dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-T-, INC. 
Non- Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 2, 2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting business, seeks to employ the Beneficiary as a 
programmer analyst and classify her as a nonimmigrant worker in a specialty occupation. See section 
101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101 ( a)(l5)(H)(i)(b ). The Director, California Service Center denied the petition. The matter is 
now before us on appeal. The appeal will be dismissed. 
I. PROCEDURALBACKGROUND 
In the Petition for a Nonimmigrant Worker (Form I-129), the Petitioner describes itself as an 
advanced software development and consulting business, with 15 employees, established in 2007. It 
wishes to employ the Beneficiary in what it designates as a programmer analyst position. 
The Director denied the petition, concluding that the Petitioner did not establish that the proffered 
position qualifies as a specialty occupation. On appeal, the Petitioner asserts that the Director's basis 
for denial was erroneous and contends that it satisfied all evidentiary requirements. 
The record of proceeding contains: (1) the Form I-129 and supporting documentation; (2) the 
Director's request for additional evidence (RFE); (3) the Petitioner's response to the RFE; ( 4) the 
Director's letter denying the petition; and (5) the Notice of Appeal or Motion (Form I-290B) and 
supporting documentation. We reviewed the record in its entirety before issuing our decision. 1 
For reasons that will be discussed below, we agree with the Director that the Petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
Matter of V-T-, Inc. 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
For an H-lB petition to be granted, the Petitioner must provide sufficient evidence to establish that it 
will employ the Beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the Petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements of a specialty occupation. 
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) 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 
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 th~ United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent IS normally the m1mmum 
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. 
3 
Matter of V- T-, Inc. 
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)(l) 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 (1988) (holding that construction 
oflanguage 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 (1989); Matter <?fW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.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 )Vith section 214(i)(l) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H -1 B petitions for qualified foreign 
nationals 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 -1 B 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 foreign national, 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. 
4 
(b)(6)
Matter of V- T-, Inc. 
B. The Proffered Position 
As noted above, the Petitioner states that it is as an advanced software development and consulting 
business, established in with 15 employees. The Petitioner describes itself as "an IT staffing 
organization with a vision of providing a cost-effective service to our clients ... Our staffing and 
consulting solutions support a broad spectrum of solutions serving across all domains, be it contract, 
permanent, fixed-cost or time-and-materials, on-site or off-site, we have proven experience." In the 
letter submitted in support of the instant petition, the Petitioner states that the programmer analyst 
"will be required to plan analyze, develop, test ad document computer programs using applications, 
languages, tools and technologies," and will be responsible for with the following job duties: 
1. Modify existing software to correct errors, allow it to adapt to new hardware, 
or improve its performance. Develop and direct software system testing and 
validation procedures, programming, and documentation. Confer with 
systems analysts, engineers, programmers and others to design system and to 
obtain information on project limitations and capabilities, performance 
requirements and interfaces. 
2. Analyze user needs and software requirements to determine feasibility of 
design within time and cost constraints. 
3. Design, develop and modify software systems, using scientific analysis and 
mathematical models to predict and measure outcome and consequences of 
design. 
4. Store, retrieve, and manipulate data for analysis of system capabilities and 
requirements. 
5. Coordinate software system installation and monitor equipment functioning to 
ensure specifications are met. 
6. Obtain and evaluate information on factors such as reporting formats required, 
costs, and security needs to determine hardware configuration. 
7. Client interaction 
8. Requirements gathering 
9. High Level Impact Analysis 
10. Architecture and Design 
11. Development & Defect fixing 
12. Test Planning and Strategy 
13. Functional & Performance Testing 
14. User Acceptance Testing Support 
15. Status Reporting 
16. Process compliance activities 
1 7. Documentation 
The Petitioner submitted a certified Labor Condition Application (LCA) in support of the instant 
H-1B. The Petitioner indicates that the proffered position corresponds to the occupational category 
"Computer Programmers"-SOC (ONET/OES Code) 15-1131, at a Level I (entry-level) wage, the 
lowest of the four assignable wage-levels. 
(b)(6)
Matter of V- T-, Inc. 
The Petitioner stated that the proffered position "is a professional level position, and as such, we 
absolutely require, at a minimum, the functional equivalent of a Bachelor's degree with some 
exposure in software development, programming and designing." 
The initial submission also included a letter from 
the Petitioner's claimed end-client, 
. (end-client letter) describing the project the Beneficiary would be assigned to, stating: 
Project Description: 
is a web front end application for data used in medical transcription 
service for a clinic setting. Voice dictations and completed transcripts are 
transferred to and from the database server using the special transcription Service 
application , which is installed on the client's computers. performs 
advance file management , manipulations and also records all of the transactions in 
the database. Besides , it enables receiving the detailed statistic information and 
generating time and cost reports. Medical transcription work flow engine, reports 
delivery engine , Automates processes for medical transcription industry , includes 
payroll, billing , routing, HI7 transmissions , interface with EMR. 
The end-client letter also listed the proposed duties for the programmer analyst position, mirroring 
the duties provided by the Petitioner, with the addition of the duty "User Interface designer. " 
According to end-the client letter, the position requires a "Bachelor 's degree or Equivalent in 
Computer science , Computer Applications , ANY Engineering , IT, Management Information 
Systems, or related area of study." 
According to the documents submitted, it appears that the Beneficiary will work on a project for a 
client, from the Petitioner's offices located in 
IL. 
The Director reviewed the submitted position information and issued an RFE, requesting additional 
information regarding the duties of the proffered position. In response , the Petitioner reiterated the 
aforementioned duties and added the following breakdown of the percentage of time to be spent on 
the duties: 
Percentage Job Duties 
5% Gathering and analyzing requirements 
10% Store, retrieve, and manipulate data for analysis of system 
capabilities and requirements. 
5% Design and develop user interface 
25% Design and develop software testing 
25% Plan test strategy and fix the defects . Document the defects 
10% Perform functional , perfmm , and user acceptance tests 
15% Client and other team members interaction and process 
Matter of V- T-, Inc. 
compliance 
5% Other similar professional responsibilities as necessary 
The Petitioner also amended its educational requirements in the RFE response, stating at different 
points in the RFE response that the proffered position requires "substantial theoretical knowledge in 
the field of Computer Science and Management," that "the position requires the application of 
technology and principles that can only be gained through the attainment of at least a Bachelor's 
degree or its equivalent in Computer Science, Computer Applications, Information Technology, 
Electronics, Engineering, or a directly related field with a considerable amount of experience," and 
that "the position as a Programmer Analyst requires at least a Bachelor's Degree in computer science 
for entry." 
C. Analysis 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will now discuss the proffered position in relation to the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l), which requires the Petitioner to demonstrate that a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into 
the particular position. 
USCIS recognizes the U.S. Department of Labor's Occupational Outlook Handbook (Handbook) as 
an authoritative source on the duties and educational requirements of the wide variety of occupations 
that it addresses. 2 The Petitioner asserts in the LCA that the proffered position falls within the 
"Computer Programmers" occupational category. 
We reviewed the section of the Handbook covering the "Computer Programmers" occupational 
category, including the section entitled "How to Become a Computer Programmer," which states the 
following: 
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 
2 All references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/OCO/. The excerpts of the Handbook regarding the duties and requirements of the 
referenced occupational category are hereby incorporated into the record of proceeding. 
Matter of V- T-, Inc. 
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. 
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. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Computer Programmers, available on the Internet at http://www.bls.gov/ooh/computer-and­
information-technology/computer-programmers.htm (last visited Sept. 29, 20 15). 
The Handbook specifically states that an associate's degree is acceptable for entrance into some 
positions located within the occupational category designated by the Petitioner. However, to 
demonstrate that a job requires the theoretical and practical application of a body of highly 
specialized knowledge as required by section 214(i)( 1) of the Act, a Petitioner must establish that the 
position requires the attainment of a bachelor's or higher degree in a specific specialty, or its 
equivalent. USCIS interprets the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a 
degree in a specific specialty that is directly related to the proposed position. Therefore, the 
Handbook's recognition that an associate's degree is sufficient for entry strongly suggests that a 
bachelor's degree in a specific specialty is not a standard, minimum entry requirement for this 
occupation. Accordingly, as the Handbook indicates that positions located within the "Computer 
Programmers" occupational category do not normally require at least a bachelor's degree in a 
specific specialty or its equivalent for entry, it does not support the particular position proffered here 
as being a specialty occupation. 
We further note that while the Petitioner requires a bachelor's degree for the proffered position, it did 
not indicate in the initial petition that a bachelor's degree in a specific specialty, or the equivalent, is 
required. 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. There must be a close 
correlation between the required specialized studies and the position; thus, the mere requirement of a 
degree, without further specification, does not establish the position as a specialty occupation. Cf 
Matter of Michael Hertz Assocs., 19 I&N Dec. 558 (Comm'r 1988) ("The mere requirement of a 
college degree for the sake of general education, or to obtain what an employer perceives to be a 
higher caliber employee, also does not establish eligibility."). Thus, while a general-purpose 
bachelor's degree 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 Corp. v. Cherto.ff, 484 F.3d at 147. 
Matter of V- T-, Inc. 
Even if we accepted the amended requirements provided in the RFE response, they would still not 
establish that the proffered position requires a bachelor's degree in a specific specialty or its 
equivalent, as the minimum entry requirement. Specifically, the RFE response was internally 
inconsistent in regards to what the proffered position actually required and was markedly different 
from the qualifications stated in the client letter. We cannot determine the true requirements for the 
position with these inconsistencies present in the record. It is incumbent upon the Petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain 
or reconcile such inconsistencies will not suffice unless the Petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 5 82, 591-92 (BIA 1988). 
In the instant case, the Petitioner has not established that the proffered position falls under an 
occupational category for which the Handbook, or other authoritative source, indicates that normally 
the minimum requirement for entry is at least a bachelor's degree in a specific specialty, or its 
equivalent. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a spectfic specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.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 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)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook (or other independent, authoritative source) reports a standard 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. 
There are no submissions from the industry's professional association indicating that it has made a 
degree a minimum entry requirement and no submission of letters or affidavits from firms or 
individuals that attest that such firms routinely employ only individuals with a degree in a specific 
specialty. The Petitioner did submit letters from some of its clients which were purported to 
establish that it is common for a programmer analyst position to require a bachelor's degree in a 
specific specialty among similar organizations within the Petitioner's industry. However, the letters 
do not support such an assertion. Two of the letters address the contractual relationship between the 
9 
(b)(6)
Matter of V- T-, Inc. 
Petitioner and its client companies and do not provide insight into the educational requirements 
imposed by similarly situated firms in the Petitioner's industry. The remaining two letters, both from 
state that "due to the sophisticated nature of this project, the services that 
[an individual] is providing to our organization requires a minimum of a Bachelor's degree in 
Computer Science, Engineering or a related technical field, plus experience in the technologies 
involved." Neither letter asserts that routinely recruits and employs only degreed individuals 
for the position of programmer analyst. Rather, the letters state that it is the nature of the specific 
project being completed that necessitates the degree. Furthermore, it is not evident from the letters 
that the positions being discussed, a Database Administrator and Programmer Analyst on Oracle 
Applications) are in fact similar to the position here proffered.3 
The Petitioner further submitted copies of job advertisements in supp01t of the assertion that the 
degree requirement is common to its industry in parallel positions among similar organizations. 
However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements is misplaced. 
In the Form I-129 petition, the Petitioner states that it is an advanced software development and 
consulting business, established in with 15 individuals. The Petitioner states that it has annual 
gross revenue of $1,084,558 and a net annual income of approximately $65,000. The Petitioner 
designated its business operations under the North American Industry Classification System 
(NAICS) code 541511, which corresponds to "Custom Computer Programming Services."4 
For the Petitioner to establish that an organization within its industry is also similar to it, it must 
demonstrate that the Petitioner and the organization share the same general characteristics. Without 
such evidence, documentation submitted by a Petitioner is generally outside the scope of 
consideration for this criterion, which encompasses only organizations that are similar to the 
Petitioner. 
We will briefly note that, without more, the job postings do not appear to be from organizations 
similar to the Petitioner. 5 When determining whether the Petitioner and the advertising organization 
share the same general characteristics, such factors may include information regarding the nature or 
type of organization, and, when pertinent, the particular scope of operations, as well as the level of 
3 For example , the positions discussed in letters require work experience .' However, given the wage-level 
designated by the Petitioner on the certified LCA, which DOL guidance indicates is only appropriate for entry-level 
positions such as research fellows, workers in training , or interns, it is not clear that the duties of the positions referenced 
in the letters parallel those of the one proffered here. 
4 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used to classify 
business establishments according to type of economic activity and each establishment is classified to an industry 
according to the primary business activity taking place there. See http://www.census .gov/eos/www/naics/ (last visited 
Sept. 29, 20 15). 
5 Moreover, the Petitioner did not provide any independent evidence of how representative the job postings are of the 
particular advertising employers ' recruiting history for the type of job advertised . As the advertisements are only 
solicitations for hire, they are not evidence of the actual hiring practices of these employers . 
10 
(b)(6)
Matter of V- T-, Inc . 
revenue and staffing (to list just a few elements that may be considered). It is not sufficient for the 
Petitioner to claim that an organization is similar and operates in the same industry without 
providing a legitimate basis for such an assertion. 
More specifically, the advertisements include, among others, positions with , one ofthe largest 
commuter rail system in N011h America; a leading provider of IT and management 
training with a record of providing training to over 2.4 million course participants; 
a multi-state power supply company; and a Fortune 100 business that owns and 
operates food processing, farm supply, fuel, and retail services throughout the United 
States. Without further information, the advertisements appear to be for organizations that are not 
similar to the Petitioner. 
Further, the Petitioner has not established that the advertisements involve parallel positions. For 
example, the position with requires "7 to 8 years of related experience." The 
posting requires "1 0 years' experience" while the posting from 
requires "5+ years of experience in software system design, development , and deployment." As 
previously discussed, the Petitioner designated the proffered position on the LCA through the wage 
level as a Level I (entry level) position relative to others within the occupation. As such, the 
advertised positions appear to involve more senior positions than the proffered position. More 
importantly, the Petitioner has not sufficiently established that the primary duties and responsibilities 
ofthe advertised positions parallel those of the proffered position. 
In addition, some job postings do not indicate that a bachelor's degree in a directly related specific 
specialty is required. For example, the postings from an unnamed business located in IL 
states that "a baccalaureate degree is required. A degree in computer science or related information 
systems field preferred." The posting from likewise states that a 
"Bachelor in Engineering or Science, Computer Science is a plus," but does not indicate that such a 
degree is required. As discussed, the degree requirement set by the statutory and regulatory 
framework of the H-lB program is not just a bachelor's or higher degree, but such a degree in a 
specific specialty that is directly related to the duties of the specialty occupation claimed in the 
petition. 
As the documentation does not establish that the Petitioner has met this prong of the regulations , 
further analysis regarding the specific information contained in each of the job postings is not 
necessary.6 That is, as the evidence does not establish that similar organizations in the same industry 
6 Even if all of the job postings indicated that a bachelor's degree in a specific specialty , or its equivalent, is common to 
the industry in parallel positions among similar organizations (which they do not), the Petitioner does not demonstrate 
what inferences, if any, can be drawn from these advertisements with regard to determining the common educational 
requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The Practice of Social 
Research 186-228 (1 995) . As such, even if the job announcements supported the finding that the position required a 
bachelor's or higher degree in a specific specialty, or its equivalent (for organizations in the same industry that are 
similar to the Petitioner) , it cannot be found that such a limited number of postings that appear to have been consciously 
selected outweigh the findings of the Handbook published by the Bureau of Labor Statistics that such a position does not 
normally require at least a baccalaureate degree in a specific specialty , or its equivalent , for entry into the occupation in 
II 
Matter of V- T-, Inc. 
routinely require at least a bachelor's degree in a specific specialty, or its equivalent, for parallel 
positions, not every deficit of every job posting has been addressed. 
The Petitioner has not established that a requirement of a bachelor's or higher degree in a specific 
specialty, or its equivalent, is common to the Petitioner's industry in 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. For the reasons discussed above, the Petitioner has not satisfied the first 
alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
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. 
We reviewed the record in its entirety and find that the Petitioner has not provided sufficient 
documentation to support a claim that its particular position is so complex or unique that it can only 
be performed by an individual with a baccalaureate or higher 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. 
The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four assignable 
wage levels. 7 Without further evidence, the record of proceeding does not indicate that the proffered 
the United States. 
The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage rate is 
described as fo11ows: 
Level l (entry) wage rates are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These employees perform routine tasks that require limited, if 
any, exercise of judgment. The tasks provide experience and familiarization with the employer's 
methods, practices, and programs. The employees may perform higher level work for training and 
developmental purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored and reviewed for 
accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Level I wage should be considered. 
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/NPWHC _Guidance_ Revised _II_ 2009.pdf. 
12 
Matter of V-T-, Inc. 
position is complex or unique as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a significantly higher prevailing wage. 8 For example, a Level IV (fully 
competent) position is designated by DOL for employees who "use advanced skills and diversified 
knowledge to solve unusual and complex problems." 9 The evidence of record does not establish that 
this position is significantly different from other positions in the occupational category such that it 
refutes the Handbook's information that a bachelor's degree in a specific specialty or its equivalent is 
not required for the proffered position. 
Upon review, we find that the Petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. 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 it may believe are so complex and unique. 
In the RFE response, the Petitioner states that the "job of Programmer Analyst involves highly 
sophisticated computing needs, it is imperative that the personnel working as a programmer analysts 
have substantial theoretical knowledge in the field of Computer Science and Management" and 
asserts that "the duties to be performed by the Beneficiary are complex and unique." While certain 
skills or knowledge may be beneficial, or even required, in performing specific duties of the 
position, the evidence does not demonstrate that these skills and knowledge can only be gained 
through an established curriculum leading to a baccalaureate or higher degree in a specific specialty, 
or its equivalent, nor has the Petitioner demonstrated that such a degree is required to perform the 
duties of the proffered position. The description of the duties does not specifically identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. The 
record lacks sufficiently detailed information to distinguish the proffered position as more complex 
Thus, in accordance with the relevant DOL explanatory information on wage levels, this wage rate indicates that the 
Beneficiary is only required to have a basic understanding of the occupation and carries expectations that the Beneficiary 
perform routine tasks that require limited, if any, exercise of judgment; that she would be closely supervised; that her 
work would be closely monitored and reviewed for accuracy; and that she would receive specific instructions on required 
tasks and expected results. DOL guidance indicates that a Level I designation should be considered for positions in 
which the employee will serve as a research fellow, worker in training, or an intern. 
8 The issue here is that 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 
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)(l) ofthe Act. 
9 For additional information regarding wage levels as defined by DOL, 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/NPWHC_ Guidance_Revised_ll_ 2009.pdf 
13 
Matter of V- T-, Inc. 
or unique from other positions that can be performed by persons without at least a bachelor's degree 
in a specific specialty, or its equivalent. 
The Petitioner claims that the Beneficiary is well qualified for the position. However, the test to 
establish a position as a specialty occupation is not the education or experience of a proposed 
Beneficiary, but whether the position itself requires at least a bachelor's degree in a specific 
specialty, or its equivalent. The Petitioner did not establish that its particular position is so complex 
or unique that it can only be performed by an individual with at least a bachelor's degree in a specific 
specialty, or its equivalent. Therefore, the Petitioner has not satisfied the second alternative prong of 
8 C.P.R.§ 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
The third criterion of 8 C.P.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we review the Petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
Petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a Petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a Petitioner may assert that a 
proffered position requires a specific degree, that statement 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 Petitioner artificially 
created a token degree requirement, whereby all individuals employed in a particular position 
possessed a baccalaureate or higher degree in the specific specialty, or its equivalent. See D~fensor 
v. Meissner, 201 F.3d at 388. In other words, if a Petitioner's stated degree requirement is only 
designed to artificially meet the standards for an H-1 B visa and/or to underemploy an individual in a 
position for which he or she is overqualified and if the proffered position does not in fact require 
such a specialty degree or its equivalent, to perform its duties, the occupation would not meet the 
statutory or regulatory definition of a specialty occupation. See section 214(i)(l) of the Act; 
8 C.P.R.§ 214.2(h)(4)(ii) (defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. USCIS must examine the 
actual employment requirements, and, on the basis of that examination, determine whether the 
position qualifies as a specialty occupation. See generally D4ensor v. Meissner, 201 F. 3d 384. In 
this pursuit, the critical element is not the title of the position, or the fact that an employer has 
routinely insisted on certain educational standards, but whether performance of the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge, and the 
14 
Matter of V- T-, Inc. 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation as required by the Act. 
In response to the Director's RFE, the Petitioner provided a list of four individuals that it claims are 
employed as computer programmer analysts, performing duties similar to the duties of the proffered 
position. The Petitioner asserts that the educational credentials of these four individuals substantiate 
the claim that it normally requires a baccalaureate or higher degree in a specific specialty, or its 
equivalent for the position. However, as noted by the Director, the Petitioner has not submitted any 
evidence to corroborate these claims. The record does not contain copies of the individuals' 
educational credentials or specific job descriptions to establish their duties. Moreover the Petitioner 
has not submitted wage statements or W-2s establishing that these individuals are employed by the 
Petitioner. 
On appeal, the Petitioner contends that it need not submit the corroborating evidence to substantiate 
its claims, as "USCIS approved the petitions, they have access to all collaborative documents 
relating to the H -1 B employees. Therefore the USCIS has on hand all evidence regarding the 
positions and the degrees each H-1 B employee possesses." If a Petitioner wishes to have the facts of 
prior decisions considered by USCIS in its adjudication of a petition, the petitioner is permitted to 
submit copies of such evidence that it either obtained itself and/or received in response to a Freedom 
oflnformation Act request filed in accordance with 6 C.F.R. Part 5. Otherwise, "[t]he non-existence 
or other unavailability of required evidence creates a presumption of ineligibility." 8 C.F.R. § 
103 .2(b )(2)(i). 
Again, the Petitioner in this case did not submit copies of these petitions and their respective 
approval notices. As the record of proceeding 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 this proceeding. 
When "any person makes an application for a visa or any other document required for entry, or 
makes an application for admission, [ ... ] the burden of proof shall be upon such person to establish 
that he is eligible" for such benefit. 8 U.S.C. § 1361; see also Matter of Treasure Crafi of 
California, 14 I&N Dec. 190 (Reg'l Comm'r 1972). Furthermore, any suggestion that USCIS must 
review unpublished decisions and possibly 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 
this proceeding 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 noted by the Petitioner 
On appeal, the Petitioner provides an affidavit from its Vice President stating that the Petitioner only 
employs "candidates who have a degree in Computer Science & Engineering, Computer Information 
Systems, Management Information Systems, or other LT. degrees to work in Programmer Analyst 
15 
Matter of V- T-, Inc. 
pos1t10ns ... "
10 
However, the Petitioner submits no documentary evidence backing this assertion, 
and going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter ofSojjici, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
We have reviewed the record and find no evidence that the Petitioner normally requires a 
baccalaureate or higher degree in a specific specialty, or its equivalent, for the proffered position. 
Therefore, the Petitioner has not satisfied the third criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
The nature of the spectfic 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 in a specific specialty, or its equivalent 
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. 
Upon review of the record of the proceeding, we note that the Petitioner has not provided probative 
evidence to satisfy this criterion of the regulations. In the instant case, relative specialization and 
complexity have not been sufficiently developed by the Petitioner as an aspect of the proffered 
position. That is, the proposed duties have not been described with sufficient specificity to establish 
that they are more specialized and complex than positions that are not usually associated with at least 
a bachelor's degree in a specific specialty, or its equivalent. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (the lowest of 
four assignable wage-levels) relative to others within the occupational category. Without more, the 
position is one not likely distinguishable by relatively specialized and complex duties. That is, 
without further evidence, the Petitioner has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a substantially higher prevailing wage. 11 
The Petitioner has submitted insufficient evidence to satisfy this criterion of the regulations. We 
therefore conclude that the Petitioner did not satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
10 We note that the stated requirements are inconsistent with those earlier claimed by the Petitioner. 
11 
As previously discussed, a Level IV (fully competent) position is designated by DOL for employees who "use 
advanced skills and diversified knowledge to solve unusual and complex problems" and requires a significantly higher 
wage. 
16 
Matter of V- T-, Inc. 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. 
III. CONCLUSION AND ORDER 
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 2013). Here, that burden has not been met.12 
ORDER: The appeal is dismissed. 
Cite as Matter ofV-T-, Inc., ID# 13948 (AAO Oct. 2, 2015) 
12 Since the identified basis for denial is dispositive of the Petitioner's appeal, we will not address the other grounds of 
ineligibility we observe in the record of proceeding. 
1 -,