dismissed H-1B Case: Information Technology

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-P-S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 27.2016 
PETITION: FORM 1-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner. an information technology business, seeks to temporarily employ the Beneficiary as a 
"computer programmer'' under the H-1 B nonimmigrant classification. 1 See Immigration and 
Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(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, Vermont Service Center. denied the petition. The Director concluded that the 
evidence of record did not establish that the proffered position qualifies as a specialty occupation in 
accordance with the applicable statutory and regulatory provisions. 
The matter is now before us on appeal. On appeaL the Petitioner asserts that the Director's basis for 
denial of the petition was erroneous and contends that it satisfied all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l). defines the term··'spccialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
1 The Petitioner was established in and it has two employees. 
Matter ofS-P-S-, 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: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position: 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or. in the alternative. an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree: 
(3) The employer normally requires a degree or its equivalent for the position: or 
(.f.) 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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term ··degree" in the criteria at 8 C.F.R. s 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. Cherll?ff; 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 initial letter of support. the Petitioner provided a description of the job duties and the 
requirements for its computer programmer position. stating the Beneficiary may be called upon to 
perform the following tasks: 
• Developing and programming computer sotlware applications using various 
software and interface with the technical stafT in the complex programming needs 
and document modification concerning the systems software: - 30% 
• Responsible for improvements in software computer utilization and detern1ine 
necessity for modifications; - 10% 
• Reviewing software programs for compliance with company standards and 
requirements and assisting in identifying deficiencies of computer runs and 
perforn1 specialized programming assignments; - 5% 
• Developing and enhancing the software systems for wider applications and 
customize it for specific requirements: - 5% 
2 
Matter ofS-P-S-, Inc. 
• Using RDBMS to log system change orders and analyze. develop and implement 
new applications with GUI and analyze software requirements to determine 
feasibility of design within time and cost constraints; - 15% 
• Identifying deficiencies. troubleshooting problems and supporting user needs with 
professional knowledge for test planning. defect tracking and provide assistance 
in use of RDBMS: - 10% 
• Analysis and Design of system which includes Preparation of Process Flow 
Diagrams. Entity Relationship Diagrams. File design. Program Specification and 
Design Document: - 1 0% 
• Database and application analysis/design logical and physical database: - 5% 
• Interacting with other technical stafT in researching and interpreting technical 
data:- 5% 
• Assisting as part of the team to resolve technical problems requiring good 
judgment and creativity in developing solutions.- 5% 
According to the Petitioner. the position requires at least a bachelor's degree in computer science. 
information systems, management information systems. electrical/electronics engineering. physics. 
or a closely related field. 
III. 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 satisfies any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) and, therefore. qualities as a specialty occupation. 2 Specifically. the record 
does not establish that the job duties require an educational background. or its equivalent. 
commensurate \Vith a specialty occupation. 3 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(/). which requires that a baccalaureate 
or higher degree in a specific specialty. or its equivalent. is normally the minimum requirement for 
2 In the decision denying the petition. the Director noted that the Petitioner had not established eligibility at the time of 
filing and noted a number of discrepancies in the record. including: (I) the Petitioner submitted an agreement f<.1r 
services that referenced an individual who is not the Beneficiary; (2) the duties in the agreement differ from the tasks 
provided by the Petitioner in its letter of support (in which the Petitioner states that the Beneficiary .. may be called upon 
to handle"; (3) the Petitioner did not identit) any specific work to which the Beneficiary would be assigned in the initial 
submission: and ( 4) the Petitioner asserted that there was no end-client related to the Beneficiary's offer of employment, 
yet it thereafter referenced the '"end-client"' and provided several exhibits for an end-client. We agree with the Director 
that the record does not establish the Beneficiary's role and the substantive nature of the work. Nevertheless, even 
assuming that the Petitioner had adequately addressed the discrepancies, the petition could not be approved because the 
Petitioner has not established that the proffered position qualifies as a specialty occupation. 
3 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position. While we may not discuss every document submitted, we have reviewed and considered each one. 
3 
Matter ofS-P-S-. Inc. 
entry into the particular position.-l 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) submitted in support of the H-1 B petition. the Petitioner 
designated the proffered position under the occupational category '"Computer Programmers" 
corresponding to the Standard ( ( · llo..:atiun o..:ode 15-1131 at a Level I wage.
6 
The Handbook subchapter entitled '"HO\v to Become a Computer Programmer" states in pertinent 
part: '"Most computer programmers have a bachelor's degree; however. some employers hire 
workers who have an associate's degree.'' 7 
The Handbook does not support the Petitioner's assertion that a bachelor's degree is required for 
entry into this occupation. This passage of the Handbook reports that most computer programmers 
have a bachelor's degree. but that an associate's degree is sufficient for some employers. The 
Handbook does not indicate that there are any specific degree requirements f(x these jobs. 
Thus. 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 
~Although some aspects of the regulatory criteria may overlap. we will address each of the criteria individually. 
5 All of our references are to the 2016-2017 edition of the Ham/hook. available at http:/iwww.bls.gov/ooh/. We do not, 
however, maintain that the Handhook 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 Handhook 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 We will consider the Petitioner's classification of the proffered position at a Level I wage (the lowest of four assignable 
wage levels) in our analysis of the position. The '"Prevailing Wage Determination Policy Guidance" issued by the DOL 
provides a description of the wage levels. A Level I 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: (I) that the 
Beneficiary will be expected to perform routine tasks that require limited. if any, exercise ofjudgment; (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 .. Prerai/ing Wage 
Determination Poliey Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). available at 
http:/ 1tlcdatacenter.comldownload/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. A Level I wage should be considered tor research fellows, workers 
in training. or internships. /d. 
7 
For additional information regarding the occupational category ''Computer Programmers," see U.S. Dep't of Labor. 
Bureau of Labor Statistics. Occupational Outlook Handbook, 2016-17 ed., Computer Programmers, available at 
http:/,\vww.bls.goviooh/computer-and-information-technology/computer-programmers.htm (last visited Apr. 25, 20 16). 
4 
Matter ofS-P-S-, Inc. 
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[.r 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
contemplates 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. 
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 S'hanti. Inc. v. Reno. 36 F. Supp. 2d 115 L 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 other authoritative source. reports a requirement tor 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. 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." Thus. the Petitioner has not 
satisfied the first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
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. 
We reviewed the Petitioner's statements regarding the proffered position: however. the Petitioner 
does not assert that it satisfies this prong of the second criterion. Further. the Petitioner has not 
sufficiently developed relative complexity or uniqueness as an aspect of the proffered position. 
Thus. the Petitioner has not satisfied the second alternative prong of 8 C. F. R. 
§ 214.2(h)(4)(iii)(A)(2). 
5 
Matter (?fS-P-S-. 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. 
To merit approval of the petition under this criterion. the record must establish that a petitioner's 
imposition of a degree requirement is not a matter of preference for high-caliber candidates but is 
necessitated by performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree. that statement alone without con·oborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing the 
Petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the Petitioner created a token 
degree requirement. whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty. or its equivalent. See Defensor v. Meissner. 
201 F.3d at 388. Evidence provided in support of this criterion may include. but is not limited to. 
documentation regarding the Petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position. 
We reviewed the Petitioner's statements regarding the profTered position: however, the Petitioner 
does not assert and has not provided evidence in support of this criterion. Therefore. it has not 
satisfied the third criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
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. 
We reviewed the Petitioner's job duties and the information regarding its business operations. 
However. the Petitioner does not asseti and the evidence does not support a tinding that it has 
satisfied this criterion. For instance. the Petitioner did not submit information relevant to a detailed 
course of study leading to a specialty degree and did not establish how such a curriculum is 
necessary to perform the tasks. While a few related courses may be beneticial in performing certain 
duties of the position. the Petitioner has not demonstrated how an established curriculum of such 
courses is required. The evidence in the record docs not refute the Handbook's information to the 
effect that an associate's degree may be sufficient for entry into the occupation. Without more. the 
record lacks sufficiently detailed information to distinguish the level ofjudgment and understanding 
necessary to perform the duties as specialized and complex. 
6 
Matter ofS-P-S-, Inc. 
Further, we incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (the lowest of 
four assignable wage-levels) relative to others within the same occupational category. 8 
The Petitioner claims that the Beneficiary is well qualified for the position. and references his 
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 has not demonstrated in the record 
that its proffered position is one with duties sufficiently specialized and complex to satisfy 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(-1). 
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. 9 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 (d"Otiende, 26 I&N Dec. 127. 128 (BIA 2013). Here. that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter (~lS-P-S-, Inc., ID# 16246 (AAO Apr. 27. 2016) 
8 As discussed earlier, this designation indicates that the proffered position is a low-level, entry position relative to others 
within the "'Computer Programmer" occupational category. Thus. the Petitioner's designation of this position as a Level 
I. entry-level position undennines a claim that the position is particularly complex 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 la\\yers), 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 2 I4(i)(l) of the Act. 
9 
We will not address the beneficiary's qualifications as a beneficiary's credentials to perform a particular job are 
relevant only when the job is found to be a specialty occupation.