dismissed H-1B Case: Software Development

MATTER OF X-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 25,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software product development company, seeks to -temporarily employ the 
Beneficiary as a "programmer analyst" under the H-1B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ ll01(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the Petitioner had 
not established that 1) it has sufficient work for the Beneficiary for the requested period of 
employment and 2) the proffered position is a specialty occupation. 
In its appeal, the Petitioner submits additional evidence and asserts that the Director erred in her 
findings. 
Upon de novo review, we will dismiss the ,appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter of X-, Inc. 
(I) 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). We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. 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 
The Petitioner indicated that the Beneficiary would be employed in-house and "will participate in 
our new mobile version development projects and enhance existing software products." The 
Petitioner provided the following list of the Beneficiary's duties (note: errors in original have not 
been changed): 
• Conduct thorough study and analysis of our customer's business processes to 
gather, identify and ascertain the needs and requirements in software applications, 
and ensure that the best applications will be designed and developed in 
accordance with client's organizational policies, procedures, and other business 
requirements. 
• Participate in the determination of the scope of a development project. 
• Participate in the evaluation of technical feasibility, risks and requirements 
change management. 
• Analyze system requirements. 
• Analyze existing software systems to ascertain the impact and compatibility of 
new features. 
• Participate in the development of technical and functional specifications. 
• Define technology architecture, which is in line with customers' enterprise 
architecture and technology roadmap. 
• Prepare work flow charts and diagrams (activity diagram, sequence diagram, class 
diagram and package diagram) to illustrate sequential of programming steps. 
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Matter of X-, Inc. 
• Design reusable, scalable and high performance application features and 
components. 
• Work on the security features of a sys~em. 
• Add complex search options on our software products. · 
• I)evelop E-Commerce wed ordering solution to integrate with 
platform. 
• Integrate [Petitioner] retail POS to payment gateway. 
• Support multiple device types by using the XML and filter. 
• Develop XML adapters to facilitate Online ordering interface with third party 
suppliers or vendors. 
• Observe display screen and print output to detect syntax or logical errors for the 
program test. 
• Perform QA testing, including incremental integration testing, 
sanity testing, 
acceptance testing, mutation testing and regression testing. 
• Make use of Rational Suite and Test Studio. 
• Develop prototype and pilot 
implementation plan. 
• Support the release of software products. 
• Install logical architecture during the physical implementations for customers 
according to their business envirpnment and requirements for security, 
interoperability, performance, scalability, and maintainability. 
• Upgrade, enhance and improve existing applications and service. 
• Provide technical support to Programmers. 
• Provide support to customers. 
The Petitioner stated that the minimum education required for the perfonnance of the position is a 
bachelor's degree or its equivalent in "Computer Science, Computer Engineering, Computer 
Application, Information Technology, Electrical Engineering, Electronic Engineering, or a related 
field of study." 
Ill. ANALYSIS 
Upon review of the entire record, we find that the Petitioner has not demonstrated that it would 
employ the Beneficiary in a specialty occupation. Specifically, the Petitioner has not provided 
sufficient, credible evidence to establish in-house employment for the Beneficiary for the validity of 
the requested H-lB employment and the record does not establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation. 1 
For H-lB approval, the Petitioner must demonstrate that a legitimate need for an employee exists 
and substantiate that ithas H-IB caliber work for the Beneficiary for the period of employment 
requested in the petition. As mentioned, the Petitioner claims that the Beneficiary will be working 
1 While we may not discuss every document submitted , we have reviewed and considered each one . 
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Matter of X-, Inc. 
in-house and will participate in its new mobile version development projects and enhance existing 
software products. 
However, the Petitioner does not adequately describe these projects to establish the substantive 
nature of the Beneficiary's employment. The Petitioner claims that it has a number of products 
incluiling and 
The Petitionersubmitted 
limited information regarding its products, including printouts from its website and a copy of the 
The Petitioner indicated that the Beneficiary will "enhance existing 
software products," but the record does not sufficiently establish the availability of work. According 
to the project plan, the addition of the new features will require a total of 28 individuals; 
however, the project does not require any programmer analysts. Further, the duration of projects 
ranges from two to six months, which is far shorter than the validity dates requested. In addition, the 
project plan is dated January 12, 2015, more than a year prior to the date of filing; thus, the current 
status of the project is also unclear. The Petitioner did not submit additional project plans for other 
products. 
In addition to the above, the Petitioner did not submit a job description that adequately conveys the 
substantive work to be performed by the Beneficiary. For example, although the Petitioner claims the 
Beneficiary will work in-house, the provided job duties indicate that he will "[c]onduct [a] thorough 
study and analysis of [the Petitioner's] customer's business processes" and "[d]efine technology 
architecture, which is in line with customers' enterprise architecture and technology roadmap." 
However, the record does not contain documentation, such as contracts or invoices to establish that the 
Petitioner has any clients} 
Further, as evident from the job description, the Petitioner described the duties of the proffered position 
in relatively general terms and without sufficient detail to establish the substantive nature of the work 
within the context of the project(s) the Beneficiary will work on, and the associated applications of 
specialized knowledge that their actual performance would require. While a generalized description 
may be appropriate when defining the range of duties that are performed within an occupation, such 
generic descriptions generally cannot be relied upon by the Petitioner when discussing the duties 
attached to specific employment for H-lB approval. In establishing such a position as a specialty 
occupation, the description of the proffered position must include sufficient details to substantiate 
that the Petitioner has H-IB caliber work for the Beneficiary. 
For example, it is unclear what theoretical and practical application of a body of highly specialized 
knowledge is required to "[p]rovide technical support to Programmers" or "[s]upport the release of 
2 On appeal, the Petitioner claims that the products are in the development stage, thus there is no software inventory. 
However, according to a document titled ' 2008 edition , the Petitioner 's "systems are 
now available for quick serve restaurants." Therefore , it appears that the Petitioner 's product has been in the market 
since 2008 , yet the record does not contain any evidence of clients to credibly establish demand for further development 
and enhancement. 
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Matter of X-, Inc. 
software products." Without a meaningful job description, the record lacks sufficiently informative 
evidence to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. The tasks as described do not communicate the actual work that 
the Beneficiary will perform, the complexity, uniqueness and/or specialization of the tasks, or the 
correlation between that work and a need for a particular level education of highly specialized 
knowledge in a specific specialty. 
As the Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, we are precluded from finding that the proffered position satisfies any of the criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the 
normal minimum educational requirement for entry into the particular position, which is the focus of 
criterion 1; (2) industry positions which are parallel to the proffered position and thus appropriate for 
review for a common degree requirement, under the first alternate prong of criterion 2; (3) the level 
of complexity or uniqueness of the proffered position, which is the focus of the second alternate 
prong of criterion 2; (4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. 
A petitioner must establish that the Beneficiary meets each eligibility requirement of the benefit 
sought by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 
2010). To determine whether a petitioner has met its burden under the preponderance standard, we 
consider not only the quantity, but also the quality (including relevance, probative value and 
credibility) of the evidence.3 !d. at 376; Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). 
For the reasons discussed above, the Petitioner has not demonstrated that it has H -1 B caliber work 
for the Beneficiary for the period of employment requested in the petition4 or that the position 
qualifies as a specialty occupatio~. 
3 We also note that the Petitioner's lease appears to have been altered. The provided terms state that the "lease shall 
commence on December I, 2011 and shall expire ofthe last day ofthe November, 2013 full calendar month following 
the commencement date, unless Lessee elects to extend said term." In the rental section, however, the last digit of the 
end date has been changed and reads "11/30/18" (although the document is typed, the "8" is handwritten). This change 
has not been initialed or annotated in any way. The lease also does not provide information such as square footage or a 
floorplan to establish that the Petitioner has sufficient space for not only its current employees, but the Beneficiary as 
well. Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence 
submitted in support of the requested immigration benefit. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
4 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 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) ofthe Immigration and Nationality Act (the "Act"). The 
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Matter of X-, Inc. 
While this finding precludes the approval of the petition, for the purpose of performing a more 
comprehensive analysis, we will continue to assess the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), 
assuming arguendo that the Beneficiary will be employed in the capacity claimed on the labor 
condition application (LCA)5, i.e., a Lev.el II position under the occupational category "Computer 
Programmers" corresponding to the Standard Occupational Classification code 15-1131.6 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Ouflook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses. 7 The subchapter of the 
Handbook entitled "How to Become a Computer Programmer" states, in pertinent part: "Most 
computer programmers have a bachelor's degree; however, some employers hire workers who have 
an associate's degree. Most programmers get a degree in computer science or a related subject."8 
According to the Handbook, this occupation accommodates a wide spectrum of educational 
credentials, including less than a bachelor's degree in a specific specialty. The Handbook states that 
some employers hire workers who have an associate's degree. Furthermore, while the Handbook's 
narrative indicates that most computer programmers obtain a degree - which could be either a 
bachelor's degree or an associate's degree - in computer science or a related field, the Handbook 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 8 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 change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordarice with 8 C.F.R. § 214.2(h)(2)(i)(E). 
5 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services to demonstrate that it 
will pay an H-1 8 worker the higher of either the prevailing wage for the occupational classification in the "area of 
employment" or the actual wage paid by the employer to other employees with similar experience and qualifications who 
are performing the same services. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AA020 15). 
6 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
7 All of our references are to the 2016-17 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 we regularly review the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
8 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers (20 16-17 
ed.). 
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Matter of X-, Inc. 
does not reportthat at least a bachelor's degree in this field, or its equivalent, is normally required. 
Thus, the Handbook does not support the claim that the occupational category is one for which 
normally the minimum requirement for entry is a baccalaureate degree (or higher) in a specific 
specialty, or its equivalent. 
In support of the petition, the Petitioner references DOL's Occupational Information Network 
(O*NET) summary report for "computer programmers." The summary report provides general 
information regarding the occupation; however, it does not support the Petitioner's assertion 
regarding the educational requirements for these positions. For example, O*NET assigns a Job Zone 
"Four" rating to the occupation, which groups it among occupations for which "most ... require a 
four-year bachelor's degree, but some do not."9 However, O*NET does not indicate that four-year 
bachelor's degrees that may be required by Job Zone Four occupations must be in a specific 
specialty directly related to the occupation. O*NET also does not support a finding that an 
assignment of an SVP rating of 7 < 8 is indicative of a specialty occupation. An SVP rating of 7 to 
less than ("<") 8 indicates that the occupation requires "over 2 years up to and including 4 years" of 
training. While the SVP rating indicates the total number of years of vocational preparation required 
for a particular position, it does not describe how those years are to be divided among training, 
formal education, and experience - and it does not specify the particular type of degree, if any, that a 
position would require. 10 
Further, the summary report provides the educational requirements of "respondents," but does not 
account for 100% of the "respondents." The respondents' positions within the occupation are not 
distinguished by career level (e.g., entry-level, mid-level, senior-level). Additionally, the graph in 
the summary report does not indicate that the "education level" for the respondents must be in a 
specific specialty. Therefore, the O*NET information is not probative of the proffered position 
being a specialty occupation. 
The record lacks sufficient evidence to support a finding that the position, as described, is one for 
which a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the 
minimum requirement for entry. 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 
9 
O*NET OnLine Summary Report for "15-1131.00 - Computer Programmers," https://www.onetonline.org/link/ 
summary/15-1131.00 (last visited July 25, 2017). 
1
° For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/ 
online/svp. 
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Matter of X-, Inc. 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy the 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. 
We generally consider the following sources of evidence to determine if there is such a common 
degree requirement: 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 establish 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) 
(considering these "factors" to inform the commonality of a degree requirement)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent. We incorporate by reference the previous discussion on the 
matter. 
On appeal, the Petitioner submitted copies of advertisements for several positions, including 
computer programmer, programmer analyst, programmer, and Java programmer. Several of the job 
advertisements reflect that no bachelor's degree in a specific specialty is required. While some of 
the advertisements state a specific specialty, they also require years of experience and expertise in 
addition to the bachelor's degree. For example, one posting requires a bachelor's degree in 
computer science, management information services, or equivalent plus 5 to 7 years of experience in 
information technology. However, the Petitioner here has designated the proffered position as a 
wage Level II on the LCA, a wage level that only requires a moderate understanding of the 
occupation, which is in contrast to some of the advertised positions that require experience and 
expertise. Further, even if all of the job postings indicated that a bachelor's or higher degree in a 
specific specialty, or its equivalent, were required, the Petitioner has not established that the 
submitted advertisements are for parallel positions in similar organizations in the same industry. 
The Petitioner states that it "is a small company and it is difficult to find advertisement[ s] placed by 
employees of a similar size." Consistent with this acknowledgement by the Petitioner, we also are 
unable to determine that the companies advertising for computer programmers are similar to the 
Petitioner. The Petitioner provides little information on the size and revenue of these companies and 
several operate in dissimilar industries, including healthcare; tire distribution, and automotive sales. 
The Petitioner did not provide sufficient information to establish that it shares the same general 
characteristics with the advertising employers. 11 
11 Even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty is common to 
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Matter of X-, Inc. 
For these reasons, it.cannot be found that the advertisements support a finding that a bachelor's or 
higher degree in a specific specialty, or its equivalent, is common to the industry in parallel positions 
among similar organizations. The Petitioner has not satisfied the criterion of the 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 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
While the Petitioner may believe that the position meets this prong of the regulations, we note, 
however, the record lacks evidence supporting the Petitioner's claim. For example, the Petitioner 
designated the proffered position as a Level II position within the occupational category. 12 This 
designation, when read in combination with the evidence presented and the Handbook's account of 
the requirements for this occupation, suggests that the particular position is not so complex or unique 
that the duties can only be performed an individual with bachelor's degree or higher in a specific 
specialty, or its equivalent.13 
The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the 
duties of the position, and it did not identify any tasks that are so complex or unique that only a 
the industry' in parallel positions among similar organizations (which they do not), the Petitioner has not demonstrated 
what statistically valid inferences, if any, can be drawn from the advertisements with regard to determining the common 
educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The 
Practice of Social Research 186-228 (1995). Moreover, given that there is no indication that the advertisements were 
randomly selected, the validity of any such inferences could not be accurately determined even if the sampling unit were 
sufficiently large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] process [of probability 
sampling]" and that "random selection offers access to the body of probability theory, which provides the basis for 
estimates of population parameters and estimates of error"). 
The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
12 The issue here is that the Petitioner's designation of this position as a Level II 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 II wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), such a 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 detennination 
of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
13 
The e'vidence of record does not establish that this position is significantly different from other positions within the 
occupational category such that it refutes the Handbook's information to the effect that some courses are advantageous to 
obtaining such a position, but not specifying that the degree must be in a specific specialty. 
9 
Matter of X-, Inc. 
specifically degreed individual could perform them. Accordingly, the Petitioner has not 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. 
In response to a request for evidence, the Petitioner submitted the educational credentials of its 
current or former employees with bachelor's degrees. On appeal, the Petitioner submits copies of 
several forms I -129, along with supporting evidence, for employees it has requested H -1 B status as 
programmer analysts. While the Petitioner submits evidence of H-1 8 approval, ·education 
credentials, and pay stubs, the Petitioner does not submit any evidence pertaining to the employees' 
duties, such as position descriptions or resumes reflecting titles and the duties performed for the 
Petitioner during their employment. As such, we cannot determine that the listed employees were 
employed in the same or similar position to the proffered position such that we can conclude that the 
Petitioner normally requires a bachelor's degree in a specific specialty, or its equivalent, for this 
0 0 14 
positiOn. 
This lack of evidence relevant to the employmentofthe Petitioner's asserted programmer analysts is 
noteworthy since it is not clear from the evidence submitted that these employees have been 
employed in this capacity. For instance, the Form I-129 states that the company has only 6 
employees, but the Petitioner provided a list of 20 employees, 14 of whom are designated as current 
employees. Further, the list does not include at least 3 individuals from the organization chart, 
including the chief technical officer. The Petitioner also submitted H-18 approval notices for at 
least 7 of those current employees it claims hold the position of programmer analyst, but the 
organization chart does not include a single programmer analyst. In short, the Petitioner states that it 
employs 6, but indicates elsewhere on the record that it actually employs more. The organizational 
chart and employee list do not indicate that its asserted programmer analysts are actually employed 
in this position, as this position is not listed on the organizational chart. It does not otherwise 
provide supporting evidence to demonstrate that these individuals were employed as programmer 
analysts, including their duties, to demonstrate the similarity of their positions to that of the 
proffered position. Again, the Petitioner has not resolved these inconsistencies with independent, 
objective evidence pointing to where the truth lies. Ho, 19 I&N Dec. at 582, 591-92. 
On appeal, the Petitioner also submitted several of its job advertisements for a programmer analyst, a 
mid-level programmer analyst, and a senior programmer analyst position to demonstrate that it 
14 
We note that the Petitioner did submit a U.S. Department of Labor Form ETA 9089 for one of its employees listing the 
job duties she would perform as a programmer analyst. However, the Form ETA 9089 indicates the position 
corresponds to a different occupational category; specifically, SOC code 15-1132, "software developer, applications," 
and also requires a master's degree, and appears to be a more senior position than the proffered position here. While it 
also includes a job description for the position of programmer analyst which she held with the Petitioner from December 
28, 2015 until December 28, 2016, no education requirement is listed. 
10 
Matter of X-, Inc. 
normally requires a bachelor's degree in a specific specialty for the proffered position. However, as 
discussed, the Petitioner has not sufficiently established that it normally requires a degree in a 
specific specialty or its equivalent. 
For these reasons, we cannot determine that the proffered position is the same or similar to the other 
positions described by the Petitioner such that we can conclude that the Petitioner normally requires 
a bachelor's degree in a specific specialty, or its equivalent for this position. 
Accordingly, the Petitioner has not satisfied the criterion at 8 C.P.R.§ 214.2(h)(4)(iii)(A)(3). 
D. ·Fourth Criterion 
The fourth criterion at 8 C.P.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 asserts that the job duties of the proffered position are specialized and complex. We 
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 II wage, and hence one not likely 
distinguishable by relatively specialized and complex duties. On appeal, the Petitioner only submits 
the duties listed for a computer programmer in the Handbook, reiterates those of the proffered 
position, and states that this demonstrates their specialized and complex nature. However, the 
Petitioner does not describe how the Beneficiary's duties are more specialized and complex than 
other computer programmer positions that are not usually associated with at least a bachelor's degree 
in a specific specialty, or its equivalent. The Petitioner has not demonstrated in the record that its 
proffered position is one with duties sufficiently specialized and complex to satisfy 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(4). 
As the Petitioner has not established that it satisfies any of the criteria at 8 C.P.R. 
§ 214.2(h)( 4 )(iii)( A), it cannot be found that the proffered position qualifies as a specialty 
occupation. 
IV. CONCLUSION 
The Petitioner has not established that it has H-lB caliber work for the Beneficiary for the validity 
period requested in the petition or that the proffered position qualifies as a specialty occupation. 15 
15 As the Petitioner has not established that the proffered position qualifies as a specialty occupation, we need not address 
additional issues in the record. 
II 
Matter of X-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of X-, Inc., ID# 395673 (AAO July 25, 2017) 
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