dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF SVVI-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 19,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology firm, seeks to temporarily employ the Beneficiary as a 
"programmer analyst" under the H-1 B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-1B 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 Vermont Service Center denied the petition, concluding that the evidence of 
record does not establish that the proffered position is a specialty occupation. 1 
On appeal, the Petitioner asserts that the Director erred in the decision. Upon de novo review, we 
will dismiss the appeal. 
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 We hereby withdraw the Director's statement that the position of programmer analyst is traditionally ~onsidered a 
specialty occupation. The Director does not ~ite to any authoritative or objective source to support this statement. 
.
Matter of SVVI-, Inc. 
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 
individt,ml 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 have consistently interpreted 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") ; Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as a "programmer analyst." 
In addition, the Petitioner stated that the Beneficiary will be working for the end-client 
located at m Florida. 
In response to the Director's request for evidence, the Petitioner submitted 
a letter from the end­
client, which provided the following job duties for the position (verbatim): 
• Responsible for creating efficient design and developing User Interaction screens 
using CSS3, JavaScript, JQuery AJAX and JSON. 
• Design and Development of Bach shell scripts that processes input data files 
through generating delta Master files and ftp'ing to downstream systems for 
consumption. 
• Responsible for creating efficient design and developing User Interaction screens 
using HTML5. 
• Involved in writing and modifying procedure, Queries, Views and Triggers and 
called them from JavaScript using the local application framework. 
2 
Matter of SVVI-, Inc. 
• Worked on Git hub to maintain the repository and used for the Version Control to 
track check-ins and rollback code. 
• Used Twitter Bootstrap framework for developing customizable and fully 
responsive for various Screen sizes. 
• Researching and Prototyping new technologies and providing recommendation 
for application development. 
The end-client does not state that there are any specific requirements for the position. 
In addition, the Petitioner submitted its own description of the Beneficiary's job duties for the 
proffered position, along with the approximate percentage of time the Beneficiary will spend on each 
duty.2 According to the Petitioner, the position requires a bachelor's degree in computer science, 
engineering, computer information systems, information technology, technology or a related 
quantitative discipline. 
III. ANALYSIS 
For the reasons set out below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation.3 Specifically, the record (1) does not describe 
the position's duties with sufficient detail; and (2) does not establish that the job duties require an 
· educational background, or its equivalent, commensurate with a specialty occupation.4 
As recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location(s) in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. In other words, 
as the employees in that case would provide services to the end-client and not to the petitioning 
staffing company, the Petitioner-provided job duties and alleged requirements to perform those 
duties were irrelevant to a specialty occupation determination. See id. 
The description of the Beneficiary's duties, as provided by the Petitioner, lack the specificity and 
detail necessary to support the Petitioner's contention that the position is a specialty occupation. 
While a general description may be appropriate when defining the range of duties that are performed 
within an occupation, such a generic description generally cannot be relied upon by the Petitioner 
when discussing the duties attached to specific employment for H-lB approval. In establishing such 
a position as a specialty occupation, especially one that may be classified as a staffing position or 
2 We observe that the wording of the duties provided by the Petitioner for the proffered position is taken virtually 
verbatim from the Occupational Information Network (O*NET) OnLine Summary Report's list of tasks associated with 
the occupational category "Computer Programmers." For additional information, see O*NET OnLine, available at 
http://www.onetonline.org/link/summary/15-1131.00 (last visited June 16, 20 17). 
3 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
4 The Petitioner submitted documentation in support of the H-1 8 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. 
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Matter of SVVI-, Inc. 
labor-for-hire, the description of the proffered position must include sufficient details to substantiate 
that the Petitioner has H -1 B caliber work for the Beneficiary. Here, the documentation from the 
Petitioner does not sufficiently communicate: (1) the actual work that the Beneficiary would 
perform; (2) the complexity, uniqueness or specialization of the tasks; or (3) the correlation between 
that work and a need for a particular level of knowledge in a specific specialty. 
The Petitioner, thus, has not established the substantive nature of the work to be performed by the 
Beneficiary, which precludes a finding that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature ofthat work that determines (1) the normal 
minimum educational requirement for the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for 
a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. 
Nevertheless, assuming, for the sake of argument, that the proffered duties as described in the record 
would in fact be the duties to be performed by the Beneficiary, we will analyze them and the 
evidence of record to determine whether the proffered position as described qualifies as a specialty 
occupation pursuant to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), 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 (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)6 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Computer Programmers" 
5 All of our references are to the 2016-17 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 we regularly review 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 is required to submit a certified LCA to demonstrate that it will pay an H-1 8 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 experience and qualifications who are performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
4 
Matter of SVVI-, ,Jnc. 
corresponding to the Standard Occupational Classification code 15-1131.7 Thus, we reviewed the 
Handbook's subchapter entitled "How to Become a Computer Programmer," which states, in 
pertinent part: "Most computer programmers have a bachelor's degree in computer science or a 
related subject; however, some employers hire workers with an associate's degree." Bureau of 
Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers 
(20 16-17 ed. ). The Handbook does not support the Petitioner's assertion that a bachelor's degree is 
required for entry into this occupation. The Handbook reports that the occupation accommodates a 
wide spectrum of educational credentials, including less than a bachelor's degree in a specific 
specialty. 
In the instant matter, the Petitioner has not provided documentation from a probative source to 
substantiate its assertion regarding the minimum requirement for entry into this particular position. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
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 the 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 we often consider 
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 
7 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 whi<;h 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) 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://flcdatacenter.com/download/NPWHC_Guidance_Revised_ll_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. 
5 
.
Matter of SVVI-, Inc. 
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)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree 
in a specific specialty, 
or its equivalent. We incorporate by reference the previous discussion on the 
matter. 
In support of this criterion, the Petitioner submitted copies of job announcements placed by other 
employers. However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements is misplaced. First, we note that the Petitioner did not establish that the advertising 
organizations are similar to the Petitioner. For example, the advertisements provide little or no 
information regarding the hiring employers. The Petitioner did not supplement the record of 
proceedings to establish that these advertising organizations are similar to it. 
When determining whether the Petitioner and the organization share the same general 
characteristics, such factors may include information regarding the nature or type of organization, 
and, when pertinent, the particular scope of operations, as well as the level of revenue and staffing 
(to list just a few elements that may be considered). It is not sufficient for the Petitioner to claim that 
an organization is similar and in the same industry without providing a basis for such an assertion. 
Moreover, many of the advertisements do not appear to be for parallel positions. Forexample, some 
of the positions appear to be for more senior, experienced employment than the proffered position. 8 
Therefore, the Petitioner has not sufficiently established that the primary duties and responsibilities 
of the advertised positions are parallel to the proffered position. 
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.9 That is, not every deficit of every job posting has been addressed. 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's 
degree in a specific specialty, or its equivalent, is common to the industry in parallel positions 
among similar organizations. 10 Thus, the Petitioner has not satisfied the first alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
8 For instance, the advertisement for requires a master's degree or a bachelor's degree, 
plus five years of work experience as a programmer analyst, programmer, software engineer, or technical lead. In 
addition, the posting for requires a degree and "60 months" of experience. However, the 
Petitioner indicated that the proffered position is an entry-level position (on the LCA ). 
9 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. 
10 
It must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a specific 
6 
Matter of SVVI-, Inc. 
2: 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. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
Petitioner described the proffered position and its business operations. In its letter of support, the 
Petitioner asserted that the ''job duties for the proffered position are complex and unique" requiring a 
bachelor's degree. However, the Petitioner designated the proffered position as an entry-level 
position within the occupational category (by selecting a Level I wage). 11 This designation, when 
read in combination with the Petitioner and end-client's job descriptions, further suggests that the 
particular position is not so complex or unique that the duties can only be performed an individual 
with bachelor's degree or higher in a specific specialty, or its equivalent. While related courses may 
be beneficial in performing certain duties of the position, the Petitioner has not demonstrated how an 
established curriculum of 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 Petitioner claims that the Beneficiary is well-qualified for the position, and references the 
Beneficiary's qualifications. However, the test to establish a position as a specialty occupation is not 
the education or experience of a proposed beneficiary, but whether the position itself requires at least 
a bachelor's degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently 
develop relative complexity or uniqueness as an aspect of the duties of the position, and it did not 
identify any tasks that are so complex or unique that only a specifically degreed individual could 
perform them. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(2). 
specialty is common to the industry in parallel positions among similar organizations (w~ich they do not), the Petitioner 
has not demonstrated what statistically valid inferences, if any, can be drawn from the advertisements with regard to 
determining the common educational requirements for entry into parallel positions in similar organizations. See 
generally Earl Babbie, The Practice ofSocial Research 186-228 (1995). Moreover, given that there is no indication that 
the advertisements were randomly selected, the validity of any such inferences could not be accurately determined even 
if the sampling unit were sufficiently large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] 
process [of probability sampling]" and that "random selection offers access to the body of probability theory, which 
provides the basis for estimates of population parameters and estimates of error"). 
11 
The Petitioner's designation ofthis position as a Levell, entry-level position undermines its claim that the position is 
particularly complex, unique, and specialized 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 ifthat higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialt;y, 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 positiqn meets the requirements of section 214(i)(1) of the Act. 
( 
Matter of SVVI-, Inc. 
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. 
Upon review of the record, we find that the Petitioner did not submit information regarding 
employees who currently or previously held the position. The record does not establish that the 
Petitioner normally requires at least a bachelor's degree in a specific specialty, or its equivalent, 
directly related to the duties of the position. Therefore, the Petitioner has not satisfied the criterion 
at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 
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. 
In the instant case, relative specialization and complexity have not been sufficiently developed by 
the Petitioner as an aspect of the proffered position. The Petitioner does not establish how the 
generally described duties elevate the proffered position to a specialty occupation. We again refer to 
our comments regarding the implications of the Petitioner's designation of the proffered position at a 
Level I wage level. 
Upon review of the totality of the record, the Petitioner has not established that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. For the reasons discussed above, the evidence of record does not satisfy the fourth 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
IV. CONCLUSION 
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. 
ORDER: The appeal is dismissed. 
Cite as Matter ofSVVI-, Inc., ID# 447484 (AAO June 19, 2017) 
8