dismissed H-1B Case: Software Development

identifying data deleted to 
prevent clearly unwarrarnted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N. W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 03 144 503 86 Office: CALIFORNIA SERVICE CENTER Date: APR I 1 2006 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(a)(l 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 144 50386 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is a software development, distribution, and licensing business that seeks to employ the 
beneficiary as a programmer analyst. The petitioner endeavors to classify the beneficiary as a nonimmigrant 
worker in a specialty occupation pursuant to tj I Ol(a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1 IOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. tj 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. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(I) 
 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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
tj 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. 
The record of proceeding before the AAO contains: (1) Fonn 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a programmer analyst. Evidence of the beneficiary's 
duties includes the 1-129 petition and the petitioner's response to the director's request for evidence. 
WAC 03 144 50386 
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According to this evidence, the beneficiary would perform duties that entail: planning and developing new 
computer systems and applying the system's existing resources to additional operations; creating new 
accounting interface design programs within Adapt CRM, interfacing major accounting software to be 
developed using magic development and other supporting tools; reviewing the existing accounting interface 
of Adapt CRM; designing and developing new accounting modules to be integrated on Adapt CRM such as 
accounts receivable and collection monitoring; creating a plan for implementing new Adapt CRM accounting 
modules; and assisting in training the users. Although not explicitly stated, it appears that the petitioner 
requires a baccalaureate degree or its equivalent in a computer-related field for the proffered position. 
The director found that the proffered position was not a specialty occupation. Citing to the Department of 
Labor's Occupational Outlook Handbook (Handbook), 2004-2005 edition, the director noted that the 
minimum requirement for entry into the position was not a baccalaureate degree or its equivalent in a specific 
specialty. The director found further that the petitioner failed to establish any of the criteria found at 8 C.F.R. 
5 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the director misinterpreted the Handbook and disregarded the evidence. 
Counsel cites to a service center memorandum to state that two-year degrees or certificates are acceptable for 
only low-level programmers. Counsel states further that the record contains job postings as supporting 
documentation, and submits letters from the petitioner's competitors as new supporting documentation. 
Counsel also states that the record contains evidence that the petitioner normally requires a bachelor's degree. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement 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. 
Factors often considered by CIS when determining these criteria 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 1 15 1, 1 165 (D. 
Minn. 1999)(quoting HirdIBlaker Corp. v. Sava, 7 12 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AAO does not concur with counsel that the proffered position is a specialty 
occupation. A review of the Computer Programmers job qualifications in the Handbook, 2006-2007 edition, 
finds that there are many training paths available for computer programmers, and the associate degree is a 
widely used entry-level credential. No evidence in the Handbook indicates that a baccalaureate or higher degree, 
or its equivalent, is required for a programmer/programmer analyst job. 
Counsel's citation to a service center memorandum to state that two-year degrees or certificates are acceptable 
for only low-level programmers is noted. Letters and correspondence issued by service centers are not binding 
on the AAO. Letters and correspondence written by service centers do not constitute official CIS policy and 
will not be considered as such in the adjudication of petitions or applications. Although they may be useful as 
WAC 03 144 50386 
Page 4 
an aid in interpreting the law, such letters and correspondence are not binding on any CIS officer as they 
merely indicate the service center's analysis of an issue. 
Regarding parallel positions in the petitioner's industry, the record contains a letter from the president of 
SYSPRO, who asserts that his company employs five programmer analysts, all of whom hold a bachelor's 
degree. He goes on to say that a bachelor's degree in computer science, accounting, or in any related study is 
acceptable. The writer, however, does not provide evidence in support of his assertions. Further, as the author 
accepts degrees in computer programming and accounting, it is not clear that a bachelor's degree in a specific 
specialty is required. The email from Naida Shaw also does not indicate a degree in a specialty is required. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of Cali$omia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The record also contains letters from the CIO o and from the 
president of ASI, who assert that their companies require a bachelor's degree m computer science or any 
related field for the position of programmer analyst. Again, the writers do not provide evidence in support of 
their assertions. Further, neither of them states that the industry standard requires a minimum of a bachelor's 
degree in a specialty. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of Cali$omia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner also submitted Internet job postings for computer-related positions. Some of the advertisements 
specify that related experience may be substituted for a bachelor's degree, while others do not specify a 
bachelor's degree in a specific specialty. This information is not convincing evidence that the position of a 
programmer analyst is a specialty occupation in this case, based on the above discussion. Furthermore, a 
review of the job entry requirements in the Handbook finds that there are many training paths available for 
computer programmers, and the associate degree is a widely used entry-level credential. In view of the 
foregoing, the petitioner has not demonstrated that a baccalaureate or higher degree in a specific specialty is the 
industry standard for the proffered position. 
Counsel also noted that CIS approved other petitions that had been previously filed on behalf of computer 
programmers. The director's decision does not indicate whether he reviewed the prior approvals of the other 
nonimrnigrant petitions. If the previous nonimrnigrant petitions were approved based on the same 
unsupported assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology Intemational, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimrnigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
WAC 03 144 50386 
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The record also does not include any evidence from firms, individuals, or professional associations regarding 
an industry standard, or documentation to support the complexity or uniqueness of the proffered position. The 
petitioner, therefore, has not established the criteria set forth at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. On appeal, counsel states that the petitioner has a long history of 
requiring a degree for the proffered position. He states further that the record contains a list of the petitioner's four 
current and two former programmer analysts, all of whom hold a bachelor's degree. A review of the petitioner's 
list of employees reflects that one employee holds a bachelor's degree in psychology and another employee holds 
a "university graduate bachelor degree." This information does not demonstrate that a degree in a specific 
specialty is required. Further, according to the 1-129 petition, the petitioner was established in 1987. To 
demonstrate that it normally requires a computer-related bachelor's degree for employment in the proffered 
position, the petitioner would need to document the credentials of all of its programmer analyst positions, not 
just the few reflected on the list contained in the record. In view of the foregoing, the record does not contain 
sufficient evidence of the petitioner's past hiring practices and, therefore, the petitioner has not met its burden of 
proof in this regard. 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. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of Cali$ornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(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. 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. fj 2 14.2(h)(4)(iii)(A)(4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.