dismissed H-1B Case: Software Development

(b)(6)
DATE: 
IN RE: 
PETITION: 
JUL 0 8 Z01S 
PETITION RECEIPT #: 
Petitioner: 
Beneficiary: 
U.S. DepartmentofHomeland Securit y 
U.S. Citizenship and Immigration Services 
Administrativ e Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § llOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER : 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case . 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision . The Form I-290B web page (www .uscis.gov/i -290b) contains the latest information on fee, filing 
location, and other requirements . Please do not mail any motions directly to the AAO . 
www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the petition. The matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
I. PROCEDURALBACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
software development and consulting company, with no employees, that was established in 1 
In order to employ the beneficiary in what it designates as a programmer analyst position, the 
petitioner seeks to classify her 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. 
§ 1101(a)(l5)(H)(i)(b). 
The Director reviewed the record of proceeding and determined that the petitioner did not establish 
eligibility for the benefit sought. Specifically, the Director stated that the petitioner had not 
established that the proffered position qualifies as a specialty occupation in accordance with the 
applicable statutory and regulatory provisions. The Director denied the petition. 
The record of proceeding contains: (1) the petitioner's Form I-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; (5) the Notice of Appeal or Motion (Form I-290B) and supporting 
documentation; (6) our Notice; and (7) the petitioner's response to our Notice. We reviewed the 
record in its entirety before issuing our decision? 
For the reasons that will be discussed below, we agree with the Director's decision that the petitioner 
has not established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. SPECIALTY OCCUPATION 
To meet its burden of proof in establishing the proffered position as a specialty occupation, the 
petitioner must establish that the employment it is offering to the beneficiary meets the following 
statutory and regulatory requirements. 
A. Legal Framework 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(l) defines the 
term "specialty occupation" as one 
that requires: 
1 On the Form 1-129 (page 5), the petitioner reported that it does not have any employees. The petitioner's 
20 13 tax return states that no compensation was paid to officers (line 7), no salaries or wages were paid to 
employees (line 8), and there were no costs for labor (Form 1125-A, line 3). 
2 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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(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 term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as: 
An occupation which requires [(1)] theoretical and practical application of a body of 
highly specialized knowledge in fields of human endeavor including, but not limited 
to, architecture, engineering, mathematics, physical sciences, social sciences, 
medicine and health, education, business specialties, accounting, law, theology, and 
the arts, and which requires [(2)] the attainment of a bachelor's degree or higher in a 
specific specialty, or its equivalent, as a minimum for entry into the occupation in the 
United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must 
meet one of the following criteria: 
(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 the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.F .R. 
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§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must 
therefore be read as providing supplemental criteria that must be met in accordance with, and not as 
alternatives to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8CC.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 proffered 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"). Applying this standard, USC IS regularly approves H -1 B petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
In ascertaining the intent of a petitioner, USCIS looks to the Form 1-129 and the documents filed in 
support of the petition. It is only in this manner that the agency can determine the exact position 
offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 C.F.R. 
§ 214.2(h)(9)(i), the Director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or she may independently require to assist his or her 
adjudication. Further, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-lB petition 
involving a specialty occupation shall be accompanied by [d]ocumentation ... or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." 
B. Analysis 
In the Form 1-129, the petitioner states that it is filing a petition on behalf of the beneficiary for new 
employment, and requests that her status be changed from F-1 to H-lB. It further reports that it is 
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seeking the beneficiary's services on a full-time basis at the rate of pay of $70,845 per year. 3 In the 
support letter, the petitioner expounds that "in view of the increased business activities," it wants to 
employ the beneficiary to be responsible for the following job duties in the proffered position: 
• Correct errors by making appropriate changes and rechecking the program to 
ensure that the desired results are produced. 
• Conduct trail runs of programs and software applications to be sure they will 
produce the desired information and that the instructions are correct. 
• Write, update, and maintain computer programs or software packages to 
handle specific jobs such as tracking inventory, storing or retrieving data, or 
controlling other equipment. 
• Write, analyze, review, and rewrite programs, using workflow chart and 
diagram, and applying knowledge of computer capabilities, subject matter, 
and symbolic logic. 
• Perform or direct revision, repair, or expansion of existing programs to 
increase operating efficiency or adapt to new requirements. 
• Consult with managerial, engineering, and technical personnel to clarify 
program intent, identify problems, and suggest changes. 
• Perform systems analysis and programming tasks to maintain and control the 
use of computer systems software as a systems programmer. 
• Compile and write documentation of program development and subsequent 
revisions, inserting comments in the coded instructions so others can 
understand the program. 
• Prepare detailed workflow charts and diagrams that describe input, output, 
and logical operation, and convert them into a series of instructions coded in 
a computer language. 
• Consult with and assist computer operators or system analysts to define and 
resolve problems in running computer programs. 
We observe that these duties are copied virtually verbatim from the Occupational Information 
Network (O*NET) Code Connector for the occupational category "Computer Programmers- SOC 
code 15-1131. "5 This type of description may be appropriate when defining the range of duties that 
may be performed within an occupational category, but it does not adequately convey the substantive 
work that the beneficiary will perform within the petitioner's business operations and, thus, generally 
cannot be relied upon by a petitioner when discussing the duties attached to specific employment. 
In establishing a position as a specialty occupation, a petitioner must describe the specific duties and 
responsibilities to be performed by a beneficiary in the context of the petitioner's business operations, 
3 Notably, the petitioner's offer of employment letter, dated February 10, 2014, provides a different amount 
for the offered salary. No explanation for this inconsistency was provided by the petitioner. 
For additional information, see O*NET Code Connector, available on the Internet at 
http://www.onetonline .org/link/summary/15-1131.00?redir=15-l 021.00. 
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as well as demonstrate a legitimate need for an employee exists, and substantiate that it has H -1 B 
caliber work for the beneficiary for the period of employment requested in the petition. 
We further observe, that in the letter of support, the petitioner did not state that there are any 
specific requirements for the proffered position. 6 The petitioner claims that the beneficiary is 
qualified for the position; however, USCIS cannot determine if a particular job is a specialty 
occupation based on the qualifications of the beneficiary. A beneficiary's credentials to perform a 
particular job are relevant only when the job is first found to qualify as a specialty occupation. 
USCIS is required instead to follow long-standing legal standards and determine first, whether the 
proffered position qualifies as a specialty occupation, and second, whether an alien beneficiary was 
qualified for the position at the time the nonimmigrant visa petition was filed. Cf Matter of 
Michael Hertz Assoc., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The facts of a beneficiary's 
background only come at issue after it is found that the position in which the petitioner intends to 
employ him falls within [a specialty occupation].") Here, the petitioner has not demonstrated that it 
requires at least a baccalaureate degree in a specific specialty, or its equivalent, for the proffered 
position. 
In response to the RFE, the petitioner states that the beneficiary will be working on its in-house 
project entitled ' " On appeal, the petitioner states that "[t]he project that the 
beneficiary will be working on is the development stage and marketing has not yet started 
on the 
project, therefore there is no end client at this time." According to the petitioner, "the petitioner 
does not have any clients using this product, we are not able to produce client letters or contracts." 
In addition, the petitioner states that "[t]he beneficiary could be working in-house, at the premises 
of the petitioner, or he could be required to work at the client site, depending on the requirement." 
The petitioner continues by stating that "the petitioner would not be able to full-fill its contractual 
obligations, unless the request for the extension of the b.eneficiaries H-1 b status is approved." The 
petitioner further reports that "the beneficiary holds a managerial position in the company, and 
therefore the petition should be approved. "8 
We note that on appeal, the petitioner mistakenly referenced the beneficiary in its letter of support 
in the masculine pronoun case, claimed that the petition was filed as an extension, reported that the 
beneficiary holds a managerial position, and provided inconsistent information as to whether or not 
it has a contract for its products/services. Thus, we must question the accuracy of the letter of 
support and whether the information provided is correctly attributed to this particular position and 
beneficiary. 
6 
The petitioner does not claim that the position requires the theoretical and practical application of a body of 
highly specialized knowledge, and the attainment of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, as the minimum requirement for entry into the occupation, as required by the Act. Section 
214(i)(l) of the Act. 
8 The petitioner did not previously state that the beneficiary would be serving in a managerial position. 
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Furthermore, when reviewing the record, we note that it is reasonable to assume that the size of an 
employer's business has or could have an impact on the duties of a particular position. See EG 
Enterprises, Inc. d/b/a! Mexican Wholesale Grocery v. Department of Homeland Security, 467 F. 
Supp. 2d 728 (E.D. Mich. 2006). Thus, the size of a petitioner may be considered as a component 
of the nature of the petitioner's business, as the size impacts upon the duties of a particular position. 
In matters where a petitioner's business is relatively small, we review the record for evidence that its 
operations, are, nevertheless, of sufficient complexity to indicate that it would employ the 
beneficiary in position requiring the theoretical and practical application of a body of highly 
specialized knowledge that may be obtained only through a baccalaureate or higher degree in a 
specific specialty, or its equivalent. Additionally, when a petitioner employs relatively few people, 
it may be necessary for the petitioner to establish how the beneficiary will be relieved from 
performing non-qualifying duties. 
In the instant case, the petitioner stated that it currently has no employees. The petitioner did not 
address how the beneficiary would be relieved from performing non-qualifying duties. Without 
additional information, it cannot be ascertained how the beneficiary would be relieved from 
performing non-qualifying duties such that the performance of non-qualifying duties would not 
affect the primary duties of the occupational classification of the position. 10 
While the petitioner claims that it has plans for expansion and upgrading its services, it must be 
noted that it did not provide probative documentation to support the claim (e.g., a business plan; 
documentation substantiating the expansion of physical facilities; plans to hire staff; evidence 
substantiating that the petitioner intends to establish branch, subsidiary or affiliate offices; probative 
evidence substantiating investments or new revenue sources; or other documentation regarding 
development/expansion plans). 11 Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 
(Reg. Comm'r 1972)). Further, a petition cannot be approved to meet potential business expansions 
or the expectation of new customers or contracts. 12 
11 The petitioner's claim that it intends to expand its business operations in the future is insufficient to 
demonstrate that the proffered position qualifies as a specialty occupation. A petitioner must establish 
eligibility at the time of filing the nonimmigrant visa petition. See 8 C.F.R. § 103.2(b)(1). A visa petition 
may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of 
facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). The H-IB classification is not 
intended as a vehicle 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. 
63 Fed. Reg. 30419, 30419-30420 (June 4, 1998). 
12 
The agency made clear long ago that speculative employment is not permitted in the H-1 B program. See, 
e.g., 63 Fed. Reg. 30419, 30419- 30420 (June 4, 1998). 
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Thus, there are a number of issues which preclude approval of the petition. Nevertheless, for the 
purpose of performing a comprehensive analysis of whether the proffered position qualifies as a 
specialty occupation, we now turn next to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
To make our determination as to whether the employment described above qualifies as a specialty 
occupation, we turn first to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which is satisfied by 
establishing that a baccalaureate or higher degree, or its equivalent, in a specific specialty is 
normally the minimum requirement for entry into the particular position that is the subject of the 
petition. 
We recognize the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (the 
Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
of occupations it addresses. 13 In the instant case, the petitioner provided a Labor Condition 
Application (LCA) in support of the petition stating that the occupational classification for the 
proffered position is "Computer Programmers." 14 
We reviewed the chapter of the Handbook entitled "Computer Programmers," including the sections 
regarding the typical duties and requirements for this occupational category. 15 The subchapter of 
the Handbook entitled "How to Become a Computer Programmer" states the following about this 
occupation: 
Education 
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. Programmers who work in specific fields, such 
as healthcare or accounting, may take classes in that field to supplement their degree 
13 The Handbook, which is available in printed form, may also be accessed online at 
http://www.stats.bls.gov/oco/. Our references to the Handbook are from the 2014-15 edition available 
online. We hereby incorporate into the record of proceeding the excerpt from the Handbook regarding the 
occupational category "Computer Programmers." 
14 The occupational category designated by a petitioner is considered as an aspect in establishing the general 
tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook on the duties 
and educational requirements of the wide variety of occupations that it addresses. However, to satisfy the frrst 
criterion, 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. 
15 For additional information regarding the occupational category "Computer Programmers," see U.S. Dep't 
of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., Computer 
Programmers, available at http://www.bls.gov/ooh/computer-and-information-technology/computer­
programmers.htm#tab-1 (last visited July 6, 2015). 
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in computer programming. In addition, employers value experience, which many 
students gain through internships. 
Most programmers learn only a few computer languages while in school. However, a 
computer science degree gives students the skills needed to learn new computer 
languages easily. During their classes, students receive hands-on experience writing 
code, debugging programs, and doing many other tasks that they will perform on the 
job. 
To keep up with changing technology, computer programmers may take continuing 
education and professional development seminars to learn new programming 
languages or about upgrades to programming languages they already know. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Computer Programmers, available at http://www.bls.gov/ooh/computer-and-information­
technology/computer-programmers.htm#tab-4 (last visited July 6, 2015). 
According to the Handbook, the 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 (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. The Handbook also reports that employers value 
computer programmers who possess experience, which can be obtained through internships. 
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. 16 Even if it did (which it does not), to satisfy the first criterion, the 
petitioner must provide evidence to support a finding that the particular position proffered would 
normally have such a minimum, specialty degree requirement or its equivalent. 
In the instant case, the duties and requirements of the position as described in the record of 
proceeding do not indicate that this particular position proffered by the petitioner is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
16 When the Handbook does not support the proposition that a proffered position is one that meets the 
statutory and regulatory provisions of a specialty occupation, it is incumbent upon the petitioner to provide 
persuasive evidence that the proffered position more likely than not satisfies this or one of the other three 
criteria, notwithstanding the absence of the Handbook's support on the issue. It is the petitioner's 
responsibility to provide probative evidence (e.g., documentation from other objection, authoritative sources) 
that supports a finding that the particular position in question qualifies as a specialty occupation. Whenever 
more than one authoritative source exists, an adjudicator will consider and weigh all of the evidence 
presented to determine whether the particular position qualifies as a specialty occupation. 
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requirement for entry. Thus, the petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(J). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for 
positions that are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the petitioner. 
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)). 
As previously discussed, the petitioner has not established that its proffered position is one for 
which the Handbook (or other authoritative source) reports a standard 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." Nor is there any other evidence relevant to this prong. Thus , based upon a complete 
review of the record of proceeding, we find that the petitioner has not satisfied the first alternative 
prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
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. 
To begin with and as discussed previously, the petitioner itself does not require a baccalaureate or 
higher degree in a specific specialty, or its equivalent. In addition, the petitioner does not 
demonstrate exactly what the beneficiary will do on a day-to-day basis such that complexity or 
uniqueness can even be determined. 
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In support of its assertion that the proffered posttwn qualifies as a specialty occupation, the 
petitioner provided documentation regarding the proffered position and its business operations, 
including an offer of employment letter, an agreement between _ and 
] (executed after the H -1 B petition was filed), a Consulting Agreement between 
itself and _ , screenshots , photographs , an unsigned copy of its income tax return, 
and printouts from its website. 
Upon review, we find that the petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. For instance, the petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform the duties it may assert are so complex and unique. 
While a few related courses may be beneficial in performing certain duties of the position, the 
petitioner has not demonstrated how an established curriculum of such courses leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the 
duties of the proffered position. The description of the duties does not specifically identify any 
tasks that are so complex or unique that only a specifically degreed individual could perform them. 
The record does not establish which of the duties, if any, of the proffered position would be so 
complex or unique as to be distinguishable from those of similar but non-degreed or non-specialty 
degreed employment. We note again that the petitioner's job duties were recited from O*NET Code 
Connector for the occupational category "Computer Programmers." The evidence of record does 
not demonstrate that this position is significantly different from other positions in the occupational 
category such that it refutes the Handbook's information that a bachelor's degree in a specific 
specialty, or its equivalent, is not required for the proffered position. 
The petitioner claims that the beneficiary is well qualified for the position, and references her 
qualifications. 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. The petitioner has not satisfied the 
second alternative prong of 8 C.F .R. § 214.2(h)( 4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
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 
this end, we review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a petitioner may assert that 
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a proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were users 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 petitioner 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 388. In other words, if a petitioner's stated degree requirement is only 
designed to artificially meet the standards for an H-lB visa and/or to underemploy an individual in 
a position for which he or she is overqualified and if 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)(l) of the Act; 
8 e.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements ofthe position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. users must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the 
specific specialty as the minimum for entry into the occupation as required by the Act. To interpret 
the regulations any other way would lead to absurd results: ifUSeiS were constrained to recognize 
a specialty occupation merely because the petitioner has an established practice of demanding 
certain educational requirements for the proffered position - and without consideration of how a 
beneficiary is to be specifically employed - then any alien with a bachelor's degree in a specific 
specialty could be brought into the United States to perform non-specialty occupations, so long as 
the employer required all such employees to have baccalaureate or higher degrees. See id. at 388. 
The petitioner stated in the Form I-129 petition that it was established in (approximately four 
years prior to the filing of the H-lB petition) and that it has no employees. Upon review of the 
record, the petitioner did not submit information regarding employees who currently or previously 
held the position? 0 The record does not establish that the petitioner normally requires at least a 
bachelor's degree in a specific specialty, or its equivalent, directly related to the duties of the 
position. Thus, the petitioner has not satisfied the third criterion of 8 e.F .R. § 214.2(h)( 4 )(iii)( A). 
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 in a specific specialty, or its equivalent 
20 
On appeal, the petitioner submitted an August 8, 2014 printout from its website regarding career 
opportunities. Evidence that the petitioner creates after USCIS points out the deficiencies in the petition will 
not be considered independent and objective evidence. 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
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. 
The petitioner has not provided probative evidence to satisfy this criterion of the regulations. In the 
instant case, relative specialization and complexity have not been sufficiently developed by the 
petitioner as an aspect of the proffered position. That is, the proposed duties have not been 
described with sufficient specificity to establish that they are more specialized and complex than 
positions that are not usually associated with at least a bachelor's degree in a specific specialty, or 
its equivalent. The petitioner has submitted inadequate probative evidence to satisfy the criterion of 
the regulations at 8 C.F .R. § 214.2(h)( 4)(iii)(A)( 4). 
On appeal, the petitioner refers to unpublished decisions in support of its claim that the proffered 
position is a specialty occupation. The petitioner has furnished no evidence to establish that the 
facts of the instant petition are analogous to those in the unpublished decisions. While 8 C.F .R. 
§ 103.3(c) provides that our precedent decisions are binding on all USCIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
For the reasons related in the preceding discussion, the petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed and the 
petition denied. 
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende , 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met.22 
ORDER: The appeal is dismissed. 
22 As the identified ground for denial is dispositive of the petitioner's continued eligibility, we need not 
address any additional issues in the record of proceeding.