dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 9449794 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 04, 2020 
The Petitioner , an information technology consulting and software development services company, 
seeks to temporarily employ the Beneficiary as a "tools developer" under the H-lB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(b) , 8 U.S.C . § l 10l(a)(l5)(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 of the California Service Center denied the petition , concluding that the record did not 
establish that the proffered position qualifies as a specialty occupation. The matter is now before us 
on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe , 25 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 2 l 4(i)(l) of the Act, 8 U.S.C. § l l 84(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). We 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 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"). 
II. THE PROFFERED POSITION 
The Petitioner seeks to employ the Beneficiary as a tools developer, and indicates that she will be 
performing her duties at an end-client location. The Petitioner and the end-client provided several job 
descriptions for the proffered position which identified the primary duties and responsibilities of the 
Beneficiary, along with the approximate percentage of time the Beneficiary will spend on each duty. 1 
Both the Petitioner and the end-client indicated that the minimum entry requirement for the proffered 
position is a bachelor's degree, or equivalent, in computer science. 
III. ANALYSIS 
Upon review of the entire record, for the reasons set out below, we have determined that the Petitioner 
has not demonstrated that the proffered position qualifies as a specialty occupation. 2 
The Director concluded that the Petitioner did not establish that the offered position qualifies as a 
specialty occupation. In her decision, the Director thoroughly discussed the Petitioner's failure to 
meet any of the four regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4). On appeal, the 
Petitioner only contests two elements within the Director's decision: 
1. The determination under the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]), 
2. The determination under the first prong of the regulation at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
1 For the sake of brevity, we will not quote the job descriptions; however, we have closely reviewed and considered them. 
2 The Petitioner submitted documentation in support of the H-lB 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 
The Petitioner does not rebut the Director's conclusions under the second prong of the criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2), or the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3)-(4), and the 
Petitioner has abandoned those eligibility claims on appeal. When an appellant fails to properly 
challenge one of the independent grounds upon which the Director based their overall determination, 
the filing party has abandoned any challenge of that ground. 3 
A. First Criterion 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]) 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 will consider the information contained in the U.S. Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the duties and educational 
requirements of the wide variety of occupations it addresses. 4 
On the labor condition application (LCA)5 submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Computer Programmers" 
corresponding to the Standard Occupational Classification (SOC) code 15-1131. Thus, we reviewed the 
Handbook's subchapter entitled "How to Become a Computer Programmer," which states, in pertinent 
part, that most computer programmers have a bachelor's degree in computer science or a related 
subject. 6 According to the Handbook, some employers hire workers with an associate' s degree and some 
employers hire workers who have other degrees or experience in specific programming languages. 7 The 
Handbook does not specify a degree level ( e.g., associate' s degree) for these "other degrees." 
The Handbook, therefore, does not support the assertion that at least a bachelor's degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for these positions. 
The Petitioner cited to DOL's Occupational Information Network (O*NET) summary report for 
"Computer Programmers" listed as SOC code 15-1131.00 for our consideration under this criterion. 
3 See Matter of Zhang. 27 I&N Dec. 569 n.2 (BIA 2019) (finding that an issue not appealed is deemed as abandoned); 
Matter of Valdez, 27 I&N Dec. 496, 496 n.1 (BIA 2018); Matter of R-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012); Matter 
of J-Y-C-, 24 I&N Dec. 260,261 n.1 (BIA 2007); Matter of Cervantes, 22 I&N Dec. 560,561 n.1 (BIA 1999) Matter of 
Edwards, 20 l&N Dec. 191, 196-97 n.4 (BIA 1990). See also Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226. 1228 n.2 (11th 
Cir. 2005). 
4 We do not 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 we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. Nevertheless, to satisfy the first criterion, 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. 
5 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-1 B 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. Section 212(n)(l) of the Act; 20 C.F.R. § 655.731(a). 
6 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers, 
https://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm#tab-4 (last visited July 30, 
2020). 
7 Id. 
3 
Though relevant, the information the Petitioner submits from O*NET does not establish the Petitioner's 
eligibility under the first criterion, as it does not establish that a bachelor's degree in a specific specialty, 
or the equivalent, is normally required. The summary report provides general information regarding the 
occupation; however, it does not support the Petitioner's assertion regarding the educational requirements 
for these positions. For example, the Specific Vocational Preparation (SVP) rating, which is defined as 
"the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, 
and develop the facility needed for average performance in a specific job-worker situation," cited within 
O*NET's Job Zone designates this position as having an SVP 7 < 8. This indicates that the occupation 
requires "over 2 years up to and including 4 years" of training. 8 While the SVP rating provides the total 
number of years of vocational preparation required for a particular position, it is important to note that it 
does not describe how those years are to be divided among training, formal education, and experience -
and it does not specify the particular type of degree, if any, that a position would require.9 The O*NET 
summary report for this occupation also does not specify that a degree is required, but instead states, 
"most of these occupations require a four-year bachelor's degree, but some do not." Similar to the SVP 
rating, the Job Zone Four designation does not indicate that any academic credentials for Job Zone Four 
occupations must be directly related to the duties performed. 
Further, we note that the summary report provides the educational requirements of "respondents." 
However, the respondents' positions within the occupation are not distinguished by career level (e.g., 
entry-level, mid-level, senior-level). Additionally, the graph in the summary report does not indicate 
that the "education level" for the respondents must be in a specific specialty. 10 Thus, the Petitioner's 
reliance on the 88% of "respondents" claiming to hold at least a bachelor's degree as a demonstration 
that a bachelor's degree is the normal requirement for the occupation is misguided. A requirement for 
a bachelor's degree alone is not sufficient. Instead, we 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 
proposed position. See Royal Siam Corp., 484 F.3d at 147 (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). 
O*NET, therefore, also does not support the assertion that at least a bachelor's degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for these positions. 
The Petitioner submitted a letter prepared b I Professor of 
Information Systems Management at ~--~University, to understand why or how the duties 
described require a bachelor's degree in a specific specialty, or its equivalent. I I repeats 
the Petitioner's description of the proposed duties and opines that a position with these duties would 
"normally be filled by a graduate with a minimum of a Bachelor's Degree or higher in Computer 
Science, a related, area, or the equivalent." 
8 This training may be acquired in a school, work, military, institutional, or vocational environment. Specific vocational 
training includes: vocational education, apprenticeship training, in-plant training, on-the-job training, and essential 
experience in other jobs. 
9 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/ 
online/svp. 
10 Nor is it apparent whether these credentials were prerequisites to these individuals' hiring. 
4 
~----~I however, does not provide a description of the duties in the context of the Beneficiary's 
assignment with the end-client nor a statement of whether the end-client requires a qualifying degree. 
In fact, there is no mention of the Beneficiary's assignment at the end-client at all, thereby raising 
doubts regarding his familiarity with the actual duties to be performed in this matter. Furthermore, 
there is no indication that I I has conducted any research or studies pertinent to the 
educational requirements for such positions, and no indication of recognition by professional 
organizations that he is an authority on those specific requirements. Accordingly, I I's 
opinion, which does not address the end-client project and its requirements, bears minimal probative 
value . 
.__ ____ _.Is letter is insufficient to support the Petitioner's assertion that the proffered position 
qualifies as a specialty occupation. As a matter of discretion, we may use opinion statements submitted 
by the Petitioner as advisory. Matter of Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 
1988). However, we will reject an opinion or give it less weight if it is not in accord with other 
information in the record or if it is in any way questionable. Id. 
The record lacks sufficient probative evidence to support a conclusion that the proffered position is one 
for which a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the 
minimum requirement for entry. For the aforementioned reasons, the Petitioner has not met its burden to 
establish that the particular position offered in this matter requires a bachelor's or higher degree in a 
specific specialty, or its equivalent, directly related to its duties in order to perform those tasks. Thus, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]). 
B. 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. 
1. 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. 
We generally consider the following sources of evidence to determine if there is such a common degree 
requirement: 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 establish 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) (considering these 
"factors" to inform the commonality of a degree requirement)). 
5 
As noted, the Handbook does not indicate that a bachelor's degree in a specific specialty is a common 
requirement within the industry for parallel positions among similar organizations. Also, the Petitioner 
did not submit evidence from an industry professional association or from firms or individuals in the 
industry indicating such a degree is a minimum requirement for entry into the position. Furthermore, 
the Petitioner did not submit any letters or affidavits from similar firms or individuals in the 
Petitioner's industry attesting that such firms "routinely employ and recruit only degreed individuals." 
The Petitioner submitted job vacancy announcements for our consideration under this prong. To be 
relevant for consideration, the job vacancy announcements must advertise "parallel positions," and the 
announcements must have been placed by organizations that (1) conduct business in the Petitioner's 
industry and (2) are also "similar" to the Petitioner. These job vacancy announcements do not satisfy that 
threshold. Upon review of the documents, we conclude that the Petitioner's reliance on the job 
announcements is misplaced. 
We first consider whether the advertised job opportunities could be considered "parallel positions." Most 
of the advertised positions require a bachelor's degree plus additional experience; in fact, most of the 
postings require at least two to three years of industry experience, with several requiring "5+" years of 
experience and one requiring at least five to ten years of relevant experience. 
In addition, several of the postings are for positions distinguishable from the one proffered here. All four 
of the advertisements submitted in response to the Director's request for evidence, and approximately 
half of the postings submitted on appeal, are for software developer/software engineer positions. As noted 
earlier in this decision, the Petitioner classified the proffered position as a computer programmer under 
SOC code 15-1131. Software developers and engineers have a distinct set of duties from those of 
computer programmers, and are classified separately under SOC code 15-1132. For this reason, these 
postings cannot be considered advertisements for parallel positions to the one proffered here. 
By virtue of their job titles, it appears that the Petitioner submitted three postings that can possiry be I 
considered parallel positions to the proffered position. One posting is for a tool developer with 
Systems. The job description requires the candidate to have experience using Department of Defense test 
technologies, and indicates that the candidate will work on enabling an element of the Ballistic Missile 
Defense System. We are not persuaded that this job posting is for a parallel position, as the only similarity 
was can discern is the same job title. The Petitioner also submitted two postings for computer programmer 
positions; however, the description of duties for each position is too vague to determine whether these 
positions are parallel to the proffered position. Also, one of these postings requires at least three years of 
experience in addition to a bachelor's degree, indicating it is a more senior position than the one proffered 
here, which the Petitioner classified as a Level I, entry-level position on the LCA. 
Nor does the record contain documentary evidence sufficient to establish that these job vacancy 
announcements were placed by companies that (1) conduct business in the Petitioner's industry and (2) 
are also "similar" to the Petitioner. The submitted postings provide little to no information regarding the 
nature of the posting entities, and the Petitioner submits no additional documentation to establish that 
these companies are similar to the Petitioner or conducts business within its industry. As noted by the 
Director, the only posting accompanied by additional documentation regarding the posting entity is Vadlo 
Systems, which solicits a software developer and therefore is not relevant here. Overall, the Petitioner 
6 
provided insufficient evidence to determine whether the employers featured in any of the postings are 
similar to the Petitioner. 
For all of these reasons, the Petitioner has not established that these job vacancy announcements are 
relevant. Even if that threshold had been met, we would still conclude that these job announcements do 
not assist the Petitioner in satisfying this prong of the second criterion, as they do not indicate that a 
bachelor's degree in a specific specialty, or the equivalent, is common to the industry in parallel positions 
among similar organizations. The relevant job advertisements indicate that the employers accept a variety 
of degrees in the fields of math, engineering, and information systems, as well as computer science. 
As the documentation does not establish that the Petitioner has met this prong of the regulations, further 
analysis regarding the specific information contained in each of the job postings is not necessary.11 That 
is, not every deficit of every piece of evidence has been addressed. 12 
We have again reviewed the letter from I I who concludes that "it is standard for a 
company such as [the Petitioner] to hire a Tools Developer and require that individual to have attained 
at least a Bachelor's Degree or Higher in Computer Science or a related area." However, he does not 
reference, cite, or discuss any studies, surveys, industry publications, authoritative publications, or 
other sources of empirical information which he may have consulted to complete his evaluation. Thus, 
it remains unclear how I I reached his conclusions as to the industry educational 
requirements for the proffered position. Consistent with Caron Int 'I, we conclude that this evaluation 
does not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
As the foregoing demonstrates, we conclude that this evidence does not credibly refute the conclusions 
of the Handbook. The record does not establish that similar organizations in the Petitioner's industry 
have a common degree requirement of a bachelor's or higher degree, or its equivalent, in a specific 
specialty, for positions falling within this occupational category. Thus, the Petitioner has not satisfied 
the first prong of the regulation 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) 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. On appeal, the Petitioner does not 
assert eligibility under this prong of the criterion; therefore, further discussion is unnecessary. The 
Petitioner has not satisfied the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
11 The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
12 Even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty is common to 
the industry in parallel positions among similar organizations (which they do not), the Petitioner does not demonstrate 
what statistically valid inferences. if any, can be drawn from the job postings with regard to the common educational 
requirements for entry into parallel positions in similar organizations. See generalZv Earl Babbie, The Practice of Social 
Research 186-228 (7th ed. 1995). 
7 
C. 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. On appeal, the 
Petitioner does not assert eligibility under this criterion; therefore, further discussion is unnecessary. 
The Petitioner has not satisfied the requirements of 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. 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. 
On appeal, the Petitioner does not assert eligibility under this prong of the criterion; therefore, further 
discussion is unnecessary. The Petitioner has not satisfied the second prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(4). 
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