitioner has not explained 
wh·y its requirements differ from the end-client's requirements. Regardless, to the extent that the Petitioner's 
descriptions differ from those provided by the end-client, we defer to the end-client's descriptions. See Defensor v. 
Meissner, 20 I F.3d at 387-88 (the petitioner-provided job duties and alleged requirements to perform those duties are 
irrelevant to a specialty occupation determination). 
3 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
!d. 
The courts and the agency consistently have stated that, although a general-purpose bachelor's degree, 
such as a business administration degree, may be a legitimate prerequisite for a particular position, 
requiring such a degree, without more, will not justifY the granting of a petition for an H-1 B specialty 
occupation visa. See, e.g., Tapis tnt 'I v: INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. 
Supp. 2d at 1164-66; cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 ([Comm'r] 1988) 
(providing frequently cited analysis in connection with a conceptually similar provision). This is as it 
should be: elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
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(b)(6)
Matter of N-, Inc. 
Moreover, it also cannot be found that the proffered position qualifies a specialty occupation because 
the Petitioner has not credibly and sufficiently demonstrated the substantive nature of the proffered 
position.4 
The evidence of record contains generalized, broad descriptions of the work to be performed by the 
Beneficiary. For instance, the "Assigned Personnel Form" signed by the Petitioner and the end­
client simply describes the "Services to be performed" as "Design, Coding and unit testing core 
components and client customization of the product." No further details about these job duties or 
what "product" the Beneficiary will work on were provided in the Assigned Personnel Form. In 
fact, the Assigned Personnel Form. contains discrepancies such as listing the Beneficiary's service 
fee as "705$/hr" (for 40-45 hours of work per week for three years) and his end-date as October 12, 
2018.
5 
We thus question whether this document constitutes an accurate, legally binding contract 
between the Petitioner and the end-client for the Beneficiary's services, as claimed.6 
"[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective 
evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. !d. at 591-92. "Doubt cast on any aspect of the petitioner's proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition." Id. at 591. 
The end-client letter also describes the proffered duties in broad terms, such as "[l]ead and 
synchronize teams of information systems professionals in the maturity of software and integrated 
information systems, process control software and additional embedded software control systems" 
and "[f]requently work together with customer and functional colleagues in addition to 
management." There is no further explanation of what specific tasks the Beneficiary will perform 
(i.e., what is meant by the vague phrases "[l]ead and synchronize teams" and "[flrequently work 
together"), and how these duties specifically relate to the project. Notably, the 
evidence of record does not contain a detailed explanation of the project, such 
as the nature, complexity, and length of this particular project. 
4 The Cal ifomia Secretary of State website indicates that the Pet.itioner' s corporate status has been suspended. That is, 
the Petitioner's powers, rights and privileges, including 
the right to use its corporate name in California, were suspended. 
See attached print-outs. The Petitioner's corporate status raises questions regarding whether the Petitioner's offer of 
employment to the Beneficiary is bonafide. 
5 The prevailing wage rate for the proffered position is $52,603 per year, or $25.29 per hour. Although the Assignment 
Personnel Form does not list the Beneficiary's total compensation, it is evident that it cannot be $705 per hour. 
Furthermore, the· Petitioner requested a validity period ending on July 22, 2018. The Petitioner did not request the 
maximum three years, which would have ended on September 30, 2018. 
6 This document also states that the Beneficiary 's "Primary work Location is Michigan." As will be 
discussed infra, the use of the word "Primarily" is problematic and denotes that the Beneficiary may also be assigned to 
perform work other than at the stated premises . 
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(b)(6)
Matter of N-, Inc. 
Furthermore, the job descriptions provided by the end-client differ from some of the job descriptions 
provided by the Petitioner.
7 
For example, in its cover letter, the Petitioner described 'the proffered 
duties as including "[d]eveloping different types of software, including computer games." The 
Petitioner has neither explained how the job duty of developing computer games is consistent with 
other job duties as described by the end-client, nor how this job duty specifically relates to the 
project. 
As another example, the Petitioner's Employment Agreements with the Beneficiary Jist the job duty 
of "[a]nalysis, stability and support of a specific subset productions systems [sic]." The 
Petitioner has not explained how this job duty involving a subset of' productions systems" 
is related to the project. We note that the Petitioner's Employment 
Agreements do not state the Beneficiary's full name, thus leading us to further question the 
documents' overall credibility. 
The Petitioner states that the Beneficiary will serve as a subject matter expert or "SME" for certain 
systems. The Petitioner and the end-client both list duties for the Beneficiary indicating that he will 
oversee other computer professionals, such as "[l]ead and synchronize teams of information systems 
professionals" and "[p ]rovide guidance and leadership to new engineers." In contrast, the Petitioner 
designated the proffered position as a Level I (entry) position.8 In designating the proffered position 
at a Level I wage rate, the Petitioner has indicated that the proffered position is a comparatively low, 
entry-level position relative to others within the occupation. 9 That is, in accordance with the 
7 
While petitioner-provided job duties are generally outside the scope of consideration for establishing whether the 
position qualifies as a specialty occupation, we are considering the Petitioner 's descriptions of the duties here for the 
purpose of highlighting the inconsistencies in the evidence of record. See Defensor v. Meissner, 20 l F.3d at 387-88 
(stating that the petitioner-provided job duties and alleged requirements to perform those duties were irrelevant to a 
specialty occupation determination where the nurses in that case would provide services to the end-client hospitals and 
not to the petitioning staffing company). 
8 A Levell wage rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These employees perform routine tasks that require limited, if 
any, exercise ofjudgment. The tasks provide experience and familiarization with the employer's 
methods, practices, and programs. The employees may perform higher level work for training and 
developmental purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored and reviewed for 
accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Levell wage should be considered. 
See 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 
9 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is a 
higher-level position compared to other positions within the same occupation. Neverthele ss, 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 
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Matter of N-, Inc. 
relevant DOL explanatory information on wage levels, this wage rate indicates that the Beneficiary 
is only required to have a basic understanding of the occupation and will perform routine tasks that 
require limited, if any, exercise of judgment. . See 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_ll_2009.pdf The Petitioner's designation of the proffered position as a Level I, 
entry-level position is inconsistent with the stated job duties, and further precludes us from 
understanding the substantive nature of the proffered position. 
Finally, we note the vague statements by the Petitioner and the end-client regarding the 
Beneficiary's "primary" work duties and location. For instance, the Assigned Personnel Form lists 
the Beneficiary's "Primary work location" as the end-client's Michigan premises. The Petitioner 
states in its cover letter that the Beneficiary "will be designated to primarily work at [the 
Petitioner's] End-Client's business premises." However, the use of the words "primary" or 
"primarily" denotes that the Beneficiary may also be assigned to perform work at other, unspecified 
locations, and that he may be assigned to perform job duties other than those disclosed in the 
petitiOn. The Petitioner's Employment Agreements with the Beneficiary contain other similar 
provisions indicating that the Beneficiary may be assigned to perform undisclosed work, such as that 
the Beneficiary's "duties shall be rendered at [Petitioner's] business premises or at such other places 
as the [Petitioner] may require" and that he "shall also perform such other duties in the ordinary 
course of business as performed by other persons in similar such positions, as well as such other 
reasonable duties as may be assigned from time to time by the [Petitioner]." When considered as a 
whole, the evidence of record lacks a sufficient, detailed explanation of all the work the Beneficiary 
will be assigned to perform during the entire validity period requested, including the location(s) of 
such work and the specific job duties to be performed. 
For all of the above reasons, we find the evidence of record insufficient to demonstrate the 
substantive nature of the proffered position and its constituent duties. Consequently, we are 
precluded from 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 (I) the normal 
minimum educational requirement for the particular position, which is the focus of criterion I ; 
(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. 
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. 
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Matter of Nc, Inc. 
Accordingly, as the evidence does not satisfy any of the criteria at 8 C.F.R. § 2l4.2(h)(4)(iii)(A), it 
cannot be found that the proffered position qualifies as a specialty occupation. The appeal will be 
dismissed and the petition denied for this reason. 
II. CONCLUSION 
The Petitioner has not established that the proffered position, more likely than not, qualifies as a 
specialty occupation. In visa petition proceedings, it is the Petitioner's burden to establish eligibility 
for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter o.fOtiende, 26 
I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of N-, Inc., ID# 16767 (AAO May 31, 20 16) 
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