dismissed H-1B Case: Information Technology

(b)(6)
DATE: MAY 1 2 2015 
IN RE: Petitioner : 
Be neficiar y: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT#: 
PETITION: Petition for a No nimmigr ant Worker Pur suant to Sect ion 101(a)( 15)(H)(i)(b) of the 
Immigra tion and Nationa lity Act, 8 U.S .C. § llOl(a)(lS)( H)(i)(b) 
ON BEHALF OF PETITIONER: 
NO REPRESENTATIVE OF RECORD 
Enclosed is the non-precedent decision of the Admin istrat ive Appeals Office (AAO) fo r yo ur case. 
If you believe we incorrectly decided you r case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceedi ng. The requirements fo r motio ns are located at 8 C.F.R. § 103.5. 
Mot ions mus t be filed on a Notice of Appeal or Motion (Form I-2908) within 33 days of the date of this 
decision. The Form I-2908 web page (www.us cis.gov/ i-290b) co ntai ns the latest infor ma tion on fee, filing 
location, and other requir eme nts. Please do not mail any motions directly to the AAO. 
Thank you, 
Ro n Rose nberg 
Chief, Adminis trative Appeals Office 
www.uscis.gov 
. ·- -- -- · -- - ·-- -- -------------
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DISCUSSION: The Director, Vermont Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as an 
"Information Technology" business established in with "100+" employees. In order to employ 
the beneficiary in what it designates as a full-time "Computer User Program Analyst/Support" 
position, the petitioner seeks to classify him as a nonimmigrant 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. 
§ 1101(a)(1 5)( H)(i)(b). 
The Director denied the petition on the ground that the evidence of record did not establish that there 
is specialty occupation work available for the beneficiary, and therefore, that the proffered position 
qualifies for classification as a specialty occupation. 
The record of proceeding contains: (1) the petitioner's Form 1-129 and supporting documentation; 
(2) the Director's notice of intent to deny (NOID); (3) the petitioner's response to the NOlO; ( 4) the 
Director's notice of decision; and (5) the petitioner's Notice of Appeal or Motion (Form I-290B) and 
supporting documentation. We have reviewed the record in its entirety before issuing our decision. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the Director 's ground for denying this petition. Accordingly, the appeal will be dismissed. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
As noted above, the petitioner indicated on the Form 1-129 that it is an information technology 
business established with "100+" employees. On the Form 1-129, the petitioner listed its address as 
, Georgia. The petitioner indicated that the beneficiary will 
be employed as a full-time Computer User Program Analyst /Support at the address of 
Georgia, and that he will not work off-site. The 
petitioner stated that the dates of intended employment are from October 1, 201 4 to September 16, 
2017. 
The Labor Condition Application (LCA) submitted to support the pet1t10n states that proffered 
position is a Computer User Program Analyst/Support, and that it corresponds to Standard 
Occupational Classification (SOC) code and title "15-1151, Computer User Support Specialists," 
from the Occupational Information Network (O*NET). The LCA states that the proffered position 
is a Level II position. 
In a letter of support dated March 30, 2014, the petitioner identified itself as " 
hereinafter (which] is an information technology wing of " The 
petitioner stated that ' , another entity under the . 
_ 
umbrella is our 
Information Technology Management wing primarily based in the metro, Georgia area, 
[sic] through this platform we provide competitive services for designing IT products, consulting, 
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technology and outsourcing. 1 The petitioner explained that ' has many in-house projects and 
its own products, which are maintained and managed by its employees." The petitioner further 
explained that " GA is [the petitioner's] development and 
engineering center" and that ' has multiple office locations," including the above. With 
respect to the duties of the proffered position, the petitioner stated: 
We need the services of a Computer User Program Analyst/Support who will be 
responsible for administration of Application servers . . . . Read technical manuals, 
confer with users, or conduct computer diagnostics to investigate and resolve 
problems or to provide technical assistance and support. Install and perform minor 
repairs to hardware, software, or peripheral equipment, following design or 
installation specifications. Maintain records of daily data commun ication 
transactions, problems and remedial actions taken, or installation activities. Enter 
commands and observe system functioning to verify correct operations and detect 
errors. Identify the causes of networking problems, using diagnostic testing software 
and equipment. Install new hardware or software systems or components, ensuring 
integration with existing network systems. 
He will also develop, configure, deploy, test, load-balance and programm atically 
automate the maintenance of J2EE based distributed systems for our in-house 
environments like Dev, SIT, UAT and Prod. He will be responsible for computer 
application programming and computer application developing the automation 
architecture in a scalable way to support our suite of web portals/services in an 
upward-scalable way. The goal of this ongoing position is to constantly develop 
computer application programs that facilitate controlled automation and cross­
technology integration for scaling our applications to support our increasing 
users/customers; by using J2EE based technologies like Oracle Weblogic, JBoss, 
GlassFish, Aqualogic Service Bus, Websphere and Java Messaging Service (JMS). 
He will be responsible for customizing and scripting the operating system server 
environment for UNIX based OS like Red Hat Linux 5/6, Sun Solaris 9/10, HPUX 
and Windows based environments like Windows 2003/2008. Each of our servers 
contain heavily customized operating system start-up scripts and non-vendor 
supported kernel modifications. So [the beneficiary] must own these scripts, maintain 
them and re-code/re-program them as needed to support our in-house new application 
integration projects or migration projects. 
1 It is unclear who the petitioner is in the instant matter, i.e., whether it is as slated 
on the Form I-129, or as stated in the petitioner's support Jetter, or whether they 
are one and the same corporate entity. The petitioner stated in its support Jetter that is both a "wing" 
and "another entity." Nevertheless, for the sake of simplicity, we will assume that 
and are the same corporate entity, and we will refer. to them collectively as "the petitioner." 
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The petitioner asserted that the beneficiary will be working on one or more of its internal projects. 2 
To "demonstrate what the beneficiary's internal project will be focused on and how his continued 
work will bring in revenue for the company, " the petitioner referred to a document entitled "FRS­
Functional Requirement Specificatio n, " which the petitioner claims "indicat[ es] the duties and the 
internal projects the beneficiary will be assigned to." The petitioner asserted that " [ t] he FRS proves 
that the petitioner has its own internal projects and many of its employees are assigned to these 
internal projects." The petitioner asserted that the proffered position requires "a person who has 
attained a degree in the field of Computer Engineering, or Computer Science or related field." 
The petitioner submitted, inter alia, its quarterly tax and wage reports for the fourth quarter of 2013 
for the states of Georgia (27 employees), New York (5 employees), California (2 employees), 
Colorado (1 employee), South Carolina (3 employees), Texas (1 employee), and Massac husetts (2 
employees). These reports show that the petitioner has a total of 41 employees. 
The petitioner submitted the U.S. Department of Labor (DOL) Occupational Outlook Handbook 
(Handbook) chapter on "Computer Support Specialist s. " 
The petitioner submitted its "Employment Employee Agreeme nt" with the beneficiary 
("Employ ee"). In pertinent part, the employment agreement describes the beneficiary's duties as 
follows: 
Employees will be responsible for administration of Application servers . . . . 
Responsibilities will include maintaining the existing environments and creating new 
ones as need arises, troubleshooting if server is down, deploying new applications 
onto the servers to make them available to the public and troubleshooting if there are 
deployment issues of any kind. 
Besides the above full time responsibilities, Employee will be responsible for 
working with infrastructure engineering team, new application development 
components and on-going content development on our portals I suite of web services. 
These requirements are on-going throughout the years as the engineers are required 
on multiple in-house development efforts. 
The petitioner submitted a document entitled " 
. . _ 
dated January 2014. This document provides a broad, "top level" 
overview of the services provided by the petitioner, as follows: (1) Application Development 
services, such as creating online sites for clients; (2) Application Design services, focused on 
"setting apart the client's current or future website from the rest "; (3) E-Commerce services, such as 
2 It is not clear whether the beneficiary will be assigned to one or more projects. The petitioner has staled 
both that the beneficiary will work on an "internal project" (in the singular) and "internal projects'' (in the 
plural). 
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advising clients on best industry practices and providing secure solutions; (4) Internet Marketing 
services, including Search Engine Optimization; (5) Corporate Identity services to assist in 
corporate branding; (6) Resellers (Referral Program), which is a partnership program between the 
petitioner and businesses/individuals to advertise the petitioner's services; and (7) Certification 
services to provide computer-related training programs. This document further discusses the 
different categories of employees involved in providing these services, as follows: (1) Application 
Development Team, responsible for "taking the end user client's needs and developing or designing 
a solution for them"; (2) Coordinator, responsible for supervising the on-going projects; (3) Trainer, 
responsible for providing training for clients requesting a certification; and (4) Support Team, 
responsible for helping the Client with issues. The document identified the "Computer User 
Program Analyst " as a "non development position" within the Application Development Team. 
The petitioner submitted a document entitled " 
dated February 15 , 2014. This document describes 
the _ as "an on-going in-house project being 
developed by 
_ 
- at our in-house development office in Georgia. This 
enterprise web based application would provide medium to large-scale data ingestion and archival 
services to major industries in the service sector." The document provides a broad overview of the 
project and the team structure dedicated to this "on-going project," which includes a 
Development Team, Release Engineering Team, Operations Engineering Team, and Infrastructure 
Engineering Team_ This document does not specifically address the role of the proffered position 
or the beneficiary with respect to the project. 
The petitioner submitted a document entitled " ' dated 
January 15, 2014, which purports to "show the marketing analysis of four of (the petitio ner's] 
ongoing application portal projects," namely: (1) _ _ an online application 
portal through which people can apply for the petitioner's various training and employment 
programs; (2) for which no description was provided; (3) 
which includes several coupon and deal applications; and (4) a "place to 
find digital print services_" This document refers to the Computer User Prog ram Analyst/Support 
position as part of an unidentified "team." It does not further describe the role of the proffered 
position or the beneficiary with respect to these four projects. 
The petitioner submitted its organizational chart and company brochures. 
The Director issued a NOID requesting the petitioner to submit, inter alia, evidence that the 
petitioner has specialty occupation work available for the beneficiary. 
In response to the NOID, the petitioner submitted a letter dated July 17, 201 4 explaining its services 
of developing, maintaining, and supporting in-house applications, which include "online coupon 
sites, social networking and online deal web portals." The petitioner emphasized that the 
beneficiary "will be assigned to Petitioner's In-House projects," although the petitioner did not 
specify any particular projects. The petitioner elaborated: 
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Petitioner product is more than just a website. Petitioner's services go beyond just 
uploading a page accessible to users on the internet. Petitioner's team consists of 
Computer User Support Analysts like Beneficiary who provide their knowledge and 
expertise in developing its web portals, maintaining them around the clock, 
continuously updating and modifying them to ensure their sustainability and security. 
See Exhibit 4: Web Applications Operations Diagram. In fact, it is also the 
responsibility of these Computer User Support Analysts to check application and 
server vulnerability by consistently scanning these applications to make sure useres 
[sic] have secure usage experiences ... . 
In addition to providing services to advertisers/vendors, Petitioner also develops and 
maintains in-house products such as an internal VPN client, a customized ticketing 
system to track and communicate the status of projects, shared drives and a web 
portal where Petitioner's cultural exchange program participants apply and monitor 
their training and internship program. Finally, please note that Petitioner's projects 
run on Petitioner's internal servers, on a very complex model; thus requiring 
engineers and the technical expertise of specialists to build and maintain an 
infrastructure on the other hand, where an application can run, is where Beneficiary's 
role as a Computer User Program Analyst/Support is necessary. 
In a footnote, the petitioner stated: 
Since late 2012, the SOC code 15-1150 was redefined and divided into two separate 
codes: 15-1151 (Computer User Support Specialists) and 15-1152 (Computer 
Network Support Specialists); Petitioner is using the most up to date code with the 
understanding that it encompasses prior utilized SOC code of 15-1150. Due to the 
nature of the Petitioner's complex duties and specialty of job description Petitioner 
chose this category in OOH, as it more closely matched Petitioner's job description. 
In response to the NOID, the petitioner submitted, inter alia, the Handbook chapter on "Computer 
System Analysts." 
The petitioner also submitted a document entitled " 
_ _ dated April 2014. Under "Scope," this 
document states that the petitioner "is looking to have its own open-source communication and 
network tools, as well as VPN, Email, and Change Management Control servers." It further states 
that "[ t]he new network architecture consists of three main projects: the master network, the mail 
server, and the ticketing system." This document does not specifically address the role of the 
proffered position or the beneficiary with respect to these projects. 
The petitioner submitted a chart entitled ' Management - Web Applications Operations 
Diagram." In part, this chart depicts "Computer User Program Analyst/Systems Admins" positions 
as providing the following services: (1) "S upport and maintenance training" during the "Final 
Preparation" portion of the "Development" phase; and (2) "Handle and resolve client requests" and 
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"Initiate bug fix request" under the "Support and Continuous Improvement" portions of the 
"Operations" phase. With respect to the duty of "Initiate bug fix request, " the chart elaborates that 
this duty involves "higher complexity" processes including programming and internal testing. 
The petitioner submitted an "Evaluation of Internal Project: Specialty Occupation Requirements for 
Information Technology Positions" from Dr. a Professor of Hospitality 
Management at the School of Hotel Administration at 
The petitioner submitted an "Expert Opinion Evaluation" from Dr. 
Computer Science, 
Professor of 
The petitioner submitted its quarterly tax and wage reports for the first quarter of 201 4 for the states 
of Georgia (36 employees), New York (4 employees), California (2 employees), Colorado (1 
employee), Illinois (1 employee), South Carolina (3 employees), Texas (2 employees), and 
Massachusetts (2 employees). These reports show that the petitioner has a total of 51 employees. 
The petitioner submitted vacancy announcements posted by the petitioner as well as other 
companies. 
The Director denied the pet1t10n on the ground that the petitioner did not establish that there is 
specialty occupation work available for the beneficiary, and therefore, that the proffered position 
qualifies for classification as a specialty occupation. In particular, the Director found that the 
petitioner had not demonstrated that it has an internal "online deals and coupons" project to which 
the beneficiary will be assigned. 
The petitioner filed the instant appeal. On appeal, the petitiOner contends that the Director 
misunderstood the nature of its products and services. Petitioner explains that its services consist of 
designing and developing web portals and applications, and its products are these web portals and 
applications which provide online access to various services including "online deals and coupons." 
The petitioner states that it "owns the technology behind the web portals and its Computer User 
Program Analyst/Supports, like Beneficiary, provide the technical expertise to run them." 
Specifically, the petitioner states that "[i]t is the role of Petitioner's Computer User Program 
Analysts to develop, design, run, and maintain these websites as these are the products for which 
Petitioner generates and maintains in order to earn its revenue." The petitioner emphasizes that it 
has several "sophisticated internal work projects " which the petitioner's employees will develop, 
monitor, and maintain on an "infinite " and "ongoing" basis. The petitioner further highlights the 
complexity of its internal servers and architecture, again stating that "maintaining and building an 
infrastructure .. . where an application is run, is where Beneficiary's role as a Computer User 
Program Analyst/S upport is necessa ry. " The petitioner states that "in order to keep running these 
portals, Petitioner requires a team of IT specialists including Computer User Program 
Analyst/Supports, like Beneficiary, to be responsible for configuration, support, deployment and 
tuning of the applicat ion." The petitioner concludes that it has provided "evidence of internal 
projects that incorporate Beneficiary's duties and responsibilities, and that provided USCIS with an 
indication of where Beneficiary's role is necessary for these internal projects directed for in-house 
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use." In support of the appeal, the petitioner resubmits copies of evidence already contained in the 
record. 
II. THE LAW 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(l) 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. § 214.2(h)(4)(ii) as: 
An occupation which requires [(1)] 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, Jaw, theology, and 
the arts, and which requires [(2)] the attainment of a bachelor's degree or higher in a 
specific specialty, or its equivalent, as a minimum for entry into the occupation in the 
United States. 
Pursuant to 8 C.F.R. § 214. 2(h)(4)( iii)(A), to qualify as a specialty occupation, the position must 
also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions 
among similar organizations or, in the alternative, an employer may show 
that its particular position is so complex or unique that it can be performed 
only by an individual with a degree; 
(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. 
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)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory language 
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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. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989 ); Matter of 
W-F-, 21 l&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 statut ory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient 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 sta tutory 
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. 
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), 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. Chertoff; 484 
F.3d 13 9, 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, 
USCIS regularly approves H-lB petitions for qualified aliens 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-lB 
visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not rely 
simply upon a proffered position's title. The specific duties of the position, combined with the 
nature of the peti tioning entity's business operations, are factors to be considered. USCIS must 
examine the ultimate employment of the beneficiary, and determine whether the position qualifies 
as a specialty occupation. See generqlly Defensor v. Meissner, 201 F. 3d at 384. 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 at tainment of a baccalaureate or higher degree in the specific specialty as the 
minimum for entry into the occupation, as required by the Act. 
£11. PRELIMINARY FIND INGS 
Based upon a complete review of the record of proceeding, we will make some preliminary findings 
that are material to the de termination of the merits of this appeal. 
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We will first address the Director's concern that the petitioner has not established that it has 
specialty occupation work available for the beneficiary. Although not articulated by the Director, 
this concern relates to the issue of whether the petitioner has made a bona fide, credible offer of 
employment to the beneficiary. This consideration is necessarily preliminary to, and logically even 
more foundational and fundamental than, the issue of whether a proffered position qualifies as a 
specialty occupation. In this matter, the evidence of record does not suppmi a finding that the 
petitioner has made a bona fide, credible offer of employment to the beneficiary. 
For H-1B approval, the petitioner must demonstrate a legitimate need for an employee exists and to 
substantiate that it has H -1 B caliber work for the beneficiary for the period of employment 
requested in the petition. It is incumbent upon the petitioner to demonstrate it has sufficient work to 
require the services of a person with at least a bachelor's degree in a specific specialty, or the 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition. 
Upon review of the record of proceeding, there are numerous inconsistencies and discrepancies in the 
petition and supporting documents which undermine the petitioner's credibility with regard to the 
services the beneficiary will perform, as well as the actual nature and requirements of the proffered 
position. When a petition includes numerous errors and discrepancies, those inconsistencies raise 
serious concerns about the veracity of the petitioner's assertions. In turn, these inconsistencies 
undermine the legitimacy of the petitioner's offer of employment to the beneficiary. 
More specifically, the petitioner submitted an LCA in support of the instant petition that designated 
the proffered position under the SOC (ONET/OES) code and category "15-1151, Computer User 
Support Specialists." The petitioner stated in the LCA that the wage level for the proffered position 
was a Level II position with a prevailing wage of $38,917 per year. The LCA was certified on 
March 24, 2014 and signed by the petitioner on March 29, 2014. 
According to O*NET, Computer User Support Specialists "[p]rovide technical assistance to 
computer users," " [a ]nswer questions or resolve computer problems for clients in person, or via 
telephone or electronically," and "[m]ay provide assistance concerning the use of computer 
hardware and software, including printing, installation, word processing, electronic mail, and 
operating systems." !d. at http:/ /www .onetonline.org/link/summary/15-1151.00 (last visited April 
28, 2015). Specifically, O*Net lists the following tasks for Computer User Support Specialists: 
• Oversee the daily performance of computer systems 
• Answer user inquiries regarding computer software or hardware operation to resolve 
problems. 
• Enter commands and observe system functioning to verify correct operations and 
detect errors. 
• Set up equipment for employee use, performing or ensuring proper installation of 
cables, operating systems, or appropriate software. 
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!d. 
• Install and perform minor repairs to hardware, software, or peripheral equipment, 
following design or installation specifications. 
• Maintain records of daily data communication transactions, problems and remedial 
actions taken, or installation activities. 
• Read technical manuals, confer with users, or conduct computer diagnostics to 
investigate and resolve problems or to provide technical assistance and support. 
• Refer major hardware or software problems or defective products to vendors or 
technicians for service. 
• Develop training materials and procedures, or train users in the proper use of 
hardware or software. 
• Confer with staff, users, and management to establish requirements for new systems 
or modifications. 
Similarly, the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (the Handb ook) 
sub-chapter on "What Computer Support Specialists Do," which the petitioner submitted a copy of 
with the petition, describes the duties of Computer Support Specialists as follows:3 
Computer user support specialists typically do the following: 
• Pay attention to customers when they describe their computer problems 
• Ask customers questions to properly diagnose the problem 
• Walk customers through the recommended problem-solving steps 
• Set up or repair computer equipment and related devices 
• Train users to work with new computer hardware or software, such as printers, word­
processing software, and email 
• Assist users in installing software 
• Provide others in the organization with information about what gives customers the 
most trouble and about other concerns customers have 
Computer user support specialists, also called help-desk technicians, usually provide 
technical help to non-IT computer users. They respond to phone and email requests 
for help. Sometimes they make site visits so that they can solve a problem in person. 
Help-desk technicians may solve a range of problems that vary with the industry and 
the particular firm. Some technicians work for large software companies or for 
·' We recognize the Handbook as an authoritative source on the duties and educational requirements of the wide 
variety of occupations that it addresses. The Handbook, which is available in printed form, may also he 
accessed on the Internet, at http://www.bls.gov/oco/. All our references to the Handbook are to the 2014-
2015 edition available online. 
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support service firms and must give instructions to business customers on how to use 
complex programs. Sometimes they work with other technicians to resolve a 
problem. 
Others work in call centers, answering simpler questions from consumers. Some 
technicians work for organizations and help non-IT workers with their computer 
problems. 
1 d. at http: //www .bls.gov /ooh/computer -and-information-technology/computer-support -specialists. 
htm#tab-2 (last visited April 28, 2015). 
In the instant matter, some of the duties the petitioner has described for the proffered position are 
consistent with, and at times identical to, the duties of Computer User Support Specialists as 
described in O*NET and the Handbook. 4 However, many of the other duties of the proffered 
position fall outside of the scope of duties for Computer User Support Specialists. For example, in 
the petitioner's support letter dated March 30, 2014, the petitioner stated that the beneficiary will 
"be responsible for computer application programming and computer application developing." The 
petitioner even asserted that "[t]he goal of [the proffered] position is to constantly develop computer 
application programs." The petitioner's Employment Employee Agreement with the beneficiary 
specifically states that he is required for "multiple in-house development efforts" and will be 
responsible for "new application development components and on-going content development." On 
appeal, the petitioner highlights the proffered position's duties of developing and designing the 
petitioner's websites. Neither O*NET nor the Handbook lists any duties related to application 
development, programming, or website design for Computer User Support Specialists. 
Another aspect of the proffered position which the petitioner repeatedly emphasizes is the 
beneficiary's role with respect to the petitioner's internal servers and architecture. Specifically, the 
petitioner stated in its May 30, 2014 letter that the beneficiary will be "responsible for 
administration of Application servers." The petitioner also asserted that he "will be responsible for 
customizing and scripting the operating system server environment," which further includes re­
coding and re-programming duties. In response to the NOID and on appeal, the petitioner 
highlighted the beneficiary's "necessary" role in building, maintaining, and continually improving 
the petitioner's "infrastructure." Neither O*NET nor the Handbook lists any duties related to the 
4 Speci fically, the following proffered duties are identical to the duties listed in O*NET: (1) Read technical 
manuals, confer with users, or conduct computer diagnostics to investigate and resolve problems or to 
provide technical assistance and support; (2) Install and perform minor repairs to hardware, software, or 
peripheral equipment, following design or installation specifications; (3) Maintain records of daily data 
communication transactions, problems and remedial actions taken, or installation activities; and ( 4) Enter 
commands and observe system functioning to verify correct operations and detect errors. !d. at 
hllp://www.onetonlinc.org/link/summary/15- 1151.00 (last visited April 28, 20 15). 
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building and administration of a company's computer architecture for Computer User Support 
Specialists. 
Upon review, some of the less complex tasks related to administration and maintenance of the 
petitioner's internal architecture directly correspond to the SOC (ONET/OES) code and category of 
"15-1 152, Computer Network Support Specialists." 5 In fact, two of the proffered duties, namely, 
"[ i]dentify the causes of networking problems, using diagnostic testing software and equipment" 
and "[i]nstall new hardware or software systems or components, ensuring integration with existing 
network syste ms , " are identical to the duties listed in O*NET for positions located within the 
Computer Network Support Specialists occupational category. ld. at http://www.onetonline.org/ 
link/summa ry/15 -115 2. 00 (last visited April 28, 2015 ). 
Notably, the petitioner expressly acknowledged that some of the proffered duties encompass the 
duties for the SOC (ONET/OES) code and category of "15-1 152, Computer Network Support 
Specialists." Despite this acknowledgement, the petitioner did not submit an LCA certified for this 
occupational classification. 6 Moreover, the petitioner failed to credibly explain why it did not 
choose the 15-1152 code (Computer Network Support Specialists) over to the selected code of 15 -
1151 (Computer User Support Specialists). Specifically, the petitioner claimed that it did not utilize 
the 15 -115 2 code because of its "understanding" that the selected code of 15 -115 1 "encompasses 
prior utilized SOC code of 15 -115 0," which included both the current 15 -115 1 (Computer User 
Support Specialists) and 15 -115 2 (Computer Network Support Specialists) codes. The petitioner's 
explanation, however, is undermined by its own acknowledgement that "[s]ince late 2012, the SOC 
code 15 -115 0 was redefined and divided into two separate codes: 15 -115 1 (Computer User Support 
5 O*NET describes the general duties of Computer Network Support Specialists as to "[a]nalyze, test, 
troubleshoot, and evaluate existing network systems" and "lpJerform network maintenance to ensure 
networks operate correctly with minimal interruption." !d. at http://www.onetonline.orgllink/summary/15-
1152.00 (last visited April 28, 2015). 
6 Where a petitioner seeks to employ a beneficiary in two (or more) distinct occupations, the petitioner 
should file separate petitions, requesting concurrent, part-time employment for each occupation. While it is 
not the case here, if a petitioner does not file two separate petitions and if only one aspect of a combined 
position qualifies as a specialty occupation, USCIS would be required to deny the entire petition as the 
pertinent regulations do not permit the partial approval of only a portion of a proffered position and/or the 
limiting of the approval of a petition to perform only certain duties. See generally 8 C.F.R. § 214.2(11). 
Furthermore, and as is the case here, the petitioner would need to ensure that it separately meets all 
requirements relevant to each occupation and the payment of wages commensurate with the higher paying 
occupation. See generally 8 C.P.R. § 214.2(h); 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. Thus, filing separate 
petitions would help ensure that the petitioner submits the requisite evidence pertinent to each occupation 
and would help eliminate confusion with regard to the proper classification of the position being offered. 
(b)(6)
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Page 14 
Specialists) and 15-1152 (Computer Network Support Specialists)." As noted above, the LCA was 
certified on March 24, 2014 and signed by the petitioner on March 29, 2014. Thus, the petitioner 
did not "us[e] the most up to date code" as claimed. The petitioner's acknowledgment that the 
proffered duties encompass the duties for the SOC (ONET/OES) code and category of "15-1152, 
Computer Network Support Specialists," combined with its failure to select this occupational code 
classification, create further confusion with regards to the proper classification of the proffered 
position. 
With respect to the LCA, DOL provides clear guidance for selecting the most relevant O*NET 
occupational code classification. 7 The "Prevailing Wage Determination Policy Guidance" states the 
following: 
In determining the nature of the job offer, the first order is to review the 
requirements of the employer's job offer and determine the appropriate occupational 
classification. The O*NET description that corresponds to the employer's job offer 
shall be used to identify the appropriate occupational classification . . . . If the 
employer's job opportunity has worker requirements described in a combination of 
O*NET occupations, the SW A should default directly to the relevant O*NET -SOC 
occupational code for the highest paying occupation. For example, if the employer's 
job offer is for an engineer-pilot, the SW A shall use the education, skill and 
experience levels for the higher paying occupation when making the wage level 
determination. 
Here, the petitioner provided a Level II wage for "Computer User Support Specialists" which is 
$38,917 per year and indicated that it would pay the beneficiary $43,500 per year. In contrast, the 
prevailing wage for a Level II Computer Network Support Specialist position is $51,688 per year. 
Thus, the petitioner should have defaulted directly to the SOC code and category of "15-1152, 
Computer Network Support Specialists" or another appropriate code which represents the highest 
paying occupation. The significantly higher prevailing wage for Computer Network Support 
Specialists undermines the petitioner's assertion that it chose the 15-1151 code (Computer User 
Support Specialists) "[d]ue to the nature of the Petitioner's complex duties and specialty of job 
description." 
Notwithstanding the above, the more complex tasks of the proffered position involving building the 
petitioner's actual infrastructure go above and beyond the duties for Computer Network Support 
Specialists, which O*NET indicates are limited to analyzing, testing, troubleshooting, evaluating, 
and maintaining "existing network systems." !d. at http://www .onetonline.org/link/summary/15-
1152.00 (last visited April 28, 20 15). To confuse matters more, in response to the NOID the 
7 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_l 1_2009.pdf 
(b)(6)
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Page 15 
petitiOner submitted the Handbook chapter for another occupational classification altogether -
Computer Systems Analysts - which directly corresponds to SOC (ONET/OES) code and category 
of "1 5-1 121 .00 - Computer Systems Analysts." Overall, the record contains significant, unresolved 
discrepancies regarding the proper classification of the proffered position . These disc repancies 
prevent us from comprehending the substantive nature of the proffered position and its constituent 
duties, and raise doubt as to the credibility of the petitioner's job offer to the beneficiary. 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence; any attempt to explain or reconcile such inconsistencies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 59 1-92 (BIA 19 88). 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 . !d. 
In addition to the above discrepancies, the petitioner has not sufficiently identif ied and documented 
which internal project or projects it will assign to the beneficia ry. Nor has the petitioner articulated 
and documented in sufficient detail the beneficiary's specific duties with respect to each assigned 
project. For instance, the "Functional Requirements Specification for " 
lists seven types of "services " offered by the petitioner, and the different categories of employees 
needed to provide these services. While this document contains a few brief references to the role of 
the Computer User Program Analyst as part of a multi-me mber "Application Development Team " 
or "Development Team " (assuming these are the same teams), this document does not discuss in 
detail the specific duties to be performed by each Computer User Program Analyst. 8 Likewise, the 
"Market & Cost Analysis Report" provides broad overviews of the petitione r's projects and lists the 
Computer User Program Analyst/Support as part of an unidentified "team" involved in these 
projects, but it does not discuss the actual duties of the Computer User Program Analyst/Support. 
The other two "Functional Requirements Specif ication" documents do not specifically mention the 
proffered position at all. None of the documents specifically mention the beneficiary. 
In fact, none of the above documents contain any detailed information showing what work has 
actually been performed on each of the petitioner's claimed internal projects, when such work was 
performed, what work remains, when such work is scheduled to be performed, and by whom. The 
evidence of record contains only broad, generalized descriptions of the petitioner's projects and the 
overall resources needed for them. While the petitioner has repeatedly claimed that its internal 
projects are "ongoing" and "infinit e, " the continuous nature of these projects does not, however, 
overcome the lack of specific information on each project. Overall, the evidence of record is 
insufficient to establish what internal project(s) the beneficiary will be assigned to, what the 
beneficiar y's specific duties will be with respect to each project, and that the petitioner has specialty 
8 This document confusingly characterizes the Computer User Program Analyst pos ition as a "n on 
development position" wit hin the "Applica tion Development Team" that is tasked with "deve loping or 
designing" client solutions. 
(b)(6)
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Page 16 
occupation work available for the beneficiary. Merely asserting that the beneficiary will be 
assigned to one or more internal projects, without more, is insufficient to establish that the petitioner 
has secured, definite, specialty occupation work for the beneficiary. 
Here, we will briefly address the petiti oner's "online deals and coupons" project. We agree with the 
petitioner that the Director misunderstood the petitioner's claims regarding the nature of this project. 
The petitioner has consistently stated that its products are the web portals through which these 
online coupons may be accessed, not the concept of online coupons as described by the 
Encyclopedia of Business. Nevertheless, we do not find this error to be significant, in that the 
petitioner has not articulated the specific internal project or projects it will assign to the beneficiary 
or the duties he will perform on each project. We agree with the Director's ultimate conclusion that 
the evidence is insufficient to establish that the petitioner has specialty occupation work available 
for the beneficiary. 9 
Finally, the record contains inconsistencies with respect to the petitioner's actual size and staffing. 
On the Form I-129, the petitioner states that it has "100+ " employees. However, the petitioner's 
quarterly tax and wage reports reflect that the petitioner had 51 employees as of the first quarter of 
2014, and 41 employees in the previous quarter. The petitioner's brochures state that itself 
has "200+ Employees Nationw ide." The petitioner has not submitted any explanation, corroborated 
by objective evidence, resolving these discrepancies. Again, 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. Matter of Ho, 19 I&N Dec. at 591-92. 
In this matter, the inconsistent characterizations of the proffered position, the lack of clarity 
regarding the beneficiary's actual tasks and job responsibilities, and the lack of credible evidence 
corrob orating the petitioner's claims regarding its in-house projects and operations, all fail to 
support the conclusion that the petitioner has a bona fide, credible offer of employment to the 
beneficiary. We conclude that the record of proceeding provides an inadequate factual basis for us to 
9 While we agree that the Dir ector mis understood the natur e of the petitioner's claims, we do note add itional 
quest ions with respect to the petitione r's "o nline deals and co upons" proj ect. Specific ally, we note that the 
petitioner's broch ur es identify " " and ' 
' as online portals "own [ed] and develop[e d] " throu gh , which is describe d as a 
"s ubdivisio n" of The brochures specifically state that the above portals were "d esigned by 
very own highly skilled and technically sound employees ." However, is not 
specif ically mentione d in any of the petitio ner's letters or other support ing doc umen tatio n, e.g., the 
"Fu nctional Requirement s Spec ifica tion" documen ts, the "M arket & Cost Analysis Report ," and the 
company's organizational chart . We also observe that the brochures quot e two individ uals identif ied as 
employees of but that neither of these individua ls is listed in the petitioner 's qu arterly wage 
and tax reports. 
(b)(6)
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determine that, at the time of the petition's filing, the petitioner had secured for the beneficiary definite, 
non-speculative work conforming to the petition's description of the proffered position. 10 
US CIS 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. Moreover, 
the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 
29 1 of the Act, 8 U.S .C. § 1361. The petitioner has thus not established that, at the time the petition 
was submitted, it had secured work for the beneficiary that would entail performing the duties as 
described in the petition and that was reserved for the beneficiary for the duration of the period 
requested. For this reason, the appeal will be dismissed. 
IV. SPECIALTY OCCUPATION 
As discussed above, the record contains significant discrepancies and deficiencies with respect to 
the proper classification of the proffered position. Consequently, the evidence of record 1s 
insufficient to establish the substantive nature of the work to be performed by the beneficiary. 
10 
The agency made clear long ago that speculative employment is not permi tted in the H-1B progra m. For 
example, a 1998 proposed rule documen ted this position as fo llows : 
Historically, the Service has not granted H-1B classification on the basis of speculative, or 
un determi ned, prospective employ ment. The H-1B classification is not intended as a vehicle 
for an alien to engage in a job search within the Un ited States, or for employers to bring in 
temporary foreign workers to meet possible workforce needs arising from potential busine ss 
expansions or the expectation of potential new customers or contracts. To determine whether 
an alien is properly classifiable as an H-1B noni mmigrant un der the statu te, the Service must 
first examine the du ties of the position to be occupied to ascertain whether the duti es of the 
position require the attainment of a specific bachelor's degree. See section 214(i) of the 
Immigration and Nationality Act (the "Act"). The Service must then determi ne whether the 
alien has the appropriate degree for the occupatio n. In the case of speculative employ ment, 
the Service is una ble to perform either part of this two-prong analysis and, therefore, is 
una ble to adjudicate properly a request for H-1B class ificat ion. Moreover, there is no 
assuranc e that the alien will engage in a specialty occupation upon arrival in this co untry . 
63 Fed. Reg. 30419, 304 19 -30420 (Jun e 4, 1998). While a petitioner is certai nly permi tted to chang e its 
intent with regard to non-speculative employ ment, e.g., a change in du ties or jo b location, it must 
nonetheless docu ment such a material change in intent through an amended or new petition in acco rdanc e 
with 8 C.F.R. § 214.2 (h)(2)(i)(E). 
The regulation at 8 C.P.R. § 214.2(h)(9)(i)(B) also contemplates that speculative employment is not 
permitted stati ng that a "petition may not be filed ... earlier than 6 months before the date of actual need for 
the benefici ary 's services or training ... " 
(b)(6)
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Page 18 
The failure to establish the substantive nature of the work to be performed by the beneficiary 
precludes a finding that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(i ii)(A), 
because it is the substantive nature of that work that determ ines: (1) the normal minimum educational 
requirement for the particular position, which is the focus of criterion 1; (2) industry positions which 
are parallel to the proffered position and thus appropriate for review for a common degree requirement, 
under the first alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered 
position, which is the focus of the second alternate prong of criterion 2; ( 4) the factual justification for 
a petitioner normally requiring a degree or its equivalent, when that is an issue under criterion 3; and 
(5) the degree of specialization and complexity of the specific duties, which is the focus of criterion 4. 
Accordingly, as the petit ioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. The appeal will be dismissed and the petition denied for this additional reason. 
Even if the proffered position were established as being that of a Computer User Support Specialist, 
a review of the Handbook does not indicate that such a position catego rically qualifies as a specialty 
occupation. The Handbook does not state a normal minimum requirement of a U.S. bachelor's or 
higher degree in a specific specialty or its equivalent for entry into the occupation. In pertinent part, 
the Handbook states that "[ e ]ducation requirements for computer support specialists vary " and that 
"[ c]omputer user support specialist jobs require some computer knowledge, but not necessarily a 
postsecondary degree. Applicants who have taken some computer-related classes are often 
qualified." I d. at http://www .bls.gov /oo h/computer -and-information- technology /computer -support­
specialists .htm#tab-4 (last visited April 28, 20 15 ). We withdraw the Director's unsupported 
statement that "the position of computer user program analyst and/or support is traditionally 
considered a specialty occupation ." 
Finally, we will brie fly address why we decline to regard the advisory opinions from Dr. 
and Dr. as probative evidence of proffered position as a specialty occupation. Neither Dr. 
nor Dr. has indic ated that they were aware of and fully considered the numerous 
discrepancies and deficiencies with respect to the proper classification of the proffered position, as 
we have outlined in this decision. We consider this to be significant omissions, in that it suggests 
an incomplete review of the position in question and a faulty factual basis for the writers' ultimate 
conclusions. Furthermore, the petitioner has not explained how Dr. a Professor of 
Hospitality Management, can be considered an expert and therefore qualified to provide an opinion 
of the proffered position. 
We may, in our discretion, use as advisory opm10n statements submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable, 
we are not required to accept or may give less weight to that evidence. Matter of Caron 
International, 19 I&N Dec. 79 1 (Comm'r 1988). 
(b)(6)
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Page 19 
V. CONCLUSION 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by this office even if the service center does not identif y all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(E.D . Cal. 200 1), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 
(3d Cir. 2004) (noting that we conduct appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, In c. v. United States, 229 F. Supp. 2d at 1037, aff'd. 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communica tions Comm'n, 351 F.3d 1177, 118 3 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 11 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. § 13 61; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. The petition is denied. 
11 
As these issues preclude approval of the petition we will not address any of the addi tional defici encies we 
have identified on appeal.