dismissed H-1B Case: Information Technology

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service� 
Administrative Appeals Oflicc (AAO) 
20 Massachusetts Ave .. N.W .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: MAR 3 \ 2015 OFFICE: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PET ITION: Petition for a Nonimmigrant Worker Pursuant to Section I 0 I (a)( 15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § I IOI(a)( IS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTR UCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 1-2908) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § I 03.5. Do not file a motion directly with the AAO. 
Thank you, 
Ron R senberg 
Chief, Administrative Appeals Office 
www.uscis.goy 
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DISCU SSION: The service cen ter director (hereinafter "director") denied the nonimmigrant visa 
petition, and the matter is now before the Administra tive Appeals Office on appeal. The appeal will 
be dismissed. The petition will be den ied. 
I. PR OCEDURAL AND FACTUAL BACKGRO UND 
On the Petition for a Nonimmigrant Worker (Form I- 12 9) visa petition, the petitioner describes itself 
as a four-employee "IT Solutions, Managed IT Services, and Consulting" firm established in 
In order to employ the benefici ary in what it designates, on the visa petition, as a "Senior 
Programmer Analyst" position, the petitioner seeks to classify him as a nonimm igrant worker in a 
specialty occupation pursuant to section 10l( a)(l 5)(H)(i)(b) of the Immigration and Nationalit y Act 
(the Act), 8 U.S .C . § 11 01 (a)(l5)(H) (i)(b). 
The director denied the petition, finding that the petitioner had not demonstrated that it would 
employ the benefic iary in a specialty occupation position and had not demonstrated that it has 
standing to file the instant visa petition as the beneficiary's prospective United States employer as 
that term is defined at 8 C. F.R. § 214.2(h)(4)(ii). On appeal, the petitioner asserts that the director's 
bases for denia l were erroneous and contends that it has satisfied all evident iary requirements. 
As will be discussed below, we have determined that the director did not err in her decision to deny 
the petition on the bases specified in her decision. Accordingly, the director's decision will not be 
disturbed. The appeal will be dismissed, and the petition will be denied. 
We base our decision upon our review of the entire record of proceeding, which inclu des: 
(1) the petitioner's Form 1- 12 9 and the supporting docu mentation filed with it; (2) the service center's 
request for additional evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the director's 
denia l letter; and (5) the Form I-290B and the petitioner's submissions on appeal. 
For the reasons that will be discussed below, we. agree with the director's decision that the petitioner 
failed to establish eligibility for the benefit sought. 1 Accordingly, the director's decision will not be 
disturbed. The decision will be affirmed, and the petition will be deni ed. 
II. THE PETITIONER AND THE PROF FERED PO SITION 
In a letter dated March 31 , 2014, the petitioner stated the following as the primary duties of the 
proffered position: 
I. Participate m the full lifecycle development of existing software and new 
products. 
2. Actively participate m hands-on software implementation and testing for all 
software products. 
1 We conduct appellate review on a de novo basis. See Soltane v. DO.!, 381 F.3d 143, 145 (3d Cir. 2004). 
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3. Provide constant feedback to other software team members while adhering to the 
necessary dead lines of fast-paced startup environment. 
4. Perform appl ication programming assignments, typically maintenance or 
modification of existing systems. 
5. Utilizes appropriate software tools to develop, document, test and debug 
programs/objects which have been assigned. 
6. Review and analyze complex programming specifications to resolve any possible 
misundersta ndi ngs as to the assignmen t. 
7. Undertake various forms of testing - unit, system, acceptance to ensure that 
desired test results are achieved. 
8. Develop and document test data, and perf orm testing to verify that the programs 
function correctly, and ensure that modifications have not caused errors in other 
parts of the program or in interfacin g programs. 
9. Perform tasks related to the development of special reports for management. 
Undertake programming projects of intermediate complex ity, scope and length. 
10. Review and evalu ate existing systems for possible enhancement or upgrade. 
Routinely search for innovative ways to improve existing systems or procedures. 
11 . Estab lish check points at regular intervals to verify accuracy of the work in 
progress. 
12 . Confers with other IT prof essional s to resolve problems with systems or 
appl ication software. 
As to the educational qualifications of the proffered position, the petitioner stated: 
[The proffered position requires] at least a Bachelor's degree, or the equivalent in 
Management Inf ormation Systems, Computer Inf ormation Systems, Computer 
Science, Computer Applications, Inf ormation Systems/Technol ogy, Computer 
Engineering, Electrical/Electronic Engineering or any related field for this position. 
The Labor Condition Application (LCA) submitted to support the visa petition states that the 
proffered position is a "Senior Programmer Analyst" position, and that it corresponds to Standar d 
Occupational Classification (SOC) code and title , Computer Programmers, from the 
Occupational Inf ormation Network (O*NET). The LCA further states that the proffered position is 
a Level II (qualified) position. 
In addition to the LCA, the petitiOner submitted, inter alia, the following documents : 
(I) a Consultin g Services Agreement, dated March 14, 20 14 , executed by the petitioner and 
CEO of 
1; (2) a Work Order, executed by the petitioner and 
on March I, 20I4; and (3) a letter, dated March 14 , 2014, from signing as 
The March I4, 20 14 Consultin g Services Agreement sets out general terms pursuant to which 
may utilize the services of the petitioner's workers. 
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The March 1, 2014 Work Order states that will use the services of the beneficiary, 
in a position designated Senior Programmer Analyst , at ' 
CA," from October 1, 2014 to September 30, 2017. The Work Order further states that the "exact 
nature of the work will be determined by the manager onsite." 
; March 14 , 20 14 letter states the following about the duties of the proffered 
position: 
Job Duties and Respon sibilities: [The beneficiary] will be working as a Senior 
Programmer Analyst with focus on the evaluation and anal ysis of computer software 
applications with an emphasis on Web Based Solutions using ASP.N ET, C#, HTML 
5, MVC 3.0, Javascript to determine design feasibil ity. [The beneficiary] will be 
respons ible for designing solutions viable with the available technologies mentioned 
earlier on SQL server database. Additionally, [the beneficiary] will also be 
responsible for building enhanced error-hand ling; perform process orien ted 
modifications to the existing software application and generate customized reports as 
required. [The beneficiary] will perform the analysis and solutions development for 
the software systems bugs as part of Product Maintenan ce. [The beneficiary] will 
also perform regular automation evaluation and improvements in order to minimize 
manual intervention and formulate software applications utilizing scientific ana lysis, 
engineering principles, and computer appl ications. 
As to the educational requirement of the position, that letter states: "These servtces reqwre 
Ba chelor's degree or equivalent in the relevant field." 
On April 28, 2014, the service center issued an RFE in this matter. The service center requested, 
inter alia, evidence that the petitioner would ( 1) have the requisite employer-employee rela tionship 
with the beneficiary, and (2) employ the benef iciary in a specialty occupation. The service center 
provided a non-exhaustive list of items that might be used to satisfy the specialty occupation 
requirements. 
In response, the petitioner submitted, inter alia, the following: (1) an organizatio nal chart of the 
petitioner's operations; (2) a description of the proffered position, signed by 
(3) a description, on the petitioner's letterhead, of a project being developed by 
_ 
(4) the O*NET Summary Report for computer programmer positions; (5) a portion of the U.S. 
Department of Labor's Occupational Outlook Hand book (Hand book) chapter pertinent to Computer 
Programmers; (6) educational creden tials of , one of the petitioner's 
employees; (7) 2013 Form W-2 Wage and Tax Statements for 
, and ; (8) vacancy announcements; (9) Federal quarterly 
tax returns; (10 ) state quarterly wage reports; and (1 1) a letter from counsel dated July 17, 2014. 2 
2 A New Jersey attorney signed the visa petition, acknowledging that he prepared it. A California attorney 
submitted the appeal in this matter with a duly executed Form G-28, Notice of Entry of Appearance, 
demonstrating that he now represents the petitioner. References to "counsel" in this decision refer either to 
the petitioner's previous attorney or its present attorney, without distinction. 
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The director denied the petition on July 28, 2014, finding, as was noted above, that the petitioner had 
not demonstrated that (I) the proffered position qualifies as a position in a specialty occupation by 
virtue of requiring a minimum of a bachelor's degree in a specific specialty or its equivalent, and 
(2) it will have an employer-employee relationsh ip with the beneficiary. 
On appeal, the petitioner subm itted (1) a document, dated December 18, 2013, headed, "Job 
Description for '; (2) a document, dated September 1, 2014, signed by the 
benefici ary on September 15, 2014, and headed, "Suppl emental to the agreement dated 02/01/20 14 "; 
(3) A document headed "Consulting Services Agreement- Addendum," and signed by 
and on September 1, 20 14 ; (4) A jo b description of the position held by 
with the petitioner; (5) a letter, dated September 16, 2014, from describin g two 
projects being developed by :; (6) a description, also dated September 16, 2014 and 
signed by ofthose same two projects; (7) a letter, dated September 16, 2014, from 
; and (8) a brief. 
ln the appeal brief, the petitioner asserts that the evidence submitted satisfies the requirements of the 
H-IB visa category. 
III. EMPLOYER-EMPLOYEE 
We will address whether the petitioner has established that it meets the regulatory definition of a 
"Unit ed States employer" as that term is defined at 8 C.F.R. § 214. 2(h)(4)(ii). More specifically, 
section l0l (a)(l 5)(H)(i)(b) of the Act defines an H-18 nonimmigrant in pertinent part as an al ien: 
subject to section 2l 2U)(2), who is coming temporarily to the Un ited 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 respect to whom the Secretary of Labor determines and certifies to the 
[S ecretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an appl ication under section 212(n )(1) ... . 
The term "Un ited 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 organiz ation in the United States which: 
(1) Engages a person to work within the United States; 
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(2) Has an employer-employee relationship with respect to employees 
under this part, as indica ted 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. 
8 C.F.R. § 214.2(h)(4)( ii); see also 56 Fed. Reg. 6111 i, 61121 (Dec. 2, 1991). In the instant case, 
the record is not persuasive in establishing that the petitioner will have an employer-employee 
relationship with the beneficiary. 
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 "employe e" and "employer-employee relationship" are not defined for purposes of the 
H-1B visa classification. S ection 101(a)(15)(H)(i)(b) of the Act indicates that an alien 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)(l) ofthe Act, 
8 U.S.C. § 1182(n)(l ) (2012). The intending employer is described as offering full-time or part-time 
"employment" to the H-lB "employee." Subsections 212(n)( l) (A)(i) and 212(n)(2)(C)(vii) of the Act, 
8 U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that "United States 
employers" must file a Petition for a Nonimmigrant Worker (Form I-129) in order to classify aliens as 
H-lB temporary "employees." 8 C.F.R. § 214.2(h)(l), (2)(i)(A). Finally, the de finition of "United 
States employer" indicates in its second prong that the petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H- 1 B 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 tem1 "United States employe r"). 
Neither the former Immigration and Naturalization Service (INS) nor USCIS defined the tem1s 
"employee" or "employer-employee relationship" by regulation for purposes of the H- 1 B visa 
classification, even though the regulation describes H-1 B beneficiaries as being "employees" who must 
have an "employer-employee relationship" with a "United States employer." !d. There fore, for 
purposes of the H-lB visa classification, these terms are undefined. 
The United States Supreme Court has determined that where federal law fails to c learly define the term 
"employee," courts should conclude that the term was "intended to de scribe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. 
Darden , 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community 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 re lationship 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 
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of payment; the hired party's role in hiring and pa ying 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." 
Darden, 503 U.S. at 323-324 (quoting Community. for Creative Non-Violence v. Reid, 490 U.S. at 75 1-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). 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 America, 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 )(1 5)(H)(i)(b) of the Act, "employment" in section 21 2(n)(l) (A)(i) of the Act, or 
"employee" in section 21 2(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
gener ally 13 6 Cong. Rec. S1710 6 (daily ed. Oct. 26, 19 90); 13 6 Cong. Rec. Hl 2358 (daily ed . Oct. 27 , 
19 90). On the contrary, in the context of the H-1 B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition. 7 
Specifically, the regulatory definition of "United States employer" requires H-1 B 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-lB "employee." 8 C.F.R . § 21 4.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1 B 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 expans ion of the definition regarding the te1ms "employee" or 
"employer-employee relation ship" 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 
7 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ER ISA"), 29 U.S.C. § I 002(6), and did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ER ISA's use of 
employer because "the definition of 'employer' in ERI SA, unlike the definition of 'employee,' clearly 
indicates leg islative intent to extend the definition beyond the traditional common law definition." See, e.g., 
Bowers v. Andr ew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), aff'd, 27 F.3d 800 (2nd Cir.), cert . 
de nied, 513 U.S. 1000 ( 1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section IOI(a)(I5 )(H)(i)(b}of the Act, "empl oyment" in section 212(n)( I)(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-1 B visa classificat ion, 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 be accepted unless Congress has spoken directly on the issue. See 
Chevro n, U.S.A., Inc. v. Natu ral Resour ces Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
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extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these tem1s in this manner would thwart congressional design or lead to absurd results. C.Y 
Darden, 503 U.S. at 318-319. 8 
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)(I5)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h). 9 
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-1 B nonimmigrant petitions, USC IS 
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 323-324; 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 the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-lll(A)( l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" ofH-18 nurses under 8 C.F.R. § 214.2(h), 
even though a medical contract service agency is the actual 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 
8 To the extent the regulations are ambiguous with regard to the terms "employee" or "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 Citize ns Coun cil, 490 U.S. 332, 359, 109 S.Ct. 1835, !850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
( 1 945)). 
9 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-1 B intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S .C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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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 448-449; New Compliance J\Janual at § 2-III(A)(l). 
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 323-324. 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 individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive. "' Id at 451 (quoting Darden, 503 U.S. at 324). 
Applyin g the Darden and Clackamas tests to this matter, the petitioner has not established that it wi 11 
be a "United States employer" having an "employer-employee relationship" with the benefici ary as 
an H-IB temp orary "employee. " 
A. Of fer of Employment Letter 
For H-1 B classification, the petition er is required to submit written contracts between the petitioner 
and the ben eficiary, or if there is no written agreement, a summary of the terms of the oral 
agreement under which the beneficia ry will be employed. See 8 C. F.R. § 214. 2(h)(4)(iv)(A) and 
(B). With the Form I-1 29 petition, the petitioner submitted an offer of employment letter dated 
February 1, 2014. The letter states that the bene ficiary will be employed as a senior programmer 
analy st with an annual salary of $7 5,000; however, the letter does not provide any level of 
specificity as to the benef iciary's duties and the requirements for the position. The letter incl udes 
Exhibits A and B as attachments that outline general company policies. While an employment 
agreement may provide some insights into the relationship of a petition er and a beneficiary, it must 
be noted again that the "mere existence of a document styled 'employmen t agreement"' shal l not lead 
inexor ably to the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. 
On appeal, the petitioner submitted "Supplemental to the agreement dated February 1, 2014 ." 
However, the agreement is dated September 1, 2014 , which is after the denial of the instant petition. 
USCIS regulat ions affirmatively require a petitioner to establ ish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.F.R . 1 03. 2(b)(1 ). A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of Izummi, 22 I&N Dec. 16 9, 17 6 (Assoc. Comm'r 19 98). 
B. Letters from Kelly Menser 
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In support of the Form I- 1 29, the petitiOner submitted a letter from of 
dated March 13, 20 14 , which states that the beneficiary will be em ftloyed as a "senior 
programmer analyst" at CA 0 
Further, the letter provides different job duties and resp onsibilities from the duties provided by the 
petitioner. Moreover, the letter also states that the proffered position requires a "Bachelor's degree 
or equivalent in the relevant tield," but does not specify the relevant field required for the position. 
In addition, the letter states that project duration is estimated to be unti I October 31 , 20 17 , but also 
indicates that it is "open-ended ." 
On appeal, the petitioner submitted another letter from Ms. dated September 16, 20 14 . 
Notably, the address for the end-client on the letterhead is missing suite number and zip code, and 
appears to be incomplete. In the letter, Ms. claims that is engaged in two 
projects, and . Ms. further claims for 
project, "has asked us to creat e a software," which is "expected to [last] 
about 3 years or longer ." However, Ms. did not provide documents to substanti ate her 
claims. Going on record without supporting document ary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter ofSo.fjici, 22 I&N Dec. 15 8, 16 5 (Comm'r . 
19 98) (citing Matter ofTreasure Craft ofCal[fornia, 14 I&N Dec. 19 0 (Reg. Comm'r 19 7 2)). 
Ms. also added that "as we indicated in the letter dated 03/14 /20 14, the minimum 
requirement for this position is a comprehensive understa nding of computer systems and 
programming by virtue of a Bachelor's Degree of computer science or a similar discipline." As 
mentioned, in the March 13 , 20 14 letter, Ms. did not specify the relevant field required for 
the position. Again, the petitioner may not make material changes to a petition in an etTort to make 
a deficient petition conf orm to USCIS requirements. See Matter of1zummi, 22 I&N Dec. at 17 6. 
C. Service Agreement 
In support of the Form I- 1 29, the petitioner submitted "Consulting Services Agreement" between the 
petitioner and dated February 1, 2014, which discusses gen eral terms such as 
compensation, non-compete, non-solicitation and more. On appeal, the petitioner submitted an 
addendum dated September 1, 20 14 . While this document states that the petitioner, not the end-
10 According to the California Secretary of State's website, the business status of is 
"FTB suspended," which means that the business was suspended or forfeited by the Franchise Tax Board for 
failure to meet tax requirements. The petitioner did not provide additional evidence to establish that 
business. 
is located at , CA and is an active 
Further, we note that the signatory and the CEO for the petitioner is also the agent for 
Moreover, California Secretary of State lists the address for as 
CA . which is a residential address. We further note that this address is the 
same address for the petitioner in documents such as pay stubs for employees or quarterly tax return. 
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client, has the right to re-assign, control or supervise the employee, again, this document is also 
drafted and signed after the denial of the present petition and is not probative evidence. 
D. Work Order 
The record also contai ns a work order from , signed on March l, 20 14 . The work 
order ambiguously states that the "exact nature of the work will be determined by the manager 
onsit e." The manager is not named and the Work Order does not state who the manager is 
employed by. 
E. Work Location 
On appeal, the petitioner stated that "[a]lthough the beneficia ry will be stationed at [the end-cli ent]'s 
work site time to time, the beneficia ry still need[ s] to report to the petitioner" (emphasis added). 
The petitioner does not clarify what "time to time" entai ls. Notably, the petitioner did not provide 
addition al work locations in the Form I- 12 9 or the LCA. 
F. Self-Evaluat ion 
In response to the RFE, the petitioner submitted a blank copy of the employee self-evaluat ion. On 
appeal, the petitioner submitted copies of completed self-evaluations by its current employees. 
However, we find that the document is a general template that can be commonl y found in the 
Inter net and does not provide any specific criteria with regard to the petitioner's operations and/or 
the proffered position. Further, while this form provides opportunities for self-assessment, the 
document does not relate any specificity or details regarding how this self-evaluation would 
transla te to performance standards, how it is used for assessing and evalua ting the beneficiary's 
work, and/or the criteria for determinin g bonuses and salary adjustments. 
G. Conclusion 
Upon review, there is insufficient documen tary evidence in the record corroborating the availability 
of work for the beneficiary for the requested period of employment and, consequently, what the 
benefic iary would do, where the beneficiary would work, as well as how this would impact the 
circumstances of his relationship with the petitioner. Again, USCIS regulations affirmatively 
require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. 
See 8 C.F .R. 10 3 .2(b )(1 ). A visa petition may not be approved based on speculation of future 
eligibility or after the petitioner or benefic iary becomes eligible under a new set of facts. See Matter 
of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 19 78). Moreover, the burden of proving 
eligibility for the benefit sought remains entirely with the petitioner. Section 29 1 of the Act. The 
petitioner has failed to establish that, at the time the petition was submitted, it had located H-1 B caliber 
work for the beneficiary that would entail performing the duties as described in the petition, and that 
was reserved for the beneficiary for the duration of the period requested. 
(b)(6)
NON-PRECEDENT DECIS/0!1 
Page 12 
The evidence, therefore, is insufficient to estab lish that the petitioner qual ifies as a Unit ed States 
employer, as defined by 8 C. P.R. § 21 4.2(h)(4)(ii). Merely claiming that the petitioner exercises 
complete control over the beneficia ry, without evidence supporting the claim, does not establ ish 
eligibility in this matter. Goin g on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 
16 5 (citing Matter of Treasure Craft of California, 14 I&N Dec. 19 0). Based on the tests out! ined 
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-1 B temporary "employee." 8 C.F.R. 
§ 21 4.2(h)( 4)(ii). The appeal will be dismissed and the visa petition will be denied for this reason. 
IV. SPEC IALTY OC CUPATION 
A. Law 
Section 21 4(i)(l) of the Act, 8 U.S.C. § 11 84(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 
equivalen t) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214 .2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(l )] requires theoretical and 
practical appl ication of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bache lor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entr y into the occupation in the Unit ed States. 
Pursuant to 8 C.P.R. § 21 4.2(h)(4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent ts nom1al ly the muumum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions an1ong 
similar organizations or, in the alternat ive, 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; 
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NON-PRECEDENT DECISION 
(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. 
As a threshold issue, it is noted that 8 C.F.R. § 2l 4.2(h)(4)(iii)(A) must logically be read together 
with section 21 4(i)(l) of the Act and 8 C. F.R. § 21 4.2 (h)(4)(ii). In other words, this regulatory 
langua ge must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 29 1 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Indepen dence Joint Ven ture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 ( 19 89); Matter of W­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 21 4.2 (h)(4)(iii)(A) 
should logically be read as being necessary but not necessar ily sufficient to meet the statutor y and 
regula tory definition of specialty occupat ion. To otherwise interpret this section as stating the 
necessary and sufficient cond itions for meeting the definit ion of specialty occupation would result in 
particular positions meeting a condition under 8 C.F .R. § 214 .2(h)( 4 )(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.Jd 384, 387 (5th Cir. 2000). To avoid this 
resu lt, 8 C.F.R. § 214.2(h)( 4)(iii)(A) must therefore be read as providin g supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)( l) of the Act and the regulation at 8 C. F.R. 
§ 214 .2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F. R. § 214. 2(h)(4)(iii)(A) to mean not just any baccalaur eate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertojj; 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 respons ibilities of a particular 
position") . Applying this standa rd, USC IS regularly approves H-1 B petitions for qual ified aliens 
who are to be employed as engineers, computer scien6sts, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establjsh a mjnimum entry requirement in the United States of a baccal aureate or higher 
degree in a specific specialty or its equivalent directly related to the duties and responsibilities of the 
particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H- 18 visa category. 
To determine whether a particular job qualifies as a specialty occupation, USC IS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the alien, and determine whether the position qual ifies as a specialt y 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standar ds, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowle dge, and the 
(b)(6)
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Page 14 
attainment of a baccala ureate or higher degree in the specific specialty as the minimu m for entry into 
the occupation, as required by the Act. 
We note that, as recognized by the court in Defensor, supra, where the work is to be performed for 
entities other than the petitioner, evidence of the client compan ies' job requirements is critical. See 
Defensor v. Meissner, 20 1 F.3d at 387-3 88. The court held that the former Immigration and 
Naturalization Service had reasonably interpreted the statute and regula tions as requiring the 
petitioner to produce evidence that a proffered position qual ifies as a specialty occupation on the 
basis of the requirements imposed by the entities usin g the beneficiary's services. !d. at 384. Such 
evidence must be suffi cient ly detailed to demonstrate the type and educational level of highly 
specialized knowledge in a specific discipline that is necessary to perform that particular work. 
B. Analysis 
To determine whether the proffered position qualiftes as a specialty occupation position, we turn first 
to the criteria at 8 C.F.R . § 214 .2(h)(4)(iii)(A)(J) and (2): a baccalaur eate or higher degree in a 
specific specialty or its equivalent is normal ly the minimum requirement for entry into the particula r 
position ; and a degree requirement in a specific specialty is common to the industry in parallel 
positions among similar organizations or a particular position is so complex or unique that it can be 
performed only by an indiv idual with a degree in a specific specialty. Factors we consider when 
determining these criteria inc lude: whether the Hand book, on which we routinely rely for the 
educational requirements of particular occupations, reports the industry requires a degree in a 
specific specialty; whether the industry's professional association has made a degree in a specific 
specialty 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 individu als." See 
Shanti, Inc. v. Reno, 36 F. Supp. 2d 11 51, 11 65 (D. Minn. 19 99) (quoting Hird!Blaker Corp. v. Sava, 
712 F. Supp. 10 95, 11 02 (S.D.N.Y . 19 89)). 
We will first address the requirement under 8 C.F.R. § 214 .2(h)(4)(iii)(A)(/): A baccal aureate or 
higher degree or its equivalent is normal ly the minimum requirement for entry into the particular 
position. We recognize the Handb ook, cited by the petitioner, as an authoritative source on the 
duties and educational requirements of the wide va rie ty of occupations that it addresses. 11 The 
petitioner cl aims in the LCA that the proffered position corresponds to SOC code and title 
Computer Programmers from O*NET. The Hand book describes the occupation of "Computer 
Programmers" as follo ws: 
What Co mputer Progra mm ers Do 
Computer programmers write code to create software programs. They turn the 
program designs created by software developers and engin eers into instructions that a 
computer can follow. Pr ogrammers must debug the programs-that is, test them to 
11 The Handbook, which is avai lable in printed form, may also be accessed on the Internet, at 
http://www.bls.gov/oco/. Our references to the Handbook are to the 2014 -2 015 edition ava ilable onli ne. 
(b)(6)
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Page 15 
ensure that they produce the expected results. If a program does not work correctly, 
they check the code for mistakes and fix them. 
Duties 
Computer programmers typical ly do the following: 
• Write programs in a variety of computer languages, such as C++ and 
Java 
• Update and expand existing programs 
• Debug programs by testing for and fixing errors 
• Build and use computer-assisted software engineering (CASE) tools to 
automate the writing of some code 
• Use code libraries, which are collections of independent lines of code, 
to simplify the writing 
Programmers work closely with software developers, and in some businesses, their 
duties overlap. When this happens, programmers can do work that is typical of 
developers, such as designing the program. This entails initially planning the 
software, creating models and flowcharts detailing how the code is to be written, 
writing and debugging code, and designing an application or systems interface. 
Some programs are relatively simple and usual ly take a few days to write, such as 
creating mobile applications for cell phones. Other programs, like computer operating 
systems, are more complex and can take a year or more to complete. 
Software-as-a-service (SaaS), which consists of applications provided through the 
In ternet, is a growing field. Although programmers typical ly need to rewrite their 
programs to work on different systems platf orms such as Win dows or OS X, 
applications created using SaaS work on al l platforms. That is why programmers 
writing for software-as-a-service applications may not have to update as much code 
as other programmers and can instead spend more time writing new programs. 
U.S. Dep't of Labor, Bureau of Labor Stat istics, Occupational Outlook Hand book, 20 14 -15 ed., 
"Computer Programmers," http://www .bls.gov/ooh /computer-and- information-technol ogy/ 
computer-programmers.htm#tab-2 (last visited Mar. 11 , 20 15 ). 
As was explained above, in accordance with Defensor, supra, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is the critical 
consideration. The duties that claims it would assign to the beneficiary are 
expressed in the March 14 , 20 14 letter from of Those duties 
include evaluation and anal ysis of requirements for computer software applications; designing 
ASP.NET, C#, HTML 5, MVC 3.0, Javascript solutions on an SQL server databas e; and making 
modifications to existin g software; and analyzing software bugs and developing solutions. While 
(b)(6)
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those duties may incl ude some duties pertinent to programming, the description provided by 
indicates that the beneficiary will primarily be performing the duties of a computer systems 
analyst as they include evaluation and ana lysis of software requirements, designing the required 
application, and performing quality assurance on the resulting software application. 
The Hand book describes the duties of Computer Systems Analysts as follows: 
What Comp uter Systems Anal ysts Do 
Computer systems analysts study an organization's current computer systems and 
procedures and design information systems solutions to help the organ ization operate 
more efficiently and effectively. They bring busin ess and information technology (IT) 
together by understand ing the needs and limitations of both. 
Duties 
Computer systems analysts typically do the following: 
• Consult with managers to determine the role of the IT system in an 
organization 
• Research emerging techno logies to decide if install ing them can 
increase the organization's efficiency and effectiveness 
• Prepare an analysis of costs and benefits so that management can 
decide if information systems and computing infrastructure upgrades 
are finan cially worthwhile 
• Devise ways to add new functionality to existing computer systems 
• Design and develop new systems by choosin g and configuring 
hardware and software 
• Oversee the instal lation and configuration of new systems to 
customize them for the organization 
• Conduct testing to ensure that the systems work as expected 
• Train the system's end users and write instruction manuals 
Computer systems analysts use a variety of techniques to design computer systems 
such as data-modeling, which create rules for the computer to follow when presenting 
data, thereby al lowing analysts to make faster decisions. Analys ts condu ct in-depth 
tests and analyze information and trends in the data to increase a system's 
performance and efficiency. 
Analysts calcula te requirements for how much memory and speed the computer 
system needs. They prepare flowcharts or other kinds of diagrams for programmers or 
engineers to use when build ing the system. Analysts also work with these people to 
solve problems that arise after the initial system is set up. Most analysts do some 
programming in the course of their work. 
(b)(6)
Page 17 
NON-PRECEDENT DECISION 
Most comp uter systems analysts spec ialize in certain types of compu ter systems that 
are specific to the organization they work with. For example, an analyst mig ht work 
predomina ntly with financial compu ter systems or en gineering systems. 
Because systems analysts work closely with an organization's business leaders, they 
help the IT team understand how its comp uter systems can best serve the 
organization. 
In some cases, analysts who supervise the initial instal lation or upgrade of IT systems 
from start to finish may be cal led IT proje ct manager s. They monit or a project's 
progress to ensure that deadlines, standards, and cost targets are met. IT proje ct 
managers who pl an and direct an organization's IT department or IT pol icies are 
incl uded in the profile on computer and information systems managers . 
Many compu ter systems analysts are general-p urpose analysts who de velop new 
systems or fine-tune existing ones; however, there are some speci alized systems 
analysts. The following are examples of types of comp uter systems analysts : 
Systems designers or systems architects specialize in helping organizations choose a 
specific type of hardware and software system. They translate the tong-term business 
goals of an orga nization into technical solutions. Analy sts develop a pl an for the 
compu ter systems that will be able to reach those goals. They work with management 
to ensure that systems and the IT infrastructure are set up to best serve the 
organization's mis sion. 
Software quality assurance (QA) analysts do in-depth testing of the systems they 
design. They run tests and diagnose problem s in order to make sure that critical 
requirements are met. QA analysts write reports to management recommending ways 
to imp rove the system. 
Programmer analysts design and update their system's software and create 
appli cations tailored to their organization's needs. They do more codin g and 
debugging than other types of analysts, although they still work extensively with 
management and business analysts to detem 1in e what business needs the applications 
are meant to address. Other occupations that do programming are computer 
programmers and software developers. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 20 14 -15 ed., 
"Comp uter Sys tems Analysts ," http ://www . bls.gov/ooh/c omp uter-and-i nformation-t echnolog y/ 
compu ter-system s-anal ysts. htm#tab-2 (last visited Mar. I 1, 20 15 ). 
The duties that attributed to the proffered positio n are mor e consis tent with the duties 
of comp uter systems analysts as described in the Handbook. That the proffered position is a 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
computer systems analyst position is also consistent with the petitioner's designation of the proffered 
pos ition as a programmer analyst position, as programmer analyst posi tions are expl icitly included in 
the Handbook discussion of computer systems analysts, rather than its dis cussion of computer 
programmers. The Handbook also includes analysis of the business need the planned appl ication is 
required to satisf y, designin g the necessary program, and quality ass urance testing among the duties 
of systems analysts. We find that the proffered position as described by ·i s a computer 
systems analyst position as described in the Handb ook. 
12 
The Handbook states the foll owing about the educational requirements of computer systems analyst 
positions: 
How to Become a Com puter Systems An alyst 
A bachelor's degree in a comp uter or informat ion scie nce field is common, although 
not always a requirement. Some firms hire analysts with bus iness or li beral arts 
degrees who have skil ls in information techno logy or com puter programmin g. 
Educ ation 
Most computer systems analysts have a bachelor's degree in a comp uter-related field. 
Because these analysts also are heavily involved in the business sid e of a company, it 
may be he lpful to take busin ess courses or ma jor in management information 
syst ems. 
Some employers prefer appli cants who have a master's degree in business 
admini stration (MBA) with a concentration in information systems. For more 
technically comple x jo bs, a master's degree in compu ter science may be more 
appropriate. 
Although many computer systems analysts have technical degrees, such a degree is 
not always a requireme nt. Many analysts have liberal arts degrees and have gained 
programming or technical expertise el sewhere. 
12 
The peti ti oner cit ed the O*N ET sect ion perti nent to comp uter program mers as evidenc e that the proffered 
pos itio n qualif ies as a spec ialt y occ upation pos itio n . We note that we have foun d that the proffered position 
is not a comp uter program mer position, but will briefly consid er the O*N ET section perti nent to computer 
systems analysts. 
At SOC code I 5-1 121, O*N ET describ es comp uter systems analyst positions. O*N ET does not state a 
requir ement for a bachelor's degree for such po si tions. Rather, it assi gns Compu ter Systems An alysts a Job 
Zone "Four" rating , wh ich groups them among occupa tions of wh ich "most," but not all, "req uir e a four-year 
bache lor's degr ee." Fur ther, O*N ET does not ind icate that the four-year bachel or's degrees requir ed by some 
Job Zone Four occupa tions mus t be in a spec ific spec ialt y cl osely rel ated to the requir ements of that 
occ upation. The refore, the O*NE T informa tion is not probative of the proffered po sitio n's being a specialty 
occu pation. 
(b)(6)
NON-PRECEDE NT DECISION 
Page 19 
Many systems analysts continue to take classes throughout their careers so that they 
can learn about new and innovative technologies and keep their skills competitive. 
Technological advances come so rapidly in the comput er field that continual study is 
necessary to remain compe titive. 
Systems analysts must understand the busi ness field they are work ing in. For 
example, a hosp ital may want an analyst with a background or coursework in health 
management, and an analyst working for a bank may need to understand finance. 
Adva ncement 
With experience, systems analysts can advance to pro je ct manager and le ad a team of 
analysts . Some can eventually become informa tion technology (IT ) directors or chief 
technology officers. For more informa tion, see the profile on computer and 
informa tion systems manage rs. 
Important Quali ties 
Analytical skills. Analysts mu st inter pret complex information from various sources 
and be able to decide the best way to move forward on a proje ct. They must also be 
able to figure ou t how changes may affect the proje ct. 
Communication ski/Js. Analysts work as a go-between with management and the IT 
department and must be able to explain complex issues in a way that both will 
understand. 
Creativity. Beca use analysts are tasked with finding innovative sol utions to comput er 
proble ms, an ability to "think outsid e the box" is impor tant. 
!d. at http:/ /www .bls.g ov/ooh /computer-and-i nforma tion-tec hno log y/compu ter-systems-analysts. 
htm#tab-4 (last visit ed Mar. 11 , 20 15 ). 
The Handbook ma kes clear that computer systems analyst posi tions do not, as a category, require a 
mi nimu m of a bachelor's degree or the equi valent, as it indica tes that many systems analysts have a 
liberal arts degree and progra mming knowledge, rather than a degree in a specific speci alty directly 
related to systems analysis . 13 
13 Even if the proffered position were establis hed as being that of a comp uter programm er, a revie w of the 
Handbook does not in dicate that, as a category, such a position qualif ies as a spec ialt y occup ation in that the 
Handbook does not state a normal min imum req uir ement of a U.S. bachelor's or hig her deg ree in a spec ific 
spec ialty or its equ ivale nt for entry in to the occupation of compu ter programmer. See U.S. Dep't of Labor, 
Bureau of Labor Stat istics , Occupational Outlook Handbook, 20 14 -15 ed ., "Com puter Program me rs," 
http://ww w.bls.g ov/ooh/comp uter-and-in forma tion- technol ogy/com puter-pr ogram mers .htm#tab-4 (l ast 
vi sited Mar. 11 , 20 IS ). The in formation on the educatio nal requir ement s in the "Comp uter Program me rs" 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
Where, as here, the Handbook does not support the proposition that the proffered position satisfies 
this first criterion of 8 C.F.R. § 21 4.2( h)( 4)(iii)(A), it is incumbent upon the petitioner to provide 
persuasive evidence that the proffered position otherwise satisfies this criterion by a preponderance 
of the evidence standard, notwithstanding the absence of the Handbook's support on the issue. In 
such a case, it is the petitioner's responsibil ity to provide probative evidence (e.g., documentation 
from other authoritative sources) that supports a favorab le finding with regard to this criterion. The 
regula tion at 8 C.F.R . § 214.2(h)(4)(iv) provides that "[a]n H-lB petition involving a specialty 
occupation shall be accompanied by [d]ocumentation ... or any other required evidence sufficient 
to establ ish ... that the services the beneficia ry is to perform are in a specialty occupation." l n this 
case, the Hand book does not support the proposition that the proffered position satisfies 8 C.F.R . 
§ 21 4.2(h)(4)(iii)(A)(J), and the record of proceeding does not contain persuasive documentary 
evidence from any other relevant authoritative source establi shing that the proffered position's 
inclusion in this occupational category would be sufficient in itself to estab lish that a bachelor's or 
higher degree in a specific specialty or its equivalent "is normally the minimum requirement for 
entry into [this] particular position." 
In the instant matter, the petitioner has not established that the proffered position falls under an 
occupationa l category for which the Handbook (or other objective, authoritative source) indicates 
that at least a bachelor's or higher degree in a specific specialty, or its equivalent, is normally the 
minimum requirement for entry into the occupation. Further, we find that the duties of the proffered 
position as described ind icate a need for a range of knowledge in the computer/IT field, but they do 
not establish any particula r level of formal, postsecond ary education leadin g to a bachelor's or higher 
degree in a specific specialty as minimally necessary to attain such knowledge. 
Therefore, the duties and requirements of the proffered position as described in the record of 
proceeding do not indicate that the position is one for which a baccalaureate or higher degree in a 
chapter of the Handbook does not report that a comput er programmer requi res at least a bachelor's de gree in a 
specific spec ialty or its equ ivalent. Whil e it indic ates that "most programmers get a degree in com puter 
scienc e or a related subject," it als o states that "some emplo yers hire workers who ha ve an assoc iate's 
degree ." That "mos t program mers get a degree in co mputer scienc e or a related subject" does not ind icate 
that a bache lor's or higher degree in com pu ter scie nce or a related subject is a normal minimum entry 
requirement for compu ter programmer positions. It only indi cates that "most" or the "ma jority" of 
programmers have a bachel or's degree or higher. The first def inition of "most" in Webster ' s New College 
Dictionary 73 1 (Th ird Ed ition, Hough Miffl in Harcourt 2008) is "[g] reatest in nu mber, qu antity, size, or 
degre e." As such, if merely 51% of comp uter programmer posi tions requir e at least a bachelor's degree in 
comp uter scienc e or a cl osely rel ated field, it cou ld be said that "most" com puter program mer positions 
req ui re such a degree. It cannot be found, therefore, that a particula r degree requi rement for "most" pos itions 
in a given occu pation equates to a normal mini mum entry requirement for that occupa tion, much less for the 
particula r position proffered by the petitioner. In stead, a normal minimum entry requirement is one that 
deno tes a standard entry requir ement but recogn izes that certain, lim ited exceptions to that standard may 
exist. To interpret this prov ision otherwise would run dir ectly con trary to the pl ain la ngua ge of the Act, 
which requir es in part "attainment of a bachel or's or higher degree in the spec ific spec ialty (or its equ ivalent ) 
as a minimum for entry into the occ upation in the United States. " § 21 4(i)(l) of the Act. 
(b)(6)
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Page 21 
specific specialty, or its equivalent, is normally the minimum requirement for entry. Thus, the 
petitioner failed to satisfy the criterion at 8 C.F .R. § 214 .2(h)(4)(iii)(A)(l). 
Next, we find that the petitioner has not satisfied the first of the two alternative prongs of 8 C.F.R. 
§ 21 4.2(h)(4)(iii)(A)(2). This prong alternati vely caHs for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions 
that are identifiable as being (I) in the petitioner's industry , (2) parallel to the proffered position , and 
also (3) located in organ izations that are similar to the petitioner. 
In determining whether there is a common degree requirement, factors often considered by USCIS 
include: whether the Hand book 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 at 11 65 (quoting 
Hird/Blake r Corp. v. Sava, 712 F. Supp. at 11 02. 
In the instant case, the petitioner has not estab lished that the proffered posttlon falls under an 
occupational category for which the Handbook, or other reliab le and authoritative source, ind icates 
that there is a standard, minimu m entry requirement of at least a bachelor's degree in a specific 
specialty or its equivalent. Also, there are no submissions from professional associations, 
individuals, or similar firms in the petition er's industry attesting that individuals employed in 
positions parallel to the proffered position are routinely required to have a minimum of a bachelor's 
degree in a specific specialty or its equivalent for entry into those positions. 
As was noted above, the petitioner provided several "job listings." However, these "jo b listings" are 
not competent evidence of the petitioner's "competitor's advertisement[s]" as they are not in their 
original form and all of them are on the petitioner's letterhead. It appears that the petitioner copied 
and pasted language from those vacancy announcements onto its own letterhead, so it is unknown 
whether the vacancy announcements provide the actual verbiage from the purported "competitor's 
advertisement[ s]." We also note that the petitioner did not provide any independent evidence of how 
representat ive the "competitor's advertisement[s] " are of the particular advertising employers' 
recruiting histories for the types of jobs advertised. In any event, as advertisements are onl y 
solicitations for hire, they are not evidence of the employers' actual hiring practices. Upon review of 
the documents, we find that they do not establ ish that a requirement for a ba chelor's degree in a 
specific specialty is common to the petitioner's indu stry in similar organizations for paral lel 
positions to the proffered position. 
Even if all of the vacancy announcements were for parallel positions with organiza tions similar to 
the petitioner and in the petitioner's indu stry and required a minimum of a bachelor's degree in a 
specific specialty or its equivalent, the petitioner has failed to demonstrate what statistically valid 
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inferences, if any, can be drawn from these few announcements with regard to the common 
educational requirements for entry into paral lel positions in similar organizations. 14 
Thus, the evidence of record does not establ ish that a requirement of a bachelor's or higher degree in 
a specific specialty, or its equivalent, is common to positions that are (1) in the petitioner's industry, 
(2) parallel to the prof fered position, and also (3) located in organizations that are similar to the 
petitioner. The evidence does not, therefore, satisfy the first alternative prong of 8 C. F.R . 
§ 214 .2(h)(4)(iii)(A)(2). 
The evidence of record al so does not satisfy the second alternative prong of 8 C.F.R. 
§ 214 .2(h)(4)(iii)(A)(2), which provides that "an employer may show that its particular position is so 
complex or uni que that it can be performed only by an individual with a degree." A review of the 
record indicates that the petitioner has failed to credibly demonstrate that the dutie s that comprise the 
proffered position entail such complexity or uniqueness as to constitu te a position so complex or 
uniqu e that it can be performed only by a person with at least a bachelor's degree in a specific 
specialty . 
Specificall y, the petitiOner failed to demon strate how the duties that colle ctively consti tute the 
proffered position 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, the petitioner did not submit information relevant to a 
detailed course of study leading to a specialty degree and did not establish how such a curriculu m is 
necessary to perform the duties of the proffered position. While related courses may be beneficial, 
or even required, in performing certain duties of the proffered position, the petitioner has failed to 
demonstrate how an established curriculu m of such courses leading to a baccal aureate or higher 
degree in a specific specialty, or its equivalent, is required to perform the duties of the particular 
position here. 
Therefore, the evidence of record does not esta blish 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 not in a specific 
specialty. In other words, the record Jacks sufficiently detailed information to distinguish the 
proffered position as unique from or more complex than position s that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. As the petitioner fails to 
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 baccala ureate degree in a specific specialty 
14 US CIS "m ust exam ine each piece of ev idence for relevance, probative val ue, and credibilit y, both 
indivi dually and within the context of the totality of the evi dence, to determine whether the fact to be proven 
is probab ly true." Matter ofChawathe, 25 I&N Dec. 36 9, 37 6 (AAO 20 I 0). As ju st di scussed, the petitioner 
has faile d to establi sh the authentic ity and the relevance of the job advertisements to the position proffered in 
this case. Even if their relevance had been establ ished, the petitioner still fails to demon strate what 
inferences, if any, can be drawn from these few job postings with regard to determin ing the common 
educa tional requir ements for entry into parallel positions in simi lar organ izations in the same ind ustry. See 
genera lly Earl Babbie, The Practice of Social Research 186-228 ( 1995 ). 
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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 of 8 C. F.R. § 21 4.2( h)(4)(iii)(A)(2). 
We wi ll next address the criterion at 8 C.F. R. § 214 .2(h)(4)(iii)(A)(J), which may be satisfied if the 
petitioner demonstrates that it normal ly requires a minimum of a bachelor's degree in a specific 
specialty or its equivalent for the proffered position. 15 
The petitioner designates the proffered position on the visa petition and on the LCA as a "Senior 
Progra mmer Analy st." The sole Senio r Programmer Analyst shown on the petitioner's 
organizat ional chart is identified only as (Senior Programmer Analyst ). " educational 
qualifications for the position have not been revealed. The petitioner has not identified anyone else 
it has ever hired to fill a Senior Programmer Analyst position, which is the position ostens ibly 
proffered in this case. 16 
The record contains no evidence, therefore, pertinent to anyone the petitioner has ever previously 
hired to fill the proffered position, and the petitioner has not, therefore, provided any evidence for 
anal ysis under the criterion at 8 C.F.R . § 214 .2(h)(4)(iii)(A)(J). 
Final ly, we will address the alterna tive criterion at 8 C.F .R. § 214 .2( h)(4)(iii)(A)(4), which is 
satisfied if the petitioner establ ishes that the nature of the specific duties is so specialized and 
complex that knowledge required to perform them is usually associated with the attainment of a 
baccal aureate or higher degree in a specific specialty or its equivalent. 
Rela tive specialization and complexity have not been sufficiently developed by the petitioner as an 
aspect of the proffered position. The duties of the proffered position, such as performing the 
evaluation and ana lysis for computer software applications; designing ASP.NE T, C#, HTML 5, 
MVC 3.0, Javascript solutions on an SQL server datab ase; making modifications to existing 
software; and analyzing software bugs and developing solutions contain insufficient indication of a 
15 While a petitioner may belie ve or otherwise assert that a proffered pos ition req uires a degree, that opin ion 
alone without corrobora ting evidence can not establish the position as a spec ialty occ upation . Were USCI S 
li mited solely to reviewing a petitioner's cla imed self-imposed requir ements, then any indivi d ual wit h a 
bachel or's degree cou ld be brought to the Un ited States to perform any occu pation as long as the employer 
artificially created a token degree requir ement, whereby all individu als emplo yed in a particu lar position 
possessed a bacc alaur eate or higher degree in a specific speci alty or its eq uiv ale nt. See Def ensor .v. Meissner, 
20 1 F. 3d at 387. In other words, if a petitioner's degree requirement is on ly symbo lic and the proffered 
pos ition does not in fact require such a specialt y degree or its equi valent to perform its du ties, the occu pation 
wo uld not meet the statutory or regula tory definition of a specialty occu pation. See § 214 (i )( I) of the Act; 
8 C. F.R . § 21 4.2(h) (4)( ii) (de finin g the term "spec ialty occup ation"). 
16 As was noted above, some conf usion is eng endered by the petitioner designa ting the proffered position a 
"Sen ior Programmer Ana lyst" position on the visa petition and on the LCA, but then indic ating on the 
organiza tional chart that " ' is its Sen ior Programmer An alyst and that the benefic iary will be 
subor dina te to her pos ition as a "Programmer Ana lyst." 
(b)(6)
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nature so specialized and complex they require knowledge usual ly associated attainment of a 
minimum of a bachelor's degree in a specific specialty or its equivalent. 
In other words, the proposed duties have not been described with sufficient specificity to show that 
they are more specialized and complex than the duties of computer systems analyst position s that are 
not usual ly associated with at least a bachelor's degree in a specific specialty or its equivalent. The 
evidence of record does not, therefore, satisfy the criterion at 8 C.F .R. § 21 4.2(h)(4)(iii)(A)(4). 
The petitioner has failed to establish that it has satisfied any of the criteria at 8 C. F.R. 
§ 214 .2(h)(4)(iii)(A) and, therefore, it cannot be found that the proffered position qualifies as a 
specialty occupation. The appeal will be dismissed and the petition denied for this reason. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. Un ited States, 229 F. Supp. 2d 10 25, 10 43 (E. D. Cal. 
200 1) , ajj'd, 345 F. 3d 683 (9th Cir. 2003 ); see also Soltane v. DO.!, 381 F.3d 14 3, 145 (3d Cir. 2004) 
(noting that we condu ct appellate review on a de novo basis). Moreover, when we deny a petition on 
multiple alternative grounds, a pla intiff can succeed on a challenge only if it shows that we abused 
our discretion with respect to al l of the enu merated ground s. See Spencer Enterprises, Inc. v. United 
States, 229 F. Supp. 2d at 10 43, ciff'd. 345 F.3d 683. 
The director's decision will be affirmed and the petition will be denied for the above stated reasons, 
with each cons idered as an independent and alternative basis for the decision. In visa petition 
proceedings, it is the petitioner's burden to establish eligibil ity for the immigration benefit sought. 
Section 29 1 of the Act, 8 U.S.C. § 13 61; Matter of Otiende, 26 I&N Dec. 12 7, 12 8 (BIA 20 1 3). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied.