dismissed H-1B Case: Software Development

MATTER OF D-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 28,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development company, seeks to temporarily employ the Beneficiary as a 
"computer programmer" under the H-1B noniminigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-1B program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body ofhighJy specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not demonstrated that the proffered position qualifies as a specialty occupation 
position. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of record satisfies all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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.P.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(b)(6)
Matter of D-, LLC 
(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 th~ duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted 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 proposed 
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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
~ 
In the H-IB petttton, the Petitioner stated that the Beneficiary would work at the Petitioner's 
Colorado location as a "computer programmer." The labor condition application (LCA) 
submitted with the petition is certified for a computer programmer position at a Level I wage rate. 
Elsewhere, the Petitioner referred to the proffered position as a "SharePoint programmer/developer " 
position. 
In a letter submitted with the H-1 B petition, the Petitioner provided the following description of the 
duties of the proffered position (verbatim): 
I. Create, analyze and modify computer codes that allow computer systems and 
applications to run. Develop programming language/code that directs computer 
programs to store, locate, and retrieve specific documents, data, and information. 
2. Work with programming specifications prepared by developers. Coordinate with 
analysts, architecture, and stakeholders to understand business needs, participate in 
short- and long-term planning efforts, and identify and communicate how 
programming solutions can support the achievement of short- and long-range 
business goals. 
3. Evaluate technical requirements for projects to ensure completeness of the design 
and implementation of system business solutions, and determine impact on current 
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Matter of D-, LLC 
infrastructure, applications, work processes and systems, equipment redundancy 
and capacity requirements. 
4. Support the prioritization of requirements and help match resources with 
requirements. Ensure the integration of business requirements and standards into 
the development and design process. Explain to non-SMEs how the proposed 
solutions will support their requirements. 
5. Ensure infrastructure solutions are aligned to the business strategy and direction. 
Lead the architecture, design, development and test of technical solutions or 
infrastructure solutions to meet business requirements and functional specifications. 
6. Direct efforts to demonstrate that information systems are compliant with 
appropriate corporate policies, industry standards, government regulations, and 
contractual requirements, including leading or directing the planning, designing, 
and execution of testing efforts. Work with auditors and security groups to ensure 
adherence to governance, regulations, and compliance with policies and procedures. 
7. Test computer code and evaluate that performance meets the present and future 
needs of the business. Develop and maintain metrics around the system and 
institute a process for continuous improvement. Forecast utilization patterns and 
identify modifications or upgrades. Maintain existing capabilities, making 
recommendations and implementing appropriate up to date security technologies. 
Recommend changes/enhancements for improved systems availability, reliability 
and performance. Define and ensure continuous monitoring procedures are set 
according to the standard procedures and requirements. Plan and perform structural 
changes when necessary. 
8. Coordinate problem management and resolution among a variety of functional 
programming areas and provide programming expertise support for diagnosing and 
resolving problems. Recommend procedures and controls for problem resolution or 
create temporary solutions until permanent solutions can be implemented. 
Research, analyze and recommend the implementation of software or hardware 
changes to rectify any current or similar future problems. Establish requirements, 
methods and procedures for routine maintenance. Perform or coordinate Level 3/4 
incident assessment and resolution on infrastructure solutions. 
9. Evaluate future technologies and make recommendations. Assist in the business 
process redesign and documentation as needed for new technology. Develop 
custom integration solutions including major enhancements, interfaces, functions 
and features. Coordinate and lead the build, deployment and review of new, 
modified or enhanced infrastructure components or services. Create a plan to 
evolve the system to reduce cost and improve system dynamics. 
10. Lead the development of contingency plans including reliable backup and restore 
procedures and disaster recovery plans with service providers and network carriers. 
Ensure the integrity of host computers, multiple databases and secure data transfer. 
11. Provides technical leadership, coaching/mentoring to team members. 
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Matter of D-, LLC 
As to the educational requirement of the proffered pos1t10n, the Petitioner stated that "[t]he 
[proffered position] requires the minimum of a Bachelor's Degree in Computer Science, a closely 
related field, or the foreign education equivalent." 
In response to a request for evidence (RFE), the Petitioner provided an additional duty description. 1 
The list of job duties is as follows (verbatim): 
1. Participates in short- and long-term planning efforts with stakeholders and IT 
groups. 
2. Provide~ project cost/time estimates. 
3. Identifies and communicates how Sharepoint solutions can support the achievement 
of short- and long-range business goals. 
4. Supports the prioritization or requirements and helps matches resources with 
_; requirements. 
5. Works with analysts, architecture, and stakeholders to understand business needs. 
6. Leads the evaluation of technical requirements for projects to determine the impact 
to the infrastructure including equipment redundancy and capacity requirements. 
7. Ensures completeness of technical requirements and functional analysis for the 
design and implementation of system business solutions. 
8. Identifies requirements gaps or issues. 
9. Determines system specifications, input/output processes and working parameters 
for hardware /software compatibility 
10. Ensures proper communication/review of requirements and integration for impacted 
areas. 
11. Ensures designs comply with organization's standards. 
12. Determines requirements impact on existing architecture, work processes and 
systems. 
13. Evaluates technical requirements for projects to determine 
infrastructure/applications including equipment redundancy 
requirements. 
the impact to 
and capacity 
14. Determines technical requirements' impact on existing architecture, work 
processes, systems, and ongoing support. 
15. Explains to non-SMEs how the proposed solution will support their requirements. 
16. Assists in the business process redesign and documentation as needed for new 
technology. 
17. Leads the Architecture, design, development and test of technical solutions to meet 
business requirements and functional specifications. 
18. Ensures the integration of business requirements into the development process. 
19. Coordinates development activities with other groups. 
20. Provides technical consulting on the integration of application systems. 
1 Each of the duties is accompanied by a list of one to four computer classes that are related to the duty. For the sake of 
brevity, those lists of computer classes are not included here. 
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Matter of D-, LLC 
21. Participates in technical design review of applicable projects. 
22. Develops custom integration solutions including major enhancements, interfaces, 
functions and features. 
23. Explains to non-SMEs how the proposed solutions will support their requirements. 
24. Ensures infrastructure solutions are aligned to the business strategy and direction. 
25. Assists in the business process redesign and documentation as needed for new 
technology. 
26. Maintains existing capabilities, making recommendations and implementing 
appropriate up to date security technologies. 
27. Ensures the integrity of host computers, multiple databases and secure data transfer. 
28. Directs efforts to demonstrate that information systems are compliant with 
corporate policies, industry standards, government regulations and contractual 
requirements. 
29. Leads or provides technical direction for the planning, designing and execution of 
testing efforts. 
30. Ensures that tests evaluate all possible impacts on the current infrastructure. 
31. Escalates problems as needed. 
32. Coordinates the build and deployment and review of new, modified or enhanced 
infrastructure components or services. 
33. Ensures all support documentation knowledge transfer to production support. 
34. Verifies the functionality of components and services and ensures deployment 
meets client's expectations. 
35. May perform routine maintenance checks. 
36. Establishes requirements, methods and procedures for routine maintenance. 
3 7. Ensures performance meets the present and future needs of the business. 
38. Forecasts utilization patterns and identified modifications or upgrades. 
39. Recommends changes/enhancements for improved systems availability, reliability 
and performance. / 
40. Develops and maintains metrics around the system and institutes a process for 
continuous improvement. 
41. Conducts reviews periodically with users and vendors. 
42. Defines and ensures continuous monitoring procedures are set according to the 
standard procedures and requirements. 
43. Creates a plan to evolve the system to reduce cost and improve system to reduce 
cost and improve system dynamics. 
44. Performs or coordinates level 3/4 incident assessment and resolution on 
infrastructure solutions. 
45. Coordinates problem management and resolution among a variety of functional 
areas and provides subject matter expertise support for diagnosing and resolving 
problems. 
46. Provides guidance to other team members. 
47. Recommends procedures and controls for problem resolution or creates temporary 
solutions until permanent solutions can be implemented. 
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Matter of D-, LLC 
48. Researches, analyzes and recommends the implementation of software or hardware 
changes to rectify any current or similar future problems. 
49. Plans and performs structural changes when necessary. 
··50. Reviews checklists and scripts and updates as needed. 
51. Leads the development of contingency plans including reliable backup and restore 
procedures. 
52. Identifies business continuity/disaster recovery risks and mitigation plans. 
53. Assists in the development of disaster recovery plans with service providers and 
network carriers. 
54. Supports and establishes systems and environment standards. 
55. Works with auditors and security groups to ensure adherence to governance, 
regulations, and compliance with policies and procedures. 
56. Develops SLAs or OLAs. 
The Petitioner provided a document entitled "Recruitment Management System (RMS) RMS 
Migration Plan" which reiterated the above-listed job duties and added another set of new duties, 
including the following: 
1. Works with vendors to resolve problems and develop infrastructure solutions. 
2. May provide information for negotiation efforts for contracts with external vendors 
or individuals. 
3. Evaluates vendor solutions to ensure compliance with requirements and costi 
effectiveness. 
4. Reviews vendor proposals for new Sharepoint solutions. 
The Petitioner also provided a document headed "Estimated Effort & Schedule," which attributes the 
following aspects of project development to the SharePoint programmer/developer, at least in part: 
RMS System & Process Study; Prepare RMS Migration Project Plan; Prepare System 
Requirements Document (SRS); Prepare High Level Migration Plan; Prepare Low 
Level Migration Plan; Prepare Test Plans and Quality Assurance Plan; Prepare 
Exiting Database Migration Plan; Prepare Database Mapping Plan; Prepare Database 
Backup and Restore Plan; Setup Development, Test and Production shqred SQL 
Server Enterprise 2015 Environments; Create Configuration Management Plan; 
Prepare Deployment /Process Plan Upgrade Analysis; Update All Documents With 
Key Components; Prepare Code Management Plan; Design and Development; User 
Testing and Quality Assurance; and Maintenance and Support. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record (1) does not consistently and sufficiently describe the position's duties and 
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Matter of D-, LLC 
level of responsibilities; and (2) does not establish that the pos1t10n qualifies as a specialty 
occupation under any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 2 
A. Description of Job Duties 
The Petitioner seeks to employ the Beneficiary as a computer programmer or SharePoint 
programmer/developer for an approximate period of three years.3 The Petitioner explained that the 
Beneficiary will "engage in a multi-year in-house project that would expand, upgrade and enhance 
the Company's current Recruitment Management System (RMS) that was being developed to 
support and streamline the Company's own Recruitment Process." As previously noted, the LCA 
submitted with the petition is certified for a computer programmer position at a Level I wage rate. 
The LCA is not valid for employment in any other position. 
However, several of the proffered job duties are inconsistent with the occupational classification and 
wage level selected on the LCA. For example, the Petitioner listed numerous duties involving 
software design and development, such as "[l]eads the [a]rchitecture, design, development and test 
of technical solutions," "[p ]articipates in technical design review of applicable projects," and 
"[ d]evelops custom integration solutions including major enhancements, interfaces, functions and 
features." In fact, the Petitioner characterized the nature of the RMS project as a "software 
development project," and indicated that the Beneficiary would be the only "developer" (in addition 
to a project manager and configuration manager) on the project team. But these software design and 
development duties are not inherent to the "Computer Programmers" occupational classification 
corresponding to Standard Occupational Classification (SOC) code 15-1131.4 
In addition to its questionable selection of the "Computer Programmers" occupational classification, 
the Petitioner's designation of a Level I wage rate on the LCA is problematic as well. According to 
the Department of Labor's (DOL) "Prevailing Wage Determination Policy Guidance," a Level I 
wage rate is described as follows:5 
2 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position an,d its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. ' 
3 On the H-1 B petition, filed on or about December 15, 2015, the Petitioner listed the dates of the Beneficiary's intended 
employment as from "approval" to "12/09/2018." 
4 For more information on the "Computer Programmers" occupational classification, see the Occupational Information 
Network (O*NET) Details Report for 15-1131.00 Computer Programmers, available at 
http://www.onetonline.org/link!details/15-1131.00 (last visited Oct. 26, 20 16). This O*NET report states, in pertinent 
part, that computer programmers may work1with or assist "software developers or other individuals." O*NET therefore 
distinguishes computer programmers from software developers and related positions. 
5 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 _11_ 2009 .pdf. 
7 
Matter of D-, LLC 
Level I (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. 
Thus, in designating the proffered position at a Level I, entry-level wage, the Petitioner has indicated 
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 he would be closely supervised; that his work would be closely monitored and 
reviewed for accuracy; and that he would receive specific instructions on required tasks and 
expected results. As noted above, according to DOL guidance, a statement that the job offer is for a 
research fellow, worker in training or an internship is indicative that a Level I wage should be 
considered. 
But the duties the Petitioner attributes to the proffered position include: 
• Coordinat[ing] and lead[ing] the build, deployment and review of new, modified 
or enhanced infrastructure components or services. 
• Lead[ing] the Architecture, design, development and test of technical solutions to 
meet business
1 
requirements and functional specifications. 
• Lead[ing] the development of contingency plans including reliable backup and 
restore procedures and disaster recovery plans with service providers and network 
carriers. 
• Provid[ing] technical leadership, coaching/mentoring to team members. 
These duties appear to be supervisory or managerial in nature, which is not consistent with a Level I 
wage level under the "Computer Programmers" occupational classification as selected on the LCA. 
Notably, in the, "Recruitment Management System (RMS) RMS Migration Plan," the Petitioner 
specifically states the proffered job title as "SharePoint Programmer/Developer/Lead- Full Time." 
The Beneficiary's "lead" job title also is inconsistent with the Level I wage level. 
Furthermore, the Petitioner made clear that its RMS product is intended for internal use only, i.e., for 
its own recruiters and related staff. The Petitioner states on appeal, for example, that it "has not sold 
RMS to any other clients as we developed this RMS to support and streamline our Recruitment 
Process." The Petitioner also states that it does not have any foreseeable plans within the next three 
years to market or sell RMS as an off-the-shelf product to end-clients. However, several of the listed 
job duties expressly involve "external vendors or individuals" or other unspecified "clients." We 
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Matter of D-, LLC 
again recall the Petitioner's statements that it does not plan to sell or market its RMS product to any 
outside end-clients within the next three years, which is the approximate length of the Beneficiary's 
requested employment in the instant petition. The Petitioner has not explained, therefore, what these 
stated job duties involving external vendors or clients refer to, and how they relate to the actual 
position being offered to the Beneficiary. 
"[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective 
evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Id. at 591-92. "Doubt cast on any aspect of the petitioner's proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition." !d. at 591. 
Based on the above-stated discrepancies and deficiencies, we find that the Petitioner has not 
provided sufficient information regarding the nature and scope of the Beneficiary's employment 
within the context of the Petitioner's actual operations, despite the Petitioner's rather lengthy job 
descriptions. Without a meaningful and consistent job description, the record lacks evidence 
sufficiently concrete and informative to demonstrate that the proffered position requires a specialty 
\ 
occupation's level of knowledge in a specific specialty. The tasks as described do not communicate 
(1) the actual work that the beneficiary would perform; (2) the complexity, uniqueness and/or 
specialization of the tasks; and/or (3) the correlation between that work and a need for a particular 
level education of highly specialized knowledge in a specific specialty. 
As the Petitioner has not sufficiently demonstrated the substantive nature of the work to be 
performed by the B~neficiary, we are therefore precluded from finding that the proffered position 
satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature ofthat work 
that determines (1) the normal minimum educational requirement for entry into the particular position, 
which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and 
thus appropriate for review for a common degree requirement, under the first alternate prong of 
criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; (4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. Accordingly, as the Petitioner has 
not established that it has satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot be 
found that the proffered position qualifies for classification as a specialty occupation. 
B. Criteria Analysis 
Nevertheless, to more fully address the Petitioner's evidence and assertions, we will proceed to 
analyze the proffered position under the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). Our analysis 
9 
Matter of D-, LLC 
assumes arguendo that the proffered position corresponds to a "Computer Programmers" position at 
a Le~el I wage rate pursuant to the certified LCA. 6 
1. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which requires that a baccalaureate 
" or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the DOL's Occupational 
Outlook Handbook (Handbook), cited by the Petitioner, as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses. 7 
As discussed above, on the LCA submitted in support of the petition, the Petitioner designated the 
proffered position under the occupational category "Computer Programmers" (corresponding to 
SOC code 15-1131 ). The Handbook states, in pertinent part, that while "most computer 
programmers .have a bachelor's degree; however, some employers hire workers who have an 
associate's degree."8 
According to the Handbook, the occupation accommodates individuals who have less than a 
bachelor's degree in a specific specialty, i.e., workers with an associate's degree. Furthermore, 
while the Handbook's narrative indicates that most computer programmers obtain a degree (either a 
bachelor's degree or an associate's degree) in computer science or a related field, the Handbook does 
not report that at least a bachelor's degree in a specific specialty, or its equivalent, is normally the 
minimum requirement for entry into the occupation. 
When reviewing the Handbook, we again consider the Petitioner's designation of the proffered 
position as a Level I (entry level) position on the LCA. In designating the proffered position at a 
Level I wage, the Petitioner has indicated that the proffered position is a comparatively low, entry­
level position relative to others within the occupation, some of which can be performed by persons 
with only an associate's degree.9 Consequently, the proffered position appears to be among the least 
6 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
7 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USC IS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfY the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
8 
U.S. Dep't of Labor, Bureau of Labor Statistics; Occupational Outlook Handbook, 2016-17 ed., "Computer 
Programmers," http://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm#tab-4 (last 
visited Oct. 26, 20 16). . 
9 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), http://www. 
foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_ll_2009.pdf. See also U.S. Dep't of Labor, Bureau of 
Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., "Computer Programmers," 
10 
(b)(6)
Matter of D-, LLC 
likely of computer programmer positions to require a minimum of a bachelor's degree in a specific 
specialty or its equivalent. 
To satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), the Petitioner also provided printouts of 
web content taken from the and websites. The printout 
discusses which computer degrees are more valuable than others; it does not state that entry into a 
computer programmer position requires a minimum of a bachelor's degree in a specific specialty or 
its equivalent. The printout states that a bachelor's degree is the typical education 
needed for entry into a computer programmer position, but does not state that such positions require 
a minimum of a bachelor's degree in a specific specialty or its equivalent. 
The Petitioner also provided an evaluation of the proffered position, provided by 
an associate professor at the Department of 
It refers to the proffered position as a SharePoint 
programmer/developer position, and states that the proffered position and its duties require at least a 
bachelor's degree in computer science, computer engineering, information systems, or a closely 
related field, or its equivalent. We reviewed the opinion letter in its entirety. However, as discussed 
below, the letter from does not persuade us that the proffered position is a specialty 
occupation. 
provided a list of duties that he attributes to the proffered position that is substantially 
the same as the first duty description provided by the Petitioner. However, while he provided a brief 
description of the Petitioner 's business ("a well-established provider of information technology 
development and consulting services") , he does not demonstrate or assert in-depth knowledge of the 
specific business operations or how the duties of the position would actually be performed in the 
context of the Petitioner's business enterprise. For instance, there is no evidence that 
has visited the Petitioner's business, observed the Petitioner's employees, interviewed them about 
the nature of their work, or documented the knowledge that they apply on the job. 
appears to assert a general industry educational standard for computer programmer 
pos1t10ns, or perhaps for SharePoint Programmer/Developer positions, without referencing any 
supporting authority or any empirical basis for the pronouncement. Likewise, he does not provide a 
substantive, analytical basis for his opinion and ultimate conclusion. He does not relate his 
conclusion to specific, concrete aspects of the Petitioner 's business operations to demonstrate a 
sound factual basis for the conclusion about the educational requirements for the particular position 
here at issue. Accordingly, the very fact that he attributes a degree requirement to such a generalized 
treatment of the proffered position undermines the credibility of his opinion. 
Furthermore, there is no indication that was aware of the Petitioner's inconsistent job 
descriptions, or that the Petitioner characterized the proffered position as a low, entry-level computer 
http://www.bls.gov /ooh/computer-and-information-technology /computer-programmers.htm #tab-4 (last visited Oct. 26, 
2016). 
11 
(b)(6)
Matter of D-, LLC 
programmer position (as indicated by the wage-level on the LCA) relative to other positions within 
the occupational category. It appears that would have found this information relevant 
to his opinion letter. Without more, the Petitioner has not demonstrated that possessed 
the requisite information necessary to adequately assess the nature of the Petitioner's position and 
appropriately determine parallel positions based upon job duties and r~sponsibilities. 
In summary, and for each and all of the reasons discussed above, we conclude that the opinion letter 
rendered by is not probative evidence to establish the proffered position qualifies as a 
specialty occupation. The conclusions reached by are not supported by independent, 
objective evidence demonstrating the manner in which he reached such conclusions. There is an 
inadequate factual foundation established to support1the opinion and we find that the opinion is not 
in accord with other information in the record. As such, neither findings nor his 
ultimate conclusions are worthy of any deference, and his opinion letter is not probative evidence 
towards satisfying any criterion of the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
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 Caron International, 
19 I&N Dec. 791 (Comm'r 1988). As a reasonable exercise of our discretion we discount the 
· advisory opinion letter as not probative of any criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). For 
efficiency's sake, we hereby incorporate the above discussion and analysis regarding the opinion 
letter into each of the bases in this decision for dismissing the appeal. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
2. Second Criterion 
The second criterion presents two, alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
contemplates common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 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)). 
12 
Matter of D-, LLC 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or another independent, authoritative source) reports an 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. Also, there are no submissions from 
the industry's professional association indicating that it has made a degree a minimum entry 
requirement. Furthermore, the Petitioner did not submit any letters or affidavits from similar firms 
or individuals in the Petitioner's industry attesting that such firms "routinely employ and recruit only 
degreed individuals." 
The Petitioner did provide vacancy announcements placed by other companies under this criterion. 
Those vacancy announcements are for positions entitled, Computer Programmer, Software 
Developer/Programmer, Software Programmer, Web Developer/Programmer, Senior Programmer, 
C# Entry Level Programmer, SharePoint Developer, SharePoint Applications Developer, and 
Microsoft SharePoint Solutions Developer. 
One of those vacancy announcements states: "B~chelor's Degree in Computer Science or related 
field preferred." Clearly, a preference is not a minimum requirement. That vacancy announcement 
does not state a requirement of a minimum of a bachelor's degree in a specific specialty or its 
equivalent. ~ 
One of the announcements states that seven years' experience may be substituted for the otherwise 
requisite bachelor's degree. Because seven years of experience is not equivalent to a bachelor's 
degree pursuant to the salient regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), that announcement does 
not contain a requirement of a minimum of a bachelor's degree in a specific specialty or its 
0 
1 10 eqmva ent. 
Almost all of those vacancy announcements state an experience requirement, and some state a 
requirement of a considerable amount of very specific experience, whereas the Petitioner has 
characterized the proffered position as a Level I, entry-level position. Further, the designation of one 
of those positions as a "Senior" position makes clear that it is not an entry-level position. In order to 
satisfy this criterion, the Petitioner is obliged to show that a minimum of a baQhelor's degree in a 
specific specialty or its equivalent is common to the Petitioner's industry for parallel positions, that 
is, Level I, entry-level, computer programmer positions. Because they do not appear to be Level I 
positions, the majority of the vacancy announcements submitted are not directly relevant to whether 
a requirement of a minimum of a bachelor's degree in a specific specialty or its equivalent is 
common to the industry in parallel positions among similar organizations. 11 The Petitioner has not, 
therefore, satisfied the criterion of the first alternative prong of 8 C.F .R. § 214.2(h)(4 )(iii)(A)(2). 
10 "For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training 
and/or work exRerience must be demonstrated for each year of college-level training the alien lacks." 8 C.F.R. 
§ 214.2(h)(4)(iii)(D)(5). 
11 Because the vacancy announcements are deficient in this fundamental aspect, we wiiLnot address all other deficiencies 
we have observed in the announcements. 
13 
(b)(6)
Matter of D-, LLC 
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. 
A review of the record of proceedings indicates that the Pt?titioner has not credibly demonstrated that 
the duties the Beneficiary will be responsible for or perform on a day-to-day basis constitute a 
position so complex or unique that it can only be performed by a person with at least a bachelor's 
degree in a specific specialty, or its equivalent. We hereby incorporate our earlier discussion with 
respect to the numerous discrepancies within the Petitioner's job descriptions, which therefore 
precludes a proper understanding of the position duties' complexity and/or uniqueness. 
The lack of relative complexity and/or uniqueness is further evidenced by the LCA submitted by the 
Petitioner in support of th~ instant petition. As discussed above, the Petitioner attested on the 
submitted LCA that the wage level for the proffered position is a Leyel I (entry-level) wage. Such a 
wage level is for a position which only requires a basic understanding of the occupation; the 
performance of routine tasks that require limited, if any, exercise of judgment; close supervision and 
work closely monitored and reviewed for accuracy; and the receipt of specific instructions on 
required tasks and expected results, and is contrary ' to a position that requires the performance of 
complex duties. A Level I wage rate indicates that this position is not likely more complex and/or 
unique than other positions in the occupation, some of which the Handbook indicates can be 
performed by persons with an associate's degree. We cannot conclude that the Petitioner has 
satisfied the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
3. Third Criterion 
The third criterion of 8 C.F .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 
satisfy this criterion, the Petitioner provided a vacancy announcement it posted on a job search 
website. 
The vacancy announcement , provided states a requirement of a bachelor's degree in computer 
science "or equivalent experience." The Petitioner did not describe the type and amount of 
experience it considers to be equivalent to a U.S. bachelor's degree in computer science: Whether it 
would be equivalent within the meaning of 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) is therefore unknown to 
us. As such, whether that vacancy announcement states a requirement of a minimum of a bachelor's 
degree in a specific specialty or its equivalent according to USCIS standards has not been 
established. 
Further, the vacancy announcement provided is for a "CAD software engineer" position · in 
South Carolina. This is not an announcement of the proffered position, which is a 
computer programmer (SharePoint programmer/developer) position in Colorado. The 
14 
Matter of D-, LLC 
Petitioner has riot demonstrated why the educational requirements of these two positions would be 
identical. 
Further still, the Petitioner stated on the H-lB petition that it was established in 2000 and currently 
has 20 employees. The Petitioner has not stated how many Level I computer programmers or 
SharePoint programmers/developers the Petitioner now employs or has employed in the past, or 
what their educational credentials were.12 Therefore, the Petitioner has not demonstrated that it 
normally requires a minimum of a bachelor's degree in a specific specialty or its equivalent for the 
proffered position under the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
4. Fourth Criterion 
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. 
In the instant case, relative specialization and complexity have not be~n sufficiently developed by 
the Petitioner as an aspect of the proffered position. We again refer to our earlier comments and 
findings with regard to the Petitioner's inconsistent job descriptions. We also refer and incorporate 
again our earlier discussions regarding the implications of the Petitioner's designation of the 
proffered position in the LCA as a Level I (the lowest of four assignable levels) wage. That is, the 
Level I wage designation is indicative of a low, entry-level position relative to others within the 
occupational category, and hence, one not likely distinguishable by relatively specialized and 
complex duties.13 Upon review of the totality of the record, the Petitioner has not established that 
the nature of the specific duties is so specialized and complex that the knowledge required to 
12 
While a petitioner may believe or otherwise assert that a proffered position requires a degree in a specific specialty, 
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 the 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 definitic;m of a 
specialty occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty 
occupation"). 
13 The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its 
eiaim that the position is particularly complex, specialized, or unique compareq to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not automatically 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) of the Act. 
15 
Matter of D-, LLC 
perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a 
specific specialty, or its equivalent. 
For the reasons discussed above, the evidence of record does not satisfy the fourth criterion at 
8 C.P.R.§ 214.2(h)(4)(iii)(A). 
Because the Petitioner has not satisfied one of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A), it has not 
defi?.onstrated that the proffered position qualifies as a specialty occupation. 
IV. CONCLUSION 
The burden islon the Petitioner to show 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. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-, LLC, ID# 10242 (AAO Oct. 28, 20 16) 
16