dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 28,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software design and development company, seeks to temporarily employ the 
Beneficiary as a "programmer analyst" urtder the H-lB nonimmigrant 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-lB 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 
of highly 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 of the California Service Center denied the petition. The Director concluded that the 
record does not demonstrate that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits a brief and additional evidence, and asserts that the Director erred 
in her decision. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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) 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: 
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Matter of M-, Inc. 
(1) A baccalaureate or higher degree or its equivalent is nor1ll,ally 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 th~t 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. 
8 C.F .R. § 214.2(h)( 4 )(iii)( A). We have consistently interpreted the term "degree" 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. Cherto.ff, 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 
On the H-IB petition, the Petitioner indicated that the Beneficiary will work off-site for its client 
located in California, for the entire validity period requested (October 2016 to July 2019). 
The labor condition application (LCA) submitted with the H-IB petition confirms the Beneficiary's 
off-site placement in California, and also indicates that the proffered position falls under the 
"Computer Programmers" occupational category corresponding to Standard Occupational 
Classification (SOC) code 15-1131.1 
In its support letter, the Petitioner identified the client software platform which the Beneficiary will 
service as an "integrated global rich media messaging system." The Petitioner stated that the 
Beneficiary will be "part of'the [client] Platform development team" in which capacity he will be 
responsible for duties such as "assist in designing, evaluating, programming; and implementing 
custom software applications," and "design, write and develop custom-made software applications 
as per specific requirements and user requirements." The Petitioner also submitted a letter from the 
client referencing its services agreement with the Petitioner "to supply and manage the services of 
Developer/Programmer Analysts." 
In response to the Director's request for evidence, the Petitioner reiterated prior job descriptions and 
elaborated upon the proffered position as follows: 
1 The Petitioner classified the proffered position at a Level II wage (the second lowest of four assignable wage levels). 
We will consider this selection in our analysis of the position. 
2 
Matter of M-, Inc. 
The Developer/Programmer Analyst is responsible for custom software development 
of the Company's global multimedia communications platforms on the web, as well 
as native iOS and Android applications for both the healthcare industry ... and the 
business and consumer space .... 
Key Job Duties: 
• Development using multimedia editing, story-boarding multiple media tracks 
(audio, video, photo, music, text), seamless playback and messaging. 25% 
• In addition, multi-disciplinary development with online multimedia editing 
and seamless preview on the fly directly from the web through live streaming 
together with preserving source assets information within the multimedia 
message. 20% 
• Java based web programming for enterprise level solutions. 10% 
• Major work on search related software, including combining existing search 
database criteria and parameters (such as image data bases, library systems, 
etc.) into an algorithm-based search approach. 20% 
• Developing a new automation engine that drives isp/point to point routing and 
sharing of multimedia messages. XML based sharing. 15% 
• Team-based co-development in mobile environments including Android and 
iOS. 10% 
On appeal, the Petitioner submits another letter from the client referring to the proffered position as a 
"senior java & mobile developer" or "senior developer" position. This client letter describes the 
proffered job duties as follows: 
The position is for a Senior Developer who has deep cross platform experience 
working with Java and mobile operating systems. Primarily the candidate needs to be 
able to work with a highly specialized team on developing a new, extremely complex 
project creating an Instant Messaging technical backbone for the Company's HIPAA 
compliant multimedia Instant Messaging product. In addition, the candidate needs to 
be able to create custom features related to this backbone for clients, requiring a 
specialized cm,nbination of creative and technical knowledge, experience and talent. 
Additional developments in world-class security and encryption features for 
healthcare and messaging will be responsible as part of this new project. 
In addition, the Senior Developer will on an ongoing basis custom develop highly 
complex integrated software to be used in both enterprise web environments as well 
as global mobile devices environments. Development is required in multimedia 
editing, story-boarding multiple media tracks (audio, video, photo, music, text), 
seamless playback and messaging. In addition, the Senior Developer will be required 
to do multi-disciplinary development with online multimedia editing and seamless 
preview on the fly directly from the web through live streaming together with 
3 
Matter of M-, Inc. 
preserving source assets information within the multimedia message. The 
Company's development requires using the latest cutting edge technologies including 
Dot Net Compact Framework, XML, Java, Spring, Hibernate, customized Directshow 
based filters and Codecs, Windows Media Services. 
According to the client's letters and the Petitioner's letters, the position requires at least a bachelor's 
degree in computer science, engineering, or a closely related field, or the equivalent 
IlL ANALYSIS 
Upod 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.2 
Specifically, the record (1) does not demonstrate sufficient work available for the Beneficiary for the 
entire validity period requested; and (2) does not establish that the job duties require an educational 
background, or its equivalent, commensurate with a specialty occupation. 
Here, the Petitioner claims that the Beneficiary will be assigned to the client located in California for 
the entire validity period. To support this claim, the Petitioner submitted, inter alia, two client 
letters which purport "to confirm that [client has] a services agreement (Version dated, October 2007 
attached) with [the Petitioner]." However, the only services agreement submitted for the record is a 
1-page extension agreement entered into in January 2013, which references an original agreement 
entered into in January 2008. This extension agreement does not reference any services agreement 
dated October 2007, contrary to the information claimed in the client letter. 
We note that one of the client letters is not signed or dated. The Petitioner did not submit originals 
of either client letter. The Petitioner also did not submit additional information or evidence of the 
' 
original services agreement with the client Without knowing the content of the original agreement, 
including the scope and date of services and whether contract extension are permissible, we cannot 
determine whether the submitted 1-page extension agreement and client letters are consistent with 
the terms and conditions of the original agreement 
Notably, the,submitted extension agreement only extended the original services agreement until the 
erid of December 2014, with one automatic one-year extension until the end of December 2015. The 
Petitioner did not submit a new services agreement, extension agreement, or other similar 
documentation to demonstrate that its contractual relationship with the client has actually been 
extended beyond December 2015, and if so, until when. Thus, while the client letters purport to 
confirm a current service agreement with the Petitioner, the record as presently constituted does not 
corroborate this claim. 
2 
The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
4 
Matter of M-, Inc. 
In other words, we cannot determine the reliability of the submitted documentation purportedly from 
the client. Consequently, we cannot determine that the Petitioner has and will maintain a valid, on­
going contractual agreement with the client, and that the Petitioner has secured definite work for the 
Beneficiary for the entire validity period requested pursuant to this particular contractual agreement. 3 
We also cannot determine the substantive nature ofthe proffered position based upon the varying job 
descriptions contained in the record. 
In this matter, the Petitioner attested on the certified LCA that the proffered position falls under the 
"Computer Programmers" occupational category (SOC code 15-1131 ). For purposes of the LCA, 
the Petitioner is required to select the occupational category and code that best represent the nature 
of the job offer, which in tum determines the appropriate prevailing wage.4 Thus, through the 
certified LCA, the Petitioner represented that the duties of the proffered position will be limited to 
those of the "Computer Programmers" occupational classification, and that the Beneficiary will be 
appropriately compensated for performing those duties.5 -
But the position ~escriptions indicate that the Beneficiary's duties are not limited to those of a 
computer programmer. For example, the Petitioner states that the Beneficiary will be "part of the 
[client] Platform development team" and "responsible for custom software development." He will 
perform duties such as "design, write and develop custom-made software applications" and "offer 
3 Speculative employment is not permitted in the H-1 B program. For example, a 1998 proposed rule documented this 
position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) ofthe Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 
4 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. -
5 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services (USCIS) to 
demonstrate that it would pay an H-1 B worker the higher of either the prevailing wage for the occupational classification 
in the "area of employment" or the actual wage paid by the employer to other employees with similar experience and 
qualifications who are performing the same services. See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 
(AAO 20 15). ' 
5 
Matter of M-, Inc. 
solutions for various software and hardware problems and compatibility of various systems." In 
fact, both the Petitioner and the client refer to his job title as a "developer." The Petitioner has not 
explained why it classified the proffered position under the "Computer Programmers" occupational 
category, yet also described his position as a developer position responsible for designing and 
developing software. 
Information from the Occupational Information Network (O*NET) and Occupational Outlook 
Handbook (Handbook) make clear that a computer programmer position is not the same as a 
software developer position.6 To start, O*NET contains two specific "Software Developers" 
occupational codes and classifications: SOC 15-1132 for "Software Developers, Applications," and 
SOC 15-1133 for "Software Developers, Systems Software." Both "Software Developers" 
occupational categories have higher prevailing wages than the "Computer Programmers" 
occupational category in the relevant area and time period of intended employment. 7 
Both O*NET and the Handbook explain that it is the role of the software developer (and possibly 
other positions) to perform the actual design and development of software, while the computer 
programmer assists the software developer by performing the underlying coding, and later, by 
testing, updating and maintaining those software programs. O*NET states, for example, that 
computer programmers create, modify, and test the code, forms, and scripts, and "[w]ork from 
specifications drawn up by software developers and other individuals." 8 O*NET also states that 
computer programmers "[m]ay assist software developers by analyzing user needs and designing 
software solutions."9 Likewise, the Handbook states, for example, that computer programmers 
6 We recognize both O*NET and the Handbook as authoritative sources on the duties of the wide variety of occupations 
that they address. O*NET is accessed online at https://www.onetonline.org/. The Handbook, which is also available in 
printed form, may be accessed at http://www.bls.gov/oco/. All our references to the Handbook are to the 2016-17 edition 
currently available online. 
7 According to the LCA, the prevailing wage for a Level II "Computer Programmers" position in the area and time 
period of intended employment is $60,466 per year. The Petitioner is offering the Beneficiary an annual salary of 
$65,000. In contrast, the Level II prevailing wage in the area and time period of intended employment for "Software 
Developers, Applications" is $86,674 per year, and for "Software Developers, Systems Software" is $98,634 per year. 
Even Level I, entry level "Software Developers, Applications" and "Software Developers, Systems Software" positions 
in the area and time period of intended employment command higher prevailing wages than that offered here ($70, 138 
per year and $77,334 per year, respectively). For more information on prevailing wages generally, see the FLC Data 
Center at http://www.tlcdatacenter.com/OESWizardStart.aspx (last visited Apr. 26, 20 17). 
Department of Labor guidance on the LCA states that, if a proffered position involves a combination of different 
occupational classifications, then the petitioner should select the occupational code and classification for the most 
relevant occupation, i.e., the "highest-paying occupation." 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. Thus, if the Petitioner believed 
its position to be a combination of the "Computer Programmers" and "Software Developers" occupational 
classifications, then the Petitioner should have submitted an LCA for a position under one of the "Software Developers" 
occupational codes and classifications. 
8 O*NET Details Report for "Computer Programmers," https://www.onetonline.org/linkldetails/15-ll31.00 (last visited 
Apr. 26, 20 17). , 
9 /d. 
6 
Matter of M-, Inc. 
"write and test code ... [to] tum the program designs created by software developers and engineers 
into instructions that a computer can follow." 10 Thus, the Beneficiary's software development duties 
do not appear limited to and consistent with the duties of positions under the "Computer 
Programmers" occupational category. 
Based on the proffered job descriptions, it appears the Beneficiary's job duties will encompass duties 
of at least one of the "Software Developers" occupational categories (if not other occupational 
categories). The Petitioner has not explained how its classification of the proffered position on the 
LCA as a "Computer Programmers" position was proper, given the plain software developer 
duties.11 
Not only does the Petitioner's classification of the proffered posttlon under the "Computer 
Programmers" category raise questions, but its choice of a Level II wage rate raises questions as 
well. According to Department of Labor guidance on wage levels, a Level II (qualified) wage is 
appropriate for positions involving only moderately complex tasks requiring limited judgment.
12 
This 
wage level is not consistent with a "senior developer" position requiring "highly complex" work on an 
"extremely complex project," as characterized in the client letter. The Petitioner has not explained how 
its Level II wage rate designation was proper, either.13 
Overall, the deficiencies and inconsistencies in the job descriptions preclude us from understanding 
such aspects as (1) the actual work that the Beneficiary will perform on a daily basis; (2) the 
complexity, uniqueness and/or specialization of the tasks; and (3) the correlation between that work 
and a need for a particular level education of highly specialized knowledge in a specific specialty, or 
its equivalent. We cannot determine, for example, whether the Beneficiary will be limited to 
performing only moderately complex tasks appropriate for a computer programmer position, or 
whether the Beneficiary will be performing "highly complex" work appropriate for a software 
developer position. The Petitioner must resolve the above inconsistencies with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency 
of other evidence submitted in support of the requested immigration benefit. !d. 
10 
Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers (20 16-17 
ed.). 
11 We need not further analyze whether the Beneficiary's job duties encompass duties of other occupational 
classifications. It is sufficient to point out that the proffered software development duties are not consistent with the 
"Computer Programmers" occupational category on the LCA. 
12 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. A prevailing wage determination starts with an entry level wage (Level I) 
and progresses to a higher wage level (up to Level IV) after considering the experience, education, and skill requirements 
of the Petitioner's job opportunity. !d. 
13 
Frequently, the word "senior" in a job title is indicative that a Level Ill (experienced) wage should be considered. !d. 
Matter of M-, Inc. 
Accordingly, the Petitioner has not established the substantive nature of the work to be performed by 
the Beneficiary. We are therefore precluded from finding that the proffered position qualifies as a 
specialty occupation under any crit~rion 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 
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. 
This issue precludes the approval of the petition. 14 Nevertheless, for the purpose of performing a 
more comprehensive analysis, we will continue to assess the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), assuming arguendo that the Beneficiary will be assigned to the client in the 
capacity claimed on the LCA, i.e., a Level II position under the "Computer Programmers" 
occupational classification. 15 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), 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. 
As previously discussed, the Petitioner asserted in the LCA that the proffered position corresponds 
to the SOC code and occupational category 15-1131, "Computer Programmers." We thus reviewed 
the "Computer Programmers" chapter in the Handbook. 16 The subchapter of the Handbook entitled 
"How to Become a Computer Programmer" states, in pertinent part: "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." 17 ~. 
14 
We also question whether the LCA actually corresponds to and supports the H-1 B petition, as required. A finding that 
the LCA does not correspond to and support the petition would determinatively preclude approval of the petition. 
15 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
16 While we recognize the Handbook as an authoritative source on the duties and educational requirements of this and other 
occupations, we do not 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 we regularly review 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. 
17 Bureau of Labor Statistics, U.S. Dep't of I::;abor, Occupational Outlook Handbook, Computer Programmers (20 16-17 
ed.). 
8 
Matter of M-, Inc. 
According to the Handbook, this occupation accommodates a wide spectrum of educational 
credentials, including less than a bachelor's degree in a specific specialty. The Handbook states that 
some employers hire workers who have an associate's degree. Furthermore, while the Handbook's 
narrative indicates that most computer programmers obtain a degree - which could be 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 this field, or its equivalent, is normally required. 
Thus, the Handbook does not support the claim that the occupational category is one for which 
normally the minimum requirement for entry is a baccalaureate degree (or higher) in a specific 
specialty, or its equivalent. 
On appeal, the Petitioner emphasizes the Handbook's statement that "[m]ost computer programmers 
have a bachelor's gegree" (emphasis added). The Petitioner also relies on the Handbook's table of 
computer-related occupations which lists the typical entry-level education for "Computer 
Programmers" as an otherwise unspecified "bachelor's degree." We find that this information falls 
short of demonstrating that at least a bachelor's degree in a spec?fic specialty (or the equivalent) is a 
normal minimum requirement for computer programmer positions. The Petitioner concedes this by 
noting that "none of these Entry-level positions mention a specific specialty," but counters that "the 
Service routinely approves H-1B petitions filed for these positions." However, we ~re not required 
to approve petitions where eligibility has not been demonstrated, merely because of prior approvals 
that may· have been erroneous. See Matter of Church Scientology Int '1, 19 I&N Dec. 593, 597 
(Comm'r 1988); see also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). 
Furthermore, we are not be bound to follow a contradictory decision of a service center. La. 
Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. La. 2000). If these 
other petitions were approved based on the same description of duties and assertions that are 
contained in the current record, they would constitute material error on the part of the Director. 18 
The Petitioner's reliance on Residential Finance Corp. v. USCJS, 839 F. Supp. 2d 985 (S.D. Ohio 
2012) is too misplaced. While we agree with some of the general propositions cited in that case, we 
do not agree that these propositions apply to the situation at hand. The Petitioner has not 
demonstrated how the facts of that case - involving a market research analyst position - are 
analogous to those here - involving a computer programmer position. Residential Finance Corp. 
does not address the question of whether a position under the "Computer Programmers" 
occupational classification normally requires at least a bachelor's degree in a computer-related field. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
18 See also USCIS Policy Memorandum PM-602-0142, Rescission of the December 22, 2000 "Guidance memo on HI 8 
computer related positions" (Mar. 31, 20 17), https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-
0142-H-1 BComputerRelatedPositionsRecission.pdf. This memorandum provides background information on and 
rescinds an outdated, inaccurate policy memorandum to prevent further erroneous approvals of positions classified under. 
the "Computer Programmers" occupational category. This memorandum reminds adjudicators that "it is improper to 
conclude based on [the Handbook's information] that USCIS would 'generally consider the position of programmer to 
qualify as a specialty occupation."' ld at 2. 
9 
.
Matter of M-, Inc. 
B. 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. 
' 
1. First Prong 
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 positio~s among similar organizations. 
In determining whether there is such a common degree requirement, factors we often consider 
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)(quotingHird/BlakerCorp. v. Sava, 712F. Supp.1095, 1102(S.D.N.Y.1989)). 
As discussed above, the Petitioner has not established that its proffered position is one for which the 
Handbook, or another authoritative source, reports an industry-wide requirement for at least a 
bachelor's degree in a specific specialty or its equivalent. We incorporate by reference our 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. 19 
The Petitioner submitted several job advertisements. We agree with the Director's finding that there 
is insufficient evidence of these entities' similarity to the Petitioner. The Petitioner's appeal does not 
address or supplement the record with relevant evidence addressing this particular concern. We also 
observe the lack of evidence that the advertising companies accept degree equivalencies which meet 
the regulatory standard at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) of three years of specialized training 
and/or work experience for each year of college-level education lacking. To illustrate, one 
advertisement requires a bachelor's degree in computer science or a related field, or "completion of a 
technical training program in software development programming language and four years of 
business experience," or "[h]igh school diploma or GED and eight years experience." On the 
balance, we find the submitted evidence insufficient to satisfY the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
19 We will address the position evaluation by separately, infra. 
10 
Matter of M-, Inc. 
2. Second Prong 
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, o~ its 
equivalent. 
The Petitioner repeatedly references the "complexity" of the proffered software developmen;t duties 
as well as the "extremely complex" nature of the client's software platform. But again, these claims 
are undermined by the Petitioner's submission of an LCA certified for a position under the 
"Computer Programmers" occupational classification, a classification that does not inherently entail 
software design and development duties. These claims are also undermined by the Petitioner's 
selection of a Level II wage rate, which is appropriate for programmer positions involving only 
moderately complex tasks requiring limited judgment.20 The job description on the LCA thus does not 
support the proposition that the proffered position is so complex or unique that it can only be 
performed by a person with a specific computer-related bachelor's degree, especially as the 
Handbook advises that some computer programmers do not require such a degree. 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references his 
qualifications for the proffered 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. Accordingly, the 
Petitioner has not satisfied the second alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. 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. 
The Petitioner is a 90-employee company established in 1992. Yet the Petitioner only submitted 
evidence of the educational degrees and H-lB approvals for five of its other employees, including 
one whose position title is "mobile architect." The Petitioner has not demonstrated what statistically 
valid inferences, if any, can be drawn from such limited evidence.21 In any event, we agree with the 
Director's finding that there is insufficient evidence that these individuals are employed in the 
proffered position. While the Petitioner's appeal correctly points out that we should not rely on job 
titles alone, the Petitioner has not stibmitted detailed job descriptions or other relevant evidence for 
20 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. 
21 See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 1995). 
II 
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Matter of M-, Inc. 
each of these five employees to demonstrate their actual job duties.22 Therefore, the Petitioner .has 
not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. 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. 
For the same reasons we discussed in the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2), we find that the Petitioner has not demonstrated relative specialization and 
complexity as an aspect of the proffered position. We incorporate our earlier discussion and analysis 
regarding the Petitioner's inconsistent job descriptions, namely, the implications of the LCA's 
designation of the proffered position as a Level II computer programmer position.Z3 The Petitioner 
has not demonstrated in the record that its proffered position is one with duties sufficiently 
specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
E. Position Evaluation 
We will briefly address the position evaluation from an associate professor in 
the at 
This evaluation concludes that the proffered position is a specialty occupation requiring at least a 
bachelor's degree in a computer related field. 
22 J\1oreover, 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 we 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 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, 20 I 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 definition of a specialty 
occupation. See section 214(i)( I) of the Act; 8 C.F.R. § 214 .2(h)(4)(ii) (defining the term "specialty occupation "). 
23 The Petitioner's designation of this position as a Level II position undermines its claim that th~ position is particularly 
complex, specialized, or unique .compared to other positions within the same occupation. Nevertheless, a Level II wage­
designation does not preclude a proffered position from classification as a specialty occupation, just as a Level IV wage­
designation does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), even a 
Level I, 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 relevant factor but is not itself 
conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
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Matter of M-, Inc. 
Foremost, we find that this evaluation does not demonstrate an adequate understanding of the 
position proffered here. Like the Petitioner, repeatedly references the position's 
complex software development duties. He states, for example, that the Beneficiary will assume 
"responsibility for all phases of the software development life cycle, with a particular emphasis on 
software design, coding, testing, and implementation. The beneficiary will be responsible for the 
development of custom and highly complex enterprise software applications." Critically, however, 
his evaluation does not indicate whether he considered, or was even aware of, the fact that the 
Petitioner submitted an LCA for a Level II position under the "Computer Programmers" 
occupational category. We consider this a significant omission, in that it suggests an incomplete 
review of the position in question and a faulty factual basis for the professor 's ultimate conclusion as 
to the educational requirements of the position upon which he opines. 
Further, asserts a general industry educational standard for similar positions without 
sufficiently referencing supporting authority or empirical basis for his pronouncement. He states 
that his conclusion about "common industry practice" is based on "job placement patterns of 
graduating students and recruitment of employers nationwide." He does not, however, 
specifically reference, cite, or discuss any particular statistics, studies, surveys, publications, or other 
sources of empirical information which he may have consulted to complete his evaluation. There is 
no indication that he has conducted research or studies pertinent to the educational requirements for 
such positions (or parallel positions) in the Petitioner's industry. 
We may, in our discretion, use 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 lnt '!, 19 I&N 
Dec. 791 (Comm'r 1988). As a reasonable exercise of our discretion, we find letter 
insufficient to satisfy any criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A) and demonstrate the proffered 
position's qualification as a specialty occupation. 
IV. CONCLUSION 
The Petitioner has not established that it has secured work for the Beneficiary for the entire validity 
period requested, and that such work qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-, Inc., ID# 301819 (AAO Apr. 28, 20 17) 
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