dismissed H-1B Case: Software Development

MATTER OF D- INC. 
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 and consulting firm, seeks to temporarily employ the 
Beneficiary as a "programmer analyst" under the H-IB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(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, 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 satisfies all evidentiary requirements. 
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 I}leet one of the following criteria to qualify as a specialty occupation: 
Matter of D- Inc. 
(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. 
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 R.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 -1 B petition, the Petitioner stated that the Beneficiary will serve as a "programmer analyst." 
In a letter addressed to the Beneficiary, the Petitioner provided the following description of the 
duties of the proffered position (note: errors in the original text have not been changed): 
• Analyze, design, develop, implement, integrate and maintain client server web 
related applications including internet, intranet and internal business applications. 
• Design new systems or enhancements to existing systems. 
• Analyze user requirements, procedures and problems to automate processing and to 
improve existing systems. 
• Determine source data, processing requirements, output formats, timing and cost 
estimates; Verify that system meets performance criteria. 
• Design, implement, and document procedures; Develop succinct, timely 
programming code or modify software in a logical fashion which optimizes 
programmmg resources. 
• Write code to meet user specifications; Use productivity tools to develop and 
modify applications software to meet user needs; 
• Verify data acquisition and output media format; 
• Modify existing or third party software; 
• Write documentation to provide user support for new or modified programs and 
production/operation procedures. 
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Matter of D- Inc. 
• Analyze data requirement, develop and document data dictionary, and develop data 
models. 
• Assist in data transfers or sharing of files 
• Analysis, conversion coding, code walkthrough, unit and integration training. 
In a letter addressed to USCIS, the Petitioner stat~d that it requires "a Bachelor's Degree in 
Computer Science/Engineering or a closely related field (e.g. Electrical Engineering) for the 
[proffered] position," as well as three to five years of work experience. 
In response to a request for a more detailed description of the duties of the proffered position, the 
Petitioner provided the following description (note: errors in the original text have not been 
changed): 
Duties and Resnonsibilities % of Time spent 
Analyze, research, design, write specifications and develop software applications 5% 
consistent with our needs. 
Develop custom web and mobile applications, design and code product strategy 20% 
and roadmap and create innovative solutions that provide the best user experience 
and analyze site metrics using data to support new initiatives and concepts. 
Gather user requirements using RUP and analyze user requirements, procedures 20% 
and problems to automate processing and drafting of Project Proposal using 
SDLC Methodologies and support SDLC process including production migration 
per standards 
Analyze data, system, hardware, software requirements in order to develop 10% 
appropriate solution for software development. 
Define the content and XSD and XML structure of the interface per system 5% 
requirements and Interact with team members /programmers on the effective way 
to design and develop a robust system 
Develop User Requirement I Project Plan Documentation and Coding Standards 35% 
implementation. Design and implement prototypes, mock ups, task analysis, 
usability studies, wire frames and affinity diagrams; Understand customer needs 
and integrate them into product design to contribute to user features and 
functionality 
Develop comprehensive test plans to ensure all new features have adequate test 5% 
coverage and collaborate with team members to identify the root cause of 
software defects 
3 
Matter of D- Inc. 
III. ANALYSIS 
Upon review of the reGord 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. 1 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 2 
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. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses. 3 
On the labor condition application (LCA) submitted in support of the H-IB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Programmers" 
corresponding to the Standard Occupational Classification code 15-1131.4 The Handbook states the 
following about the educational requirements of positions located within this occupational category: 
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 
1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
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. 
3 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 pqsition 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
4 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (1) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http:/ /flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
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Matter of D- Inc. 
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 in computer programming. In addition, employers value experience, which 
many students gain through internships. 
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). 
According to the Handbook, the occupation accommodates a wide spectrum of educational 
credentials, including less than a bachelor's degree in a specific specialty. For example, 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. 
Further, as noted the Petitioner designated the proffered position as a Level I position on the LCA, 
which indicates that the proffered position is a comparatively low, entry-level position relative to 
others within the occupation. As noted, the Handbook states that some positions within this 
occupational category can be filled by individuals with an associate's degree, and the Petitioner's 
wage-level designation indicates that the proffered position ranks among the least complex of the 
positions within this occupational category. It is among the least likely, therefore, to require a 
minimum of a bachelor's degree in a specific specialty or its equivalent. 
Further, we find that to the extent that they are described in the record of proceedings, the duties that 
the Petitioner ascribes to the proffered position indicate a need for a range of knowledge in the 
computer/IT field, but do not establish any particular level of formal, postsecondary education 
leading to a bachelor's or higher degree in a specific specialty as minimally necessary to attain such 
knowledge. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(l). 
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 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
5 
(b)(6)
Matter of D- Inc. 
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 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)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other 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. 
The Petitioner did submit a letter from VP Operations for who stated 
that his company requires a minimum of a bachelor's degree in computer science or engineering for 
its programmer analyst positions. However, he did not indicate whether those positions are also 
Level I positions which require only a basic understanding of the occupation and involve only 
limited exercise of judgment. As such, we cannot determine whether the positions at are 
positions parallel to the position proffered in this case. 
The Petitioner also provided vacancy announcements placed by nine other companies. Those 
announcements were placed for positions entitled programmer, programmer analyst, junior web 
portal developer, Sr. software/developer, SQL developer, .NET developer, and software engineer. 
That some of those positions are denoted developer and engineer positions suggests that their duties 
may not parallel those of the proffered position. Further, that one of them is denoted a "senior" 
position makes clear that it is not a Level I, entry-level position. As such, it is not a position parallel 
to the proffered position, and is outside the scope of inquiry pertinent to the first prong of 8 C.F .R. 
§ 214.2(h)( 4)(iii)(A)(2). 
Another announcement states, "Undergraduate studies in computer science, management 
information systems, mathematics or related field is preferred." A requirement of a degree in 
computer science, management information systems, mathematics and all related fields would not be 
a requirement of a degree in a specific specialty. Further, that announcement does not refer to 
possession of a "degree," but merely to some unspecified amount of study. Further still, it does not 
state a requirement for a degree, but merely a preference. Fof all of these reasons, that vacancy 
announcement does not state a requirement of a minimum of a bachelor's degree in a specific 
specialty or its equivalent. 
(b)(6)
Matter of D- Inc. 
Another vacancy announcement was placed for a position at the an entity 
which does not conduct business within the Petitioner's industry. The evidence provided is 
insufficient to identify the industries of several of the other companies. As such, whether all of the 
vacancy announcements involve positions in the Petitioner's industry is unclear. Positions that have 
not been shown to be within the Petitioner's industry have, concomitantly, not been shown to be 
within the scope of inquiry pertinent to the first prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
Another vacancy announcement involved a requirement of a minimum for a master's degree in 
computer science, or a bachelor's degree and five years' experience. However, a requirement for a 
master's degree, or a bachelor's degree and five years of experience, suggests that the position 
announced is not a Level I position. As such, the Petitioner has not shown that position to be a 
position parallel to the proffered position, which is a Level I, entry-level, position. It has not been 
shown, therefore, to be directly relevant to the first prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
Similarly, some of those vacancy announcements state a requirement of experience in the positions 
offered, and some state a requirement of a considerable amount of very specific experience. Those 
positions also do not appear to be Level I position, and have not been shown to relevant to this 
mqmry. 
Finally, even if all of the vacancy announcements advertised parallel positions with organizations 
similar to the Petitioner and in the Petitioner's industry, and also stated a requirement for a minimum 
of a bachelor's degree in a specific specialty or its equivalent, we would still find that the Petitioner 
had not demonstrated what statistically valid inferences, if any, could be drawn from so few 
announcements with regard to the common educational requirements for entry into parallel positions 
in similar organizations. 5 
Thus, the evidence of record does not establish that a requirement of a bachelor's or higher degree in 
a specific specialty, or its equivalent, is common to parallel positions with organizations that are in 
the Petitioner's industry and otherwise similar to the Petitioner. The Petitioner has not, therefore, 
satisfied the criterion ofthe first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
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 
5 USCIS "must examine each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably true." Matter of 
Chawathe, 25 I&N Dec. 369,376 (AAO 2010). As just discussed, the Petitioner has not established the relevance ofthe 
job advertisements submitted to the position proffered in this case. Even if their relevance had been established, the 
Petitioner still would not have demonstrated what inferences, if any, can be drawn from these few job postings with 
regard to determining the common educational requirements for entry into parallel positions in similar organizations in 
the same industry. See generally Earl Babbie, The Practice of Social Research 186-228 ( 1995). 
(b)(6)
Matter of D- Inc. 
performed only by an ipdividual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
To address this point, the Petitioner provided evaluations of the proffered position prepared by 
a professor of mathematics and computer science at and 
an associate professor at 
Department of at the 
states his opinion, based on the description of the proffered position provided by 
the Petitioner, that "education higher than a baccalaureate degree6 in a specific field of study such as 
Computer Science, Computer Engineering, Network Computing, Information Technology, 
Management Information Systems (MIS) or a closely related field is a standard minimum for the 
[proffered position]." 
states that the proffered position requires, "Bachelor's-level training (or the 
equivalent) in a relevant technical field, such as Computer Science, Information Technology, 
Electronic Engineering, or [a] related discipline." 
Both evaluators seem to have based their opinions entirely on the Petitioner's duty descriptions, and 
there is no indication that either evaluator possesses any knowledge of the Petitioner's proffered 
position beyond those descriptions. In any event, they do not discuss the duties of the proffered 
position in any further detail. Further, while one of the evaluators provided a brief description of the 
Petitioner's business7 neither demonstrated or asserted in-depth knowledge of the Petitioner's 
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 either 
evaluator 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. 
The evaluators appear to assert a general industry educational standard for programmer analyst 
positions without referencing any supporting authority or any empirical basis for such an assertion. 
Likewise, they do not provide a substantive, analytical basis for their opinions and ultimate 
conclusions. They do not relate their conclusions 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 they attribute a 
degree requirement to such a generalized treatment of the proffered position undermines the 
credibility of their opinions. 
6 asserted that the proffered position requires "education higher than a bachelor's degree," but did not 
state what additional education is required. Therefore, although the Beneficiary has a bachelor's degree, the Petitioner 
has not established that the Beneficiary is qualified to work in the proffered position pursuant to 
opinion of its minimum educational requirement. 
7 described the Petitioner as "an Ohio-based application development and information technology firm 
providing a wide range of business intelligence, IT consulting, and back-office solutions." provided no 
description of the Petitioner's operations. 
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Matter of D- Inc. 
Ftu1:hermore, there is no indication that the Petitioner advised the evaluators that the Petitioner 
characterized the proffered position as a low, entry-level position, for a beginning employee who has 
only a basic understanding of the occupation (as indicated by the wage-level on the LCA) relative to 
other positions within the occupational category. It appears that the evaluators would have found 
this information relevant for their opinion letters. Moreover, without this information, the Petitioner 
has not demonstrated that the evaluators 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 responsibilities. 
In summary, and for each and all ofthe reasons discussed above, we conclude that the opinion letters 
rendered by the evaluators are not probative evidence to establish the proffered position qualifies as 
a specialty occupation. The conclusions reached by the evaluators lack the requisite specificity and 
detail and are not supported by independent, objective evidence demonstrating the manner in which 
they reached their conclusions. There is an inadequate factual foundation established to support 
their opinions and we find that the opinions are not in accord with other information in the record. 
As such, neither their findings nor their ultimate conclusions are worthy of any deference, and their 
opinion letters are 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 opmwn 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 letters 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. 
A review of the record of proceedings finds that the Petitioner 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. Even when considering the Petitioner's general descriptions of 
the proffered position's duties, the evidence of record does not establish why a few related courses 
or industry experience alone is insufficient preparation for the proffered position. 
While a few related courses may be beneficial, or even required, 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 lacks sufficiently detailed information to distinguish the proffered position as 
more complex or unique from other positions that can be performed by persons without at least a 
bachelor's degree in a specific specialty, or its equivalent. 
9 
Matter of D- Inc. 
Finally, ',\Vhile the Petitioner's statements regarding the complexity of the duties and the 
independence with which the Beneficiary would perform them are acknowledged, those statements 
are undermined by the Petitioner's wage-level designation on the LCA. As noted above, the 
Petitioner attested on the submitted LCA that the wage level for the proffered position is a Level I 
(entry-level) wage. Such a wage level is for a position which only requires 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. 8 It is, 
instead, a position for an employee who has only basic understanding of the occupation. 
Therefore, the evidence of record does not establish that this position is significantly different from 
other positions in the occupation such that it refutes the Handbook's information to the effect that 
there is a spectrum of degrees acceptable for such positions, including degrees not in a specific 
specialty and degrees less than a bachelor's degree. 
In other words, the record lacks sufficiently detailed information to distinguish the proffered position 
as unique from or more complex than positions that can be performed· by persons without at least a 
bachelor's degree in a specific specialty, or its equivalent. As the Petitioner did not demonstrate 
how the proffered position is so complex or unique relative to other positions within the same 
occupational category that do not require at least a baccalaureate degree in a specific specialty or its 
equivalent for entry into the occupation in the United States, it cannot be concluded that the 
Petitioner has satisfied the second alternative prong of 8 C.F .R. § 214.2(h)( 4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.P.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. 
In response to the RFE issued in this matter, the Petitioner stated: 
All o( [the Petitioner's] Programmer Analysts have a minimum of a Bachelor's 
degree in Computer Science or Engineering or related field of study. Majority of 
them have a Master's degree in Computer Science or Engineering or Science, 
Technology, engineering and mathematics (STEM) fields Please refer to the attached 
8 The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its claim 
that the position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not 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)( I) of the Act. 
10 
Matter of D- Inc. 
degree certificates and copies of the transcripts of a few of our employees. Copies of 
the latest pay records are also enclosed as requested. 
The Petitioner provided educational records and pay records pertinent to five of its employees. 
Initially, we observe that the Petitioner has neither claimed nor demonstrated that. those five 
employees are Level I programmer analysts. As such, their educational accomplishments have not 
been shown to be directly relevant to the education the Petitioner requires for the proffered position. 
Further, the Petitioner stated, on the H-lB petition, that it is a software development and consulting 
firm with 72 employees established in 2004. The Petitioner does not indicate the number of Level I 
programmer analysts it now employs or that it has employed in the past. Although the Petitioner 
stated that all of its programmer analysts have a minimum of a bachelor's degree, the evidence of 
record does not establish this claim. 
While a petitioner may believe or otherwise assert that a proffered position requires a specific 
degree, 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 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 th~ Act; 8 C.P.R. § 214.2(h)(4)(ii) (defining the 
term "specialty occupation"). 
The Petitioner also provided copies of vacancy announcements it placed for computer personnel. 
Those announcements are for positions entitled Programmer Analyst, Programmer Analyst II, 
e-Leaming Software Developer, Jr. and Web Portal Developer. The positions entitled, "Programmer 
Analyst II" are apparently not entry-level positions, and are not, therefore, Level I positions. These 
advertisements, therefore, do not appear to relate to the proffered position. Further, some of the 
positions state an experience requirement, and for this additional reason do not appear to be Level I 
positions. Many of the positions require a master's degree in a position related to computers, and for 
this additional reason, do not appear to be Level I positions. Thus, whether any of those positions 
are Level I programmer analyst positions is unclear, and many are apparently not. Because the 
positions have not been shown to be the same positions as the proffered position in this case, they 
have not been shown to be directly relevant to 8 C.P.R. § 214.2(h)(4)(iii)(A)(3). 
For all of the reasons explained above, the evidence submitted does not satisfy the criterion at 
8 C.P.R. § 214.2(h)(4)(iii)(A)(3). 
II 
/ 
Matter of D- Inc. 
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. 
We incorporate here our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the position in the LCA as a Level I position (the lowest of four 
assignable wage-levels) relative to others within the same occupational category.9 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). · 
IV. CONCLUSION 
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. 10 
The burden is on 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- Inc., ID# 10890 (AAO Oct. 28, 20 16) 
9 Again, the Petitioner's designation of this position as a Level I, position undermines its claim thatlthe position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. 
10 As the proffered position is not a specialty occupation, we will not address any of the additional issues we have 
observed in our de novo review of this matter, except to notify the Petitioner that, given its numerous assertions 
regarding the complexity of the proffered position's duties and its requirement for three to five year of prior work 
experience in order to perform them, it is not apparent that the LCA corresponds to and supports the H-1 B petition. 
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