dismissed H-1B Case: Information Technology

.denti- data QLelod co 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
LIN 04 196 51388 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is an information technology consulting firm and seeks to employ the beneficiary as a 
programmer analyst. The petitioner, therefore, endeavors to classifL the beneficiary as a nonimmigrant worker 
in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1 lOl(a)(l5)(H)(i)(b). 
The director denied the petition because the petitioner has failed to establish that the beneficiary qualifies to 
perform services in a specialty occupation. On appeal, counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 
Pursuant to 8 C.F.R. tj 214.2@)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is 
directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence (WE); (3) counsel's response to the WE; (4) the director's denial 
letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in its entirety 
before issuing its decision. 
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The petitioner is seeking the beneficiary's services as a programmer analyst. Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the company support letter; 
and counsel's response to the director's request for evidence. The petitioner stated in its initial letter of 
support that the beneficiary would perform duties that entail conducting manual and interface testing of 
finance modules of Oracle Applications 1 1 S.9; conducting automated testing of finance modules of Oracle 
Applications 1 1 S.9; logging defects in System Problem Reporting; gathering automation requirements for the 
project; developing new test cases for testing new functionalities in test director 7.6; solving defects during 
testing and coordinating with the development team; modifying existing test scripts in Test Director 7.6; and 
performing project management related activities. The petitioner stated that the proffered position of 
programmer analyst requires a bachelor's degree either in computer science, engineering, mathematics or 
technology and experience in designing and developing computer software applications. The petitioner stated 
that the position was an entry-level position in the computer software field. 
In the RFE, the director requested a complete, detailed description of the duties to be performed by the 
beneficiary. The director stated that if the beneficiary will be performing various duties, to indicate the 
percentage of time the beneficiary will spend performing each duty. The RFE noted that the petitioner 
required a "Bachelor's degree either in Computer Science, Engineering, Mathematics, or Technology and 
experience in designing and developing computer software applications," but that the beneficiary does not 
hold any those degree specialties. The director noted that the record shows that the beneficiary has earned the 
equivalent to that of a Bachelor of Business Administration degree. The director requested evidence that the 
beneficiary qualifies to perform services in the specialty occupation by meeting one of the four regulatory 
criteria. 
Pursuant to 8 C.F.R. 9 214.2(h)(4)(iii)(C), an alien must meet one of the following criteria to qualify to 
perform services in a specialty occupation: 
(I) 
 Hold a United States baccalaureate or higher degree required by the specialty 
occupation fkom 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 fkom an accredited college or 
university; 
(3) 
 Hold an unrestricted state license, registration or certification which authorizes 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 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 have recognition of expertise in the specialty through 
progressively responsible positions directly related to the specialty. 
In the response to the RFE, the petitioner explained that the beneficiary's duties are very closely aligned with 
those of a business analyst. The petitioner stated that the position does not involve computer programming 
although it does involve systems analysis aimed at combining business processes with computer system 
functionality. The petitioner stated that although its original letter incorrectly indicated that the position 
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required a bachelor's degree in computer science, engineering, mathematics or technology they would like to 
amend the original filing to indicate that the functional nature of this position requires the incumbent to 
possess a bachelor's degree or its equivalent in accounting, finance, business management, or management 
information systems. The petitioner provided evidence establishing that the beneficiary is a chartered 
accountant in India. The petitioner asserted that the beneficiary is qualified to perform the services of the 
proffered position. 
The director determined that the beneficiary holds the equivalent of a bachelor's degree in business 
administration. The director found that the petitioner has not demonstrated that the proposed duties require a 
specific degree in business administration or that the beneficiary has specialized in a specific field of study. 
The director found that the petitioner has not shown that the beneficiary qualifies to perform the duties of a 
specialty occupation. The director stated that even though accounting knowledge may be relevant to the 
position of programmer analyst, it does not qualify the beneficiary to perform the services of the proffered 
position. The director noted that that beneficiary does not have sufficient education or experience with 
computer systems to perform the duties as stated in the letter of support or in the response to the request for 
evidence. The director found that the evidence submitted does not establish that the beneficiary has the 
qualifications to perform duties in a specialty occupation as a programmer analyst. 
On appeal, counsel asserts that CIS overlooked evidence presented in the petitioner's response to the request 
for evidence, which indicated that the beneficiary was improperly classified as a programmer analyst. 
Counsel asserts that the beneficiary is qualified to perform the services of the proffered position and that the 
position qualifies as a specialty occupation. Counsel explains that CIS should look not just at the job title but 
at the duties of the position and that the position is most similar to that of a business analyst. Counsel 
contends that the beneficiary's position entails substantial involvement in the functional testing of financial 
software. Counsel notes that the petitioner expanded its position description in response to the director's 
request. Counsel asserts that the petitioner demonstrated the relevance of the business administration degree 
to the specialty occupation and that the petitioner outlined the educational requirements of the position in its 
response to the director's request. 
The AAO notes that in the initial letter of support the petitioner refers to the proffered position several times 
as a programmer analyst position. Also, the petitioner submitted a certified labor condition application that 
was for the position of a programmer analyst. The petitioner stated that the beneficiary is well qualified for 
the position of programmer analyst by "virtue of her education, computer training, and her experience in the 
computer industry." As noted by the director, the petitioner specifically stated that the position requires a 
bachelor's degree either in computer science, engineering, mathematics, or technology and experience in 
designing and developing computer software applications. In response to the request for evidence, the 
petitioner stated " . . . .that this position does not involve computer programming." The petitioner's initial 
letter and its response to the request for evidence are contradictory. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
In its response to the director's request for further evidence, the petitioner changed the qualifications needed 
for the position to comply with the director's request. In sum, the initial position required a degree in 
computer engineering and experience in the computer field. The petitioner stated that the position is an entry- 
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level position in the computer software field. The purpose of the request for evidence is to elicit further 
information that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. 9 
103.2(b)(8). When responding to a request for evidence, a petitioner cannot change the degree required and 
change the field of study. If significant changes are made to the initial request for benefits, the petitioner 
must file a new petition rather than seek approval of a petition that is not supported by the facts in the record. 
The information provided by the petitioner in its response to the director's request for further evidence did not 
establish that the beneficiary is qualified to perform the services of the proffered position, but changed the 
requirements of the position to meet the beneficiary's qualifications. The petitioner must establish eligibility 
at the time of filing the nonimmigrant visa petition. A visa petition may not be approved at a future date after 
the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 
I&N Dec. 248 (Reg. Comm. 1978). The analysis of the beneficiary's qualifications will be based on the job 
description and the job requirements submitted with the initial petition. 
The duties of the proffered position are similar to those of a systems analyst as described in the Department of 
Labor's Occupational Outlook Handbook (Handbook). Systems analysts begin an assignment by discussing 
the systems problem with managers and users to determine its exact nature. They specify the inputs to be 
accessed by the system, design the processing steps, and format the output to meet users' needs. When a 
system is accepted, systems analysts determine what computer hardware and software will be needed to set 
the system up. They coordinate tests and observe the initial use of the system to ensure that it performs as 
planned. They prepare specifications, flow charts, and process diagrams for computer programmers to follow; 
then, they work with programmers to "debug," or eliminate, errors from the system. Systems analysts who do 
more in-depth testing of products may be referred to as software quality assurance analysts. In addition to 
running tests, these individuals diagnose problems, recommend solutions, and determine whether program 
requirements have been met. In some organizations, programmer-analysts design and update the software 
that runs a computer. Because they are responsible for both programming and systems analysis, these workers 
must be proficient in both areas. 
The Handbook states the following about the education and training requirements for the position of systems 
analyst or programmer analyst: 
Many employers seek applicants who have at least a bachelor's degree in computer science, 
information science, or management information systems (MIS). MIS programs usually are 
part of the business school or college and differ considerably from computer science 
programs, emphasizing business and management-oriented course work and business 
computing courses. Employers are increasingly seeking individuals with a master's degree in 
business administration (MBA), with a concentration in information systems, as more firms 
move their business to the Internet. 
As discussed above, the petitioner stated that the proffered position requires a bachelor's degree either in 
computer science, engineering, mathematics, or technology and experience in designing and developing 
computer software applications. The record reflects that the beneficiary has the equivalent of a bachelor's 
degree in business administration with a concentration in accounting. The beneficiary does not have a 
bachelor's degree in the field of computer science, information science or management information systems. 
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As related in the discussion above, the petitioner has failed to establish that the beneficiary is qualified to 
perform the duties of the proffered position. Accordingly, the AAO shall not disturb the director's denial of 
the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
4 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.