dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 6060232 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WLY 27, 2020 
The Petitioner, an IT related services business , seeks to temporarily employ the Beneficiary as a 
"senior programmer analyst" under the H-lB nonirnrnigrant classification for specialty occupations . 
See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C . 
§ 1101(a)(15)(H)(i)(b). The H-lB program a11ows 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 California Service Center Director denied the petition , concluding that the Petitioner had not 
established that the proffered position is a specialty occupation. 
On appeal , the Petitioner contends that the proffered position is a specialty occupation and that the 
petition should be approved. 1 Upon de nova review, we will dismiss the appeal. 2 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S .C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires : 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor 's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States . 
1 The Petitioner submitted documentation to support the H-1B petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted , we have reviewed and considered each 
one. 
2 A petitioner must establish that it meets each eligibility requirement of the benefit sought by a preponderance of the 
evidence. Matter ofChawath e, 25 I& N Dec. 369, 375-76 (AAO 2010). In other words, a petitioner must show that what 
it claims is "more likely than not" or "probably" true. To determine whether a petitioner has met its burden under the 
preponderance standard, we consider not only the quantity, but also the quality (including relevance, probative value, and 
credibility) of the evidence. Id. at 376; Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm 'r 1989). 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
( I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(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. 
We note as a threshold issue 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 
must be construed in harmony with the thrust of the related provisions and with the statute as a 
whole. See K 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 COIT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of W-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 
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 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. 
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), we construe 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 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, USCIS regularly approves H-1B 
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 
2 
and responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-1 B visa category. 
To determine whether a particular job qualifies as a specialty occupation, we do not rely simply upon 
a position's title or the broader occupational category within which a petitioner claims the position is 
located. The specific duties of the proffered position, combined with the nature of the petitioning 
entity's business operations, are factors to be considered. We must examine the ultimate employment 
of the individual, and determine whether the position qualifies as a specialty occupation. See generally 
Defensor, 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. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b )(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
II. PROFFERED POSITION 
The Petitioner claims that the Beneficiary will work as a "senior programmer analyst" and submitted 
a labor condition application (LCA) 3 certified for a position located within the "Computer 
Programmers" occupational category, corresponding to the Standard Occupational Classification code 
15-1131. The record contains a description of the proffered position's duties that aligns generally with 
the duties of positions located within that occupational category. The Petitioner indicates it will 
outsource the Beneficiary to perform services at an end-client location pursuant to a series of contracts 
executed between the Petitioner and the vendor, and between the vendor and the end-client. 
The Petitioner stated in its March 2018 support letter that the proffered position requires a bachelor's 
degree in computer science, engineering, business, math, science, technology, management 
information systems, computer information systems, or a related analytic or scientific discipline, or 
the equivalent, as well as an unspecified amount of "working experience in the field." The Petitioner 
did not further develop the "working experience in the field" requirement. 
In its March 2019 letter, the end-client stated a minimum requirement for at least a "master's or 
bachelor's degree in Science or related to any discipline," or an equivalent amount of work experience. 
The end-client did not explain how it would determine whether an individual's work experience would 
be "equivalent." 
3 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-IB worker the higher of either 
the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the employer 
to other employees with similar duties, experience and qualifications who are performing the same services. See Section 
212(n)(l) ofthe Act; 20 C.F.R. ~ 655.73l(a). 
3 
In its March 2019 letter, the Petitioner pivoted back and forth as to whether the position's actual 
minimum requirement is a bachelor's degree (regardless of specialty), or a master's degree. For 
example, at page 4 the Petitioner describes the end-client's March 2019 letter, incorrectly, as "stating 
the minimum qualification required as [a] Master's Degree." 4 However, at page 10, the Petitioner 
stated a minimum requirement similar to that of its March 2018: "[the proffered position] requires the 
services of someone with a Bachelor's degree in Computer Science, Electronics, Engineering, 
Computer Application, Information Systems, Computer Engineering, or a related field." 5 
On appeal, the Petitioner removes the acceptability of a bachelor's degree altogether. At this point, 
according to the Petitioner, the proffered position can only be filled by an individual with a master's 
degree in computer science, computer engineering, electrical engineering, or a related field. The 
Petitioner also drops any reference to its previously-stated requirement for work experience. 6 
III. ANALYSIS 
As a result of the Petitioner's own stated requirements, the proffered position does not meet the 
statutory or regulatory definition of the term "specialty occupation." 7 As noted, both definitions 
require the Petitioner to demonstrate that the proffered position requires: (1) the theoretical and 
practical application of a body of highly specialized knowledge; and (2) the attainment of a bachelor's 
degree in the spec[fic specialty. The record of proceedings satisfies neither. In arriving at this 
conclusion, we have determined that there are, at minimum, three factors independently barring 
approval of this petition. 
A. Inconsistent Minimum Degree Requirements 
First, as set forth above, the Petitioner has offered several differing iterations of the proffered 
position's minimum entry requirements. At some points a master's degree is the minimum 
requirement, and at others the minimum requirement is a bachelor's degree. Work experience is 
sometimes required, and sometimes it is not. The Petitioner originally stated that a general-purpose 
bachelor's degree in "business" would suffice, but it appears to have later dropped that field from its 
list of acceptable degree-fields. 
4 Again, the end-client's letter actually stated that a "master's or bachelor's degree" would suffice. 
5 That said, we observe nonetheless that now the Petitioner appeared to have dropped a general-purpose bachelor's degree 
in "business" from this list of acceptable degrees. It had also removed its earlier-stated requirement for work experience. 
6 As the proffered position is not a specialty occupation, we will not explore in detail the issue of whether the LCA 
corresponds to and supports the H-1 B petition. However, while we acknowledge the Petitioner's repeated citations to the 
LCA's Level II wage-level designation, without knowing the position's actual minimum requirements we cannot ascertain 
whether that one-level increase is sufficient, and whether it affords sufficient wage protection to similarly-situated U.S. 
workers. For example, if the proffered position requires both a master's degree and work experience, then we would 
question whether, at minimum, a Level III designation should have been made. Given the Petitioner's inconsistent 
statements, we cannot at this time conduct such an analysis. But this is a critically-important issue, and the Petitioner 
should be prepared to address it in any future H-lB filings. 
7 The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
4 
This evolving narrative prevents us from ascertaining what the minimum requirements of the position 
actually are and is not acceptable. The Petitioner must resolve these inconsistencies with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency 
of other evidence submitted in support of the requested immigration benefit. Id. 
For this reason alone the Petitioner has failed to satisfy the statutory or regulatory definition of the 
term "specialty occupation," and for this reason alone the petition may not be approved. 
B. Acceptability of a General-Purpose Bachelor's Degree 
Next, the Petitioner's initial statement that it would find acceptable a bachelor's degree in business, 
with no further specialization, 8 also precludes a determination that the position involves a "body of 
highly specialized knowledge" or that it requires the attainment of a bachelor's degree in a "specific 
specialty." The First Circuit Court of Appeals explained in Royal Siam, 484 F.3d at 147, that: 
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-lB specialty occupation visa. See, e.g., Tapis 
Int'lv. 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. 9 
8 We acknowledge that, at certain points in the adjudicatory process, the Petitioner and the end-client indicated that work 
experience is required. If those statements had been developed further, then it is possible that such work experience could 
constitute the requisite fm1her specialization. But they were not. Moreover, at other points in the process (including during 
the Petitioner's most recent iteration of the position's minimum entry requirements on appeal), the Petitioner did not state 
a requirement for additional work experience. 
9 Id. But see India House. Inc. v. McA!eenan, --- F. Supp. ----, 2020 WL 14 79519 (D.R.I. 2020). In India House the court 
distinguished Royal Siam on factual grounds but did not dispute its central reasoning: that a position whose duties can be 
fulfilled by an individual with a general-purpose bachelor's degree in business is not a specialty occupation. Here, the 
Petitioner specifically recognizes an unspecialized bachelor's degree in business administration as being one of the many 
degrees it considers as providing an adequate preparation to perform the duties of the proffered position. 
The agency has longstanding concerns regarding general-purpose bachelor's degrees in business administration with no 
additional specialization. For example, in Matter of Ling, 13 I. & N. Dec. 35 (Reg'l Comm'r 1968), the agency stated that 
attainment of a bachelor's degree in business administration alone was insufficient to qualify a foreign national as a 
member of the professions pursuant to section 10l(a)(32) of the Act, 8 U.S.C. § 110l(a)(32). Twenty years later, the 
agency looked to the nature of the position itself and clarified that a requirement for a degree with a generalized title. such 
as business administration. without further specification, was insufficient to qualify the position as one that is professional 
pursuant to section 10l(a)(32) of the Act. Michael Hertz Assocs., 19 I&N Dec. at 560. See also Matter of Caron Int'!, 
Inc., 19 T&N Dec. 791 (Comm'r 1988) (vice president for manufacturing in a textile company was not a professional 
position because individual holding general degree in business, engineering or science could perform its duties). 
5 
For this reason alone, the record satisfies neither the statutory nor the regulatory definitions of the term 
"specialty occupation," and we could end our analysis here and dismiss the appeal on this basis, as 
well. But we will not do so, because even if we were to set this second issue (the "business" degree) 
aside we would still find that the Petitioner's acceptance of a bachelor's degree from a wide variety of 
fields would similarly preclude it from satisfying both definitions. 
C. Acceptability of a Broad Range of Unrelated Degree Fields 
As examples of the specific types of fields from which it would accept degrees for this position, the 
Petitioner has specifically identified computer science, computer applications, engineering, computer 
engineering, electrical engineering, electronics, business, math, science, technology, management 
information systems, and computer information systems. The Petitioner also indicates that it would 
accept a bachelor's degree from even more fields, so long as the degrees were in "related analytical or 
scientific" fields. In other words, the thread tying together the wide variety of fields the Petitioner 
would find acceptable is their "analytical or scientific" nature. 
We conclude that the proffered position is not a specialty occupation: the Petitioner's stated range of 
acceptable degree-fields is simply too wide and divergent. In general, provided the specialties are 
closely related, e.g., chemistry and biochemistry, a minimum of a bachelor's or higher degree in more 
than one specialty is recognized as satisfying the "degree in the specific specialty ( or its equivalent)" 
requirement of section 214(i)(l )(B) of the Act. In such a case, the required "body of highly specialized 
knowledge" would essentially be the same. Since there must be a close correlation between the 
required "body of highly specialized knowledge" and the position, however, a minimum entry 
requirement of a degree in two disparate fields, such as philosophy and engineering, would not meet 
the statutory requirement that the degree be "in the specific specialty ( or its equivalent)," unless the 
Petitioner establishes how each field is directly related to the duties and responsibilities of the 
particular position. Section 214(i)(l)(B) of the Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," we 
do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
Congress created the modem H-1 B program as part of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978. 
In doing so, it pivoted away rrom the prior H-1 standard of whether a position was "professional." Instead, petitioners 
were now required to demonstrate that a proffered position qualified as a "specialty occupation." Section 
101 (a)(l 5)(H)(i)(b) of the Act. In the final rule setting forth the requirements for the revamped H-lB program, the agency, 
responding to commenters suggesting that the proposed regulatory "specific specialty" requirement "was too severe and 
would exclude certain occupations from classifications as specialty occupations," stated that "[t]he definition of specialty 
occupation contained in the statute contains this requirement." Temporary Alien Workers Seeking Classification Under 
the Immigration and Nationality Act, 56 Fed. Reg. 61111, 61112 (Dec. 2, 1991). 
The agency's concerns regarding a general-purpose, non-specific degree in business, or business administration, continued 
under the revamped H-IB program. See, e.g., Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151 (D. Minn. 1999); Royal Siam, 484 
F.3d at 147; 2233 Paradise Road, LLC v. Cissna, No. 17-cv-01018-APG-VCF, 2018 WL 3312967 (D. Nev., July 3, 
2018); XiaoTong Liu v. Baran, No. 18-00376-JVS, 2018 WL 7348851 (C.D. Cal., Dec. 21, 2018); Parzenn Partners v. 
Baran, No. 19-cv-11515-ADB, 2019 WL 6130678 (D. Mass., Nov. 19, 2019). 
To the extent the Petitioner is arguing that a bachelor's degree in business, with no further specialization ( or the equivalent), 
is a bachelor's degree in a specific specialty, then consistent with agency history and federal case law, we must disagree. 
6 
occupations if they permit, as a minimum entry requirement, degrees in more than one closely related 
specialty. See section 214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes even 
seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
Again, the Petitioner claims that the duties of the proffered position can be performed by an individual 
with a degree in computer science, computer applications, engineering, computer engineering, 
electrical engineering, electronics, business, math, science, technology, management information 
systems, and computer information systems. And the record indicates that the Petitioner would accept 
bachelor's degrees from even more fields, so long as those degrees were in "related analytical or 
scientific" fields. Again, the only thread that ties together the wide variety of fields the Petitioner 
would find acceptable is that they must be related "analytical or scientific" fields. 
This mass grouping of degree-fields is simply too broad to support a finding that the proffered position 
meets the definition of a "specialty occupation." The Petitioner does not establish how each one relates 
to the duties of the proffered position, and if a degree in any of these disparate fields would equally 
prepare an individual to perform the duties of a proffered position, then we question how the position 
involves a "highly specialized body of knowledge" or requires a bachelor's degree, or the equivalent, 
in a "specific specialty." While the Petitioner does not provide a comprehensive list of the degree­
fields that meet its minimum requirements, it does provide the aforementioned list as examples of 
fields that qualify under its "related analytical or scientific" standard. Numerous unrelated specialties 
would appear to fall within the Petitioner's "analytical or scientific" range: for example, it would 
appear as though a bachelor's degree in any non-humanities field might qualify an individual to 
perform the duties of the proffered position. 10 The current record of proceedings does not establish 
how this wide, far-ranging, and divergent range of degrees could form either a body of highly 
specialized knowledge or a specific specialty. 11 We therefore cannot conclude that the proffered 
position requires anything more than a general bachelor's degree. The Petitioner therefore has 
satisfied neither the statutory definition of a "specialty occupation" at section 214(i)(l)(B) of the Act 
nor the regulatory definition of a specialty occupation at 8 C.F.R. § 214.2(h)(4)(ii). 
As the Petitioner has not met the threshold requirement of satisfying the statutory and regulatory 
definitions of the term "specialty occupation," it cannot satisfy any of the supplemental specialty­
occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4) because, again, we must 
consider those criteria in harmony with the thrust of the related regulatory provisions and with the 
statute as a whole. In other words, we must construe those criteria's references to the term "degree" 
as meaning not just any baccalaureate or higher degree, but one in a specific specialty that is directly 
related to the proffered position. 12 For example, the Petitioner cannot satisfy the supplemental 
10 Moreover, depending upon the specific coursework undertaken while obtaining the degree, certain fields within the 
humanities might also fall within the Petitioner's stated range. 
11 "A position that requires applicants to have any bachelor's degree, or a bachelor's degree in a large subset of fields, can 
hardly be considered specialized." Caremax, Inc. v. Holder, 40 F.Supp.3d 1182, 1187-88 (N.D. Cal. 2014) 
12 Royal Siam, 484 F.3d at 147; Caremax, 40 F.Supp.3d at 1187-88; Innova Sols., Inc. v. Baran, 338 F. Supp. 3d 1009, 
1017 (N.D. Cal. 2018) (USCTS did not abuse its discretion in reading the degree requirement together with the "specific 
specialty" language); Pa}joy v. Cuccinelli, No. l 9-cv-03977-HSG, 2019 WL 3207839 at *3 (N.D. Cal. July 17, 2019) 
(statutory and regulat01y text appear to supp01i USCIS's interpretation that the degree requirement must be read in 
conjunction with the "specific specialty" requirement). 
7 
specialty-occupation criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(i) because even if it establishes, in the 
words of this criterion, that "a baccalaureate or higher degree or its equivalent is normally the 
minimum requirement for entry into the particular position," we would still construe the term "degree" 
to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly 
related to the proffered position. And as discussed above, the Petitioner would not be able to make 
that demonstration. 
The same will be true of the remaining three criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2)-( 4): because 
the Petitioner does not require a bachelor's degree in a spec[fic specialty, or the equivalent, it will not 
be able to satisfy any of those criteria because we will interpret each reference to a "degree" to mean 
not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proffered position. We therefore will not consider the Petitioner's arguments, and the evidence it 
submits, in support of its contention that it satisfies the supplemental specialty-occupation criteria 
enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4). 
The record of proceedings does not establish that the proffered position requires both: (1) the 
theoretical and practical application of a body of highly specialized knowledge; and (2) the attainment 
of a bachelor's degree in the specific specialty. The Petitioner, therefore, has satisfied neither the 
statutory definition of a "specialty occupation" at section 214(i)(l)(B) of the Act nor the regulatory 
definition of a specialty occupation at 8 C.F.R. § 214.2(h)(4)(ii). As the Petitioner had not satisfied 
that threshold requirement, it cannot satisfy any of the supplemental specialty-occupation criteria 
enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4). The Petitioner, therefore, has not established that 
the proffered position is a specialty occupation. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
8