dismissed H-1B Case: Software Development

U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
IN RE: 
LIN 04 201 53082 Office: NEBRASKA SERVICE CENTER Date: 
JAM Z? 2006 
Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: Self-represented 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials 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 
LIN 04 201 53082 
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DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a software development company. It seeks to employ the beneficiary as a programmer1 
analyst and to extend his classification as a nonimmigrant worker in a specialty occupation pursuant to 
section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101 
(a>( 15>(H>(i>(b>. 
The director denied the petition on the ground that the record failed to establish that the proffered position 
qualifies as 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. 
As provided in 8 C.F.R. 9 214.2(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. 
5 214.2(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) Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's decision; 
and (5) Form I-290B, an appeal brief, and supporting materials. The AAO reviewed the record in its 
entirety before issuing its decision. 
LIN 04 201 53082 
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In Form 1-129 and an accompanying letter the petitioner describes itself as a software consulting company 
that provides turnkey and offshore software services to manufacturing, process control, health, banking, 
and insurance industry clients, including some Fortune 500 companies. The petitioner states that it was 
established in 1993, has 137 employees and gross annual income of $17.5 million, and proposes to 
employ the beneficiary as a programmerlanalyst to work on a client project described as "design/ 
developlnew enhancement and modifications." The petitioner estimates that the job involves 10% design, 
70% coding, and 20% debugging and fixing. The beneficiary is qualified for the job, the petitioner 
indicates, by virtue of his bachelor of technology degree from Shri Venkateswara University in India, 
granted in April 1997, and subsequent work experience in the computer field. 
In his decision the director determined that the proffered position does not qualify as a specialty 
occupation under any of the criteria enumerated in 8 C.F.R. 3 214.2(h)(4)(iii)(A). Noting that the 
beneficiary would spend 70% of his time coding, the director found that a baccalaureate degree in a 
specific specialty is not the normal minimum requirement for entry into such a position. The director 
stated that an individual with an associate degree or a computer training certificate would be equally 
qualified. Job advertisements in the record did not establish that a baccalaureate degree in a specific 
specialty is a common requirement in the petitioner's industry for comparable positions, the director 
declared, and the petitioner's uncorroborated statements were insufficient to establish that a degree in 
computer science or engineering was routinely required for programmers. There was no documentation 
in the record showing that the petitioner normally requires a baccalaureate or higher degree in a specific 
specialty for the proffered position, the director indicated, or that the duties of the position are so 
specialized and complex that the knowledge required to perform them is usually associated with a 
baccalaureate or higher degree. 
On appeal the petitioner asserts that coding - the primary duty of the proffered position - is a complex 
process utilizing sophisticated computer programming languages. As explained by the petitioner: 
The beneficiary will be assigned to develop and upgrade programs for a project of one of 
our client[s], PS Info Tech, LLC, using COBOL, DB2, CICS, MVS, VSAM, SAS, 
SWAD, Websphere, TCPIIP, SQLIPL and Windows NT, and will work on our client site. 
He will spend 70% of his time in coding . . . and 30% of his time in testing and 
integration. 
According to the petitioner, only a trained and experienced computer specialist with a baccalaureate 
degree in a related specialty can perform the duties of the job. 
In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, 
CIS routinely consults the Department of Labor (D0L)'s Occupational Outlook Handbook (Handbook) 
as an authoritative source of information about the duties and educational requirements of particular 
occupations. Factors typically considered are whether the Handbook indicates a degree is required by the 
industry; whether the industry's professional association has made a degree a minimum entry 
requirement; and whether letters or affidavits from fms 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 HirdIBlaker COT. v. Suva, 712 F.Supp. 1095, 1102 (S.D.N.Y. 
1989)). CIS also analyzes the specific duties and complexity of the position at issue, with the 
LIN 04 201 53082 
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Handbook's occupational descriptions as a reference, as well as the petitioner's past hiring practices for 
the position. See Shanti, Inc. v. Reno, id., at 1165-66. 
The duties of the proffered position are those of a computer programmer, as described in the Handbook, 
2004-05 edition, at 97-98: 
Computer programmers write, test, and maintain the detailed instructions, called 
programs, that computers must follow to perform their functions. They also conceive, 
design, and test logical structures for solving problems by computer . . . . 
Programmers write programs . . . . After the design process is complete, it is the job of 
the programmer to convert that design into a logical series of instructions that the 
computer can follow. The programmer then codes these instructions in a conventional 
programming language, such as COBOL; an artificial intelligence language, such as 
Prolog; or one of the most advanced object-oriented languages such as Java, C++, or 
Smalltalk. . . . 
Many programmers update, repair, modify, and expand existing programs . . . . 
Programmers test a program by running it to ensure that the instructions are correct and 
that the program produces the desired outcome. If errors do occur, the programmer must 
make the appropriate change and recheck the program until it produces the correct 
results. This process is called testing and debugging . . . . 
Programmers often are grouped into two broad types - applications programmers and 
systems programmers. Applications programmers write programs to handle a specific 
job, such as a program to track inventory within an organization . . . . Systems 
programmers, on the other hand, write programs to maintain and control computer 
systems software, such as operating systems, networked systems, and database systems . . 
In some organizations, particularly small ones, workers commonly known as 
programmer-analysts are responsible for both the systems analysis and the actual 
programming work. . . . 
With respect to the educational requirements of computer programmers, the Handbook states the 
following: 
Bachelor's degrees are commonly required, although some programmers may qualify for 
certain jobs with two-year degrees or certificates. The associate degree is an increasingly 
attractive entry-level credential for computer programmers. Most community colleges 
and many independent technical institutes and proprietary schools offer an associate 
degree in computer science or a related information technology field. 
Employers are primarily interested in programming knowledge, and computer 
programmers can become certified in a programming language such as C++ or Java . . . . 
In the absence of a degree, substantial specialized experience or expertise may be needed. 
LIN 04 201 53082 
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Even when hiring programmers with a degree, employers appear to be placing more 
emphasis on previous experience. 
Id. at 98. The Handbook also states that 65 percent of all computer programmers had baccalaureate or 
higher degrees in 2002, although it does not indicate what percentage of those degrees were in a 
computer-related field. 
Thus, it is clear that a baccalaureate degree in the computer field is not the only avenue of entry into computer 
programmer positions. Associate degrees or vocational training in computers may suffice for some jobs, 
while work experience in the computer field without any formal educational credential may suffice for others. 
Accordingly, the AAO determines that the proffered position does not meet the first alternative criterion of a 
specialty occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l), because a baccalaureate or higher degree in 
computer science or a related specialty is not the normal minimum requirement for entry into a computer 
programmer position. 
With respect to the second alternative criterion of a specialty occupation, at 8 C.F.R. 5 214.2 
(h)(4)(iii)(A)(2), the petitioner has submitted several job advertisements for computer positions that 
require at least a bachelor's degree in a computer-related specialty. None of the advertising companies is 
in the same line of business as the petitioner, however, and none of the positions, to the extent they are 
described in the advertisements, appears to involve the same types of duties as the proffered position in 
the instant petition. Thus, the job advertisements do not show that a bachelor's degree in a computer- 
related specialty is a common requirement in the petitioner's industry, among similar organizations, for 
programming positions, as required for the proffered position to qualify as a specialty occupation under 
the first prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). Nor does the record establish that the proffered 
position is so complex or unique that it can only be performed by an individual with a baccalaureate or 
higher degree in a computer-related specialty, as required for it to qualify as a specialty occupation under 
the second prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(Z). 
With respect to the third alternative criterion of a specialty occupation, at 8 C.F.R. 5 214.2 
(h)(4)(iii)(A)(3), there is no evidence in the record regarding to the educational qualifications of other 
computer programmers, performing similar duties, that the petitioner may have hired. Accordingly, the 
record does not show that the petitioner normally requires a baccalaureate or higher degree in a specific 
specialty, or its equivalent, for the proffered position, as required for it to qualify as a specialty 
occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
Lastly, while a computer programmer may sometimes require a four-year degree in a computer-related 
field, the record does not establish that the duties of the proffered position are so specialized and complex 
that the knowledge required to perform them is usually associated with a baccalaureate or higher degree 
in a specific specialty. The duties of the position do not distinguish it as one that normally requires 
baccalaureate level knowledge. Accordingly, the proffered position does not meet the fourth alternative 
criterion of a specialty occupation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
For the reasons discussed above, the proffered position does not qualify as a specialty occupation under 
any of the criteria enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(A). The petitioner has not established that the 
beneficiary will be coming temporarily to the United States to perform services in a specialty occupation, 
as required under section 10 1 (a)( lS)(H)(i)(b) of the Act, 8 U.S.C. 5 1 101 (a)( 15)(H)(i)(b). 
LIN 04 201 53082 
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The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 3 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER. The appeal is dismissed. The petition is denied.