dismissed H-1B Case: Information Technology

MATTER OF E- CORP. 
APPEAL OF VERMONT SERVICE CENTER DECISlON 
Non-Precedent Decisipn of the 
Administrative Appeals Office 
DATE: DEC. 29,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology firm, seeks to temporarily employ the Beneficiary as a 
"programmer analyst" under the H-lB 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)(l5)(H)(i)(b ). 
The H-1B program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body ofhighly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner had 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 asserts that the evidence of 
record is sufficient to satisfy its burden by a preponderance of the evidence. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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. 
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 protTered position 
must meet one of the following criteria to qualify as a specialty occupation: . 
(b)(6)
Matter of E- Corp. 
(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 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USClS) 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-lB petition, the Petitioner stated that the Beneficiary will serve as a "programmer analyst. " 
Although the Petitioner is located in Illinois, it stated in the H-1 B petition that the Beneficiary would 
actually perform his duties for (end-client) at that company's premises in Virginia. 
The Petitioner provided the following description of the duties of the proffered position (note: errors 
in the original text have not been changed): 
• Design, Analysis and development of the application 
• Participate in the development 
support of both purchased and custom 
developer solutions, supporting operations, including work flow, data 
acquisition and analysis and reporting. 
• Works on assign aspects of project to translate requirements to designs and 
implements functionality in purchased or custom systems. 
• Designs and develops interfaces to instruments · , data base and other 
applications 
• Works with consultants with implantations partners to achieve desire results 
Using ,Net ASP.NET, C#.NET, VB.NET, ADO.NET . 
• Implementing Web Applications, Windows Applications, ASP.NET, C#.NET , 
VB.NET, ADO.NET, WCF, WWF, JQuery, JSON, Web Services , AJAX, XML, 
HTML, JavaScript , CSS.ASP , ADO, liS. 
2 
Matter of E- Corp. 
• Implementing CRM 8.8 Solutions (Help Desk, Support, Order Capture) 
which provided integration between Customer, Financial, Supply Chain 
and Employee Management Systems and was responsible for Case 
Creation, Time Entry, giving the Quote's, Receiving the Orders and 
sending this information to Inventory, Order Confirmation, and also 
worked with App Classes and also worked in all phases of SCM 8.8 like 
Procure to Pay, Plan to Produce and Order to Cash. 
• Using Application Engine for Several Reports using XML. Publisher by 
creating Schema and XML tile, Report Definition Template and XML 
Publisher for Printing the Reports. 
• Develops Scripts performs unit testing and acceptance Testing. 
In response to the Director's request for additional evidence (RFE), the Petitioner provided a more 
detailed description of these duties, including the percentages of time the Beneficiary would spend 
performing them. The Petitioner also stated that in order to perform them, a candidate would be 
required to possess a bachelor's degree in computer science, management/computer information 
systems, or a closely-related field. 
Although the Petitioner stated that it "has maintained a valid employer/employee relationship with 
the beneficiary for the previous H-1 b approval period," it filed the H-1 B petition as a request for a 
change of employer. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 1 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 2 
Initially, we observe that the Director's decision was based on a finding that the evidence was 
insufficient to show that sufficient work existed for the Beneficiary to perform at the end-client's 
location. Having reviewed the evidence, we agree. However, in order perform a more 
comprehensive analysis of the evidence, we will assume, arguendo, that the Claimed work at the 
Virginia location exists and that the Beneficiary would work there throughout the period of 
requested employment. 
We do differ with the Director, though, on a difierent point. In the decision of denial, the Director 
stated, "USCIS acknowledges that the position of Programmer Analyst is traditionally considered a 
1 
Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
2 
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. 
3 
Matter of E- Corp. 
specialty occupation." As we. will make clear below, we disagree. To the extent that the decision of 
denial conflicts with this finding, those portions are hereby withdrawn. 
We will therefore discuss the record of proceedings in relation to the four criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement tor 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.3 
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 Systems Analysts" 
corresponding to the Standard Occupational Classification code 15-1121.4 
The Handbook states the following with regard to the educational requirements of positions located 
within the computer systems analyst occupational category: 
Most computer systems analysts have a bachelor's degree in a computer-related field. 
Because these analysts also are heavily involved in the business side of a company, it 
may be helpful to take business courses or major in management information 
systems. 
3 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. 
4 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _I I_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
4 
Matter of E- Corp. 
Some employers prefer applicants who have a master's degree in business 
administration (MBA) with a concentration in information systems. For more 
technically complex jobs, a master's degree in computer science may be more 
appropriate. 
Although many computer systems analysts have technical degrees, such a degree is 
not always a requirement. Many analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Computer Systems Analysts," http://www.bls.gov/ooh/computer-and-information-technology/ 
computer-systems-analysts.htm#tab-4 (last visited Dec. 28, 20 16). 
The Handbook does not support the assertion that at least a bachelor's degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for these positions. This section of the 
narrative begins by stating that a bachelor's degree in a related field is not a requirement. The 
Handbook continues by stating that there is a wide-range of degrees that are acceptable for positions 
in this occupation, including general purpose degrees such as business and liberal arts. While the 
Handbook indicates that a bachelor's degree in a computer or information science field is common, 
it does not report that such a degree is normally a minimum requirement for entry into the position. 
According to the Handbook, many systems analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. It further reports that many analysts have technical 
degrees. We observe that the Handbook does not specify a degree level (e.g., associate's degree, 
baccalaureate) for these technical degrees. Thus, the Handbook does not support the claim that the 
occupational category of computer systems analyst is one tor which normally the minimum 
requirement for entry is a baccalaureate degree (or higher) in a specific specialty, or its equivalent. 
Even if it did, the record lacks sufficient evidence to support a finding that the particular position 
proffered here would normally have such a minimum, specialty degree requirement or its equivalent. 
In addition, 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 I wage, which 
indicates that the Beneficiary will be expected to perform routine tasks that require limited, if any, 
exercise of judgment; that he will be closely supervised and his work closely monitored and 
reviewed for accuracy; and that he will receive specific instructions on required tasks and expected 
results. 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 seems unlikely that an entry­
level 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 
5 
Matter of E- Corp. 
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. 
However, in this case, the record of proceedings does not contain sufficient persuasive documentary 
evidence from any other relevant authoritative source establishing that the proffered position's 
inclusion within the Computer Systems Analysts occupational category establishes the proffered 
position as, in the words of this criterion, a "particular position" for which "[a] baccalaureate or 
higher degree or its equivalent is normally the minimum requirement for entry." 
Further, we find that, to the extent that they are described in the record of proceedings, the numerous 
duties that the Petitioner ascribes to the proffered position may 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 the reasons explained above, the Petitioner has not satisfied the criterion at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or. in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.P.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by USCIS 
include: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry attest that such firms "routinely employ and recruit 
only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) 
(quoting Hird/Blaker Corp. v. Sava. 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
6 
Matter of E- Corp. 
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 bachelor's degree in a specific specialty, ?r the 
equivalent, 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." 
The Petitioner did provide eleven vacancy announcements placed by other companies to satisfy this 
criterion. They are for positions entitled .NET Programmer, Systems Analyst Senior, ERP 
Programmer Analyst, Senior Computer Programmer, Programmer Analyst, Senior Programmer 
Analyst- Oracle Financials, IS Programmer (RPG), IT Programmer Analyst, Senior Programmer 
Analyst Web-B, and Programmer Analyst- .NET. 
The company that placed one of those vacancy announcements is identified as a "manufacturing" 
company. Some of the companies that placed vacancy announcements are unidentified, as is the 
industry in which they work. Others were placed by staffing agencies, and do not identify the hiring 
company or its industry. Those companies have not been shown to be in the Petitioner's industry. 
Positions with companies that have not been shown to be in the Petitioner's industry are generally 
outside the scope of analysis pertinent to the first prong of8 C.F.R. § 214.2(h)(4)(jii)(A)(2). 
Some of those positions are designated programmer positions, rather than systems analyst positions, 
as the proffered position is. While some people in positions that are designated as programmer 
positions may perform systems analyst duties, we observe that, in general, programmer positions are 
different from systems analyst positions. Programmer positions are described in a different chapter 
of the Handbook, for instance. 5 Further, although most of those announcements contain a duty 
description, they do not make clear that the duties of those positions entail computer systems analyst 
duties. The positions announced in those vacancy announcements have not been shown to be 
computer systems analyst positions, and have not been shown, therefore, to be positions parallel to 
the proffered position. They also have not been shown to be within the scope of analysis pertinent to 
the first prong of 8 C.F .R. § 214.2(h)( 4)(iii)(A)(2). 
Most of the vacancy announcements include an experience requirement, and some state a 
requirement of a considerable amount of very specific experience. Some of the positions are 
designated as "Senior" ones. As noted, the Petitioner stated that the proffered position is a Level I, 
entry-level, position. Those positions that require extensive experience or are designated senior 
5 See 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-infonnation-technology/computer-programmers.htm# (last visited 
Dec. 28, 20 16). 
Matter of E- Corp. 
positions are clearly not positions parallel to the proffered position. As such, they are generally 
beyond the scope of our analysis pertine~t to the first prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
Some of the vacancy announcements contain no minimum education requirement. As such, they are 
of no direct relevance to a determination of the education required by positions parallel to the 
proffered position. 
Finally, even if all of the vacancy announcements advertised parallel positions with organizations in 
the Petitioner's industry and otherwise similar to the Petitioner, 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 had not demonstrated what statistically valid inferences, if any, could be drawn from so 
few announcements with regard to the common educational requirements for entry into parallel 
positions in similar organizations. 6 
Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
A review of the record of proceedings finds that the Petitioner has not credibly demonstrated 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, 
industry experience, or a technical degree alone would be 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 
6 
USCIS "must examine each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to detennine whether the fact to be proven is probably true." Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 20 I 0). As just discussed, the Petitioner has not established the relevance of the 
job advertisements submitted to the position proffered in this case. Even if their relevance had been established, the 
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). 
8 
Matter of E- Corp. 
proffered position as more complex 9r unique from other positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant petition. 
As noted above, the Petitioner attested on the submitted LCA that the wage level for the proffered 
position is a Level I (entry-level) wage. Such a wage level is for a position which only requires the 
performance of routine tasks that require limited, if any, exercise of judgment; close supervision and 
work closely monitored and reviewed for accuracy; and the receipt of specific instructions on 
required tasks and expected results. That description does not indicate a position that requires the 
performance of complex duties. 7 It is, instead, a position for an employee who has only basic 
understanding ofthe occupation. 
Therefore, 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 not in a specific 
specialty. In other words, if typical 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 I characteristics described above would, as the record lacks sufficiently detailed 
information to distinguish the proffered position as unique from or more complex than positions that 
can be performed by persons without at least a bachelor's degree in a specific specialty, or its 
equivalent. As the Petitioner did not demonstrate how the profiered 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 of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
In a letter submitted in response to a request for evidence, the Petitioner stated: 
7 The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines any 
claim that the position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an entry-level 
position would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for 
entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty 
occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific 
specialty or its equivalent. That is, a position's wage level designation may be a consideration but is not a substitute for 
a determination of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
9 
Matter of E- Corp. 
As [USCIS is] aware, based on [] internal records regarding the Petitioner's H-1 b 
employees, the Petitioner has always hired individuals with relevant degrees into this 
position in the past. As further evidence, we have included copied of degrees and 
paystubs to show that the position of Programmer Analyst is one that the petitioner 
has consistently required a bachelor's degree for. 
Initially, we observe that the Petitioner did not submit copies of the petitions it references and their 
respective approval notices. As the record of proceedings does not contain any evidence of the 
petitions, there were no underlying facts to be analyzed and, therefore, no prior, substantive 
determinations could have been made to determine what facts, if any, were analogous to those in 
these proceedings. 
When "any person makes application for a visa or any other document required for entry, or makes 
application for admission, ... the burden of proof shall be upon such person to establish that he is 
eligible" for such benefit. Section 291 of the Act, 8 U.S.C. § 1361; see also Matter ol Treasure 
Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972). Furthermore, any suggestion that USCJS 
must review unpublished decisions and request and review each case file relevant to those decisions, 
while being impractical and inefficient, would also be a shift in the evidentiary burden in these 
proceedings from the Petitioner to USCIS, which would be contrary to section 291 of the Act, 8 
U.S.C. § 1361. Accordingly, neither the Director nor our office was required to request and/or 
obtain a copy of the petitions cited by the Petitioner. 
Nevertheless, even if this evidence had been submitted and even if it had been determined that the 
facts in those cases were analogous to those in these proceedings, those decisions are not binding on 
USCIS. While 8 C.F.R. § 1 03.3( c) provides that our precedent decisions are binding on all USC IS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
Moreover, ifthe previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approvals would constitute 
material and gross error on the part of the Director. We are not required to approve applications or 
petitions where eligibility has not been demonstrated, merely because of prior approvals that may 
have been erroneous. See, e.g., Matter of"Church Scientology lnt'l, 19 I&N Dec. 593,597 (Comm'r 
1988). It would be "absurd to suggest that [USCIS] or any agency must treat acknowledged errors 
as binding precedent." Sussex Eng 'g, Ltd. v. Montgomery, 825 F .2d 1084, 1090 (6th Cir. 1987). 
Furthermore, our authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant 
petitions, we would not be bound to follow the contradictory decision of a service center. See La. 
Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999). 
The Petitioner did provide documents pertinent to the education of nine people, and pay statements 
to show that it had employed seven of them. However, it the Petitioner did not indicate whether any 
of those individuals are employed as Level I programmer analysts. As such, the education those 
people have has not been shown to be directly relevant to the level of education the proffered 
position requires. 
10 
Matter of E- Corp. 
Further, on the H-1 B petition, the Petitioner stated that it \Vas established in 2004 and that it has 28 
employees. The record does not establish how many wage Level I programmer analysts it now 
employs or has employed. Even if the seven employees for whom pay statements \vere provided 
were shown to be wage Level I programmer analysts, that would not demonstrate that the Petitioner 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position 
proffered in this case. 
Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(J). 
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. 
The duties of the proffered position, such as designing, analyzing, and developing applications; 
participating in development support; translating requirements to designs; etc., contain insufficient 
indication of a nature so specialized and complex that they require knowledge usually associated 
with 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 programmer analyst positions that are not usually associated 
with at least a bachelor's degree in a specific specialty or its equivalent. Relative specialization and 
complexity have not been sufficiently developed by the Petitioner as an aspect of the proffered 
position. 
We again refer to our earlier comments and findings with regard to the implication of the Petitioner's 
designation of the proffered position in the LCA as a Level I (the lowest of four assignable levels) 
wage. That is, the Level I wage designation is indicative of a 10\v, entry-level position relative to 
others within the occupational category, and hence one not likely distinguishable by relatively 
specialized and complex duties. In classifying the proffered position at a Level I (entry-level) \Vage, 
the Petitioner effectively attested to DOL that the Beneficiary would perform routine tasks that 
require limited, if any, exercise of judgment, that he would be closely supervised and his work 
closely monitored and reviewed for accuracy, and that he would receive specific instructions on 
• required tasks and expected results.8 The DOL guidance referenced above states that an employer 
should consider a Level I wage designation when the job offer is for a research fellow, a worker in 
training, or an internship. 
8 Again, the Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same occupmion. 
II 
Matter of E- Corp. 
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). 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)( 4 )(iii)( A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
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.9 
The Petitioner, located in Illinois, has stated that the Beneficiary would work for an end-client in 
Virginia throughout the period of requested employment. Assigning duties and supervising 
performance are central to an employer-employee relationship. The Petitioner stated that it would 
supervise the Beneficiary's via weekly reports provided by the Beneficiary, but that it could "control 
the work of the beneficiary on a day-to-day basis should we have to." These Beneficiary-provided 
weekly reports would contain information regarding the Beneficiary's current activities as \Vell as 
notify the Petitioner of the work he would perform the following week. 
In considering the employer-employee relationship issue, we must once again consider the 
Petitioner's Level I wage designation in the LCA. Again, in designating a Level I wage the 
Petitioner effectively attested to DOL that the Beneficiary would perform routine tasks that require 
limited, if any, exercise of judgment, that he would be closely supervised and his work closely 
monitored and reviewed for accuracy, and that he would receive specific instructions on required 
tasks and expected results. The DOL guidance referenced above also states that an employer should 
consider a Level I wage designation when the job offer is for a research fellow, a worker in training, 
or an internship. 
The Petitioner, therefore, has claimed that the Beneficiary would be "closely supervised" and his 
work "closely monitored," and that he would "receive specific instructions" as he performs routine 
tasks that "require limited, if any, exercise of judgment." While it is not clear who would closely 
supervise, monitor, and specifically instruct the Beneficiary, it appears that the Petitioner would not, 
given: (1) that its interaction with the Petitioner appears limited to weekly reports prepared by the 
Beneficiary; and (2) its express statement that \vould only control the Beneficiary's day-to-day 
activities should it "ha[s] to." 
We find that the current record does not demonstrate that, if the H-1 B petition were approved, the 
Petitioner would exercise an employer-employee relationship with the Beneficiary such that it would 
9 
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 I 025, I 043 (E. D. Cal. 200 I), 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."). 
12 
Matter of E- Corp. 
qualify as a U.S. employer within the meaning of the definition of that term at 8 C.F.R. 
§ 214.2(h)(4)(ii). This is another reason the H-lB petition may not be approved. 
V. CONCLUSION 
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 q[Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of E- Corp., ID# 109185 (AAO Dec. 29, 2016) 
13