dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office ' 
MATTER OF 1-T-S- INC. DATE: NOV. 29,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and information technology consulting service, seeks to 
temporarily employ the Beneficiary as a "computer programmer analyst" under the H-IB 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-IB 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, California Service Center, denied the petition. The Director subsequently withdrew 
that decision and issued a new decision. In the second decision, the Director concluded that the 
Petitioner has not demonstrated that the proffered position qualities as a specialty occupation 
position. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of record satisfies all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
r 
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. 
(b)(6)
Matter of I-T-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 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
1 
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. § 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. Cherto.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 H-1B petition, the Petitioner stated that the Beneficiary will serve as a "computer programmer 
analyst." Although the Petitioner is located m South Carolina, it stated that the 
Beneficiary would work for an end-client in Illinois. 
The Petitioner described the duties of the position as follows: "Software Analysis Design, 
development and maintenance of software. The application of a systematic , disciplined, quantifiable 
approach to the development, operation , and maintenance of software. " In a letter that accompanied 
the H-lB petition , the Petitioner further described the duties as follows: 
Typical work activities: 
Correct errors by making appropriate changes and rechecking the 
program to ensure that the desired results are produced. 
- Conduct trial runs of programs and software applications to be sure 
they will produce the desired information and that the instructions 
are correct. 
2 
Matter of 1-T-S- Inc. 
Write, update, and maintain computer programs or software 
packages to handle specific jobs such as tracking inventory, storing 
or retrieving data, or controlling other equipment. 
Write, analyze, review, and rewrite programs, using workflow chart 
and diagram, and applying knowledge of computer capabilities, 
subject matter, and symbolic logic. 
- Perform or direct revision, repair, or expansion of existing programs 
to increase operating efficiency or adapt to new requirements. 
Consult with managerial, engineering, and technical personnel to 
clarify program intent, identify problems, and suggest changes. 
Perform systems analysis and programming tasks to maintain and 
control the use of computer systems software. 
Compile and write documentation of program development and 
subsequent revisions, inserting comments in the coded instructions 
so others can understand the program. 
Prepare detailed workflow charts and diagrams that describe input, 
output, and logical operation, and convert them into a series of 
instructions coded in a computer language. 
- Consult with and assist computer operators or systems analysts to 
define and resolve problems in running computer programs. 1 
In the same letter, the Petitioner provided the following description of the duties of the proffered 
position (note: errors in the original text have not beel) changed): 
Interacting with computers - Using computers and computer systems (including 
hardware and software) to program, write software, set up functions, enter data, or 
process information. 
Making Decisions and Solving Problems - Analyzing information and evaluating 
results to choose the best solution and solve problems. 
Communicating with Supervisors, Peers, or Subordinates - Providing information to 
supervisors, co-workers, and subordinates by telephone, in written form, e-mail, or in 
person. 
Analyzing Data or Information - Identifying the underlying principles, reasons, or 
facts of information by breaking down information or data into separate parts. 
1 We observe that this portion of the duty description appears to have been copied directly from the O*NET discussion of 
computer programmers' duties at http://www.onetonline.org/linklsummary/15-1131.00?redir= 15-1021.00. This suggests 
that the Petitioner was not providing an in-depth discussion of the duties of the proffered positibn, but instead provided a 
generic description of the duties of general computer programming positions. 
3 
(b)(6)
Matter of 1-T-S- Inc. 
Thinking Creatively - Developing, designing, or creating new applications, ideas, 
relationships, systems, or products, including artistic contributions. ~, 
Updating and Using Relevant Knowledge - Keeping up-to-date technically and 
applying new knowledge to your job. 
Organizing, Planning, and Prioritizing Work- Developing specific goals and plans 
to prioritize, organize, and accomplish your work. 
Processing Information -. compiling, coding, categorizing, calculating, tabulating, 
auditing, or verifying information or data. 
Getting Information - observing, receiving, and otherwise obtaining information 
from all relevant sources. 
Identifying Objects, Actions, and Events- Identifying information by categorizing, 
estimating, recognizing differences or similarities, and detecting changes in 
circumstances or events2 
In a letter dated March 31, 2015, the Petitioner stated the following regarding the educational 
requirement of the proffered position (note: errors in the original text have not been changed): 
A bachelor's degree commonly is required for systems analyst jobs, although a 
master's degree is preferred for some positions. College curriculum is required for 
many computer programming jobs, for Computer Programmer Analyst positions, 
most employers prefer applicants who have at least a bachelor's degree and broad 
knowledge of, and experience with, a variety of computer Systems and technologies. 
The usual college majors for applications Computer Programmer Analyst s are 
computer science, Computer Programmer Analysis, or mathematics. Systems 
Computer Programmer Analyst s often study computer science or computer 
information Systems. Graduate degrees are preferred for some of the more complex 
. b 3 JO S. 
2 This portion of the description was taken from O*NET site at https://www.onetcenter .org/content.htmi/4.A ?d= I &p= I. 
As above, this suggests the Petitioner was not providing an in-depth discussion of the duties of the proffered position, but 
instead provided a generic description of the duties of general computer programming positions. 
3 We observe that the discussion of the requisite educational qualifications for such positions appears to have been 
adapted, with only slight amendment, from a discussion of the requirements of software engineering positions contained 
m a site maintained by at 
That the Petitioner has essentially removed the phrases "software engineering " and "software 
engineers " and substituted the phrase "Computer Programmer Analyst, " suggests that the educational requirement 
described is not a requirement for computer systems analyst positions , as asserted , but is a requirement for software 
engineer positions. Software engineering positions are not identical to computer programmer analyst positions . As st,~ch , 
4 
Matter of 1-T-S- Inc: 
Subsequently, in a letter provided in response to a request for evidence (RFE), the Petitioner 
provided the following lengthier version of the duties of the proffered position: 
Percentage:- 20% 
Correct errors by making appropriate changes and rechecking the program 
to ensure that the desired results are produced. 
Conduct trial runs of programs and software applications to be sure they will 
produce the desired information and that the instructions are correct. 
Write, update, and maintain computer programs or software packages to 
handle specific jobs such as tracking inventory, storing or retrieving data, or 
controlling other equipment. 
Write, analyze, review, and rewrite programs, using workflow chart and 
diagram, and applying knowledge of computer capabilities, subject matter, 
and symbolic logic. 
Perform or direct revision, repair, or expansion of existing programs to 
increase operating efficiency or adapt to new requirements. 
Consult with managerial, engineering, and technical personnel to clarify 
program intent, identify problems, and suggest changes. 
Percentage:- 30% 
- Perform Systems analysis and programming tasks to maintain and control 
the use of computer Systems software. 
Compile and write documentation of program development and subsequent 
revisions, inserting comments in the coded instructions so others can 
understand the program. 
Consult with and assist computer operators or systems analysts to define and 
resolve problems in running computer programs. 
Interacting With Computers - Using computers and computer Systems 
(including hardware and software) to program, write software, set up 
functions, enter data, or process information. 
Making Decisions and Solving Problems - Analyzing information and 
evaluating results to choose the best solution and solve problems. 
Getting Information - observing, -receiving, and otherwise obtaining 
information from all relevant sources. 
Identifying Objects, Actions, and Events - Identifying information by 
categorizing, estimating, recognizing differences or similarities, and 
detecting changes in circumstances or events. 
no reason exists to assume that their educational requirements would be identical. Because the Petitioner has not been 
accorded prior notice of this discrepancy sufficient to satisfy the requirement of 8 C.F.R. § I 03.2(b )(16)(i) we will not 
rely on it in today's decision. However, the Petitioner should address it in any further proceedings. 
5 
Matter of 1-T-S- Inc. 
Communicating with Supervisors, Peers, or Subordinates - providing 
information to supervisors, co-workers, and subordinates by telephone, m 
written form, e-mail, or in person. 
Percentage:- 50% 
Analyzing Data or Information - Identifying the underlying principles, 
reasons, or facts of information by breaking down information or data into 
separate parts. 
Thinking Creatively - Developing, designing, or'creating new applications, 
ideas, relationships, systems, or products, including artistic contributions. 
Updating and Using Relevant Knowledge- Keeping up-to-date technically 
and applying new knowledge to yot;tr job. 
Organizing, Planning, and Prioritizing Work - Developing specific goals 
and plans to prioritize, organize, and accomp~ish your work. 
Processing Information - compiling, coding, categorizing, calculating, 
tabulating, auditing, or verifying information or data.4 
In that same letter, as to the educational requirement of the position, the Petitioner stated: 
The duties associated with this position span the entire life-cycle of software 
development and, it requires someone with a strong knowledge of the entire process 
and therefore it requires an individual with a Bachelor's degree, or the equivalent, in 
one ofthe areas listed above and is a specialty occupation. 
The end-client makes similar assertions with regard to the educational credentials necessary to 
perform the duties of the position in its letter submitted on appeal. 
III. ANALYSIS 
Initially, we observe that the Petitioner has never effectively asserted that the proffered position 
requires a minimum of a bachelor's degree in a specific, identified, specialty or its equivalent. In the 
letter submitted with the H -1 B petition, the Petitioner stated, "a bachelor's qegree commonly is 
required for Computer Systems Analysts, although a master's degree is preferred for some 
4 We observe that the first nine duties included in this description appear to have been copied, in order, without 
afuendment, from O*Net's discussion at http://www.onetonline.org/link/summary/15-113l.OO?redir=l5-l 021.00. The 
following five duties appear to have come ftom the O*NET summary report pertinent to Computer and Information 
Systems Managers at http://www.onetonline.org/linklsummary/ll-3021.00. The remaining duties appear to have been 
copied from the previously discussed O*NET site at https://www.onetcenter.org/content.html/4.A?d=l&p=l. Again, 
that the duties described were copied suggests that the Petitioner has not provided a detailed description Of the duties of 
the proffered position as they would be performed in tht( context ofthe Petitioner's operations ifthe H-18 petition were 
approved, but merely submitted a list of generic duties. Although we will not consider this aspect of the duties described 
in today's decision, the Petitioner should be prepared to address it in any future filings. 
6 
Matter of 1-T-S- Inc. 
positions." That statement does not indicate that such positions reqmre a degree m a specific 
specialty or, if they do, identify that specific specialty. 
In a subsequent letter, the Petitioner asserted that the duties of the proffered position require "a 
Bachelor's degree, or the equivalent, in one of the areas listed above .... " The preceding four pages 
of that letter do not contain a list of subject areas. The list to which the Petitioner referred, and 
whether the subject areas on that list delineate a specific specialty, is unknown. The end-client's 
letter does not clarify matters. 
That the Petitioner has not asserted that the proffered position requires a minimum of a bachelor's 
degree in a specific specialty or its equivalent or identified, if it does, what that specific specialty 
would be, is sufficient reason, in itself, to deny the petition and dismiss this appeal. However, in the 
interest of performing a comprehensive analysis of the specialty occupation issue, and addressing the 
Petitioner's assertions pertinent to computer programmer and computer systems.analyst positions, 
we will continue with our discussion of the specialty occupation issue. 
A. First Criterion 
We turn first to the criterion at 8 C.P.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.5 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 
On the labor condition application (LCA) 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 15-1131.7 The Handbook states the 
following about the educational requirements of these positions: 
5 The Petitioner submitted documentation to support the H-1 B 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. 
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 tasks and responsibilities of a proffered position, and USC IS 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. 
7 The Petitioner classified the proffer~d position at a Level II wage (the second-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 II wage rate is generally appropriate for positions 
for which the Petitioner expects the Beneficiary to moderately complex tasks that require limited judgment. U.S. Dep't 
of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009), available at http://tlcdatacenter.com/download/NPWHC_Guidance_Revised_II_2009.pdf A 
Matter of 1-T-S- Inc. 
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. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Computer Programmers," http://www.bls.gov/ooh/computer-and-information-technology/ 
computer-programmers.htm#tab-4 (last visited Nov. 28, 2016). 
According to the Handbook, the occupation accommodates a wide spectrum of educational 
credentials, including less than a bachelor's degree in a specific specialty. For example, the 
Handbook states that some employers hire workers who have an associate's degree. Furthermore, 
while the Handbook's narrative indicates that most computer programmers obtain a degree (either a 
bachelor's degree or an associate's degree) in computer science or a related field, the Handbook does 
not report that at least a bachelor's degree in a specific specialty, or its equivalent, is normally the 
minimum requirement for entry into the occupation. ' The Handbook also reports that employers 
value computer programmers who possess experience, which can be obtained through internships. 
Finally, when comparing the duties of the proffered position to the types of positions located within 
this occupational category it is important to consider the wage-level the Petitioner designated on the 
LCA. Again, the Petitioner has stated that it will pay the Beneficiary a Level II wage, which is 
appropriate for positions involving moderately complex tasks that require limited judgment. Given 
the Handbook's implication that typical positions located within this occupational category do not 
require a bachelor's degree in a specific specialty, it appears unlikely that a position with these 
characteristics would have such a requirement. 
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 
cases, 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. 
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. 
8 
Matter of I-T-S- Inc. 
In the instant case, the Petitioner has not submitted sufficient evidence from any other authoritative 
source to demonstrate that the proffered position requires a minimum of a bachelor's degree in a 
specific specialty or its equiva~ent. Further, we find that, to the extent that they are described in the 
record of proceedings, the numerous duties, in several duty descriptions, that the Petitioner ascribes 
to the proffered position indicate a need for a range of technical knowledge in the computer/IT field, 
but do not establish any particular level of formal, postsecondary education leading to a bachelor's 
or higher degree in a specific specialty as minimally necessary to attain such knowledge. 
For all of these reasons, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)( 1). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among simil~r 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 degre€ 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) 
(quoting Hird/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. 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." 
9 
(b)(6)
Matter of 1-T-S- Inc. 
The Petitioner did provide three vacancy announcements to show that similar positions require a 
minimum of a bachelor's degree in a specific specialty or its equivalent. They are for positions 
entitled programmer analyst and computer programmer analyst. 
One of those vacancy announcements was placed by the United States government for a position 
supporting submarine resupply logistics. Another indicates that it was placed by an independent 
agency. These advertisements were not placed by organizations conducting 
business in the Petitioner's industry. The third vacancy announcement was placed by 
which similarly does not appear to be an organization in the Petitioner's 
industry. Absent evidence that the vacancy announcements provided are in the Petitioner's industry 
and are otherwise similar to the Petitioner, those vacancy announcements have not been shown to be 
directly relevant to the first prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
One of the vacancy announcements states that it requires, "[a] Bachelor Degree and at least 2 years 
of related ;work experience or six additional years of work experience." It does not state that the 
position requires a bachelor's degree in any particular specialty. Further, it indicates that a total of 
eight years of experience could be substituted for the otherwise requisite bach~lor's degree. Eight 
years is not equivalent to a bachelor's degree pursuant to the salient statutes, which require, among 
other things, the substitution of no less than three years of work experience for each year of 
education the Beneficiary lacks. See 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). 
Another vacancy announcement states that a "Four ( 4) year college degree [is] required. 
MIS/Computer Science/Business/Accounting related majors and/or advanced degree preferred." 
However, a degree with a generalized title, such as business, without further specification, is not a 
degree in a specific specialty. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558 (Comm'r 
1988). As such, an educational requirement that may be satisfied by an otherwise undifierentiated 
bachelor's degree in business is not a requirement for a minimum of a bachelor's degree in a specific 
specialty or its equivalent. Further still, that announcement does not state a requirement for a degree 
in one of those four areas. Rather, it states that such a degree is preferred. A preference is not a 
minimum requirement. For all of these reasons, that vacancy announcement does not state a 
requirement of a minimum of a bachelor's degree in a specific specialty or its equivalent. 
Finally, even if all of the vacancy announcements advertised parallel positions with organizations 
similar to the Petitioner and in the Petitioner's industry and stated a requirement for a minimum of a 
bachelor's degree in a specific specialty or its equivalent, we would still find that the Petitioner has 
not demonstrated what statistically valid inferences, if any, could be drawn from three 
announcements with regard to the common educational requirements for entry into parallel positions 
in similar organizations. 8 
8 USCIS "must examine each piece of evidence for relevance, probati~e value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably true." Matter of 
Chawathe, 25 I&N Dec. 369,376 (AAO 2010). As just discussed, the Petitioner has not established' the relevance ofthe 
job advertisements submitted to the position proffered in this case. Even if their relevance had been established, the 
10 
Matter of I-T-S- Inc. 
Thus, the evidence of record does not establish that a requirement of a bachelor's or higher degree in 
a specific specialty, or its equivalent, is common to parallel positions with organizations that are in 
the Petitioner's industry and otherwise similar to the Petitioner. The Petitioner has not, therefore, 
satisfied the criterion ofthe 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 
. 1 I eqmva ent. 
A review of the record of proceedings indicates that the Petitioner has not credibly i:lemonstrated that 
the duties the Beneficiary will be responsible for or perform on a day-to-day basis constitute a 
position so complex or unique that it can only be performed by a person with at least a bachelor's 
degree in a specific specialty, or its equivalent. Even when considering the Petitioner's general 
descriptions of the proffered position's duties, the evidence of record does not establish why a few 
related courses or industry experience alone is insufficient preparation for the proffered position. 
While a few related courses may be beneficial, or even required, 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. The description of the duties does not specifically identify any 
tasks that are so complex or unique that only a specifically degreed individual could perform them. 
The record lacks sufficiently detailed information to distinguish the proffered position as more 
complex or unique from other positions that can be performed by persons without at least a 
bachelor's degree in a specific specialty,,or its equivalent. 
Further, as noted above, the LCA submitted in support of the visa petition is certified for a Level II 
computer programmer, an indication that the proffered position is a position for an employee who 
performs moderately complex tasks that require limited judgment. While the Petitioner's 
generalized claims regarding the complexity of the position are acknowledged, the Level II 
designation significantly undermines those assertions and evidence. 9 In other words, if typical 
Petitioner still would not have demonstrated what inferences, if any, can be drawn from these few job postings with 
regard to determining the common educational requirements for entry into parallel positions in similar organizations in 
the same industry. See generally Earl Babbie, The Practice of Social Research 186-228 ( 1995). 
9 The Petitioner's designation of this position as a Level II position undermines its claim that the position is particularly 
complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a Level II 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 
II 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 
II 
Matter of I-T-S- Inc. 
positions located within the occupational category do not require a bachelor's degree in a specific 
specialty, or the equivalent, then it is unclear how a position with the Level II characteristics 
described above would, regardless ofthe Petitioner's assertions to the contrary. 
Nor do the two position evaluations submitted by the Petitioner establish eligibility for H-1 B 
approval. While both authors state that a bachelor's degree in a technology field is required, neither 
discusses the duties of the proffered position in any meaningful detail. Nor does either evaluator 
discuss the duties of the position in specific relation to the Petitioner's business operations or 
otherwise articulate any familiarity with the specific content of the work product that the Petitioner 
would require of the Beneficiary. Finally, while both authors describe the duties of the position as 
complex, neither, references the Petitioner's Level II designation on the LCA - again, a. statement that 
that the Beneficiary would perform moderately complex tasks that require limited judgment. We 
consider this a significant omission by both authors, as it suggests an incomplete review of the position 
in question. 
We may, in our discretion, use opinion statements submitted by the Petitioner as advisory.' Matter of 
Caron Int'l, Inc., 19 I&N Dec. 791,795 (Comm'r 1988). However, where an opinion is not in 
accord with other information or is in any way questionable, we are not required to accept or may 
give less weight to that evidence. Jd.10 
For all of these reasons, the evidence of record does not establish that this position is significantly 
different from other positions in the occupation such that it refutes the Handbook's information to 
the effect that there is a spectrum of degrees acceptable for such positions, including degrees less 
than a bachelor's degree and degrees that are not in a specific specialty. In other words, the record 
lacks sufficiently detailed i~formation 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. As the Petitioner did not demonstrate how the proffered position 
is so complex or unique relative to other positions within the same occupational category 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 prong of8 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 its equivalent, for the position. To 
this end, we usually review a petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position. However, in this case the Petitioner has not 
submitted any evidence for our consideration under this criterion. 
conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
10 
These evaluations do not satisfy any of the other specialty occupation criteria for these same reasons. 
12 
Matter of 1-T-S- Inc. 
· Although the Petitioner is an information technology firm with five employees, established in 1995, 
it has not expressly asserted eligibility nor submitted evidence under this criterion. We cannot 
conclude that the Petitioner has satisfied the third criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A). 11 
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. 
As reflected in the descriptions of the position as quoted above, we find that the duties of the 
proffered position have been described in terms of generalized and generic functions that do not 
convey sufficient substantive information to establish the relative complexity, uniqueness and/or 
specialization of the proffered position or its duties. The responsibilities for the proffered position 
contain generalized functions without providing sufficient information regarding the particular work, 
and associated educational requirements, into which the duties would manifest themselves in their 
day-to-day performance. · 
Finally, while we acknowledge the Petitioner's generalized assertions regarding the complexity of 
the position's duties, those claims are undermined by the Petitioner's Level II wage designation. 
Again, in classifying the proffered position at a Level II wage, the Petitioner effectively attested to 
DOL that the Beneficiary would perform only moderately complex tasks that require limited 
judgment. 12 
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). 
11 While a petitioner may believe or otherwise assert that a proffered position requires a degree in a specific specialty, 
that opinion alone without corroborating evidence cannot establish the position as a specialty occupation. Were USCIS 
limited solely to reviewing a 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 employer artificially 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, 20 I F. 3d at 387. In other words, if a 
petitioner's degree requirement is only symbolic and the proffered position does not in fact require such a specialty 
degree or its equivalent to perform its duties, the occupation would not meet the statutory or regulatory definition of a 
specialty occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty 
occupation"). 
12 
Again, the Petitioner's designation of this position as a Level II undermines its claim that the position is particularly 
complex, specialized, or unique compared to other positions within the same occupation. 
13 
(b)(6)
Matter of I-T-S- Inc. 
IV. EMPLOYER-EMPLOYEE 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need 
not fully address other issues evident in the 
record. That said, we wish to identify an additional issue 
to inform the Petitioner that this matter should be addressed in any future proceedings. 13 
In the first decision of denial in this matter, the Director found that the Petitioner had not 
demonstrated that it would exercise an employer-employee relationship with the Beneficiary if the 
H-1B petition were approved and, therefore, had not demonstrated that it could meet the definition 
of a United States employer as that term is defined at 8 C.F .R. § 214.2(h)( 4 )(ii). The Director 
subsequently withdrew that decision and issued another decision of denial. The U.S. employer issue 
was not included in the second decision of denial. 
In any event, the Petitioner, located in South Carolina, proposes to send the Beneficiary to work for 
the end-client, which is located in Illinois. The Petitioner indicated that the Beneficiary would 
perform services pertinent to the development of software at that remote location on projects being 
developed by that other company. The record contains insufficient indication that the Petitioner is in 
charge of developing the projects, or that it is sending supervisory personnel to the site. 
Given the Petitioner's designation of the proffered position at a Level II - a statement that the 
Beneficiary would perform only moderately complex tasks that require limited judgment - it is 
likely that the Beneficiary would require close supervision. The record does not indicate how the 
Petitioner would provide it. The Petitioner has not established that it will assign the Beneficiary's 
duties on the end-client's projects and evaluate her performance while performing them. In any 
event, we find that the record as currently constituted does not demonstrate that the Petitioner would 
exercise an employer-employee relationship with her. The Beneficiary is concomitantly unable to 
demonstrate that it qualifies as a U.S. employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). 
This is another reason the H -1 B petition may not be approved. 
V. 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 ~he proffered position qualifies as a specialty occupation. 
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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
13 In reviewing a matter de novo, we may identify additional issues not addressed below in the Director's decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
14 
Matter of I-T-S- Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of I-T-S-Inc., ID# 10231 (AAO Nov. 29, 2016) 
15