dismissed H-1B Case: Software Development

MATTER OF N-S-A-, LP 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 26,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software consulting/development 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)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-IB 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, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner had not established that the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of record satisfies all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. 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.P.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter ojN-S-A-, LP 
(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 F.3d 139, 147 (1st Cir. 2007) (describing "a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In a letter submitted with the H-lB petition, the Petitioner provided the following description for the 
duties of the proffered position: 
Analyze science, engineering, business, and all other data processing problems for 
application to electronic data processing systems. Analyze user requirements, 
procedures and problems to automate or improve existing systems and review 
computer system capabilities, workflow and scheduling limitations. May analyze or 
recommend commercially available software. 
In response to a request for evidence (RFE) issued in this matter, the Petitioner provided the 
following additional description of the duties of the position: 
1. Understanding the Business requirements and Solution design thoroughly and 
mapping these requirements to the test cases. 
2. Review any static testing of the business requirements and solution design. 
3. Create Test Plans/Strategies/Schedule/Scenarios and develop an approach to testing. 
4. Participate in Technical walkthrough meetings. 
5. Preparing and Execution of the Test Cases. 
6. Perform System testing and UAT testing. 
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(b)(6)
Matter of N-S-A-, LP 
7. Raising defects and ensuring that the observation/bugs are communicated to the 
design/development team. 
8. Participate in the defect resolutions calls. 
9. Identify any Project/Team risks and come with a mitigation plan. 
The Petitioner also indicated that education requirement is a bachelor's degree. 
In another letter submitted with response to the RFE, the Petitioner stated: "(The proffered position] 
requires as a minimum a Bachelor's degree or equivalent in Computer Science, Engineering or 
closely related field." · 
Although the Petitioner's address is in Texas, the H-IB petition states that the Beneficiary 
would work in Arkansas. The Petitioner did not initially identify the entity at that 
address, but submitted a work order from a contract manager from which indicates 
that the Beneficiary's assignment is in On appeal, a letter from states 
that the Beneficiary would work for its subsidiary, (subsidiary), at the 
Arkansas address.1 However, on appeal, the Petitioner characterizes (end-client) as 
the end-client. 
~ 
A letter from the end-client, submitted on appeal, provides the following amended duty description: 
• Understanding the Business requirements and S~lution design thoroughly and 
mapping these requirements to the Test cases 
• Review static testing of the business requirements and solution design 
• Create Test Plans/Strategies/Schedule/Scenarios and develop an approach to testing 
• Participate in Technical walkthrough meetings 
• Automation proposal drafting 
• Preparing and Execution of the Test Cases 
• Automation scripting using Selenium 
• Perform System testing and UAT testing 
• Raising defects and ensuring that the observation/bugs are communicated to the 
design/development team 
• Participate in the defect resolutions calls 
• Identify any Project/Team risks and come with a mitigation plan 
In that letter, the end-client states, "[F]or the [proffered] position, we require a minimum of a 
bachelor's degree, or its equivalent, with a concentration in any branch of Engineering or a closely 
related field." 
appears to be based in India w ith an office in New Jersey. 
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Matter of N-S-A-, LP 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation? 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation? 
Initially, we observe that the Petitioner and the end-client have never asserted that the proffered 
position requires a minimum of a bachelor's degree in a specific specialty or its equivalent. As 
noted, in one of the documents submitted in response to the RFE the Petitioner indicated that a 
bachelor's degree is required for the position without stating a specific specialty. Further, both the 
Petitioner and the end-client stated that the educational requirement of the proffered position might 
be satisfied by, inter alia, a minimum of a bachelor's degree or its equivalent in computer science or 
engmeenng. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty (or its equivalent)" requirement of section 214(i)(l )(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since 
there must be a close correlation between the required "body of highly specialized knowledge" and 
the position, however, a minimum entry requirement of a degree in two disparate fields, such as 
philosophy and engineering, would not meet the statutory requirement that the degree be "in the 
specific specialty (or its equivalent)," unless the Petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required body of 
highly specialized knowledge is essentially an amalgamation of these different specialties. 4 Section 
214(i)(l)(B) ofthe Act (emphasis added). 
Further, the Petitioner and the end-client have indicated that a degree in any branch of engineering 
may satisfy the educational requirement of the proffered position. The field of engineering is a 
broad category that covers numerous and various specialties, some of which are only related through 
the basic principles of science and mathematics, e.g., nuclear engineering and aerospace 
engjneering. Therefore, it is not readily apparent that a general degree in engineering or one of its 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 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 Whether read with the statutory "the" or the regulatory "a," both readings denote a singular "specialty." Section 
214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). Still, we do not so narrowly interpret these provisions to exclude 
positions from qualifying as specialty occupations if they permit, as a minimum entry requirement, degrees in more than 
one closely related specialty. As just stated, this also includes even seemingly disparate specialties provided the 
evidence of record establishes how each acceptable, specific field of study is directly related to the duties and. 
responsibilities of the particular position. 
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(b)(6)
Matter of N-S-A- , LP 
other sub-specialties, such as chemical engineering or nuclear engineering, is closely related to 
computer science or that engineering or any and all engineering specialties are directly related to the 
duties and responsibilities of the particular position proffered in this matter. 
Here and as indicated above, the Petitioner, who bears the burden of proof in this proceeding, has not 
established either (1) that computer science and engineering in general are closely related fields or 
(2) that engineering or any and all engineering specialties are directly related to the duties and 
responsibilities of the proffered position. Absent this evidence, it cannot be found that the particular 
' position proffered in this matter has a normal minimum entry requirement of a bachelor's or higher 
degree in a specific specialty or its equivalent under the Petitioner's own standards. 
Therefore, absent 
evidence of a direct relationship between the claimed degrees required and the 
duties and responsibilities of the position, it cannot be found that the proffered position requires . 
anything more than a general bachelor's degree. As explained above, USCIS interprets the degree 
requirement at 8 
C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly 
related to the proposed position. USCIS has consistently stated that, although a general-purpose 
bachelor's degree may be a legitimate prerequisite for a particular position, requiring such a degree, 
without more, will not justify a finding that a particular position qualifies for classification as a 
specialty occupation. Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007). 
Further still, although the Petitioner has asserted that the end-client will utilize the Beneficiary's 
services at a Arkansas address, the evidence of record is insufficient to show that 
address belongs to either the end-client or the subsidiary or that either has any contract with a 
company there. This precludes the Petitioner from showing that the Beneficiary would perform 
specialty occupation work for the end-client or the subsidiary at that address. 
Yet further, the period of employment requested in this matter is from December 21, 2015, to 
December 9, 2018. The record contains an emailed statement of work from the end-client indicating 
that it intends to utilize the Beneficiary's services in Arkansas from March 16, 2016, to 
September 12, 2016. The record contains insufficient evidence to show that the end-client or its 
subsidiary ever extended that period. Even if the H -1 B petition were otherwise approvable, it could 
not be approved for any period after September 12, 2016.5 
5 The agency made clear long ago that 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 8 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) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
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Matter ofN-S-A-, LP 
Any of those reasons would be a sufficient basis for dismissing the instant appeal. Nevertheless, we 
will continue our analysis of whether the proffered position qualifies as a specialty occupation for 
the purpose of performing a comprehensive analysis. We will next discuss the record of proceedings 
in relation to the four criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
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. 
On the labor condition application (LCA) submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Programmers" 
corresponding to the Standard Occupational Classification code 15-1131. The LCA further states 
that the proffered position is a wage Level I, entry-level, position.6 
We recognize the U.S. Department of Labor's Occupational Outlook Handbook (Handbook) as an 
authoritative source on the duties and educational requirements of the wide variety of occupations 
that it addresses. 7 The Handbook states the following about the educational requirements of 
computer programmer positions: 
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). While a petitioner is certainly permitted to petition for H-1B classification on 
the basis of facts not in existence at the time the instant petition was filed, it must nonetheless file a new petition to have 
these facts considered in any eligibility determination requested, as the agency may not consider them in this proceeding 
pursuant to the law and legal precedent cited, supra. 
6 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 she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she 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://tlcdatacenter.com/download/NPWHC _Guidance_ Revised _11_ 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. ' 
7 The Handbook, which is available in printed form, may also be accessed on the Internet, at http://www.bls.gov/oco/. 
Our references to the Handbook are to the 2016 - 2017 edition available online. 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 
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Matter ofN-S-A-, LP 
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 
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. 24, 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 degreeor 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. 
In designating the proffered position at a Level I wage, the Petitioner has indicated that the proffered 
position is a comparatively low, entry-level position relative to others within the occupation. That is, 
in accordance with the relevant DOL explanatory information on wage levels, this wage rate 
indicates that the Beneficiary is only required to have a basic understanding of the occupation and 
carries expectations that the Beneficiary perform routine tasks that require limited, if any, exercise of 
judgment; that she would be closely supervised; that her work would be closely monitored and 
reviewed for accuracy; and that she would receive specific instructions on required tasks and 
expected results. As noted above, according to DOL guidance, a statement that the job offer is for a 
research fellow, worker in training or an internship is indicative that a Level I wage should be 
considered. 
The Petitioner has categorized the proffered position as among the least advanced of computer 
programmer positions, and the Handbook indicates that some programmer positions do not require a 
minimum of a bachelor's degree in a specific specialty or its equivalent. Thus, the Handbook does 
not support the assertion that the proffered position requires a minimum of a bachelor's degree in a 
specific specialty or its equivalent. 
position, and USCIS regularly reviews the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. To satisfY the first criterion, however, the burden of proof remains on the Petitioner to 
submit sufficient evidence to support a finding that its particular position would normally have a minimum, specialty 
degree requirement, or its equivalent, for entry. 
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Matter of N-S-A-, LP 
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. In such 
cases, it is the petitioner's responsibility to provide probative evidence (e.g., documentation from 
other objective, 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. However, in the instant case, the Petitioner has not 
provided sufficient persuasive documentary evidence from any other relevant authoritative source 
establishing that a Level I computer programmer position would 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 iri 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. f 
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 de greed 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)). 
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Matter ofN-S-A-, LP 
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. 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." 
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 of the first alternative prong of 8 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 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
A review of the record of proceedings indicates that the 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. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant 
petition. 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 a basic understanding of the occupation; the performance of routine tasks that require 
limited, if any, exercise of judgment; close supervision and work closely monitored and reviewed for 
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Matter of N-S-A-, LP 
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 In order to attempt to show 
that parallel positions require a minimum of a bachelor's degree in a specific specialty or its 
equivalent, the Petitioner would be obliged to demonstrate that other wage Level I computer 
programmer positions, entry-level positions requiring only a basic understanding of computer 
programming, require a minimum of a bachelor's degree in a specific specialty or its equivalent, the 
proposition of which is not supported by the Handbook. 
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 that are 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.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. 
On the H-IB petition, the Petitioner stated that it has 150 employees in the United States. On 
appeal, it provided a list of 99 employees and their educational qualifications. The Petitioner did not 
provide copies of their diplomas to corroborate that they have the degrees the Petitioner asserts, and 
did not provide Form W-2, Wage and Tax Statements, to corroborate that they work for the 
Petitioner. 
Further, the Petitioner did not indicate what positions those 99 employees hold. Thus, it did not 
indicate how many are programmer analysts. It also did not reveal how many hold positions that 
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. 
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Matter of N-S-A-, LP 
would be classified as Level I computer programmer positions. As such, it did not reveal which of 
those positions, if any, are the same as the proffered position, or even similar. 
Further still, the list of employees includes many who do not have a bachelor's degree closely 
related to computer science. Some have associate's degrees. Some have bachelor's degrees in 
business, psychology, accounting, education, and industrial management. Some have unspecified 
bachelor of science or bachelor of arts degrees. Some are currently pursuing degrees. Some have 
master's degrees in business administr~tion. This indicates that the Petitioner does not require a 
minimum of a bachelor's degree in a specific specialty or its equivalent for those employees' 
positions. 
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 b~ 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-IB 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 C.F.R. § 214.2(h)(4)(ii) (defining the 
term "specialty occupation"). 
The Petitioner has not demonstrated that it noimally requires a minimum of a bachelor's degree in a 
specific specialty or its equivalent for the proffered position and has not, therefore, 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. 
In the instant case, relative specialization a~d complexity have not been sufficiently developed by 
. the Petitioner as an aspect of the proffered position. We again refer to our earlier comments and 
findings with regard to the implication of the Petitioner's designation of the proffered position in the 
LCA as a Level I (the lowest of four assignable levels) wage. That is, the Level I wage designation 
is indicative of a low, entry-level position relative to others within the occupational category, and 
hence one not likely distinguishable by relatively specialized and complex duties. 
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Matter of N-S-A-, LP 
Upon review of the totality of the record, the Petitioner has not established that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. In other words, the proposed duties have not been described with sufficient 
specificity to show that they are more specialized and complex than computer programmer positions 
that are not usually associated with at least a bachelor's degree in a specific specialty or its 
equivalent. 
For the reasons discussed above, the evidence of record does not satisfy the fourth criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
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. The appeal must be 
dismissed for this reason. 
IV. CONCLUSION 
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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-S-A-, LP, ID# 10068 (AAO Oct. 26, 2016) 
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