dismissed H-1B Case: Computer Science

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U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: EAC 06 151 50565 Office: VERMONT SERVICE CENTER Date: UP 0 7 2007
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(H)(i)(b)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned
to the office that originally decided your case. Any further inquiry must be made to that office.
Robert P. Wiemann, Chief
Administrative Appeals Office
EAC 06 151 50565
Page 2
DISCUSSION: The director of the Vermont Service Center denied the nonimmigrant visa petition and the
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petition will be denied.
The petitioner is engaged in the pawning of jewelry and household goods. It seeks to employ the
beneficiary as an application programmer and advertising manager. The petitioner endeavors to employ
the beneficiary in the nonimmigrant classification as a worker in a specialty occupation pursuant to section
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. § lI01(a)(15)(H)(i)(b).
The director denied the petition on June 15, 2006, concluding that the petitioner failed to establish that the
proposed position qualifies for classification as a specialty occupation.
The record of proceeding before the AAO contains: (1) the Form 1-129 and supporting documentation,
received on April 26, 2006; (2) the director's request for additional evidence, dated May 3, 2006;
(3) counsel's response to the director's request for evidence and supporting documentation, received on
June 1,2006; (3) the director's denial letter, dated June 15,2006; and (4) the Form 1-290B, received on
July 13, 2006, and supporting documentation. The AAO reviewed the record in its entirety before
reaching its decision.
The issue before the AAO is whether the petitioner's proffered position qualifies as a specialty
occupation. To meet its burden of proof in this regard, the petitioner must establish that the job it is
offering to the beneficiary meets the following statutory and regulatory requirements.
Section 2I4(i)(I) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(1) defines the term
"specialty occupation" as one that requires:
(A) theoretical and practical application of a body of highly specialized knowledge,
and
(B) attainment of a bachelor's or higher degree in the specific specialty (or its
equivalent) as a minimum for entry into the occupation in the United States.
The term "specialty occupation" is further defined at 8 C.F.R. § 2I4.2(h)(4)(ii) as:
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
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. § 2I4.2(h)( 4)(iii)(A), to qualify as a specialty occupation, the position must meet one
of the following criteria:
EAC 06 151 50565
Page 3
(1) A baccalaureate or higher degree or its equivalent is normally the minimum
requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel positions among
similar organizations or, in the alternative, an employer may show that its
particular position is so complex or unique that it can be performed only by an
individual with a degree;
(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties is so specialized and complex that knowledge
required to perform the duties is usually associated with the attainment of a
baccalaureate or higher degree.
Citizenship and Immigration Services (CIS) interprets the term "degree" in the above criteria to mean not
just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the
proffered position.
To determine whether a particular job qualifies as a specialty occupation, CIS 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. CIS must examine the ultimate employment of
the alien, and determine whether the position qualifies as a specialty occupation. Cf Defensor v.
Meissner, 201 F. 3d 384 (5 th Cir. 2000). The critical element is not the title of the position nor 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.
The petitioner states that it is seeking the beneficiary's services as an application programmer and
advertising manager. The petitioner submitted a letter, dated March 17, 2006, which described the
beneficiary's proposed duties as follows:
• Be able to communicate in both Spanish and English.
• Design a computer system that will produce accurate inventory controls for
merchandise, pawned items, human resource records, vendor's lists, client's history,
pawn deposits, overdue deposits and other reports that will facilitate the decision
making process.
• Produce reports on a daily basis to be submitted to the Sheriff s Department as well as
making sure of investigating prospect [sic] employee with a background check. In
addition, the security equipment such as, but not limited to, cameras, videos and video
tapes, must be carefully maintained.
• Computer equipment is to be updated constantly to keep up with cutting edge
technology.
• Supervise employees and maintain motivational incentive programs that will
contribute to the development of a stable work place.
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• Reach target sales goals and further advance marketing planning by targeting both the
established and new residents to the area.
The petitioner indicated that it required a candidate with "at least 10 years of experience in the Data
Management and Programming Industry."
The director determined that the petitioner had submitted insufficient evidence to process the petition and
requested that the petitioner submit additional information and documentation in support of the petition.
In response to the director's request for evidence, the petitioner submitted an advisory opinion report from
the Global Education Group stating that the proposed position would require an applicant to hold a
minimum of a u.s. Bachelor 's Degree in Systems Engineering , Computer Engineering or a related field ,
awarded by a regionally accredited university in the United States or foreign equivalent.
In addition , the petitioner, in a letter dated May 17, 2006 , provided a detailed list of duties and
responsibilities for the proposed position as follows:
1. Software Design: The most important duty for the Applications Programmer's position
is to develop and design a software with a secure and reliable database, tailored to fit the
needs of the business. In order to do so, [the beneficiary] must program as many tables ,
queries and macros as described below in the programming language of FRONTRAN IV,
which is an unusual language. The purpose to use FRONTRAN IV is to ad[d] security to
the data, since not many people are familiar with it. In addition , the Applications
Programmer must then convert the records to a friendlier user program, MICROSOFT
ACCESS in order to facilitate training to the end user , including but not limited to the
sales associates. The tables must be linked [to] one another in order to make data storage
and search easier and at the same time eliminating data re-entering . The Applications
Programmer will also link the MICROSOFT ACCESS database to related programs such
as MICROSOFT EXCELL and MICROSOFT WORD with the purpose of producing
professional statistical reports as described below. The software design will take
approximately 95% of [the beneficiary's] time on the first stage , while the bulk of the
software is designed. After, in the second stage, the software will need regular
maintenance and updating in order to continue to adapt to the necessities of the business.
350/0 of the Programmer's time will be required at this stage. On a third stage, training of
the software will be mandatory for new employees, taking up to 50% of the
Programmer 's time.
* * *
2. Periodic Reports
a. Sheriff Department: reports with all pawn activity must be submitted on a daily
basis to Catherine Sierra , assigned officer at the Winter Haven Sheriffs Office.
The amount of time dedicated to this task will be 50/0 unless special attention is
EAC 06 151 50565
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required to a specific issue, in which case the amount of time required will be
higher.
b. Statistical Reports: Collection of data from the software database will be
detrimental to the proper administration of the Pawn Shop. Statistical reports
will be necessary for the management decision making process in which [the
beneficiary], as the manager of the store, will be involved. Since statistical
reports are a vital part of the business, more time will be spent on their careful
preparation. [The beneficiary] shall spend a total of 200/0 of his time on the
report preparing task.
1. Marketing Decisions: A meticulous study of the clientele will
facilitate marketing decisions as to what specific markets to
target and the proper media to be used in order to capture such
market.
2. Merchandising: Statistic reports will also indicate as to the kind
of merchandise being pawned and sold and will allow important
decision making. For example: the weekly statistical report will
come in handy when purchasing items such as jewelry. It will
indicate the amount of money that can be spent on each item as
well as the estimate tum over time that will be expected. The
tum over time will be important to determine the investment
return ratios.
3. Security Equipment: Safety is a primary concern in our company; the Applications
Programmer will be responsible for caring and maintaining all security equipment such
as, but not limited to proper functioning of eight (8) security cameras. Verification of
proper recordation of activity in the store, proper storage and maintenance of video tapes
and back up drives. The amount of time dedicated to this task will be no more than 10%.
4. Employee Supervision: [The beneficiary] will be responsible for all the employees
working in the store and is to report to the Board of Directors. As the Marketing
Manager, [the beneficiary] will be in charge of motivating the sale force, and designing
sales programs that will entice the abilities of his sales team ....
5. Training: As the manager, the applicant is required to train all new employees in the
following fields: The amount of time required for this task will vary according to the
number of new employees.
a. Software Usage
b. Store Procedures
c. Security Procedures
d. Customer Service
e. Pawn Shop Etiquette
f. Bank Deposits
g. Cash Handling
6. Marketing: Besides the statistical studies described above, the Marketing manager will
also need to contact the local media to place the ads, and work closely to properly design
market specific ads. [The petitioner] is located within a niche of immigrants and it is the
Marketing Manager's responsibility to create appealing ads for this market using
EAC 06 151 50565
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programs such as PHOTOSHOP and MICROSOFT WORD PUBLISHER. In addition,
as a marketing strategy, [the beneficiary] is to maintain good relations with the local
Chamber of Commerce. [The petitioner] plans to select local teams and donate uniforms
to become part of the community ....
The director denied the petition on June 15, 2006, concluding that the proffered position is not a specialty
occupation.
On appeal, counsel states the petitioner has overcome the objections of CIS. According to counsel, the
proposed position is complex and it requires a person with a bachelor's degree.
Upon review of the record, the petitioner has established none of the four criteria outlined in
8 C.F.R. § 214.2(h)(4)(iii)(A). Therefore, the AAO finds that the proffered position is not a specialty
occupation.
As a preliminary matter, the AAO notes that the petitioner added additional duties to its job description
for the position in its May 17, 2006 response to the director's request for additional evidence. While the
initial job description focused on designing a "computer system that will produce accurate inventory
controls for merchandise, pawned items, human resource records, vendor's lists, client's history, pawn
deposits, overdue deposits and other reports that will facilitate the decision making process," and
marketing, the new job description set forth in the response added significant new duties. For example,
under the new job description, the beneficiary is indicated as the store manager, marketing manager and
the applications programmer. The job description further stated that the beneficiary will be responsible
for "all the employees working in the store." The beneficiary will also train all new employees in
"software usage, store procedures, and security procedures." Thus, it appears from the response to the
director's request for evidence, that the beneficiary will be the computer programmer, marketing manager
and store manager. The AAO finds that these changes were not mere clarification but rather constituted a
material alteration of the petition as originally filed.
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for
the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to a request for
evidence, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title
or its associated job responsibilities. The petitioner must establish that the position offered to the
beneficiary when the petition was filed is a specialty occupation. See Matter of Michelin Tire,
17 I&N Dec. 248, 249 (Reg. Comm. 1978). If significant changes are made to the initial request for
approval, the petitioner must file a new petition rather than seek approval of a petition that is not supported by
the facts in the record. The information provided by the petitioner in its response to the director's request
for further evidence did not clarify or provide more specificity to the original duties of the position, but
rather added new generic duties to the job description. Therefore, the analysis of this criterion will not
consider the managerial duties added in response to the director's request for evidence.
In determining whether a proposed position qualifies as a specialty occupation, CIS looks beyond the title
of the position and determines, from a review of the duties of the position and any supporting evidence,
whether the position actually requires the theoretical and practical application of a body of highly
EAC 06 151 50565
Page 7
specialized knowledge, and the attainment of a baccalaureate degree in a specific specialty, as the
minimum for entry into the occupation as required by the Act. The AAO routinely consults the
Department of Labor's Occupational Outlook Handbook (the Handbook) for its information about the
duties and educational requirements of particular occupations. In reviewing the 2006-2007 edition of the
Handbook, the AAO finds that the duties and responsibilities of the proposed position are encompassed
within the Handbook's entry of (l) computer systems analysts, and (2) advertising, marketing,
promotions, public relations and sales managers as discussed below.
In its discussion of the duties of computer systems analyst, the 2006-2007 edition of the Handbook states
the following:
All organizations rely on computer and information technology to conduct business and
operate more efficiently. The rapid spread of technology across all industries has
generated a need for highly trained workers to help organizations incorporate new
technologies. The tasks performed by workers known as computer systems analysts
evolve rapidly, reflecting new areas of specialization or changes in technology, as well as
the preferences and practices of employers.
Computer systems analysts solve computer problems and apply computer technology to
meet the individual needs of an organization. They help an organization to realize the
maximum benefit from its investment in equipment, personnel, and business processes.
Systems analysts may plan and develop new computer systems or devise ways to apply
existing systems' resources to additional operations. They may design new systems,
including both hardware and software, or add a new software application to harness more
of the computer's power. Most systems analysts work with specific types of systems-for
example, business, accounting, or financial systems, or scientific and engineering
systems-that vary with the kind of organization. Some systems analysts also are known
as systems developers or systems architects.
The Handbook's discussion regarding the duties of advertising, marketing, promotions, public relations,
and sales mangers also relates to the proposed position, as follows:
The objective of any firm is to market and sell its products or services profitably. In small
firms, the owner or chief executive officer might assume all advertising, promotions,
marketing, sales, and public relations responsibilities. . . . Advertising, marketing,
promotions, public relations, and sales managers coordinate the market research,
marketing strategy, sales, advertising, promotion, pricing, product development, and
public relations activities.
* * *
Marketing managers develop the firm's marketing strategy in detail. With the help of
subordinates, including product development managers and market research managers,
they estimate the demand for products and services offered by the firm and its
EAC 06 151 50565
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competitors. In addition, they identify potential markets-for example, business firms,
wholesalers, retailers, government, or the general public. Marketing managers develop
pricing strategy to help firms maximize profits and market share while ensuring that the
firm's customers are satisfied. In collaboration with sales, product development, and
other managers, they monitor trends that indicate the need for new products and services,
and they oversee product development. Marketing managers work with advertising and
promotion managers to promote the firm's products and services and to attract potential
users.
Therefore, based upon its reading of the Handbook, the AAO concludes that the duties of the proposed
position, as described by the petitioner in its letter of support, combines the duties of two occupational
groupings, described in the Handbook: (l) computer systems analysts, and (2) advertising, marketing,
promotions, public relations and sales managers. The majority of the duties proposed for the beneficiary
are encompassed within these two groupings. Having made such a determination, the AAO next turns to
the Handbook to determine whether these occupations normally require applicants for employment to
have the minimum of a baccalaureate or higher degree, or its equivalent, in a specific field.
The Handbook reports the educational requirements for the position of computer systems analyst as
follows: "while there is no universally accepted way to prepare for a job as a systems analyst, most
employers place a premium on some formal college education." The fact that employers are placing a
"premium" on obtaining a bachelor's degree is not synonymous with the standard imposed by the
regulation of normally requiring a bachelor's degree, or its equivalent.
With respect to the training required for the marketing duties, the Handbook states, "a wide range of
educational backgrounds is suitable for entry into advertising, marketing, promotions, public relations,
and sales managerial jobs, but many employers prefer those with experience in related occupations plus a
broad liberal arts background." The Handbook indicates that most marketing manager positions are filled
on the basis of experience (most positions "are filled by promoting experienced staff or related professional
personnel"). Moreover, the fact that some employers "prefer" a degree or that individuals possessing degrees
"should have the best job opportunities" does not rise to this criterion's standard of employers normally
requiring at least a bachelor's degree or its equivalent in a specific specialty. As such, marketing managers
do not qualify as specialty occupations under the first criterion.
For these reasons, the AAO finds that the position does not qualify as a specialty occupation on the basis
ofa degree requirement under the first criterion set forth at 8 C.F.R. § 214.2(h)(4)(iii)(A).
The AAO now turns to a consideration of whether the petitioner, unable to establish its proposed position
as a specialty occupation under the first criterion set forth at 8 C.F.R. § 214.2(h)(iii)(A), may qualify it
under one of the three remaining criteria: a degree requirement as the norm within the petitioner's
industry or the position is so complex or unique that it may be performed only by an individual with a
degree; the petitioner normally requires a degree or its equivalent for the position; or the duties of the
position are so specialized and complex that the knowledge required to perform them is usually associated
with a baccalaureate or higher degree.
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Page 9
The proposed position does not qualify as a specialty occupation under either prong of
8 C.F.R. § 214.2(h)( 4)(iii)(A)(2).
The first prong of this regulation requires a showing that a specific degree requirement is common to the
industry in parallel positions among similar organizations. To meet the burden of proof imposed by the
regulatory language, a petitioner must establish that its degree requirement exists in positions that are parallel
to the proffered position and found in organizations similar to the petitioner.
The petitioner submitted an advisory opinion report from the Global Education Group indicating that the
proposed position would require an applicant to hold a minimum of a U.S. Bachelor's Degree in Systems
Engineering, Computer Engineering or a related field, awarded by a regionally accredited university in
the United States or foreign equivalent.
While the individual authorizing the opinion letter contends that the duties of the proposed position
require the beneficiary to possess a bachelor's degree, an inadequate foundation to support this opinion
has been established. The author does not establish her expertise in computer technology or marketing,
but cites her academic background in business and international studies and 10 years work experience in
providing evaluations. The author does not indicate whether she reviewed company information about
the petitioner, visited its site, or interviewed anyone affiliated with the petitioner. She does not cite
industry surveys, trade data or other sources to substantiate her conclusion, which differs from that
outlined in the Handbook. The AAO may, in its discretion, use as advisory opinion statements submitted
as expert testimony. However, where an opinion is not in accord with other information or is in any way
questionable, the AAO is not required to accept or may give less weight to that evidence. Matter of Caron
International, 19 I&N Dec. 791 (Comm. 1988).
Accordingly, the proposed position does not qualify for classification as a specialty occupation under the
first prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
The AAO also concludes that the record does not establish that the proposed position is a specialty
occupation under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which requires a demonstration
that the position is so complex or unique that it can only be performed by an individual with a degree.
There has been no demonstration that the proposed position is more complex or unique than the general range
of duties performed by computer system analysts, or marketing managers, in other, similar organizations,
which would not normally require a degreed individual. The Handbook indicates that such positions
generally do not require at least a baccalaureate degree in a specific specialty; and the evidence of record does
not establish the proposed position as unique from or more complex than the general range of duties for such
positions.
The proposed position does not qualify as a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(3),
which requires a showing that the petitioner normally requires a degree or its equivalent for the position. To
determine a petitioner's ability to meet this criterion, the AAO normally reviews the petitioner's past
employment practices, as well as the histories, including names and dates of employment, of those employees
with degrees who previously held the position, and copies of those employees' diplomas. However, this is a
newly-established company, thus the proposed position is a new position, which precludes approval under the
EAC 06 151 50565
Page 10
third criterion. Accordingly, the proposed position does not qualify for classification as a specialty
occupation under the criterion set forth at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3).
The fourth criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A) requires that the petitioner establish that the nature of
the specific duties of the position is so specialized and complex that the knowledge required to perform
them is usually associated with the attainment of a baccalaureate or higher degree.
The AAO refers to the Handbook excerpts quoted previously in this decision, which state that a
bachelor's degree in a specific specialty is not the normal minimum entry requirement for positions such
as the one proposed here. The duties of the proposed position do not appear more specialized and
complex than those of the corresponding positions as set forth in the Handbook. The AAO finds nothing
in the record to indicate that the beneficiary , in his role as an applications programmer and advertising
manager, at the petitioner 's place of business , would perform duties or face challenges any more
specialized and complex than those outlined in the Handbook. To the extent that they are depicted in the
record , the duties of the proposed position do not appear so specialized and complex as to require the
highly specialized knowledge associated with a baccalaureate or higher degree , or its equivalent, in a
specific specialty. As the Handbook reveals , such organizations do not normally impose a bachelor's.
Therefore , the evidence does not establish that the proposed position is a specialty occupation under
8 C.F.R. § 214.2(h)( 4)(iii)(A)( 4).
Therefore, for the reasons related in the preceding discussion, the proposed position does not qualify for
classification as a specialty occupation under any of the four criteria set forth at
8 C.F.R. §§ 214.2(h)(4)(iii)(A)(1), (2), (3), and (4), and the petition was properly denied . As the
proposed position in this petition is not a specialty occupation, the beneficiary 's qualifications to perform
its duties are inconsequential.' Accordingly, the AAO will not disturb the director's denial of the petition.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act,
8 U.S.C. § 1361. The petitioner has not sustained that burden.
ORDER: The appeal is dismissed. The petition is denied.
I The AAO notes that the educational credential evaluation submitted with the petition is deficient in that
it does not attach copies of the beneficiary's transcripts and degree.