dismissed H-1B Case: Information Technology

(b)(6)
DATE: FEB 2 6 2015 
IN RE: Petitio ner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: CALIFORNIA SERVICE CENTER FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101( a)(15) (H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 11 01( a)(1 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
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 I-290B) 
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.P.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
AD_·�� 
�� Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The service center director (hereinafter "director") denied the nonimmigrant visa 
petition, and the matter is now before the Administrative Appeals Office on appeal. The appeal will 
be dismissed. The petition will be denied. 
I. PROCEDURAL AND FACTUAL BACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 151-
employee "QA and Testing solutions firm" established in In order to employ the beneficiary 
in what it designates as a "QA Healthcare Analyst I ETL Developer" position, the petitioner seeks to 
classify her as a nonimmigrant worker in a specialty occupation pursuant to section 
101 (a)(15 )(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S .C. 
§ 1101(a) (15)(H)(i)(b). 
The director denied the petition, finding that the petitioner failed to establish that it would employ 
the beneficiary in a specialty occupation. position. On appeal, the petitioner asserts that the director's 
basis for denial was erroneous and contended that the petitioner satisfied all evidentiary 
requirements. 
As will be discussed below, we have determined that the director did not err in her decision to deny 
the petition on the specialty occupation issue. 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 includes: (1) the 
petitioner's Form I-129 and the supporting documentation 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 
denial letter; and (5) the Form I-290B and the petitioner's submissions on appeal. 
II. THE LAW PERTINENT TO THE SPECIALTY OCCUPATION DETERMINATION 
The issue presented on appeal is whether the petitioner has demonstrated that the proffered position 
qualifies as a specialty occupation. Section 21 4(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)(i i) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
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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 bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214 .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 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. 
As a threshold issue, it is noted that 8 C.F.R . § 214 .2(h)(4)(iii)( A) must logically be read together 
with section 214(i)(1) of the Act and 8 C. F. R. § 214. 2(h)( 4)(ii). In other words, this regulatory 
language 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, 291 (19 88) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1 989); Matter ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition 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.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214. 2(h)(4)(iii)(A) must therefore be read as providing 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)(1) 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 baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
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Page 4 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1 st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate 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-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS 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 qualifies as a specialty 
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 standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum 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 companies' job requirements is critical. See 
Defensor v. Meissner, 201 F.3d at 387-388. The court held that the former Immigration and 
Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis of the requirements imposed by the entities using the beneficiary's services. !d. at 384. Such 
evidence must be sufficiently detailed to demonstrate the type and educational level of highly 
specialized knowledge in a specific discipline that is necessary to perform that particular work. 
III. EVIDENCE 
The Labor Condition Application (LCA) submitted to support the visa petition states that the 
proffered position is a "QA Healthcare Analyst I ETL Developer" position, and that it corresponds 
to Standard Occupational Classification (SOC) code and title 15-1131, Computer Programmers, 
from the Occupational Information Network (O*NET). The LCA further states that the proffered 
position is a Level I, entry-level, position. The LCA is certified for employment at (1) 
Massachusetts, and (2) 
California. 
The visa petition indicates that the Massachusetts address is the petitioner's own 
address. It states that the beneficiary would work at the California address. The 
period of employment requested on that visa petition is from October 1, 20 14 to September 17, 
20 17. 
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With the visa petition, the etitioner submitted evidence that the beneficiary received a bachelor's 
degree in pharmacy from in India and a master's degree in business 
administration from the The record also contains evidence 
· pertinent to specialized training, employment experience, and college credit awarded by 
Kentucky. An evaluation in the record states that the beneficiary's education, training, 
and employment experience, considered together, are equivalent to at least a U.S. bachelor's degree 
in computer information systems. 
The petitioner also submitted (1) a copy of a Professional Information Services Staffing Contract 
dated March 14, 2014; and (2) a letter, dated March 25, 2014, from the petitioner's 
HR Administrator. 
The staffing contract provided purports to be an agreement between the petitioner and 
_ to provide "IT personnel as requested by to meet the 
,.;.....-�-staffing needs of 1 . That contract states: 
Assignment details including Scope of Work, Start Date, Assignment Period, and Fee 
Rate shall be specified in a Scope of Work references as Exhibit A, attached and 
incorporated herein by reference. 
Page 15 of that agreement is headed, "Exhibit A. " It is otherwise blank. That term of that agreement 
is from April 14, 2014 to March 31, 2016. 1 
The March 25, 2014 letter from states, 
fThe beneficiary 1 will be assigned to 
As a QA Healthcare Analyst I ETL Developer, [the beneficiar y's] duties will include: 
• Design, develop, and implement ETL processes to extract data from various 
data sources using Business Objects Enterprise Suite: 
• Create, test, debug, document, implement and manage complex ETL 
processes to extract data from a variety of data sources, transform the data, 
and load the data to specified destinations using Business Objects Data 
Services. 
• Design and implement the data integration layers of application infrastructure. 
• Define database data stores and file formats to connect to the source and target 
database and files. 
1 We observe that is a term of approximately two years. 
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• Design, create, and implement scripts, work flows, and data flows to facilitate 
ETL. 
• Develop and unit test ETL processes in Data Services 
• Collaborate with the development of Business Objects Universes, Crystal and 
Web-I reports. 
Technical environments: ETL tools, e.g., Business Objects, SAP, Crystal Reports, 
Cognos, SOL 
also observed that the beneficiary has an MBA and a bachelor's degree in pharmacy 
and stated that the petitioner believes that the beneficiary's academic background and training 
"uniquely qualify her" for the proffered position? 
On April 28, 2014, the service center issued an RFE in this matter. The service center requested, 
inter alia, evidence that the petitioner would employ the beneficiary 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: (1) portions of the chapter of the U.S . Department of Labor's 
Occupational Outlook Handbook (Handbook) pertinent to Computer Programmers; (2) an unofficial 
transcript of classes the beneficiary took at Sullivan University; (3) an organizational chart of the 
petitioner's operations; (4) vacancy announcements placed by other firms; (5 evidence ertinent to 
other employees of the petitioner; (6) an employment agreement executed by and the 
beneficiary on March 18, 2014; (7) a letter from dated May 9, 2014 and headed 
"Description and Itinerary of services for Employment at [the petitioner] for [the beneficiary]"; (8) a 
letter, dated May 13, 2014, from , a recruiter for (9) a letter, dated June 2, 
2014 , from president of (1 0) an undated 
evaluation of the proffered position produced by signing as "Professor/Principal 
Credential Evaluator of · and (11) a letter, dated June 13 , 2014, from 
The organizational chart of the petitioner's operations indicates that the beneficiary would be 
supervised by the petitioner's Vice President- Projects. 3 
Evidence submitted pertinent to other employees of the petitioner shows that 
- - -
each have bachelor's 
degrees in electronics engineering awarded by universities in India. 
2 
did not otherwise state any educational requirements of the proffered position. 
3 That document does not indicate that would work at the California location where the 
beneficiary would work, rather than at the petition er's location in Massachusetts, or elsewhere. 
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In the May 9, 20 14 letter headed: "Description and Itinerary of services for Employment at [the 
petitioner] for [the beneficiary]" Shan a Sullivan reiterated the duty description contained in her 
March 23, 20 14 letter. She also stated: 
At present we have identified the need for the professional services of [the proffered 
position]. We have identified [the beneficiary] to ideally suit to perform these duties 
for [the project at J California location]. 
However, the beneficiary's March 18, 20 14 employment agreement states, inter alia: 
The [beneficiary] agrees to be assigned to any facility/client sites as [the petitioner] 
deems it necessary in fulfillment of the terms set forth herein [the beneficiary] 
acknowledges that placement by [the petitioner] will be in sole discretion of [the 
petitioner] and who shall have full authority to assign employee to certain client sites 
or in-house projects. [The beneficiary] is required to travel or relocate to various 
client sites throughout the United States for both short and long term projects . 
It reiterates: 
[The petitioner] has the right to assign additional work to [the beneficiary] and/or to 
change the work assignment or relocate the [beneficiary] throughout the United States 
for short and long term assignments. 
It further states: "[The petitioner] solicits regular feedback from the client about the work product of 
[the beneficiary]" and: 
Upon the occurrence of any of the following, [the petitioner] may terminate the 
[employment] agreement, for cause, immediate! y. 
* * * * 
In the event that the [beneficiary] shall fail to perform his/her duties to the satisfaction 
of the entity in which the [beneficiary] has been placed. However [the beneficiary] 
will be given a fair opportunity to correct and address any complaint relating to 
his/her performance .... 
The May 13, 20 14 letter from of reiterates that the term of the agreement 
between the petitioner and Memorial is two years. It also states that the beneficiary has been 
selected to work at location in California and reiterates the duty 
description from March 23 , 20 14. As to the education required for the proffered 
position, that letter states: 
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The minimum requirements for this position is [sic] a Baccalaureate or higher or its 
equivalent in Computer Science, Pharmacy, Healthcare Management, Computer 
Information Systems (CIS), Electronics Engineering, Management Information 
Systems (MIS) or a related fields [sic]. 
The body of the June 2, 2014 letter from of states, in its entirety: 
This is to verif y and confirm the fact that the [proffered position) is a professional 
engagement with complex and sophisticated job duties. 
I personally have been in a comparable business for 14 years with average sales of 
$25 million/year to [the petitioner] for many years, and I hold Bachelors [sic] in 
Engineering and have employed lot of employees in similar positions and that 
qualifies me to give my opinion regarding the requirements for that position. 
In our industry, the minimum and mandatory requirement for the [proffered position] 
is a Bachelor's Degree in Engineering or Pharmacy or Healthcare or Computer 
Science, CIS or its equivalent in a related field. 
Please be advised that the Information Technology Industry is very ambitious and 
challenging, and it is essential in order to stay in the recommended and preferred list 
of agencies, to employ individuals who have qualifications and the preparation to 
handle the subjects of our business. 
After reviewing the duties of the job offered for [the proffered position], I can declare 
that the job duties of [the proffered position] are clearly advanced and exceptional in 
nature and only an individual with at least the equivalent of a Bachelor's Degree in 
Engineering or Pharmacy or Healthcare or Computer Science, CIS or its equivalent in 
a related field would be qualified. 
If you have any further questions, please feel free to contact the undersigned. 
undated evaluation of the proffered position states that positions such as the proffered 
position require, inter alia, "A four year Bachelors [sic] (BS) degree in Computer Information 
Systems, Information Technology, Business Administration or Engineering or a related field ... . "4 
4 did not attempt to reconcile that opinion with . opinion, expressed in his May 
13, 2014 letter, that the educational requirement of the proffered position could be satisfied by a degree in 
pharmacy or healthcare management, or with opinion, stated in his June 2, 2014 letter, 
that a degree in pharm.acy or healthcare would be a sufficient educational qualification for the proffered 
position. 
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In her June 13 , 2014 letter, cited letter, evaluation of 
the proffered position, the evidence pertinent to the petitioner's other employees, and O*NET's 
classification of computer programmers in Job Zone Four as evidence that the proffered position 
qualifies as a specialty occupation position. She also provided a more detailed description of the 
duties of the proffered position, as follows: 
Original Duty Additional Details 
Design, develop, and implement • Extracting data from source clarity system . 
ETL processes to extract data • Transform the data collected as per the requirement. 
from various data sources using • Load the final data in enterprise data warehouse target 
Business Objects Enterprise tables. 
Suite. 40% 
Create, test, debug, document, • Collecting the requirement from vendors on Healthcare 
implement and manage complex claims (Pharmacy, Professional, Medical) 
ETL processes to extract data • Creating mapping and design documents for the 
from a variety of data sources, requirement. 
transform the data. 20% • Develop jobs, workflows and data flows in order to run 
the data. 
• Extracting data by mapping in the table and transform 
data. 
Load the data to specified • Validate the complete job that we are running before 
destinations using Business loading to check for errors. 
Objects Data Services. 5% • Load the data into the specified target tables or template 
tables. 
Define database data stores and • Collect the required data stores from central repository 
file formats to connect to the and get the latest version of it. 
source and target database and • Create own data stores and flat files to run them in the 
files. 5% Data Services job. 
Design, create, and implement • Creating workflows in the jobs within the projects. 
scripts, work flows, and data • Creating data flows using several complex transforms like 
flows to facilitate ETL. 10% data integrator, data quality, and platform transforms. 
Develop and unit test ETL • Sending the files to DEY and PROD environments to 
processes m Data Services. UNIX and test files for errors. 
10% • Validate data by running and using rules in Information 
steward. 
• Review the DQA reports for exceptions in data count and 
errors. 
Design and implement the data • Changing the environments, creating share drives and 
integration layers of application folders in it. 
infrastructure. 5% 
Collaborate with the • Working with BO/BI team in generating e-reports using 
development of Business crystal reports and BO. 
Objects Universes, Crystal and • Develop user required WEB I using BO . 
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I Web-I reports. 5% 
The director denied the petition on June 30, 20 14, finding, as was noted above, that the petitioner 
had not demonstrated that 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. More 
specifically, the director found that the petitioner had satisfied none of the supplemental criteria set 
forth at 8 C.P.R. § 214. 2(h)(4)(iii)( A). 
On appeal, the petitioner submitted: (1) additional vacancy announcements; (2) a letter, dated May 
2, 20 14, from signing as president of (3) a letter, dated June 2, 
20 14, from signing as CEO of and (4) a letter, dated July 31, 
20 14 and headed, "Appeal and Motion to Reconsider, " from 
May 2, 20 14 letter is almost identical to the June 2, 20 14 letter from __ _ 
The body of letter states, in its entirety: 
This is to verify and confirm the fact that the [proffered position] is a professional 
engagement with complex and sophisticated job duties. 
I personally have been in a comparable business for many years and I hold Bachelors 
[sic] degree and have employed employees in similar positions and that qualifies me 
to give my opinion regarding the requirements for that position. 
In our industry, the minimum and mandatory requirement for the [proffered position] 
is a Bachelor's Degree in Engineering or Pharmacy or Healthcare or Computer 
Science, CIS or its equivalent in a related field. 
I have reviewed the duties of [the proffered position] , I can declare that the job duties 
of [the proffered position] are clearly advanced and exceptional in nature and only an 
individual with at least equivalency of a Bachelor's Degree in Engineering or 
Pharmacy or Healthcare or Computer Science, CIS or its equivalent in a related field 
would be qualified. 
If you have any further questions, please feel free to contact the undersigned. 
June 2, 20 14 letter is almost identical to the letters from 
The body of letter states, in its entirety: 
This is to verify and confirm the fact that the [proffered position] is a professional 
engagement with complex and sophisticated job duties. 
I personally have been in a comparable business for 12 years to [the petitioner] for 
many years [sic], and I hold Masters [sic] in Computer Science and have employed 
and 
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lot of employees in similar positions and that qualifies me to give my opinion 
regarding the requirements for that position. 
In our industry, the minimum and mandatory requirement for the [proffered position] 
is a Bachelor's Degree in Engineering or Pharmacy or Healthcare or Computer 
Science, CIS or its equivalent in a related field. 
Please be advised that the Information Technology Industry is very ambitious and 
challenging, and it is essential in order to stay in the recommended and preferred list 
of agencies, to employ individuals who have qualifications and the preparation to 
handle the subjects of our business. 
After reviewing the duties of the job offered for [the proffered positio n], I can declare 
that the job duties of [the proffered position] are clearly advanced and exceptional in 
nature and only an individual with at least the equivalent of a Bachelor's Degree in or 
[sic] Engineering or Pharmacy or Healthcare or Computer Science, CIS or its 
equivalent in a related field would be qualified. 
If you have any further questions, please feel free to contact the undersigned. 
In her July 31, 20 14 letter, cited Professor evaluation of the proffered 
position, the letter from the letters from other businesses, the vacancy 
announcements provided, and the duty description she provided in her June 13, 20 14 letter as 
evidence that the proffered position qualifies as a specialty occupation position. 
IV. SPECIALTY OCCUPATION ANALYSIS 
We reiterate that, where the work is to be performed for entities other than the petitioner, evidence of 
the client companies' job requirements is critical. See Defensor v. Meissner, 201 F.3d at 387-388. In 
the instant case, as was note d above, an agreement with indicates that the etitioner will 
provide "IT personnel as requested by 1 to meet the staffing needs of " This 
indicates that would be, at least initially, the end-user of the beneficiary's services. As 
such, the educational requirement that imposes for the proffered position is the critical 
consideration, rather than the requirement the petitioner imposes on the position. 
The educational re9uirements that : imposes on the proffered position are explicitly stated 
in May 13, 20 14 letter. He stated: 
The minimum requirements for this position is [sic] a Baccalaureate or higher or its 
equivalent in Computer Science, Pharmacy, Health care Management, Computer 
Information Systems (CIS), Electronics Engineering, Management Information 
Systems (MIS) or a related fields [sic]. 
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In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty" requirement of section 214 (i)(1) (B) of the Act. In such a case, the required 
"body of highly specialized knowledge" would essentially be the same. Since there must be a close 
correlation between the required "body of highly specialized knowledge" and the position, however, 
a minimum entry requirement of a degree in either of two disparate fields, such as business 
management and engineering, would not meet the statutory requirement that the degree be "in the 
specific specialty." Section 214(i)(1 )(B) (emphasis added). 
In the instant case, . indicated that various degrees would satisfy the educational 
requirement of the proffered position, including degrees in computer science, pharmacy, healthcare 
management, and electronics engineering. Computer science, pharmacy, healthcare management, 
and electronics engineering do not, even arguably, delineate a specific specialty. That a degree in 
any of that wide array of disciplines would be a sufficient educational preparation for the proffered 
position makes clear that the position does not require a minimum of a bachelor's degree in a specific 
specialty or its equivalent, and does not, therefore, qualify as a specialty occupation position. The 
director's decision must therefore be affirmed and the petition denied on this basis alone. 
Nevertheless, for the purpose of performing a comprehensive analysis of whether the proffered 
position qualifies as a specialty occupation, we turn next to the criteria at 8 C.P.R. 
§ 214.2(h)(4)( iii)(A)(l) and (2): a baccalaureate or higher degree in a specific specialty or its 
equivalent is normally the minimum requirement for entry into the particular 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 
individual with a degree in a specific specialty. Factors we consider when determining these criteria 
include: whether the Handbook 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 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)). 
We will first address the requirement under 8 C.P.R. § 214. 2(h)(4)(iii)(A)(l): A baccalaureate or 
higher degree or its equivalent is normally the minimum requirement for entry into the particular 
position. We recognize the Handbook as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses. 5 
The petitioner claims in the LCA that the proffered position corresponds to SOC code and title 
15-1131, Computer Programmers from O*NET. We reviewed the chapter of the Handbook entitled 
5 The Handbook, which is available 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- 2015 edition available online. 
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"Computer Programmers," including the sections regarding the typical duties and requirements for 
this occupational category. The Handbook states the following with regard to the duties of computer 
programmers: 
What Computer Programmers Do 
Computer programmers write code to create software programs. They turn the 
program designs created by software developers and engineers into instructions that a 
computer can follow. Programmers must debug the programs-that is, test them to 
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 typically 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 usually 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 
Internet, is a growing field. Although programmers typically need to rewrite their 
programs to work on different systems platforms such as Windows or OS X, 
applications created using SaaS work on all 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. 
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U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 20 14-15 ed., 
Computer Programmers," http://www .bls .gov/ooh/computer-and-information-technology/computer­
programmers.htm#tab-2 (last visited Feb. 25, 20 15). 
As was explained above, will be assigning the beneficiary's duties and supervising her 
performance, at least at first, and the duties that attributes to the proffered position are the 
salient consideration. The May 13, 20 14 letter from reiterated the duty description 
provided in March 25, 20 14 letter. Although subsequently provided 
the "Additional Details" shown in the table, above, those details were never addressed by 
As such, they have not been shown to be duties to which would assign the beneficiary, 
and have not been shown to be relevant to what type of position the proffered position is or what 
duties the beneficiary would perform if the visa petition were approved. The "Additional Details" 
will not, therefore, be considered. 
Most of the duties attributed to the proffered position are consistent with the duties 
of computer programmers as described in the Handbook. On the balance, we find that the proffered 
position, as it would be performed while the beneficiary is working for is a computer 
programmer position as described in the Handbook. 
The Handbook states the following about the educational requirements of computer programmer 
positions: 
How to Become a Computer Programmer 
Most computer programmers have a bachelor's degree in computer science or a 
related subject; however, some employers hire workers with an associate's degree. 
Most programmers specialize in a few programming languages. 
Education 
Most computer programmers have a bachelor's degree; however, some employers hire 
workers who have an associate's degree. Most programmers get a degree in computer 
science or a related subject. Programmers who work in specific fields, such as 
healthcare or accounting, may take classes in that field to supplement their degree in 
computer programming. In addition, employers value experience, which many 
students gain through internships. 
Most programmers learn only a few computer languages while in school. However, a 
computer science degree gives students the skills needed to learn new computer 
languages easily. During their classes, students receive hands-on experience writing 
code, debugging programs, and doing many other tasks that they will perform on the 
job. 
(b)(6)
Page 15 
NON-PRECEDENT DECISION 
To keep up with changing technology, computer programmers may take continuing 
education and professional development seminars to learn new programming 
languages or about upgrades to programming languages they already know. 
Licenses, Certifications, and Registrations 
Programmers can become certified in specific programming languages or for vendor­
specific programming products. Some companies may require their computer 
programmers to be certified in the products they use. 
Other Experience 
Many students gain experience in computer programming by completing an 
internship at a software company while in college. 
Advancement 
Programmers who have general business experience may become computer systems 
analysts. With experience, some programmers may become software developers. 
They may also be promoted to managerial positions. For more information, see the 
profiles on computer systems analysts, software developers, and computer and 
information systems managers. 
Important Qualities 
Analytical skills. Computer programmers must understand complex instructions in 
order to create computer code. 
Concentration. Programmers must be able to work at a computer, writing lines of 
code for long periods of time. 
Detail oriented. Computer programmers must closely examine the code they write 
because a small mistake can affect the entire computer program. 
Troubleshooting skills. An important part of a programmer's job is to check the code 
for errors and fix any they find. 
/d. at http://www .bls. gov/ooh/computer-and-information-technology/computer-programmers.htm# 
tab-4 (last visited Feb. 25, 2015 ). 
The Handbook makes clear that computer programmer positions as a category do not require a 
minimum of a bachelor's degree or its equivalent, as it indicates that an associate's degree may 
suffice for some positions. Further, even as to those computer programmer positions that may 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
require a bachelor's degree, the Handbook does not indicate that the degree must be in any specific 
specialty. The Handbook states that "most" computer programmers have degrees in computer 
science or a related subject, which implies that others do not. 
Where, as here, the Handbook does not support the proposition that the proffered position satisfies 
this first criterion of 8 C.F.R. § 214.2(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 responsibility to provide probative evidence (e.g., documentation 
from other authoritative sources) that supports a favorable finding with regard to this criterion. The 
regulation at 8 C.F.R. § 214.2 (h)(4)(iv) provides that "[a]n H-1B petition involving a specialty 
occupation shall be accompanied by [ d]ocumentation ... or any other required evidence sufficient 
to establish ... that the services the beneficiary is to perform are in a specialty occupation." Again, 
going 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 165. In this case, the 
Handbook does not support the proposition that the proffered position satisfies 8 C.F .R. 
§ 214. 2(h)(4)(iii)(A)(l). To satisfy this requirement, the petitioner cited the classification of 
computer programmer positions in Job Zone Four in O*NET. 
As was noted above, the O*NET Internet site, addresses Computer Programmers under the 
Department of Labor's Standard Occupational Classification code of 15 -1131. 00. Contrary to the 
petitioner's position, however, O*NET does not state a requirement for a bachelor's degree. Rather, 
it assigns Computer Programmers a Job Zone "Four" rating, which groups them among occupations 
of which "most," but not all, "require a four-year bachelor's degree ." 6 Further, O*NET does not 
indicate that four-year bachelor's degrees required by Job Zone Four occupations must be in a 
specific specialty closely related to the requirements of that occupation. Therefore, the O*NET 
information is not probative of the proffered position's being a specialty occupation. 
As was noted above undated evaluation of the proffered position states that the position 
requires, inter alia, "A four year Bachelors [sic] (BS) degree in Computer Information Systems, 
Information Technology, Business Administration or Engineering or a related field .... " He did not 
seek to reconcile that opinion with the statement of of the firm which will 
utilize the beneficiary's services, that a degree in pharmacy or healthcare management would be a 
sufficient educational qualification for the proffered position. He did not seek to reconcile his 
opinion with the statements of 
· 
who all attest that they have considerable experience in a company similar to the petitioner's 
business, and that a degree in pharmacy or healthcare would be a sufficient educational qualification 
for the proffered position. 
Moreover, finds that the proffered position requires the attainment of a bachelor's degree 
in business administration or engineering, among other possibilities. The requirement of a 
6 For an explanation of Job Zones, see http://www.onetonline.org/help/online/zones. 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
bachelor's degree in business administration or engineering is inadequate to establish that a position 
qualifies as a specialty occupation. A petitioner must demonstrate that the proffered position 
requires a precise and specific course of study that relates directly and closely to the position in 
question. Since there must be a close correlation between the required specialized studies and the 
position, the requirement of a degree with a generalized title, such as business administration, 
without further specification, does not establish the position as a specialty occupation. Cf Matter of 
Michael Hertz Associates, 19 I&N Dec. 558 (Comm'r 19 88). In addition to proving that a job 
requires the theoretical and practical application of a body of specialized knowledge as required by 
section 21 4(i)(l) of the Act, a petitioner must also establish that the position requires the attainment 
of a bachelor's or higher degree in a specialized field of study or its equivalent. As explained above, 
USCIS interprets the supplemental degree requirement at 8 C.F.R. § 214. 2(h)(4) (iii)(A) as requiring 
a degree in a specific specialty that is directly related to the proposed position. USCIS has 
consistently stated that, although a general-purpose bachelor's degree, such as a degree in business 
administration, may be a legitimate prerequisite for a particular position, requiring such a degree, 
without more, will not justify a finding that a particular position qualifies for classification as a 
specialty occupation. See Royal Siam Cor p. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007). 
Furthermore, the field of engineering is a broad category that covers numerous and various 
specialties, some of which are only related through the basic principles of science and mathematics, 
e.g., nuclear engineering and aerospace engineering. It is not readily apparent that a general degree 
in engineering or one of its other sub-specialties, such as chemical engineering or nuclear 
engineering, is directly related to the duties and responsibilities of the particular position proffered 
in this matter. 
Further, the evaluator did not list any· reference materials on which he relied as a basis for his 
conclusion that the proffered position requires a bachelor's degree. The evaluator appears not to 
have based his opinion on any objective evidence, but instead to have relied on his own subjective 
judgment. 
Further still, the evaluator's description of the position upon which he opines does not indicate that he 
considered, or was even aware of, the fact that the petitioner submitted an LCA that was certified for 
a wage-level that is only appropriate for a comparatively low, entry-level position relative to others 
within its occupation which, as discussed above, signifies that the beneficiary is only expected to 
possess a basic understanding of the occupation. In any event, the professor nowhere discusses this 
aspect of the proffered position. We consider this a significant omission, in that it suggests an 
incomplete review of the position in question and a faulty factual basis for the professor's ultimate 
conclusion as to the educational requirements of the position upon which he opines. 
For all of the above reasons, we accord no probative weight to the evaluation of the proffered 
position. We may, in our discretion, use as advisory opinion statements submitted as expert 
testimony. However, where an opinion is not in accord with other information or is in any way 
questionable, we are not required to accept or may give less weight to that evidence. Matter of Sea, 
Inc., 19 I&N Dec. 817, 820 (Comm'r 19 88). 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
Further, we find that, to the extent that they are described in May 13, 20 14 letter, 
the duties of the proffered position indicate a need for a range of technical knowledge in ..,the 
computer/IT field, but do not establish any particular level of formal, postsecondary education 
leading to a bachelor's or higher degree in a specific specialty as minimally necessary to attain such 
knowledge. 
As the evidence of record does not establish that the particular position here proffered is one for 
which the normal minimum entry requirement is a baccalaureate or higher degree, or the equivalent, 
in a specific specialty, the petitioner has not satisfied the criterion at 8 C.P .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.P.R. 
§ 214. 2(h)( 4)(iii)( A)(2). This prong alternatively calls 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 (1) in the petitioner's industry, (2) parallel to the proffered position, and 
also (3) located in organizations that are similar to the petitioner. 
In determining whether there is 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 at 11 65 (quoting 
Hird!Blaker Corp. v. Sava, 712 F. Supp. at 11 02). 
In the instant case, the petitioner has not established that the proffered position falls under an 
occupational category for which the Handbook, or other reliable and authoritative source, indicates 
that there is a standard, minimum entry requirement of at least a bachelor's degree in a specific 
specialty or its equivalent. 
The record contains the letters from 
as set out above. Each of those letters indicates that the educational requirement of the 
proffered position could be satisfied by a bachelor's degree in engineering, pharmacy, healthcare, 
computer science, or a related field. 
As was explained above, an educational requirement that may be satisfied by a degree in any of a 
wide array of subjects is not a requirement of a minimum of a bachelor's degree in a specific 
specialty or its equivalent. A requirement of a degree in engineering, pharmacy, healthcare, 
computer science, or in any field related to them is not a requirement of a degree in a specific 
specialty. As such, the letters of 
are not persuasive evidence of the proffered position being a specialty occupation position. 
In addition, the petitioner provided several vacancy announcements, as was stated above, apparently 
to show that parallel positions with firms that are in the petitioner's industry and are otherwise 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
similar to the petitioner commonly require a minimum of a bachelor's degree in a specific specialty 
or its equivalent. 
The vacancy announcements are for positions with various job titles, including ETL Developer, ETL 
Quality Assurance Analyst, Quality Assurance Analyst I, IT QA Specialist, ETL Quality Assurance 
Analyst, ETA Tester/QA Analyst, Quality Assurance Specialist, and IT Specialist. Only a few of the 
vacancy announcements are for positions specifically entitled, "Programmer, " or "Computer 
Programmer." We observe that the LCA indicates that the proffered position is a computer 
programmer position and, further, that we have found, based on the duty description ratified by 
that the proffered position is a computer programmer position. 
Although the job titles of those positions are not dispositive of whether they announce positions 
parallel to the proffered position, we observe that software quality assurance (QA) analyst positions 
are addressed in the Computer Systems Analyst chapter of the Handbook, and are included in that 
job classification. 7 Further, the duty descriptions included in the vacancy announcements are 
insufficiently detailed to demonstrate that they are truly parallel to the proffered position. Most of 
the vacancy announcements provided have not been shown to announce positions parallel to the 
proffered position. 
Further, the petitioner appears to be in the business of providing computer personnel to work for 
other companies. In this case, the petitioner would provide the beneficiary, at least in the beginning, 
to work for which appears to provide healthcare. Most of the vacancy announcements 
have not been shown to be either in the petitioner's industry or in the healthcare industry. 8 As such, 
they are not collectively indicative of any requirement common to parallel positions in the salient 
industry, and not directly relevant to the criterion of the first of the two alternative prongs of 
8 C.F.R. § 214. 2(h)(4) (iii)(A)(2). 
Some of the vacancy announcements state that the positions they announce require a bachelor's 
degree, but not that they require a bachelor's degree in any specific specialty. Those vacancy 
announcements do not state a requirement of a mini mum of a bachelor's degree in a specific 
specialty or its equivalent and are not, therefore, evidence that the proffered position, by extension, 
requires a minimum of a bachelor's degree in a specific specialty or its equivalent. 
Some of the vacancy announcements state that the educational requirements of the positions they 
announce may be satisfied by a degree in any branch of engineering or in business administration. 
7 U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., "Computer 
Systems Analysts," http://www .bls.gov /ooh/computer -and-information-technology/computer -systems­
analysts.htm#tab-2 (last visited Feb. 25, 2015). 
8 Some of the announcements were placed, for instance, by the 
a , and the 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
One of the vacancy announcements requues a bachelor's degree in "Business, Engineering, or 
Science." 
As noted above, a degree with a generalized title, such as business administration, without further 
specification, is not a degree in a specific specialty. Cf Matter of Michael Hertz Associa tes, 19 I&N 
Dec. 558 (Comm'r 19 88). As such, an educational requirement that may be satisfied by an otherwise 
undifferentiated bachelor's degree in business administration is not a requirement of a minimum of a 
bachelor's degree in a specific specialty or its equivalent. 
Similarly, the requirement of a bachelor's degree in engineering is inadequate to establish that a 
position qualifies as a specialty occupation. A petitioner must demonstrate that the proffered 
position requires a precise and specific course of study that relates directly to the position in 
question. Since there must be a close correlation between the required specialized studies and the 
position, the requirement of degrees with generalized titles, such as engineering,9 without further 
specification, does not establish the position as a specialty occupation. Cf Matter of Michael Hertz 
Associa tes, 19 I&N Dec. 558 (Comm'r 1988). 
Yet again, a degree in any branch of science, which includes chemistry, meteorology, and botany, is 
not a requirement in a specific specialty. An educational requirement that may be satisfied by a 
degree in any of the wide array of subje cts which, considered together, comprise "Science" is not a 
requirement of a minimum of a bachelor's degree in a specific specialty or its equivalent. 
For all of those reasons, a vacancy announcement with an educational requirement that may be 
satisfied by a degree in any field of engineering, any field of science, or in business administration 
does not state a requirement of a minimum of a bachelor's degree in a specific specialty or its 
equivalent. 
Further still, some of the announcements indicate that a short period of experience (e.g. four years) 
may be substituted for the otherwise requisite bachelor's degree. Such a short period of experience is 
not equivalent to a minimum of a bachelor's degree in a specific specialty or its equivalent pursuant 
to the salient statutes. See 8 C.F.R. § 214.2 (h)(4) (iii)(D)(5). Those vacancy announcements are not 
indicative of a common requirement of a minimum of a bachelor's degree in a specific specialty or 
its equivalent. 
Additionally, most of the vacancy announcements provided are for positions that require specific 
experience, and some require a considerable amount of very specific experience, whereas the 
proffered position is an entry level position for an employee who has only basic understanding of the 
occupation, as indicated on the LCA where the petitioner designated the proffered position as a 
9 As noted above, the field of engineering is a broad category that covers numerous and various specialties, 
some of which are only related through the basic principles of science and mathematics, e.g., nuclear 
engineering and aerospace engineering. It is not readily apparent that a general degree in engineering or one 
of its other sub-specialties, such as chemical engineering or nuclear engineering, is directly related to the 
duties and responsibilities of the particular position proffered in this matter. 
(b)(6)
-------------------- ------· ----- --------
NON-PRECEDENT DECISION 
Page 21 
Level I position. 10 Those vacancy announcements that state an experience requirement, and 
especially those that state a requirement of a great amount of very specific experience, are unlikely 
to be Level I positons and unlikely, therefore, to be positions parallel to the proffered position. 
Finally, even if all of the vacancy announcements were for parallel positions with organizations 
similar to the petitioner and in the petitioner's industry 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 inferences, if any, can be drawn from the announcements with regard to the 
common educational requirements for entry into parallel positions in similar organizations. 11 
Thus, the evidence of record does not establish that a requirement of a bachelor's or higher degree in 
a specific specialty, or its equivalent, is common to positions that are (1) in the petitioner's industry, 
(2) parallel to the proffered position, and also (3) located in organizations that are similar to the 
petitioner, and does not satisfy the criterion of the first of the two alternative prongs of 8 C.F.R. 
§ 214.2 (h)( 4 )(iii)(A)(2). 
The evidence of record also 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 unique 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 duties that comprise the 
proffered position entail such complexity or uniqueness as to constitute a position so complex or 
unique that it can be performed only by a person with at least a bachelor's degree in a specific 
specialty. 
Specifically, the petitioner failed to demonstrate how the duties that collectively constitute 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 curriculum is 
necessary to perform the duties of the proffered position. While a few related courses may be 
beneficial, or even required, in performing certain duties of the proffered position, the petitioner has 
10 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert. 
doleta.gov /pdf/NPWH C _Guidance_ Revised _11 _ 2009. pdf. 
11 
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 determine whether the fact to be proven 
is probably true." Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). As just discussed, the petitioner 
has failed to establish the relevance of the job advertisements submitted to the position proffered in this case. 
Even if their relevance had been established, the petitioner still fails to demonstrate 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 generall y Earl Babbie, The 
Practice of Social Research 186-228 (1995). 
(b)(6)
NON-PRECEDENT DECISION 
Page 22 
failed to demonstrate 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 
particular position here. 
Further, as was also noted above, the LCA submitted in support of the visa petition is approved for a 
Level I computer programmer, an indication that the proffered position is an entry-level position for 
an employee who has only a basic understanding of computer programming. This does not support 
the proposition that the proffered position is so complex or unique that it can only be performed by a 
person with a specific bachelor's degree, especially as the Handbook suggests that some computer 
programmer positions do not require such a degree. 
Therefore, the evidence of record does not establish that this position is significantly different from 
other computer programmer positions 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 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 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 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). 
We will next address the criterion at 8 C.F.R. § 214. 2(h)(4) (iii)(A)(3), which may be satisfied if the 
petitioner demonstrates that it normally requires a minimum of a bachelor's degree in a specific 
specialty or its equivalent for the proffered position. 12 
As noted above, the petitioner submitted evidence pertinent to 
_ 
However, the equivalencies of those degrees 
�------------�--------------------------
12 While a petitioner may believe or otherwise assert that a proffered position requires a degree, that opinion 
alone without corroborating evidence cannot establish the position as a specialty occupation. Were USCIS 
limited solely to reviewing a petitioner's claimed self-imposed requirements, then any individual with a 
bachelor's degree could be brought to the United States to perform any occupation as long as the employer 
artificially created a token degree requirement, whereby all individuals employed in a particular position 
possessed a baccalaureate or higher degree in a specific specialty or its equivalent. See Defensor v. Meissner, 
201 F. 3d at 387. In other words, if a petitioner's degree requirement is only symbolic and the proffered 
position does not in fact require such a specialty degree or its equivalent to perform its duties, the occupation 
would not meet the statutory or regulatory definition of a specialty occupation. See § 214 (i)(l) of the Act; 
8 C.P.R. § 214.2 (h)(4)(ii) (defining the term "specialty occupation"). 
(b)(6)
NON-PRECEDENT DECISION 
Page 23 
to U.S. degrees have not been established. Further, the petitioner has not submitted sufficient 
evidence that those individuals worked for the petitioner in the proffered position. 13 
In any event, however, the petitioner stated that it was established in : and that it currently has 
15 1 employees. The number of computer programmers it employs, and the number it has employed 
in the past, is not demonstrated in the record. Submission of the degrees of four of the petitioner's 
· employees, who have not even been demonstrated to work in the proffered position, is insufficient to 
show that the petitioner normally requires a minimum of a bachelor's degree in a specific specialty 
or its equivalent for the proffered position, and the petitioner has not, therefore, satisfied the criterion 
at 8 C.F.R. § 214. 2(h)(4 )(iii) (A)(3). 
Finally, we will address the alternative criterion at 8 C.F.R. § 214. 2(h)(4)(iii)( A)(4), which is 
satisfied if the petitioner establishes 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 
baccalaureate or higher degree in a specific specialty or its equivalent. 
Again, relative specialization and complexity have not been sufficiently developed by the petitioner 
as an aspect of the proffered position. The duties of the proffered position contain insufficient 
indication of a nature so specialized and complex they require knowledge usually 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 programmer positions that are not usually 
associated with at least a bachelor's degree in a specific specialty or its equivalent. 
Further, as was noted above, the petitioner filed the instant visa petition for a Level I computer 
programmer position, a position for a beginning level employee with only a basic understanding of 
computer programming. This does not support the proposition that the nature of the specific duties 
of the proffered position is so specialized and complex that their performance is usually associated 
with the attainment of a minimum of a bachelor's degree in a specific specialty or its equivalent, 
directly related to computer programming, especially as the Handbook in dicates that some computer 
programmer positions require no such degree. 
For the reasons discussed above, the evidence of record does not satisfy the criterion at 8 C.F.R. 
§ 214. 2(h)(4) (iii)(A)(4). 
The petitioner has failed to establish that it has satisf ied 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. 
13 In fact, we note that , who may be the same person as is listed on 
the petitioner's organizational chart as the petitioner' s vice president --projects, a position that is probably not 
a Level I computer programmer position. 
(b)(6)
NON-PRECEDENT DECISION 
Page 24 
We observe, in addition, that the petitioner has asserted that the beneficiary will be assigned to work 
for in California. However, the petitioner's agreement with indicates that its 
term will end on March 31, 20 16. The period of employment requested in this case continues 
through September 17, 20 17. The record contains insufficient evidence that the petitioner will have 
any work for the beneficiary to perform from March 31, 20 16 to September 17, 20 17. The 
beneficiary's employment contract makes explicit that the petitioner contemplates that, during that 
period, the petitioner may change the beneficiary's work assignment. Even if the work the petitioner 
would perform for had been established to be specialty occupation work, and even if the 
visa petition were otherwise approvable, the visa petition could not be approved for any period after 
March 31, 20 16. 
V. EMPLOYER-EMPLOYEE RELATIONSHIP 
The record suggests an additional issue that was not addressed in the decision of denial but that, 
nonetheless, also precludes approval of this visa petition. 14 
A. THE LAW 
Section 101( a)(15 )(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 212 (j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214 (i)(1) ... , 
who meets the requirements for the occupation specified in section 21 4(i)(2) ... , 
and with respect to whom the Secretary of Labor determines and certifies to the 
[Secretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 21 2(n) (1) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214. 2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
14 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
(b)(6)
NON-PRECEDENT DECISION 
Page 25 
(Emphasis added); see also 56 Fed. Reg. 61111 , 611 21 (Dec. 2, 1991). 
B. ANALYSIS OF THE LAW PERTINENT TO THE EMPLOYER-EMPLOYEE ISSUE 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214. 2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the 
H-1B visa classification. Section 101( a)(15) (H)(i)(b) of the Act indicates that an 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 21 2(n) (1) of the Act, 
8 U.S.C. § 11 82(n)(1) (2012). The intending employer is described as offering full-time or part-time 
"employment" to the H-1B "employee." Subsections 21 2(n)(1)( A)(i) and 21 2(n)(2)(C)(vii) of the Act, 
8 U.S.C. § 11 82(n)(1 )(A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that "United States 
employers" must file a Petition for a Nonimmigrant Worker (Form 1-129) in order to classify aliens as 
H-1B temporary "employees. " 8 C.F.R. § 214 .2(h)( 1), (2)(i)( A). Finally, the definition of "United 
States employer" indicates in its second prong that the -petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H -1B beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee. " 8 C.F.R. § 214. 2(h)(4) (ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
·purposes of the H -1B visa classification, even though the regulation describes H -1B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." !d. Therefore, for purposes of the H-1B visa classification, these terms are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. 
Darden, 503 U.S. 318 , 322-323 (19 92) (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 relationship between the parties; whether 
the hiring party has the right to assign additional projects to the hired party; the 
extent of the hired party's discretion over when and how long to work; the method 
of payment; the hired party's role in hiring and paying assistants; whether the work 
is part of the regular business of the hiring party; whether the hiring party is in 
business; the provision of employee benefits; and the tax treatment of the hired 
party." 
· 
Darden, 503 U.S. at 323 -324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 75 1-
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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 (quotingNLRB v. United Ins. Co. 
of America, 390 U.S. 254, 258 (1 968)). 
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)( 1)( 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 
generally 136 Cong. Rec. S17 106 (daily ed. Oct. 26, 19 90); 136 Cong. Rec. H12 358 (daily ed. Oct. 27, 
199 0). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.15 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.F.R. § 214. 2(h)(4) (ii). Accordingly, 
the term "United States employer" not only requires H-1B employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
15 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee,' clearly 
indicates legislative intent to extend the definition beyond the traditional common law definition ." See, e.g., 
Bowers v. Andrew Weir Shipping, Ltd., 81 0 F. Supp. 522 (S.D.N.Y. 1992), affd, 27 F.3d 800 (2nd Cir.), cert. 
denied, 51 3 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101 (a)(15)( H)(i)(b) of the Act, "employment" in section 212(n)(1 )(A)(i) of the Act, or "employee" in 
section 21 2(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of 
the H-1B visa classification, the term "United States employer" was defined in the regulations to be even 
more restrictive than the common law agency definition. A federal agency's interpretation of a statute whose 
administration is entrusted to it is to be accepted unless Congress has spoken directly on the issue. See 
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 844-845 (1984). 
Finally, it is also noted that if the statute and the regulations were somehow read as extending the definition 
of employee in the H-1B context beyond the traditional common law definition, this interpretation would 
likely thwart congressional design and lead to an absurd result when considering the $750 or $1 ,500 fee 
imposed on H-1B employers under section 21 4(c)(9) of the Act, 8 U.S.C. § 11 84(c)(9). As 20 C.P.R. § 
655.73 1(c)(10)(ii) mandates that no part of the fee imposed under section 21 4(c)(9) of the Act shall be paid, 
"directly or indirectly, voluntarily or involuntarily," by the beneficiary, it would not appear possible to 
comply with this provision in a situation in which the beneficiary is his or her own employer, especially 
where the requisite "control" over the beneficiary has not been established by the petitioner. 
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additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.P.R. § 214. 2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at 31 8-319. 16 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101( a)(15)( H)(i)(b) of the Act, section 21 2(n) of the Act, and 8 C.P.R. § 214. 2(h). 17 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 8 C.P.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 Com pliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(1) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 P.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" of H-lB nurses under 8 C.P.R. § 214.2 (h), 
even though a medical contract service agency is the actual petitioner, because the hospitals ultimately 
16 
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. Rob bins, 519 U.S. 452, 461 (19 97) (citing Robe rtson 
v. Methow Valley Citizens Council, 490 U.S. 332 , 359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 35 1 (1989) 
(quoting Bo wles v. Seminole Rock & Sand Co. , 325 U.S. 41 0, 414, 65 S.Ct. 1215, 121 7, 89 L.Ed. 1700 
(1945)). 
17 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. § 11 84(c)(2)(F) (referring to "unaffiliated employers" supervising and 
controlling L-1B intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties relevant 
to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-449; New Compliance Manual at § 2-III(A)( 1). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. 
at 323-324. 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."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
C. ANALYSIS OF THE EVIDENCE 
The petitioner is located in Massachusetts. It has indicated that it will provide the beneficiary, at 
least initially, to work for in California. Although the petitioner's organizational chart 
indicates that the petitioner's vice president for projects, would supervise the 
beneficiary, there is insufficient indication that would work in California. Under 
these circumstances, it appears unlikely that would assign the beneficiary's tasks and 
supervise her performance of them. 
Further, the March 14, 20 14 agreement between the petitioner and does not indicate that 
the petitioner will perform specified services for but, rather, that the petitioner will 
"provide temporary Information Technology (IT) personnel" to 
Further still, the beneficiary's employment agreement indicates that if or whatever other 
end-user the beneficiary may subsequently be assigned to, disapproves of the beneficiary's 
performance, she may, after being accorded an opportunity to correct the situation, be discharged. 
Clearly, and the subsequent end-users of the beneficiary's services would have 
considerable input into whether the petitioner is discharged. This is another index of control the 
end-users of the beneficiary's services would exercise over the beneficiary, and another indication 
(b)(6)
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that the petitioner would not be the beneficiary's true employer within the meaning of the law as set 
out above . 
. Based on the tests outlined above, the petitioner has not established that, if the visa petition were 
approved, it would be a "United States employer" having an "employer-employee relationship" with 
the beneficiary as an H-1B temporary "employee." The visa petition will be denied for this 
additional reason. 
VI. CONCLUSION 
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. United States, 229 F. Supp. 2d 1025 , 1043 (E.D. Cal. 
200 1), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that we conduct appellate review on a de novo basis). Moreover, when we deny a petition on 
multiple alternative grounds, a plaintiff can succeed on a challenge only if it shows that we abused 
our discretion with respect to all of the enumerated grounds. See Spencer Enterprises, Inc. v. United 
States, 229 F. Supp. 2d at 1043, affd. 345 F.3d 683 . 
The director's decision will be affirmed and the petition will be denied for the above stated reasons, 
with each considered as an independent and alternative basis for the decision. In visa petition 
proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 20 13). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied.