dismissed H-1B Case: Software Development

U.S. Citizenship · 
and Immigration 
Services 
MATTER OF T -C-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 28,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, 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-1B 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-1B 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~ 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 record did not 
establish that: (1) the proffered position qualifies as a specialty occupation; and (2) specialty 
occupation work will be available for the Beneficiary throughout the duration of the requested H-1 B 
validity period. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying 
the petition. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Se,ction 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: 
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Matter ofT-C-S-, 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 the proffered position on an 
in-house project for its direct client, In its letter of support, the Petitioner 
provided the following list of job duties for the proffered position: 
• Research, design and develop computer software systems, in conjunction with 
hardware 
choices, for medical, industrial, communications, scientific, 
engineering, commercial and financial applications which require use of advanced 
computational and quantitative methodologies; 
• Apply principles and techniques of computer sciences and quantitative 
methodology & techniques to determine feasibility of design within time and cost 
constraints; 
• Analyze the communications, informational, database and programming 
requirements; plan, develop, design, test and implement software programs for 
engineering applications and highly sophisticated network systems; 
• Design, program and implement software application packages customized to 
meet specific needs; 
• Review existing computer systems to determine 
compatibility with projected or 
identified needs; research and select appropriate system, including ensuring 
forward compatibility of existing systems; 
• Review, repair 
and modify software programs to ensure technical accuracy and 
reliability of programs; 
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Matter ofT-C-S- , Inc. 
• Train users on use of software applications and computer systems developed; 
provide trouble shooting and debugging support. 
In response to the Director's request for evidence (RFE), the Petitioner provided a brief list of job 
duties for the proffered position, accompanied by the percentage of time the Beneficiary ·would 
devote to each, as follows: 
Requirement Gathering and 
Analysis 12% 
Prepare Functional Test 
Specifications and Process Design Documents 10% 
Design the Test Plans 15% 
Develop the Test Scripts 20% 
Coordinate with Development Team to Test the Application 5% 
Data Migration to New Application 15% 
Create or maintain database of known Testing Issues 4% 
Fix Testing Issues 5% 
Participate in product design reviews to provide input on functional 4% 
requirements, product designs , schedules or potential problem s 
Review Testing documentation to ensure technical accuracy , compliance or 10% 
completeness , or to mitigate risks 
Also in response to the RFE, the Petitioner provided a letter from 
project and listing the job duties of the proffered position as follows: 
describing the assigned 
• Run EDI software systems ; Review and Test all EDI transaction processmg 
output and other applications systems ; 
• Review software documentation to ensure technical 
accuracy , compliance , or 
completeness, or to mitigate risks ; 
• Identify , analyze , and document problems withprogram function, output, online 
screen, or content; 
• Define and execute replicable software verification test procedures to determine if 
documented requirements and established standards have been m et; 
• Compile test reports that provide comprehensive details of completed testing ; 
• Design and develop Requirement Traceability Matrix that projects the QA 
estimates with task details and man power details . Develop Test Strategy 
document that provides various tasks and functionality related to the end product ; 
• Provide support for preparing test cases , test execution and reporting. Plan and 
coordinate tests, and work with team to prioritize work from functional and 
technical perspective; 
• Involved in designing in Quality Assurance process by authoring test cases 
pertaining to System Integration , functional testing , Performance Testing and 
Acceptance Testing ; 
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Matter ofT-C-S-, Inc. 
• Work with development on prioritizing defects found and certify applications to 
Production after functional and Performance testing. Work with business and 
stake holders for product certification for User Acceptance Testing; 
• Identify software defects and Investigate customer issues as needed[.] 
The Petitioner stated that the minimum entry requirement for the proffered position is at least a 
bachelor's degree in computer science, engineering, or a related field. In its letter, stated 
that the minimum entry requirement for the proffered position is a bachelor's degree or equivalent; 
did not identify a specific specialty or field of study as a requirement for the bachelor's 
degree. 
III. SPECIALTY OCCUPATION 
Upon review, we have determined 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 turn 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-1B petition, the Petitioner 
designated the proffered position under the occupational category "Computer Programmers" 
corresponding to the Standard Occupational Classification code 15-1131.4 
1 Although some aspects ofthe 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 2016-17 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. 
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: (I) that 
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Matter ofT-C-S-, Inc., 
The Handbook states the following with regard to the educational qualifications necessary for 
entrance into positions located within this occupational category: 
Most computer programmers have a bachelor's degree in computer science or a 
related subject; however, some employers hire workers with an associate's degree. 
Most programmers specialize in a few programming languages. 
Education 
Most computer programmers have a bachelor's degree; however, some employers 
hire workers who have an associate's degree. Most programmers get a degree in 
computer science or a related subject. Programmers who work in specific fields, such 
as healthcare or accounting, may take classes in that field to supplement their degree 
in computer programming. In addition, employers value experience, which many 
students gain through internships. 
Most programmers learn a few computer languages while in school. However, a 
computer science degree gives students the skills needed to learn new computer 
languages easily. During their classes, students receive hands-on experience writing 
code, testing programs, fixing errors, and doing many other tasks that they will 
perform on the job. 
To keep up with changing technology, computer programmers may take continuing 
education and professional development seminars to learn new programming 
languages or about upgrades to programming languages they already know. 
Licenses, Certifications, and Registrations 
Programmers can become certified in specific programming languages or for vendor­
specific programming products. Some companies require their computer 
programmers to be certified in the products they use. 
Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer 
Programmers (2016-17 ed.). 
The Handbook indicates that most computer programmers have a bachelor's degree in computer 
science or a related subject; however, it also reports that some employers hire workers with an 
associate's degree. See id That is, the Handbook reports that individuals, who have less than a 
the Beneficiary will be expected to perfonn 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 _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. ld. 
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Matter ofT-C-S-, Inc. 
bachelor's degree in a specific specialty, or its equivalent, can obtain computer programmer positions. 
Thus, the Handbook's report is insufficient to conclude that simply by virtue of its occupational 
classification the position qualifies as a specialty occupation. 
We also reviewed O*NET OnLine's assignment of a Job Zone "Four" rating to the computer 
programmers occupation, which groups it among occupations for which "most ... require a four­
year bachelor's degree, but some do not." O*NET OnLine Summary Report for "15-1131.00 -
Computer Programmers," https://www.onetonline.org/link/summary/15-1131.00 (last visited 
Apr. 26, 2017). However, O*NET OnLine 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. Therefore, the O*NET OnLine information is not probative of the proffered position 
being a specialty occupation. 
The record lacks sufficient evidence to support a finding that the duties and requirements of the 
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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 
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. 
In determining whether there is such a common degree requirement, factors we often consider 
include: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry attest that such firms "routinely employ and 
recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999)(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree 
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Matter of T-C-S-, Inc. 
in a specific specialty, or its equivalent. We incorporate by reference the previous discussion on the 
matter. 
In support of this criterion, the Petitioner submitted copies of advertisements for several positions all 
entitled Programmer Analyst. While some of the advertisements generally state that a bachelor's 
degree in computer science, engineering, business, or related fields is required, they also require 
years of experience (1-5) in addition to the bachelor's degree; and several even require a master's 
degree for eligibility.5 The Petitioner here has designated the proffered position as a wage Level I on 
the LCA (the lowest of four assignable wage levels), a wage level for an entry-level position that 
only requires a basic understanding of the occupation, which is in contrast to most of the advertised 
positions that are for more senior'positions. 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 relevant in that the posted job announcements 
are not for parallel positions in similar organizations in the same industry. 
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 ~atisfied 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 an entry-level position within the occupational category by 
selecting a Level I wage.6 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 
5 
We also note that one of the advertisements states that the education requirement is "preferred but not necessary." 
6 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, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
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Matter ofT-C-S-, Inc. 
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.7 
Also, the record does not credibly demonstrate exactly what the Beneficiary will do on a day-to-day 
basis such that complexity or uniqueness can even be determined. That is, while the Petitioner 
claims 
that the position involves focusing on research, analysis, and design of computer-based 
solutions for defined, scientific, or engineering problems, the Petitioner does not demonstrate how 
the programmer analyst's duties described require the theoretical and practical application of a body 
of highly specialized knowledge such that a bachelor's or higher degree in a specific specialty, or its 
equivalent, is required to perform them. 
For instance, here, the Petitioner stated that the proffered position requires a bachelor's degree in 
computer science, engineering, or a related field. However, the Petitioner's client, for 
whom the Beneficiary will be performing work in the proffered position, did not identify a specific 
specialty or field of study required for the position. While the Petitioner identified certain fields 
which may be beneficial, or even essential, in performing certain duties of a programmer analyst 
position, the Petitioner has not demonstrated how an established curriculum of the related 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 Petitioner claims 
that the Beneficiary is well qualified for the position, and references her 
qualifications. However, the test to establish a position as a specialty occupation is not the educati~n 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner 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 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 requiresa bachelor's degree in a specific specialty, or its equivalent, for the position. 
In response to the RFE, the Petitioner stated that it included a list of employees in similar positions, 
along with degree certificates and recent pay stubs, as evidence that it normally requires a bachelor's 
degree for the position. The Petitioner further stated that all of the listed employees have different 
educations, but a minimum of a bachelor's degree in a related field and have all been approved for 
7 
The evidence 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. 
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Matter ofT-C-S-, Inc. 
programmer analyst positions. However, we note that documentary evidence of this information 
was not submitted. 
The Petitioner also submitted two of its job advertisements for Programmer Analyst positions to 
demonstrate that it normally requires a bachelor's degree in a specific specialty for the proffered 
position. Of the advertisements submitted, one requires a bachelor's degree, or equivalent, in 
computer science, engineering (any), or a related field, plus two years of experience; and the other 
does not list any education or experience requirements within the advertisement. Given that one 
position does not provide information about the educational requirements and the other requires two 
years of experience in addition to a bachelor's degree, it appears that the one advertised position 
with relevant information is for a more senior position than that of the proffered position. Again, the 
Petitioner has designated the proffered position as a wage Level I on the LCA (the lowest of four 
assignable wage levels), a wage level for an entry-level position that only requires a basic 
understanding of the occupation, which is in contrast to the internal position advertised that is for a 
more senior position. As such, we cannot determine that the proffered position is the same or similar 
to the advertised internal positions 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.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. 
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 I wage, and hence one not likely 
distinguishable by relatively specialized and complex duties. We have also reviewed the Petitioner's 
description of duties for the proffered position and version submitted in response to the 
RFE. While we understand that the Beneficiary must have technical knowledge in order to perform 
these duties, the Petitioner has not sufficiently explained how these duties require the theoretical and 
practical application of a body of highly specialized knowledge, and the 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. Upon review of the totality of the record, the record does not 
include probative evidence that the duties requite more than technical proficiency in the computer 
programming field. 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). 
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Matter ofT-C-S- , Inc. 
As the Petitioner has not established that it satisfies any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. 
Finally, we also find that the record of proceedings lacks sufficient evidence that the Petitioner has 
H-1 B caliber work for the Beneficiary for the period of employment requested in the petition. It is 
incumbent upon the Petitioner to demonstrate it has sufficient work to require the services of a 
person with at least a bachelor's degree in a specific specialty, or its equivalent, to perform duties at 
a level that requires the theoretical and practical application of at least a bachelor's degree level of a 
body of highly specialized knowledge in a specific specialty for the period specified in the petition. 
On the Farm I -129, the Petitioner requested that the Beneficiary be granted H -1 B classification from 
October 1, 2016, to September 2, 2019. The Petitioner submitted its Master Service Agreement 
(MSA) with the client for whicp the Beneficiary will be assigned to work, stating that the 
agreement will remain effective from March 16, 2016, until it is terminated by either party. 
However, the specific Statement of Work (SOW) between the Petitioner and for the 
specific project assigned to the Beneficiary, lists the start date of the project as August 15, 2016, and 
the end date as December 31, 2018. The listed end date falls short of the Beneficiary requested 
validity period by approximately nine months. 
In response to the RFE, the Petitioner submitted a letter from specifically addressing the 
project for which the Beneficiary will be assigned and specifically naming the Beneficiary for 
assignment to said project. The letter first states that the "[ d]uration of the project will be for a 
period of 25 months with a possible extension," and later states that "the duration of this project is 
ongoing in duration and expected to exceed three years." 
Here, the Petitioner's SOW with its client, combined with the letter from its client, indicates that the 
project assigned to the Beneficiary in the proffered position will exist for, at most, 30 months. 
Although the client's letter states that the Beneficiary will be working on an "ongoing project," and 
that there will be "a possible extension" beyond 25 months, we cannot conclude that the proffered 
position will continue to exist for the duration of the requested H -1 B status period. The petition will 
be denied for this additional reason. 
V. CONCLUSION 
The appeal must be dismissed because the Petitioner did not establish that: (1) the proffered position 
qualifies as a specialty occupation; and (2) specialty odcupation work will be available for the 
Beneficiary throughout the duration of the requested H-1B validity period. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-C-S-, Inc., JD# 397093 (AAO Apr. 28, 2017) 
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