dismissed H-1B Case: Software Development

identi9ing data deleted to 
prevent clearly unwLmted 
invasion of pasonad peva~y 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. 3000 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 249 50701 Office: CALIFORNIA SERVICE CENTER Date: JUL 1 7 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(H)(i)(b) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(l 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
Administrative Appeals Office 
WAC 04 249 50701 
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 products and services company that seeks to employ the beneficiary as a 
programmer analyst and to classify him as a nonimmigrant worker in a specialty occupation pursuant to section 
10 1 (a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 1 (a)(l 5)(H)(i)(b). 
The director denied the petition on the basis that the petitioner failed to establish that the beneficiary is qualified 
to perform the duties of a specialty occupation. The director found that there was no nexus between the nature of 
the beneficiary's degree in accounting and the duties of the proposed position. On appeal, the petitioner asserts 
that, when combined, the beneficiary's degree, and his technical training and experience establish his 
qualifications to perform the duties of the proposed position. 
To determine whether an alien is qualified to perform the duties of a specialty occupation, CIS looks to the 
petitioner to establish that the beneficiary meets one of the requirements set forth at Section 214(i)(2) of the 
Act, 8 U.S.C. 5 1184(i)(2) -- full state licensure to practice in the occupation, if such licensure is required; 
completion of a degree in the specific specialty; or experience in the specialty equivalent to the completion of 
such degree and recognition of expertise in the specialty through progressively responsible positions relating to 
the specialty. 
The director found that the proposed position is that of a programmer analyst that did not require licensure but 
did require a degree in computer science or a related field. The petitioner must, therefore, establish that the 
beneficiary has the academic credentials necessary for employment as a programmer analyst or experience 
that is the equivalent of such credentials. To determine what academic background prepares individuals to 
seek employment as programmer analysts, which is discussed under the occupational title of computer 
systems analysts, the AAO turns to the Department of Labor's Occupational Outlook Handbook (Handbook), 
the resource on which it routinely relies for information regarding occupations and their requirements. In 
pertinent part, the Handbook's description of the training required for programmer analysts states: 
Many employers seek applicants who have at least a bachelor's degree in computer science, 
information science, or management information systems (MIS). MIS programs usually are 
part of the business school or college and differ considerably from computer science 
programs, emphasizing business and management-oriented course work and business 
computing courses. Employers are increasingly seeking individuals with a master's degree in 
business administration (MBA), with a concentration in information systems, as more firms 
move their business to the Internet. 
Based on this discussion of the degrees related to the work of programmer analysts, the petitioner must 
establish that the beneficiary holds a bachelor's degree or its equivalent in computer science, information 
science, management information systems, or a related field. 
The record of proceeding before the AAO contains, in part: (1) Form 1-129 and supporting documentation; 
(2) the director's request for additional evidence (RFE); (3) the petitioner's response to the RFE; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
WAC 04 249 5070 1 
Page 3 
The petitioner has submitted a foreign degree evaluation from Foundation for International Services that 
concludes that the beneficiary holds the equivalent of a U.S. bachelor's degree in accounting. Based on that 
evaluation, the director found that the beneficiary's degree is not the equivalent of a U.S. bachelor's degree in 
a specialty related to the proposed position. 
Upon review of the record, the petitioner has failed to establish that the beneficiary is qualified to perform an 
occupation that requires a bachelor's degree in a computer-related field. 
The AAO now turns to the record to determine whether or not the submitted documents establish that the 
beneficiary is qualified to perform the duties of the proposed programmer analyst position. Further discussion of 
how an alien qualifies to perform services in a specialty occupation is found at 8 C.F.R. 5 214.2(h)(4)(iii)(C), and 
requires the individual to: 
(I) 
 Hold a United States baccalaureate or higher degree required by the specialty occupation 
from an accredited college or university; 
(2) 
 Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher 
degree required by the specialty occupation from an accredited college or university; 
(3) 
 Hold an unrestricted state license, registration or certification which authorizes him or her to 
fully practice the specialty occupation and be immediately engaged in that specialty in the 
state of intended employment; or 
(4) 
 Have education, specialized training, and/or progressively responsible experience that is 
equivalent to completion of a United States baccalaureate or higher degree in the specialty 
occupation, and have recognition of expertise in the specialty through progressively 
responsible positions directly related to the specialty. 
None of the first three criteria apply to the beneficiary. The beneficiary does not possess a U.S. bachelor's degree 
in a computer-related field or a foreign degree that is the equivalent of a U.S. bachelor's degree in a computer- 
related field. The beneficiary holds the equivalent of a U.S. bachelor's degree in accounting, an academic field 
not related to the proposed position. Neither does the position require a license or certification. The petitioner 
must, therefore, establish that the beneficiary's combined education, training, and employment experience 
establish his eligibility to perform the duties of a specialty occupation under the fourth and final criterion at 8 
C.F.R. 8 2 14.2(h)(4)(iii)(C). 
For the purposes of 8 C.F.R. 5 214.2(h)(4)(iii)(C)(4), equivalence to a U.S. bachelor's or higher degree shall 
mean the achievement of a level of knowledge, competence, and practice in the specialty occupation that has 
been determined to be equal to that of an individual who has a bachelor's or higher degree in the specialty, 
and shall be determined by one or more of the following requirements at 8 C.F.R. 5 2 14.2(h)(4)(iii)(D): 
(I) 
 An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
which has a program for granting such credit based on an individual's training andlor 
work experience; 
WAC 04 249 5070 I 
Page 4 
(2) 
 The results of recognized college-level equivalency examinations or special credit 
programs, such as the College Level Examination Program (CLEP), or Program on 
Noncollegiate Sponsored Instruction (PONSI); 
(3) 
 An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 
(4) 
 Evidence of certification or registration from a nationally-recognized professional 
association or society for the specialty that is known to grant certification or 
registration to persons in the occupational specialty who have achieved a certain level 
of competence in the specialty; 
(5) 
 A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and that 
the alien has achieved recognition of expertise in the specialty occupation as a result 
of such training and experience. 
The record does not establish the beneficiary's qualifications to perform the duties of the proposed position 
under any of the first four criteria at 8 C.F.R. 8 214.2(h)(4)(iii)(D), the AAO now turns to an evaluation of the 
beneficiary's background under the fifth criterion - a determination by CIS that the equivalent of a degree 
required by the specialty occupation has been acquired through a combination of education, specialized 
training, and/or work experience in areas related to the specialty and that the alien has achieved recognition of 
expertise in the specialty occupation as a result of such training and experience. 
To evaluate a beneficiary's qualifications under the fifth criterion, CIS considers three years of specialized 
training and/or work experience to be the equivalent of one year of college-level training. The record must 
also establish that the beneficiary's training and/or work experience included the theoretical and practical 
application of the specialized knowledge required by the specialty occupation, that this experience was gained 
while working with peers, supervisors, or subordinates who have degrees or the equivalent in the specialty 
occupation and that the beneficiary's expertise in the specialty has been recognized, as evidenced by one of 
the following: 
(i) 
 Recognition of expertise in the specialty occupation by at least two recognized 
authorities in the same specialty occupation1; 
(ii) 
 Membership in a recognized foreign or United States association or society in the 
specialty occupation; 
(iii) 
 Published material by or about the alien in professional publications, trade journals, 
books, or major newspapers; 
Recognized authority means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. A recognized authority's 
opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such 
opinions, citing specific instances where past opinions have been accepted as authoritative and by whom; (3) 
how the conclusions were reached; and (4) the basis for the conclusions supported by copies or citations of 
any research material used. 8 C.F.R. 5 214.2(h)(4)(ii). 
WAC 04 249 50701 
Page 5 
(iv) 
 Licensure or registration to practice the specialty occupation in a foreign country; or 
(v) 
 Achievements which a recognized authority has determined to be significant 
contributions to the field of the specialty occupation. 
The AAO now turns to the beneficiary's prior work experience, and whether it included the theoretical and 
practical application of specialized knowledge required by the specialty. The evidence relating to the 
beneficia 
 work ex erLnce consists of several letters from the beneficiary's previous H-1B em lo er, 
-The record reflects that the beneficiary held several positions  with*^ 
inance team inc u ing "executive trainee," "executive," and "senior associate" and that on January 27, 2004, 
the beneficiary completed five years of service with 
 These letters do not indicate that the 
.. . 
beneficiary's experience was gained while working with peers, supervisors, or subordinates who have degrees 
or their equivalent in engineering a related field. They do not describe the beneficiary's duties in any detail 
and therefore, preclude an evaluation as to whether they required the theoretical and practical application of a 
body of specialized knowledge required by the specialty occupation. The record also lacks the documentation 
necessary for the AAO to determine whether the beneficiary's expertise in computer science has been 
formally recognized by recognized authorities, professional associations, or the media. Accordingly, the 
petitioner has not established that the beneficiary has acquired the equivalent of a bachelor's degree in 
engineering through a combination of education, specialized training, andlor work experience, as required to 
satisfy the requirements of the fifth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(D). 
On appeal, the petitioner contends that the beneficiary's "IT specialty is business and finance" and that his 
duties would include planning and coordinating audits, system appraisals, accounting and asset management 
functions, and other financial applications within an information technology setting. Therefore, the petitioner 
asserts, there is a nexus between the nature of the beneficiary's degree in accounting and his duties. The 
AAO notes that the duties described by the petitioner on appeal differ materially from those it described at the 
time of filing. Accordingly, the petitioner's assertions regarding the nexus between these duties and the 
beneficiary's degree in accounting are unpersuasive. A petitioner cannot offer a new position to the 
beneficiary on appeal, or materially change a position's title, its level of authority within the organizational 
hierarchy, or its associated job responsibilities. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 
(Reg. Comm. 1978). If the petitioner makes significant changes to the initial request for approval, it must file 
a new petition rather than request approval of a petition that is not supported by the facts in the record. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
€j 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.