dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-G-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 15, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and information technology (IT) services firm, seeks to 
temporarily employ the Beneficiary as a computer programmer/analyst under the H-1B 
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-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, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish that it will engage the Beneficiary in an employer-employee relationship. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. UNITED STATES EMPLOYER 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that it meets the regulatory definition of a United States employer as 
that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). Specifically, the Petitioner has not established that 
it will have "an employer-employee relationship with respect to employees under this part, as 
indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such 
employee." !d. 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 2120)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(1) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
Matter of P-G-, LLC 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(1) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, · 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the.Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is 
noted that the terms "employee" and "employer-employee relationship" are not defined for purposes 
of the H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an individual 
coming to the United States to perform services in a specialty occupation will have an "intending 
employer" who will file a Labor Condition Application with the Secretary of Labor pursuant to 
section 212(n)(1) of the Act, 8 U.S.C. § 1182(n)(1). The intending employer is described as offering 
full-time or part-time "employment" to the H-1B "employee." Subsections 212(n)(1)(A)(i) and 
212(n)(2)(C)(vii) of the Act, 8 U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii). Further, the regulations 
indicate that "United States employers" must file a Form I-129, Petition for a Nonimmigrant 
Worker, in order to classify individuals as H-1B temporary "employees." 8 C.F.R. § 214.2(h)(1), 
(2)(i)(A). Finally, the definition of "United States employer" indicates in its second prong that tbe 
Petitioner must have an "employer-employee relationship" with the "employees under this part," i.e., 
the H-1B beneficiary, and that this relationship be evidenced by the employer's ability to "hire, pay, 
fire, supervise, or otherwise control the work of any such employee." 8 C.F.R. § 214.2(h)(4)(ii) 
(defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (USCIS) defined the terms "employee" or "employer-employee relationship" 
by regulation for purposes of the H-1B visa classification, even though the regulation describes 
H-lB beneficiaries as being "employees" who must have an "employer-employee relationship" with 
a "United States employer." /d. Therefore, for purposes of the H-1B visa classification, these terms 
are undefined. 
2 
Matter of P-G-, LLC i 
( 
The United States Supreme Court has determined that where federal law fails to clearly define the 
term "employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. 
Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non-Violence v. Reid, 490 
U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general 
common law of agency, we consider the hiring party's right to control the.manner 
and means by which the product is accomplished. Among the other factors relevant 
to this inquiry are the skill required; the source of the instrumentalities and tools; 
the location of the work; the duration of the relationship between the parties; 
whether the hiring party has the right to assign additional projects to the hired party; 
the extent of the hired party's discretion over when and how long to work; the 
method of payment; the hired party's role in hiring and paying assistants; whether 
the work is part of the regular business of the hiring party; whether the hiring party 
is in business; the provision of employee benefits; and the tax treatment of the hired 
party." 
!d.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, . . . all of the incidents of the relationship must be assessed 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United 
Ins. Co. of Am., 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. 
See generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. 
Oct. 27, 1990). On the contrary, in the context of the H-1B visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the . common law agency 
definition.1 
1 While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § 1002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the defmition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
l0l(a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of the H-lB visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
3 
Matter of P-G-, LLC 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have 
a tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-1B employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it 
imposes additional requirements of having a tax identification number and to employ persons in the 
United States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular 
definition of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do 
not intend to extend the definition beyond "the traditional common law definition" or, more 
importantly, that construing these terms in this manner would thwart congressional design or lead to 
absurd results. Cf Darden, 503 U.S. at 318-19? 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both 
the "conventional master-servant relationship as understood by common-law agency doctrine" and 
the Darden construction test apply to the terms "employee" and "employer-employee relationship" 
as used in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h)? 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.F.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer­
employee relationship with respect to employees under this part, as indicated by the fact that it may 
hire, pay, fire, supervise, or otherwise control the work of any such employee .... " (emphasis 
added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly 
delineated in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 
538 U.S. at 445; see also Restatement (Second) of Agency§ 220(2) (1958). Such indicia of control 
include when, where, and how a worker performs the job; the continuity of the worker's relationship 
with the employer; the tax treatment of the worker; the provision of employee benefits; and whether 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural Res. Def Council, 
Inc., 467 U.S. 837, 844-45 (1984). \ 
2 To the extent the regulations are ambiguous with regard to the terms "employee" ot "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless '"plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452, 461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332,359 (1989) (quoting Bowles v. Seminole Rock& Sand Co., 325 U.S. 410,414 (1945)). 
3 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214(c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
4 
(b)(6)
Matter of P-G-, LLC 
the work performed by the worker is part of the employer's regular business. See Clackamas, 538 
U.S. at 445; see also EEOC Compl. Man. at § 2-III(A)(1) (adopting a materially identical test and 
indicating that said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 
.. (5th Cir. 2000) (determining that hospitals, as the recipients of beneficiaries' services, are the "true 
employers" of H-1B nurses under 8 C.F.R. § 214.2(h), even though a medical contract service 
agency is the petitioner, because the hospitals ultimately hire, pay, fire, supervise, or otherwise 
control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive 
and must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship 
exists. Furthermore, not all or even a majority of the listed criteria need be met; however, the fact 
finder must weigh and compare a combination of the factors in analyzing the facts of each individual 
case. The determination must be based on all of the circumstances in the relationship between the 
parties, regardless of whether the parties refer to it as an employee or as an independent contractor 
relationship. See Clackamas, 538 U.S. at 448-49; EEOC Compl~ Man. at§ 2-III(A)(1). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to 
influence or change that factor, unless specifically provided for by the common-law test. See 
Darden, 503 U.S. at 323-24. For example, while the assignment of additional projects is dependent 
on who has the right to assign them, it is the actual source of the instrumentalities and tools that 
must be examined, and not who has the right to provide the tools required to complete an assigned 
project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably 
to the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the 
answer to whether [an individuai]is an employee depends on 'all of the incidents of the relationship 
... with no one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
Applying the Darden and Clackamas tests to this matter, the Petitioner has not established that it 
will be a "United States employer" having an "employer-employee relationship" with the 
Beneficiary as an H-1B temporary "employee." 
Specifically, in support of the petition, the Petitioner submitted its employment agreement with the 
Beneficiary, dated March 21, 2016. The employment agreement does not include any information 
relating to how the Petitioner will supervise or control the Beneficiary's work. The Petitioner 
submitted letters from its prime vendor, its mid-vendor, 
and its end-client, all stating that the Beneficiary is 
a direct employee of the Petitioner and that they have no right to control his work. 
In its letter of support, the Petitioner stated that it maintains the right to control the Beneficiary as it 
· provides the equipmen~ necessary to perform the work, determines the Beneficiary's location of 
/ 
5 
(b)(6)
I 
Matter of P-G-, LLC 
work, has sole discretion to relocate or assign additional work to the Beneficiary, and pays the 
Benefici~ry's salary, among other things. The Petitioner stated that it maintains supervision of the 
Beneficiary through bi-weekly telephone status calls and monthly project status reports. 
The Petitioner submitted an organizational chart for the end-client illustrating that the Beneficiary 
reports directly to Manager and an employee of the end-client. The 
Petitioner also submitted the Beneficiary's weekly timesheets to from May 29, 2016, 
to July 2, 2016, each listing as the "approving manager." The Petitioner submitted 
several of the Beneficiary's employee project status reports from May, June, and July 2016, each 
listing his "project manager/supervisor" as Project Coordinator, and his "work 
location reporting manager" as The Petitioner states, on appeal, that the Beneficiary is 
supervised by a project coordinator with the Petitioner, and provided pay stubs 
from May 16, 2016, to July 29, 2016, demonstrating that was employed by the 
Petitioner during that time. 
Although the Petitioner submitted evidence, such as the letter from the end-client, 
a letter from the mid-vendor, and a letter from the prime vendor 
outlined above, stating that the Petitioner is the Beneficiary's employer, the evidence in the record 
shows that the end-client has actual control over the Beneficiary's work. Regardless of the 
Petitioner's requirements for the Beneficiary to check in telephonically and provide status reports to 
its project coordinator, it appears here, that the Beneficiary directly reports to a manager at the 
end-client who is responsible for approving his timesheets and is even listed on the Beneficiary's 
status reports to the Petitioner as his "work location reporting manager." 
Further, we note that the Petitioner classified the proffered position at a Level I wage (the lowest of 
four assignable wage levels). This wage rate indicates that the Beneficiary will be closely 
supervised and his work closely monitored and reviewed for accuracy, and that he will receive 
specific instructions on required tasks and expected results. It is unclear how the Petitioner will 
provide 
this level of supervision through bi-weekly telephone status calls and monthly project status 
reports. It is more likely that the supervisor at the work location, the end-client's employee, will 
provide the level of supervision required for this position. 
The evidence, therefore, is insufficient to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.P.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Petitioner 
exercises complete control over the Beneficiary, without evidence supporting the claim, does not 
establish eligibility in this matter. A petitioner's unsupported statements are of very limited weight 
and normally will be insufficient to carry its burden of proof. See Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 
1972)); see also Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
I&N Dec. at 376. 
6 
--- -- ------ -- - -··--· ··- - ---- -- -- - ~ -------------~ 
Matter of P-G-, LLC 
Based on the tests outlined above, the Petitioner has not established that it will be a "United States 
employer" having an "employer-employee relationship" with the Beneficiary as an H-lB temporary 
"employee." 8 C.P.R. § 214.2(h)(4)(ii). 
II. SPECIALTY OCCUPATION 
We will enter an additional basis for denial, i.e., that the evidence of record does not establish that 
the proffered position qualifies as a specialty occupation. 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as a "computer 
programmer/analyst." The Petitioner described the job duties for the position as follows: 
• Participate in Functional Specifications, Analysis, Design, Test Case 
Preparation, Development, Configuration, Management and Implementation of 
various client-server web applications. 
• Provide maintenance and support to the application releases. 
• Responsibility for the code construction for the claims. 
• Handling open issues and format issues reported, enter system and Identifying 
the root cause and analyze it. 
• Working on complex programs and Design and document the system based on 
the analysis results. 
~ Assist the user and operating areas in implementing and supporting systems and 
also including system installation and troubleshooting. 
The Petitioner stated that the minimum entry requirement for the proffered position is at least a U.S. 
equivalent bachelor's degree in computer science, information technology, software engineering, or 
other IT-related field, and knowledge and experience as a computer programmer analyst. 
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.4 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 5 
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 
4 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
5 The Petitioner submitted documentation to support 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. 
7 
L_ _____ _ 
Matter of P-G-, LLC 
(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: 
(1) 
(2) 
(3) 
(4) 
A baccalaureate or higher degree or its equivalent is normally the minimum 
require~ent for entry into the particular position; 
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; 
The employer normally requires a degree or its equivalent for the position; or 
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). USCIS 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). 
A. 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 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.6 
6 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 tas-Ks and responsibilities of a proffered position, and USCIS 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. 
8 
Matter of P-G-, LLC 
On the labor condition application (LCA)7 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Programmers" 
corresponding to the Standard Occupational Classification code 15-1131.8 
The Handbook states the following with regard to the educational qualifications necessary for 
entrance into positions located within this occupational category: 
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. 
Most programmers specialize in a few programming languages. 
Education 
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. 
Most programmers learn a few computer languages while in school. However, a 
computer science degree gives students the skills needed to, learn new computer 
languages easily. During their classes, students receive hands-on experience writing 
code, testing programs, fixing errors, and doing many other tasks that they will 
perform on the job. 0 
To keep up with changing technology, computer programmers may take continuing 
education and professional development seminars to learn new programming 
languages or about upgrades to programming languages they already know. 
7 The Petitioner is required to submit a certified LCA to USCIS to demonstrate that it will pay an H-1B 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 of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
8 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 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: (1) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she 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 _11_ 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. 
9 
Matter of P-G-, LLC 
Licenses, Certifications, and Registrations 
Programmers can become certified in specific programming languages or for vendor­
specific programming products. Some companies require their computer 
programmers to be certified in the products they use. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
Computer Programmers, available at http://www.bls.gov/ooh/computer-and-information­
technology/computer-programmers.htm#tab-4 (last visited Dec. 7, 2016). 
When reviewing the Handbook, we note that the Petitioner designated the proffered position under this 
occupational category at a Level I on the LCA. Based upon the Petitioner's designation of the proffered 
position as a Level I position (relative to others with the occupation) it does not appear that the 
Beneficiary will serve in a senior or leadership role or in a position that performs more technical 
research that requires a master's degree. 
Upon review of the educational requirements for a computer programmer as reported in the Handbook, 
the Handbook indicates at most that a bachelor's or higher degree in a computer science field may be 
common, but not a standard occupational, entry requirement. In fact, this chapter notes that some 
employers hire workers with only an associate's degree. See id. Thus, the Handbook's report is 
insufficient to conclude that simply by virtue of its occupational classification the position qualifies as a 
specialty occupation. 
When the Handbook does not support the proposition that a proffered position is one that meets the 
statutory and regulatory provisions of a specialty occupation, it is incumbent upon the Petitioner to 
provide persuasive evidence that the proffered position more likely than not satisfies this or one of the 
other three criteria, notwithstanding the absence of the Handbook's support on the issue. In such case, it 
is the Petitioner's responsibility to provide probative evidence (e.g., documentation from other 
objective, authoritative sources) that supports a finding that the particular position in question qualifies 
as a specialty occupation. Whenever more than one authoritative source exists, an adjudicator will 
consider and weigh all of the evidence presented to determine whether the particular position qualifies 
as a specialty occupation. 
Here, the Petitioner provided a consistent list of duties for the proffered position and stated that a 
bachelor's degree in computer science, information technology, software engineering or other 
IT-related field is required, as it is common in the industry. However, the Petitioner did not provide 
any probative evidence to demonstrate that the proffered position qualifies as a specialty occupation. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
10 
Matter of P-G-, LLC 
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. 
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)(quotingHird!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. In the instant r:natter, the Petitioner simply stated in its 
letters of support that a bachelor's degree in computer science, information technology, software 
engineering or other IT-related field is required, as it is common in the industry. However, 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 does not submit probative evidence that demonstrates the degree requirement is 
common to the industry in parallel positions among similar organizations. Therefore, the Petitioner 
has not satisfied the criterion of the first alternative prong of 8 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. 
11 
Matter of P-G-, LLC 
In this matter, the evidence of record does not distinguish the proffered position as unique from or 
more complex than other computer programmer positions that can be performed by persons without 
at least a bachelor's degree in a specific specialty, or its equivalent. 
It does not credibly demonstrate relative complexity or uniqueness as aspects of the proffered 
position. Specifically, it is unclear how the proffered position, as described, necessitates the 
theoretical and practical application of a body of highly specialized knowledge such that a person 
who has attained a bachelor's or higher degree in a specific specialty or its equivalent is required to 
perform them. Rather, we find, that, as reflected in this decision's earlier quotation of duty 
descriptions from the record of proceeding, the evidence of record does not distinguish the proffered 
position from other positions falling within the "Computer Programmers" occupational category, 
which, the Handbook indicates, do not necessarily require a person with at least a bachelor's degree 
in a specific specialty or its equivalent to enter those positions. 
To begin with, while the Petitioner claims that the position involves focusing on "numerical analysis, 
systems design, and computer architecture," the Petitioner does not demonstrate how the computer 
programmer's duties described require the theoretical and practical application of a body of highly 
specialized knowledge such that a bachelor's or higher degree in a specific specialty, or its 
equivalent, is required to perform them. 
For instance, here, the Petitioner stated that the proffered position requires a bachelor's degree in 
computer science, information technology, software engineering, or other IT-related field. The 
Petitioner also listed several skills and abilities it claims are required in order to perform the duties, 
"which are usually accomplished with the attainment of a bachelor's or higher degree." While these 
skills and abilities may be beneficial, or even essential, in performing certain duties of a computer 
programmer position, the Petitioner has not demonstrated how an established curriculum of the 
related 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. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant petition. 
Again, the LCA indicates that, relative to other positions located within the "Computer 
Programmers" occupational category, the Beneficiary would perform only routine tasks that require 
limited, if any, exercise of judgment; close supervision of work, monitored and reviewed for 
accuracy; and the receipt of specific instructions on required tasks and expected results. Without 
further evidence, the evidence does not demonstrate that the proffered position is so complex or 
unique as such a position falling under this occupational category would likely be classified at a 
higher-level, such as a Level III (experienced) or Level IV (fully competent) position.9 For example, 
9 The issue here is that the Petitioner's designation of this position as a Level I position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), such a position 
would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for entry. Similarly; 
12 
Matter of P-G-, LLC 
a Level IV (fully competent) position is designated by DOL for employees who "use advanced skills 
and diversified knowledge to solve unusual and complex problems." 
Here, the record does not include sufficient information relevant to a detailed course of study leading 
to a specialty degree and the Petitioner has not established how such a curriculum is necessary to 
perform the duties it claims are so complex. While a few related courses may be beneficial 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. 
Additionally, we again note that the Petitioner has designated the proffered position as requiring 
only a Level I wage, that requires only a basic understanding of the occupation. Given the 
Handbook's indication that computer programmer positions do not normally require at least a 
bachelor's degree in a specific specialty, or the equivalent, for entry, it is not credible that a position 
involving limited, if any, exercise of independent judgment, close supervision and monitoring, . 
receipt of specific instructions on required tasks and expected results, and close review would 
contain such a requirement. Thus, the record lacks sufficiently detailed information to distinguish 
the proffered position as unique from or more complex than positions that can be performed by 
persons without at least a bachelor's degree in a specific specialty or its equivalent. Consequently, 
as the Petitioner does not demonstrate how the proffered position is so complex or unique relative to 
other computer programmer positions 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 prdng of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
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 itsequivalent, for the position. 
Here, the Petitioner does not submit any evidence of previous or current employees in the same 
position as the Beneficiary's proffered position. As such, the Petitioner does not submit probative 
evidence that demonstrates the academic qualifications of individuals previously or currently 
employed in a similar computer programmer position. Therefore, the Petitioner has not satisfied the 
criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(3). 
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 consideration but is not a substitute for a determination 
of whether a proffered position meets the requirements of section 214(i)(l) of the Act. 
13 
Matter of P-G-, LLC 
D. Fourth Criterion 
The fourth criterion at 8 C.P.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 tq perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The Petitioner asserts that the job duties of the pro:ifered position are specialized and complex. We 
refer to our earlier comments and findings with regard to the implication of the Petitioner's , 
designation of the proffered position in the LCA as a Level I wage, and hence one not likely 
distinguishable by relatively specialized and complex duties. We have also reviewed the Petitioner's 
description of duties for the proffered position. While we understand that the Beneficiary must have 
technical knowledge in order to perform these duties, the Petitioner has not sufficiently explained 
how these duties require the theoretical and practical application of a body of highly specialized 
knowledge, and the 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. Upon review of the 
, totality of the record, the record does not include probative evidence that the duties require more 
than technical proficiency in the computer programming field. The Petitioner has not demonstrated 
in the record that its proffered position is one with duties sufficiently specialized and complex to 
satisfy 8 C.P.R.§ 214.2(h)(4)(iii)(A)(4). 
III. CONCLUSION 
, The evidence of record is insufficient to establish that: (1) the Petitioner meets the definition of a 
United States employer; and (2) the proffered position qualifies as a specialty occupation. The 
petition will be denied and the appeal dismissed for the above stated reasons, with each considered 
as an independent and alternative basis for the decision. 
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 ofP-G-, LLC, ID# 179533 (AAO Dec. 15, 2016) 
14