dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-M-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 14, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology firm, seeks to temporarily employ the Beneficiary as a 
"computer systems analyst" under the H-lB nonimmigrant 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 allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not demonstrated that the Beneficiary is qualified to work in the proffered position. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence submitted satisfies all evidentiary considerations. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
Although the Director stated that the only issue is whether the Beneficiary is qualified to work in the 
proffered position, and denied the visa petition based solely on that issue, the Director also 
discussed, at length, the issue of whether the proffered position qualifies for treatment as a specialty 
occupation. We will also discuss that issue. 
A beneficiary's credentials to perform a particular job are relevant only when the job is found to 
qualify as a specialty occupation. U.S. Citizenship and Immigration Services (USCIS) is required to 
follow long-standing legal standards and determine first, whether the proffered position qualifies as a 
specialty occupation, and second, whether an alien beneficiary was qualified for the position at the 
time the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assoc., 19 I&N Dec. 
558, 560 (Comm'r 1988) ("The facts of a beneficiary's background only come at issue after it is 
found that the position in which the petitioner intends to employ him falls within [a specialty 
occupation]."). Therefore, the preliminary issue is whether the evidence in the record of proceedings 
has demonstrated by a preponderance of the evidence that the Petitioner will employ the Beneficiary 
Matter of K-M-, Inc. 
in a specialty occupation position. 1 In the instant case, the record of proceedings does not establish 
that the proffered position qualifies as a. specialty occupation. 
A. TheLaw 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty-( or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F .R. § 214.2(h)( 4 )(iii)(A). US CIS has consistently interpreted 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 proposed position. See Royal Siam Corp. v. Chertoff, 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). 
1 
The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's claim is 
"probably true," where the determination of "truth" is made based on the factual circumstances of each individual 
case. Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 
I 989)). 
2 
(b)(6)
Matter of K-M-, Inc. 
B. The Proffered Position 
With the H-lB petition, the Petitioner submitted the following list of duties: 
• Write programs in a variety of computer languages using ASP.Net, CSharp, Visual 
C#, Java, J2EE, and WebMethods 
• Update and expand existing programs using ASP.Net, CSharp, Visual C#, Java and 
WebMethods ' 
• Debug programs by testing for and fixing errors 
• Build and use computer-assisted software engineering (CASE) tools to automate the 
writing of some code 
• Use code libraries, which are collections of independent lines of code, to simplify 
the writing 
• Design and develop code for applications provided through the Internet in order to 
work on different systems platforms such as LINUX, Windows or OS X 
applications. 
The Petitioner also stated, "Minimum requirements for this professional position are at least a 
Bachelor's degree in Engineering or a related field or its equivalent and relevant work experience." 2 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 3 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 4 
1. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
2 
In a subsequent submission, the Petitioner stated that the proffered position requires a minimum of a bachelor's degree 
in computer science or a related field. However, in that submission, the Petitioner asserted that the Beneficiary has a 
bachelor's degree in Technology and Information Technology from the and a master's degree in 
computer science from in India. As the Beneficiary does not have 
those degrees, we believe that the inclusion of those degrees and associated degree requirement were included 
inadvertently Therefore, we will not consider those requirements. 
3 
Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
4 
The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 
Matter of K-M-, Inc. 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.5 
On the labor condition application (LCA) submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Systems Analysts" 
corresponding to the Standard Occupational Classification code 15-1121.6 
We reviewed the chapter entitled "Computer Systems Analysts," including the section regarding the 
typical duties for this occupational category. The Handbook states the following with regard to the 
duties of computer systems analyst positions: 
Computer systems analysts typically do the following: 
• Consult with managers to determine the role of IT systems m an 
organization 
• Research emerging technologies to decide if installing them can 
increase the organization's efficiency and effectiveness 
• Prepare an analysis of costs and benefits so that management can 
decide if IT systems and computing infrastructure upgrades are 
financially worthwhile 
• Devise ways to add new functionality to existing computer systems 
• Design and implement new systems by choosing and configuring 
hardware and software 
• Oversee the installation and configuration of new systems to 
customize them for the organization 
• Conduct testing to ensure that the systems work as expected 
• Train the systems' end users and write instruction manuals 
5 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USC IS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfY the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
6 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Levell wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: ( 1) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC _Guidance_ Revised~ II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
4 
Matter of K-M-, Inc. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Computer Systems Analysts," http://www. bls.gov/ooh/computer-and- information-technology/ 
computer-systems-analysts.htm#tab-2 (last visited Sep. 9, 2016). 
The duties of the proffered position, as described by the Petitioner, do not appear to align with the 
Handbook's description of the typical duties of a systems analyst. The Handbook states that systems 
analysts consult with a company's management to ascertain what it needs from its computer system 
and they then either adapt that company's current system or design and implement a new system. 
The duties of the proffered position, however, center around writing, updating, expanding, and 
debugging computer codes. 
The Handbook describes the duties of computer programmers as follows: 
Computer programmers typically do the following: 
• Write programs in a variety of computer languages, such as C++ and Java 
• Update and expand existing programs 
• Test programs for errors and fix the faulty lines of computer code 
responsible 
• Create and test code in an integrated development environment (IDE) 
• Use code libraries, which are collections of independent lines of code, to 
simplify the writing 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Computer Programmers," http://www. bls. gov I oohl computer-and-information-technology I 
computer-programmers.htm#tab-2 (last visited Sept. 9, 2016). 
The duties the Petitioner attributes to the proffered position, writing, updating, expanding, testing, 
and debugging computer codes, are consistent with the duties of a computer programmer as 
described in the Handbook. On the balance, we find that the position proffered would more 
accurately be placed within the "Computer Programmers" occupational category. 
As to the education required by computer programmer positions, the Handbook states: 
Most computer programmers have a bachelor's degree; however, some employers 
hire workers who have an associate's degree. Most programmers get a degree in 
computer science or a related subject. Programmers who work in specific fields, such 
as healthcare or accounting, may take classes in that field to supplement their degree 
in computer programming. In addition, employers value experience, which many 
students gain through internships. 
!d. at http://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm# 
tab-4 (last visited Sept. 9, 2016). 
5 
Matter of K-M-, Inc. 
According to the Handbook, the occupation accommodates a wide spectrum of educational 
credentials, including less than a bachelor's degree in a specific specialty. For example, the 
Handbook states that some employers hire workers who have an associate's degree. Furthermore, 
while the Handbook's narrative indicates that most computer programmers obtain a degree (either a 
bachelor's degree or an associate's degree) in computer science or a related field, the Handbook does 
not report that a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry into the occupation. Moreover, the Handbook also reports that employers 
value computer programmers who possess experience, which can be obtained through internships. 
However, had we agreed with the Petitioner that the proffered position is a computer systems analyst 
position, this also would not have demonstrated that it is a specialty occupation position pursuant to 
8 C.F.R. § 214.2(h)(4)(iii)(A)(l). The section of the Handbook describing "Computer Systems 
Analysts" begins by stating that a bachelor's degree in a related field is not a requirement. The 
Handbook continues by stating that there is a wide-range of degrees that are acceptable for positions 
in this occupation, including general-purpose degrees such as business and liberal arts. While the 
Handbook indicates that a bachelor's degree in a computer or information science field is common, 
it does not report that such a degree in normally a minimum requirement for entry. "Computer 
Systems Analysts," http://www.bls.gov/ooh/computer-and-information-technology/computer­
systems-analysts.htm#tab-4 (last visited Sept. 9, 2016). 
According to the Handbook, many systems analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. It further reports that many analysts have technical 
degrees. We observe that the Handbook does not specify a degree level (e.g., associate's degree, 
baccalaureate) for these technical degrees. Moreover, it specifically states that such a degree is not 
always a requirement. Thus, the Handbook does not support the claim that the computer systems 
analyst occupational category is one for which normally the minimum requirement for entry is a 
baccalaureate degree (or higher) in a specific specialty, or its equivalent. Even if it did, the record 
lacks sufficient evidence to support a finding that the particular position proffered here, an entry­
level computer systems analyst position, would normally have such a minimum, specialty degree 
requirement or its equivalent. 
For all of these reasons, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(l). 
2. Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
6 
(b)(6)
Matter of K-M-, Inc. 
a. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by USCIS 
include: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry attest that such firms "routinely employ and recruit 
only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) 
(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative source) reports an industry-wide requirement 
for at least a bachelor's degree in a specific specialty or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. Also, there are no submissions from the industry's 
professional association indicating that it has made a degree a minimum entry requirement. 
The Petitioner did provide two letters from companies purporting to conduct business m the 
Petitioner's industry. One is from which is in Florida, and the other is from 
which is in Illinois. The letters are largely identical. Both recite the duty 
description provided by the Petitioner and state, "A Bachelor's degree in Computer Science or 
related, Information Technology, ore [sicf related, Electrical Engineering or a related field is 
required to perform the duties of a Computer Systems Analyst." 
Other than repeating the Petitioner's duty description, these letters do not evince much knowledge of 
the Petitioner's business operations or how the duties of the position would actually be performed in 
the context of the Petitioner's business enterprise. For instance, there is no evidence that the writers 
visited the Petitioner's business, observed the Petitioner's employees, interviewed them about the 
nature 9ftheir work, or documented the knowledge that they apply on the job. 
These letters assert a general industry educational standard for computer systems analysts without 
referencing any supporting authority or any empirical basis for the pronouncement. They do not 
relate their conclusion to specific, concrete aspects of the Petitioner's business operations to 
demonstrate a sound factual basis for the conclusion about the educational requirements for the 
particular position here at issue. Accordingly, the very fact that they attribute a degree requirement. 
to such a generalized treatment of the proffered position undermines the credibility of their opinion. 
Further, as we stated above, the duty description shows that the proffered position is a computer 
7 
The same typographical error occurs in both letters, which suggests one was derived from the other, or that a third 
party, dictated the content of both letters. In any event, it diminishes the persuasive value of both letters. 
7 
Matter of K-M-, Inc. 
programmer positiOn. The general industry standard for systems analysts is of no direct relevance to 
any material issue in this cases. 
Furthermore, even if the proffered position were a systems analyst position, the record contains no 
indication that the Petitioner advised these letter-writers that the Petitioner characterized the 
proffered position as a low, entry-level computer systems analyst position, for a beginning employee 
who has only a basic understanding of the occupation systems analysis (as indicated by the wage­
level on the LCA) relative to other positions within the occupational category. It appears that the 
letter writers would have found this information relevant for their opinion letters. Moreover, without 
this information, the Petitioner has not demonstrated that those letter writers possessed the requisite 
information necessary to adequately assess the nature of the Petitioner's position and appropriately 
determine parallel positions based upon job duties and responsibilities. We consider this a 
significant omission. 
In summary, and for each and all of the reasons discussed above, we conclude that the opinion letters 
rendered by others in the Petitioner's industry do not establish that the proffered position qualifies as 
a specialty occupation. The conclusions presented in those letters lack the requisite specificity and 
detail and are not supported by independent, objective evidence demonstrating the manner in which 
the conclusions were reached. There is an inadequate factual foundation established to support the 
opinion and we find that the opinion expressed in those letters is not in accord with other 
information in the record. 
We may, in our discretion, use as advisory opmwn 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. 791 (Comm'r 1988). As a reasonable exercise of our discretion we discount the 
advisory opinion letter as not probative of any criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). For 
efficiency's sake, we hereby incorporate the above discussion and analysis regarding the opinion 
letter into each of the bases in this decision for dismissing the appeal. 
The Petitioner also provided four vacancy announcements placed by other firms. Two pertain to 
positions entitled, "Computer Systems Analyst," another is entitled, "Technical Specialist -
Computer Systems Analyst," and the fourth advertises a position entitled "Systems Analysts, 
Software Engineers, DBAs, and Systems/Network Administrators." Again, evidence pertinent to the 
educational requirements of systems analyst positions is not directly relevant here. 
Placing that deficiency aside, we note further that only one of those vacancy announcements states a 
requirement for a bachelor's degree in computer science or a related field. The others state a 
requirement for a bachelor's degree, but not for one in a specific specialty. The letters that do not 
specify a field of study do not state a requirement of a minimum of a bachelor's degree in a specific 
specialty or its equivalent. 
Further still, although the Petitioner stated that the proffered position is a Level I, entry-level 
position, three of those vacancy announcements state a requirement for experience. Even if the 
8 
Matter of K-M-, Inc. 
proffered position were a systems analyst position, to demonstrate that similar organizations in the 
Petitioner's industry require a minimum of a bachelor's degree in a specific specialty or its 
equivalent for positions parallel to the proffered position, the Petitioner would have to demonstrate 
that Level I positions have such a requirement. 
Finally, even if all of the vacancy announcements involved parallel positions with organizations 
similar to the Petitioner and in the Petitioner's industry and required a minimum of a bachelor's 
degree in a specific specialty or its equivalent, the Petitioner has not demonstrated what statistically 
valid inferences, if any, could be drawn from so few announcements with regard to the common 
educational requirements for entry into parallel positions in similar organizations. See generally Earl 
Babbie, The Practice of Social Research 186-228 ( 1995). 
Thus, the evidence of record does not establish that a requirement of a bachelor's or higher degree in 
a specific specialty, or its equivalent, is common to parallel positions with organizations that are in 
the Petitioner's industry and otherwise similar to the Petitioner. The Petitioner has not, therefore, 
satisfied the criterion ofthe first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
b. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
The essence of the Petitioner's description of the duties of the proffered pos1t10n is that the 
Beneficiary would write, update, expand, test, and debug computer programs. The evidence of 
record does not establish why a few related courses or industry experience alone would be 
insufficient to perform these duties. While a few related courses may be beneficial, or even 
required, in performing certain duties of the position, the Petitioner has not demonstrated how an 
established curriculum of such courses leading to a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is required to perform the duties of the proffered position. The 
description of the duties does not specifically identify any tasks that are so complex or unique that 
only a specifically degreed individual could perform them. The record lacks sufficiently detailed 
information to distinguish the proffered position as more complex or unique from other positions 
that can be performed by persons without at least a bachelor's degree in a specific specialty, or its 
equivalent. 
Therefore, the evidence of record does not establish that this position is significantly different from 
other positions in the occupation such that it refutes the Handbook's information to the effect that 
there is a spectrum of degrees acceptable for such positions, including degrees not in a specific 
specialty. In other words, the record lacks sufficiently detailed information to distinguish the 
proffered position as unique from or more complex tijan positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. As the Petitioner did not 
(b)(6)
Matter of K-M-, Inc. 
demonstrate how the proffered position is so complex or unique relative to other positions within the 
same occupational category that do not require at least a baccalaureate degree in a specific specialty 
or its equivalent for entry into the occupation in the United States, it cannot be concluded that the 
Petitioner has satisfied the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
3. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
The Petitioner provided evidence pertinent to the educational qualifications of seven people. 
has a bachelor's degree in computer engineering; has a 
bachelor's degree in engineering; has a master's degree in computer applications; 
has a master's degree in software systems; has a master of 
computer applications degree; has a bachelor's degree in computer science and 
engmeenng; and has a bachelor's degree in electronics and communication 
engmeenng. 
The Petitioner stated that its organizational chart would confirm that it employs all seven of these 
individuals as systems analysts. However, while the organizational chart indicates that 
works for the Petitioner as a "software application developer," it does not indicate whether 
any of the remaining six individuals also work for the Petitioner. 
Further, if the Petitioner had established that the proffered position is a systems analyst position, it 
still would not have demonstrated that it normally requires a minimum of a bachelor's degree in a 
specific specialty or its equivalent for the proffered position. The Petitioner's organizational chart 
indicates that it employs five people as systems analysts. However, no information was provided 
pertinent to the educational qualifications of any of the systems analysts the Petitioner named in its 
organizational chart. In any event, we have found that the proffered position is ac~ually a computer 
programming position, and the Petitioner's organizational chart does not list any computer 
programmers. The evidence is insufficient to show that the Petitioner employs any other computer 
programmers or that it has in the past. 
At a more foundational level, and setting all of these deficiencies aside, we find that the Petitioner 
has simply not provided enough information regarding the duties that any of its employees - past or 
present - perform, or performed. In other words, because the Petitioner has not submitted 
meaningful descriptions of the duties its other employees perform, or performed, such that we can 
ascertain whether any of them hold, or held, the same position as the one proffered here, which 
precludes analysis under the third criterion. 
10 
(b)(6)
Matter of K-M-, Inc. 
For all of these reasons, the Petitioner has not demonstrated that it normally requires a minimum of a 
bachelor's degree in a specific specialty or its equivalent for the proffered position and has not 
satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 8 
4. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
In the instant case, relative specialization and complexity have not been sufficiently developed by 
the Petitioner as an aspect of the proffered position. The duties of writing, updating, expanding, and 
debugging computer programs are generic computer programmer duties. They do not appear to be 
so much more specialized and complex than the duties of other computer programmer positions that 
we can find that the position requires a minimum of a bachelor's degree in a specific specialty or its 
equivalent, notwithstanding that some computer programmer positions do not. We also incorporate 
our earlier discussion and analysis regarding the duties of the proffered position, and the designation 
of the position in the LCA <;iS a Level I position (the lowest of four assignable wage-levels) relative 
to others within the same occupational category. 9 The evidence of record does not, therefore, satisfy 
the fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. For this reason, the 
H-lB petition may not be approved. 
II. BENEFICIARY'S QUALIFICATIONS 
The Director based her decision of denial on her finding that the Petitioner has not demonstrated that 
the Beneficiary is qualified to work in the proffered position. However, a beneficiary's credentials 
8 In fact, the organizational chart indicates that five people, 
and work for the Petitioner as computer systems analysts. The Petitioner provided no 
evidence pertinent to their educational qualifications. Even if the Petitioner had established that the proffered position is 
a systems analyst position, it still would not have demonstrated that it normally requires a minimum of a bachelor's 
degree in a specific specialty or its equivalent for the proffered position. 
9 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
1 1 
Matter of K-M-, Inc. 
to perform a particular job are relevant only when the job is found to be a specialty occupation. As 
discussed in this decision, the evidence of record does not establish that the proffered position 
requires a baccalaureate or higher degree in a specific specialty, or its equivalent. However, in order 
to address the Director's decision, we will discuss whether the evidence submitted shows that, if the 
proffered position required a minimum of a bachelor's degree in a specific specialty or its 
equivalent, the Beneficiary would have a degree in that specific specialty. 
A. The Law 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), definesthe term "specialty 
occupation" as an occupation that requires: 
(A) theoretical and practical application of a body of highly 
specialized knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum for entry into the 
occupation in the United States. 
The degree referenced by section 214(i)(l)(B) of the Act, 8 U.S.C. § 1184(i)(1)(B), means one in a 
specific specialty that is characterized by a body of highly specialized knowledge that must be 
theoretically and practically applied in performing the duties of the proffered position. 
A bachelor's degree does not, per se, qualify a beneficiary for employment in a specialty 
occupation. Rather, the position must require a degree in a specific specialty. Cf Matter of Michael 
Hertz Assocs., 19 I&N Dec. 558,560 (Comm'r 1988). Further, the beneficiary must have a degree in 
that specific specialty. See Matter of Ling, 13 I&N Dec. 35 (Reg'l Comm'r 1968). 
Section 214(i)(2) of the Act, 8 U .S.C. § 1184(i)(2), states that an alien applying for classification as 
an H-1B nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (1)(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such 
degree, and 
(ii) recognition of expertise in the specialty through progressively 
responsible positions relating to the specialty. 
12 
Matter of K-M-, Inc. 
In implementing section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), the regulation at 8 C.P.R. 
§ 214.2(h)(4)(iii)(C) states that a beneficiary must meet one of the following criteria in order to 
qualify to perform services in a specialty occupation: 
(I) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation from an 
accredited college or university; 
(3) Hold an unrestricted state license, registration or certification which 
authorize:;; him or her to fully practice the specialty occupation and be 
immediately engaged in that specialty in the state of intended employment; or 
( 4) Have [a] education, specialized training, and/or progressively responsible 
experience that is equivalent to completion of a United States baccalaureate or 
higher degree in the specialty occupation, and [b] have recognition of 
expertise in the specialty through progressively responsible positions directly 
related to the specialty. 
In addition, 8 C.P.R. § 214.2(h)(4)(v)(A) states: 
General. If an occupation requires a state or local license for an individual to fully 
perform the duties of the occupation, an alien (except an H-lC nurse) seeking 
H classification in that occupation must have that license prior to approval of the 
petition to be found qualified to enter the United States and immediately engage in 
employment in the occupation. 
Therefore, to qualify a beneficiary for classification as an H-lB nonimmigrant worker under the Act, 
the petitioner must establish that the beneficiary possesses the requisite license or, if none is 
required, that he or she has completed a degree in the specialty that the occupation 
requires. Alternatively, if a license is not required and if the beneficiary does not possess the 
required U.S. degree or its foreign degree equivalent, the petitioner must show that the beneficiary 
possesses both (1) education, specialized training, and/or progressively responsible experience in the 
specialty equivalent to the completion of such degree, and (2) recognition of expertise in the 
specialty through progressively responsible positions relating to the specialty. 
Next, in order to equate a beneficiary's credentials to a U.S. baccalaureate or higher degree under 
8 C.P.R.§ 214.2(h)(4)(iii)(C)(4), the provisions at 8 C.P.R.§ 214.2(h)(4)(iii)(D) require one or more 
of the following: 
13 
(b)(6)
Matter of K-M-, Inc. 
(1) An evaluation from an official who has authority to grant college-level credit 
for training and/or experience in the specialty at an accredited college or 
university which has a program for granting such credit based on an 
individual's training and/or work experience; 
(2) The results of recognized college-level equivalency examinations or special 
credit programs, such as the College Level Examination Program (CLEP), or 
Program on Noncollegiate Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 10 
( 4) Evidence of certification or registration from a nationally-recognized 
professional association or society for the specialty that is known to grant 
certification or registration to persons in the occupational specialty who have 
achieved a certain level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by 
the specialty occupation has been acquired through a combination of 
education, specialized training, and/or work experience in areas related to the 
specialty and that the alien has achieved recognition of expertise in the 
specialty occupation as a result of such training and experience .... 
B. Analysis 
The record of proceedings does not establish that the Beneficiary is qualified to work in a specialty 
occupation. 
With the H-lB petition, the Petitioner stated, "Minimum requirements for this professional position 
are at least a Bachelor's degree in Engineering or a related field or its equivalent and relevant work 
experience." The duties of the proffered position, however, involve writing, updating, expanding, 
testing, and debugging computer programs. The Petitioner has not sufficiently established that 
engineering is directly related to the duties of the proffered position. If the proffered position were a 
specialty occupation that requires a minimum of a bachelor's degree in a specific specialty or its 
equivalent, it would likely require a degree in computer science or a closely-related subject such as 
management information systems, information technology, software development, etc. The 
evidence shows that the Beneficiary was awarded a bachelor's degree in mechanical engineering by 
Therefore, the Beneficiary does not appear to have a degree closely 
related to computer science. With this in mind, we will proceed with an analysis of the 
Beneficiary's qualifications pursuant to the salient regulations. 
10 
The Petitioner should note that, in accordance with this provision, we will accept a credentials evaluation service's 
evaluation of education only, not training or experience. 
14 
(b)(6)
Matter of K-M-, Inc. 
The Beneficiary does not have a U.S. bachelor's degree. As mentioned, the evidence shows that the 
Beneficiary was awarded a bachelor's degree in mechanical engineering in India. Therefore, the 
Beneficiary's has not satisfied the criteri?n of 8 C.P.R. § 214.2(h)( 4)(iii)(C)(l). 
The Petitioner has not established that the Beneficiary is qualified to serve in a specialty occupation 
under the criterion at 8. C.P.R. § 214.2(h)(4)(iii)(C)(2) for a beneficiary holding a foreign degree 
determined to be equivalent to a U.S. accredited college or university baccalaureate or higher degree 
required by the pertinent specialty occupation. As was explained above, if it were established that 
the proffered position required a minimum of a bachelor's degree in a specific specialty or its 
equivalent, the required degree would be in computer science or a closely-related subject. The 
Petitioner provided an evaluation prepared by which states that the 
Beneficiary's foreign degree is equivalent to a bachelor's degree in engineering awarded in the 
United States. The Petitioner has not sufficiently established how the Beneficiary's foreign degree 
in engineering is directly related to the duties of the proffered position. 
The Beneficiary also does not meet the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(C)(J), as there is no 
evidence of an unrestricted state license, registration, or certification which authorizes him to fully 
practice and be immediately engaged in a specialty occupation in the state of intended employment. 
To show that the Beneficiary has the equivalent of a U.S. bachelor's degree pursuant to 8 C.P.R. 
§ 214.2(h)(4)(iii)(C)(4), the Petitioner must satisfy one of the five criteria at 8 C.P.R. 
§ 214.2(h)(4)(iii)(D) .. 
With regard to the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(D)(l), we find that the record has not 
established that the evaluator has "authority to grant college-level credit for training and/or 
experience in the specialty at an accredited college or university which has a program for granting 
such credit based on an individual's training and/or work experience," as required by this criterion. 
The Petitioner provided an evaluation prepared by 
the at the 
an associate professor in 
which opines that the Beneficiary's education and employment 
experience, when considered together, equivalent to a bachelor's degree with a dual major in 
management information systems and engineering. The evaluator stated, "I have authority to grant 
college-level credit for based on a candidate's foreign educational credentials, training, 
and/or employment experience in Computer Science, and sub-disciplines including Information 
Systems and Computer Engineering." That evaluation was accompanied by a letter from the 
Registrar at which states that faculty members at that college "have the authority to 
recommend college-level credit for training and experience." (Emphasis added.) It does not confirm 
assertion that he possesses the authority to grant such credit. 
On appeal, the Petitioner provides an updated evaluation of the Beneficiary's education, training, 
and experience prepared by This evaluation document reiterates 
15 
(b)(6)
Matter of K-M-, Inc. 
opmwn that the Beneficiary's education and employment experience, considered together, are 
equivalent to a U.S. bachelor's degree with a dual major in management information systems and 
engmeenng. 
The employment-experience component of evaluation is an essential element of this 
evaluator's ultimate opinion that the addition of the Beneficiary's work experience to his U.S. 
bachelor-degree-equivalent in mechanical engineering equates to the equivalent of a U.S. bachelor's 
degree with a dual major in management information systems and engineering. 
To establish the relevance of evaluation of the Beneficiary's, the Petitioner relies 
upon this criterion at 8 C.F.R. § 214.2(h)(4)(iii)(D)(l) as providing for USCIS consideration of an 
evaluation of training and/or work experience from "an official who has authority to grant college­
level credit for training and/or experience in the specialty at an accredited college or university 
which has a program for granting such credit based on an individual's training and/or work 
experience." That reliance is misplaced. 
In his evaluation document submitted on appeal - entitled "Updated Evaluation of Education, 
Training, and Experience (With Positional Analysis and Expanded Discussion of Equivalency 
Formulation)," dated February 19, 2016 - asserts that he "ha[s] authority to grant 
college level credit for the university based on 
a candidate's foreign educational credentials, training, 
and/or employment experience in Computer Science, and subdisciplines including Information 
Systems and Computer Engineering." 
To support the accuracy of assertion, the Petitioner includes a copy of a February 1, 
2016, letter from signing as the Chair, 
at While closes his letter with the hope that it suffices "to support 
the conclusion that has the authority to assess, evaluate, and grant credit for 
training and experience," the letter's content does not support the proposition that has 
the authority to grant college credit at on the basis of a person's work experience and/or 
education. In this regard, we note that letter refers to faculty members' authority 
"to recommend college level credit for training and experience," and the letter acknowledges 
"[i]nput by faculty [as] an important component of evaluating the appropriateness of credit assigned 
for work or other life experience." So, too, the letter asserts that "regards faculty members 
as appropriate evaluators of academic and professional work experience for the purpose of 
admissions, advising, placement in degree programs, substitutions of courses, assessments of 
internships, and other routine college or university evaluations." 
We find that goes no further than endorse as one with "authority to make 
determinations concerning the granting of college-level credit for training and experience" in the 
academic 
areas within the scope of his academic duties. In short, the 
submission does not establish that is a credit-authorizing official as defined at 8 C.F.R. 
§ 214.2(h)(4)(iii)(D)(l). Accordingly, the Petitioner not established that evaluations 
of the Beneficiary's work experience merit ariy probative weight regarding the Beneficiary's 
16 
Matter of K-M-, Inc. 
qualifications to perform the duties of a specialty-occupation-level computer systems analyst 
position. 
The criteria at 8 C.F.R. §§ 214.2(h)(4)(iii)(D)(2) and (4) are not factors in this proceeding, as the 
record contains no evidence related to them. 
With regard to 8 C.F.R. § 214.2(h)(4)(iii)(D)(J), we observe that the evaluations that considered the 
Beneficiary's education alone, without considering the Beneficiary's employment experience, found 
the Beneficiary's foreign degree equivalent to a U.S. degree in engineering which, as was explained 
above, would not be a sufficient educational qualification for a specialty-occupation position within 
the computer systems analysts occupational group. 
The remaining criterion for review is 8 C.F .R. § 214.2(h)( 4)(iii)(D)(5), which allows recognition of a 
beneficiary's qualification by a users (as opposed to an evaluator) determination that his or her 
training or work experience is equivalent to U.S. baccalaureate coursework in a specific specialty. 
This criterion provides that, for each year of college-level training a beneficiary lacks: 
[I]t must be clearly demonstrated [1] that the alien's training and/or work experience 
included the theoretical and practical application of specialized knowledge required 
by the specialty occupation; [2] that the alien's experience was gained while working 
with peers, supervisors, or subordinates who have a degree or its equivalent in the 
specialty occupation; and [3] that the alien has recognition of expertise in the 
specialty evidenced by at least one type of documentation such as: 
(i) Recognition of expertise in the specialty occupation by at least two recognized 
authorities in the same specialty occupation 11 ; 
(ii) Membership in a recognized foreign or United States association or society in 
the specialty occupation; 
(iii) Published material by or about the alien in professional publications, trade 
journals, books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation m a foreign 
country; or 
11 
Recognized authority means a person or organization with expertise in a particular field, special skills or knowledge in 
that field, and the expertise to render the type of opinion requested. A recognized authority's opinion must state: ( 1) the 
writer's qualifications as an expert; (2) the writer's experience giving such opinions, citing specific instances where past 
opinions have been accepted as authoritative and by whom; (3) how the conclusions were reached; and (4) the basis for 
the conclusions supported by copies or citations of any research material used. 8 C.F.R. § 214.2(h)(4)(ii). 
17 
,) 
Matter of K-M-, Inc. 
(v) Achievements which a recognized authority has determined to be significant 
contributions to the field of the specialty occupation. 
The letters from the Petitioner's former employer identify the period during which they employed 
the Beneficiary, the duties of the positions he held, and his computer skills. Neither the letters nor 
any other evidence of record satisfies the regulatory requirement to clearly demonstrate the extent of 
the theoretical and practical application of specialized knowledge in any specialty that was involved 
in the Beneficiary's work; that the Beneficiary's experience was gained while working with peers, 
supervisors, or subordinates who have a degree or its equivalent in any particular specialty 
occupation; or that the Beneficiary has recognition of expertise in any specialty, as evidenced by at 
least one type of documentation such as those listed in this criterion. Consequently, the Petitioner 
has not established that the Beneficiary satisfies the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). 
The petition does not establish that, if, as claimed, the proffered position were a specialty­
occupation-level position within the computer systems analysts occupational group, the Beneficiary 
would be qualified to perform the services of such a position. The appeal must, therefore, be 
dismissed because the evidence is insufficient to show that the Beneficiary is qualified under 
8 C.F.R. §§ 214.2(h)(4)(iii)(C) and (D).12 
III. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-M-, Inc., ID# 17876 (AAO Sept. 14, 2016) 
12 
Since the identified bases for denial is dispositive of the Petitioner's appeal, we need not address another ground of 
ineligibility we observe in the record of proceedings including whether the LCA corresponds to the petition. 
18