dismissed H-1B Case: Software Engineering

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 03 2 1 1 50 164 Office: CALIFORNIA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. !j 1 10 l(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
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DISCUSSION: The director of the service center denied the nonimrnigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is engaged in the business of manufacturing and distributing reconditioned fitness equipment. 
It seeks to employ the beneficiary as a software engineer. The petitioner, therefore, endeavors to classify the 
beneficiary as a nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101 (a)(lS)(H)(i)(b). 
The director denied the petition because the evidence of record does not establish that the job offered qualifies 
as a specialty occupation. Additionally, the director found that the beneficiary was not qualified for a 
specialty occupation. On appeal, the petitioner submits a brief and additional evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
5 214.2@)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is 
directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) counsel's response to the director's request; (4) the director's 
denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in its 
entirety before issuing its decision. 
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The petitioner is seeking the beneficiary's services as a software engineer. Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; $he company support letter; 
and counsel's response to the director's request for evidence. According to this evidence, the beneficiary 
would perform duties that entail development and testing of new programs and the implementation and 
testing of bug fixes; performing management and maintenance of existing XML, C++, ASP and Visual Basic 
programs, the configuration of web servers including Internet Information Services (11) and Application 
Servers including Microsoft Transaction Server (MTS); assisting in the review and acceptance testing of 
software programs that the company acquires; managing all aspects of third party software project 
development as well as a review of existing Global Fitness software products and any products acquired; 
working with design and implementation of software for the company's website; consulting with hardware 
engineers and other engineering staff to evaluate interface between hardware and software and the operational 
and performance requirements of the overall systems; working with technical team to finalize the technical 
design of the program; applying principles and techniques of computer science, engineering, and 
mathematical analysis; analyzing software requirements to determine feasibility of design within time and 
costs constraints; formulating and designing software systems, using scientific analysis and mathematical 
models to predict and measure outcome and consequences of design; and using flowchart design and code 
generation in each stage of development. The petitioner indicated that the proffered position requires at least 
a bachelor's degree or it equivalent in computer science, mathematics or engineering. 
The director requested a more detailed description of the work done, including specific job duties and the 
percentage of time to be spent on each duty. Additionally, the director requested evidence to establish that the 
petitioner has had a past practice of hiring persons with a baccalaureate degree to perform the duties of the 
proffered position. The director requested evidence of the beneficiary's qualifications. The director also 
requested additional information about the petitioner including a company profile, federal income tax returns, 
quarterly wage reports, and an organizational chart. 
In response, the petitioner augmented the job description and indicated the percentage of time to be spent on 
each duty as follows: 
Research, analysis and development of systems 40% of time; 
Management and maintenance of systems 20% of time; 
Review and acceptance testing of third party software 15% of time; 
Website development 20% of time; 
Other technical work 5% of time. 
The petitioner indicated that this is a new position that was created because of the growth in the company's 
business. The petitioner stated that it entered into a contract with the world's largest manufacturer of 
commercial grade exercise equipment which involved remanufacturing their equipment on a volume scale for 
both domestic and international export purposes. The petitioner stated that it is required to make 
improvements that are manufacturing, computer systems and administration oriented. The petitioner 
explained that it needed a new computer system to assist with the inventory, tracking and sales of new 
equipment. The petitioner also stated that it needed a website developed for the sole purpose of fitness 
equipment distribution, based on its new contract. 
The petitioner submitted the beneficiary's transcripts and an academic and experiential evaluation of the 
credentials and work experience attained by the beneficiary. This evaluation was prepared by Morningside 
evaluation and written by Dr. Jonatan Jelen who indicated that he had authority to grant college level credit 
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for training, andlor courses taken at other U.S. or international universities. This evaluation indicated that the 
beneficiary has achieved the equivalence of a bachelor of science in computer information systems based on 
his completed university coursework and eight years of work experience. The petitioner submitted an 
affidavit from the beneficiary's prior employer and letters of reference from the beneficiary's professors at 
Santa Monica college. The petitioner submitted a copy of its organizational chart which included the 
proffered position. The petitioner submitted the requested tax documents. Additionally, the petitioner 
submitted internet job postings for the position of software engineer. 
The director determined that the record did not contain sufficient evidence demonstrating that a degree 
requirement is the industry standard for this position, or that the beneficiary's duties are so unique that they 
can only be performed by an individual with abilities beyond the industry standard. The director found that 
the evidence of record is not persuasive to show that the job offered could not be performed by an 
experienced individual whose educational training falls short of a baccalaureate degree. Thus, the director 
determined that the proffered position was not a specialty occupation. Additionally, the director found that 
the beneficiary was not qualified to perform the duties of a specialty occupation. Furthermore, the director 
noted that the beneficiary had been working as the petitioner's IT manager for the two years prior to the filing 
of the present petition, in violation of his H-3 nonirnmigrant trainee status. 
On appeal, counsel states that the proffered position is a specialty occupation. Counsel states that the 
responsibilities of the position are complex and the requirements for the position are analytical and 
mathematically based. Counsel contends that the position involves researching, analyzing, designing, and 
developing software systems for the sale, transportation and inventory of fitness equipment as well as 
implementing and testing the systems. Counsel contends that a bachelor's degree or equivalent is a common 
requirement for the industry and submits internet job positions in support of his contentions. Counsel refers 
to the Department of Labor's Dictionary of Occupational Titles (DOT) and notes that the position of Software 
Engineer has an SVP of 8 which she contends illustrates that the proffered position is a specialty occupation. 
Counsel also refers to the Department of Labor's Occupational Outlook Handbook (the Handbook) as 
indicating that "most employers prefer to hire person with at least a Bachelor's degree." Counsel also asserts 
that the beneficiary is qualified for the position. 
The first issue in the case is whether the proffered position is a specialty occupation. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO first considers the criteria at 8 C.F.R. $5 214.2(h)(4)(iii)(A)(l) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. Factors often 
considered by CIS when determining these criteria 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 
@.Minn. 1999)(quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determines, from a review of the duties of the position and any supporting evidence, whether the 
WAC 03 21 1 50164 
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position actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate degree in a specific specialty as the minimum for entry into the 
occupation as required by the Act. The AAO routinely consults the Handbook for its information about the 
duties and educational requirements of particular occupations. 
Counsel states that the duties of the proffered position are performed by software engineers. The Handbook 
discloses that the duties of the proffered position are performed by computer applications software engineers. 
Like the beneficiary, who will analyze user needs and develop software solutions with the aim of optimizing 
operational efficiency for global business, the Handbook reports: 
Software engineers working in applications or systems development analyze users' needs and 
design, construct, test, and maintain computer applications software or systems. Software 
engineers can be involved in the design and development of many types of software, 
including software for operating systems and network distribution, and compilers, which 
convert programs for execution on a computer. In programming, or coding, software 
engineers instruct a computer, line by line, how to perform a function. They also solve 
technical problems that arise. Software engineers must possess strong programming skills, 
but are more concerned with developing algorithms and analyzing and solving programming 
problems than with actually writing code. 
The petitioner fails to establish the first criterion because although the Handbook states that most employers 
prefer to hire persons who have at least a bachelor's degree and broad knowledge of and experience with a 
variety of computer systems and technologies, it is not a requirement for entry into the field. The Handbook 
specifically notes that for systems engineering jobs that place less emphasis on workers having a computer 
related degree, computer training programs leading to certification are offered by systems software vendors. 
Accordingly, the petitioner cannot establish that a baccalaureate or higher degree or its equivalent in a 
specific specialty is the normal minimum requirement for entry into the proffered position. 
To establish the second criterion - that a specific degree requirement is common to the industry in parallel 
positions among similar organizations - counsel relies on submitted internet job postings from a wide variety 
of companies which include engineering, communications, securities, hospital and manufacturing companies. 
This evidence fails to establish that a specific baccalaureate degree is common to the industry in parallel 
positions among similar organizations. A deficiency in the postings is that the companies are either obviously 
dissimilar to the petitioner or their nature is undisclosed. For example, Technisource is a staffing agency, 
Aerotek is an automotive supplier, and PanAmSat is a satellite operator. Consequently, the postings fail to 
establish that there is a specific baccalaureate degree that is a common industry-wide requirement. 
Nor is there evidence in the record to establish the third criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A): that the 
petitioner normally requires a degree or its equivalent for the position. 
The fourth criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A) requires that the petitioner establish 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. Once again, the Handbook indicates that 
some employers prefer to hire persons who have at least a bachelor's degree, but that it is not a requirement 
for an entry-level position in the field. The petitioner has not related the listed duties to its business of 
refurbishing and re-selling exercise equipment. The petitioner indicated that its strategic "improvements are 
WAC 03 21 1 50164 
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multi-faceted and are manufacturing, computer systems and administration oriented." The petitioner explains 
that it had a new partnership that it "need[s] a new computer system to assist with inventory, tracking and 
sales of this new equipment." The petitioner also states that the beneficiary would develop a website for 
equipment distribution. The petitioner attests that it would acquire new software and need someone to 
manage third party software development. The petitioner has not provided evidence of the size and 
complexity of its business such as the various software systems that need to be designed, upon which the 
petitioner bases its need for a highly trained software engineer, with at least a bachelor's degree in a computer 
related field. The petitioner asserts that the beneficiary will consult with hardware engineers and other 
engineering staff to evaluate interface between hardware and software and the operational and performance 
requirements of the overall systems. The organizational chart does not indicate an engineering staff or 
hardware engineers. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a 
position's title. The specific duties of the proffered position, combined with the nature of the petitioning 
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the 
alien, and determine whether the position qualifies as a specialty occupation. CJ: Defensor v. Meissner, 201 
F. 3d 384 (5th Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed 
standards, but whether the position actually requires the theoretical and practical application of a body of 
highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty 
as the minimum for entry into the occupation, as required by the Act. The petitioner has not shown, in 
relation to its business, that the duties of the proffered position are so complex or unique that they can be 
performed only by an individual with a degree in a specific specialty. Although some computer software 
engineer positions may be considered specialty occupations, the petitioner's description of the duties 
associated with this position did not demonstrate that the preponderance of the beneficiary's duties would be 
so complex that they would require a baccalaureate degree in a specialty. 
Again, the Harzdbook reveals that the duties of the proffered position would be performed by a computer 
software engineer, an occupation that does not require a specific baccalaureate degree. Thus, the petitioner 
fails to establish the fourth criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
The second issue in this case is whether the beneficiary is qualified to perform the duties of a specialty 
occupation. 
Section 214(i)(2) of the Act, 8 U.S.C. 3 1184(i)(2), states that an alien applying for classification as an H-1B 
nonimmigrant worker must possess full state licensure to practice in the occupation, if such licensure is 
required to practice in the occupation, and completion of the degree in the specialty that the occupation 
requires. If the alien does not possess the required degree, the petitioner must demonstrate.that the alien has 
experience in the specialty equivalent to the completion of such degree, and recognition of expertise in the 
specialty through progressively responsible positions relating to the specialty. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, an alien 
must meet one of the following criteria: 
(I) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
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(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or 
higher degree required by the specialty occupation from an accredited college or 
university; 
(3) Hold an unrestricted state license, registration or certification which authorizes him 
or her to fully practice the specialty occupation and be immediately engaged in that 
specialty in the state of intended employment; or 
(4) Have education, specialized training, andfor progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree in 
the specialty occupation, and have recognition of expertise in the specialty through 
progressively responsible positions directly related to the specialty. 
The record of proceeding before the AAO contains, in part: (1) Form 1-129 and supporting documentation; 
(2) the director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a software engineer. The petitioner indicated in its 
letter of support of the initial petition that the duties of the position require at least a bachelor's degree or its 
equivalent in computer science, mathematics or engineering. 
The petitioner submitted a copy of the beneficiary's A.A. degree from Santa Monica college. The petitioner 
submitted an education and experiential evaluation prepared by a credentialing firm. The evaluation stated 
"it is the judgment of [the credentialing firm] that [the beneficiary] has the equivalent of a Bachelor of 
Science in Computer Information Systems . . . ." 
The director issued a request for evidence and noted that the petitioner was attempting to establish that the 
beneficiary qualifies to perform services in a specialty occupation based on a combination of education, 
specialized training, and/or progressively responsible experience that is equivalent to a bachelor's degree and 
that the beneficiary has recognition of expertise in the specialty through progressively responsible positions 
directly related to the specialty. The director indicated that the evaluation submitted by the petitioner is 
insufficient because the author did not provide evidence that he has the authority to grant college-level credit 
for training and/or experience in the specialty of computer software engineering. The director requested 
additional information to establish the authority to evaluate work experience such as a letter from the dean of 
the university establishing that the particular evaluating official is authorized to award college level credit on 
behalf of his university. The director requested evidence that the university is accredited, that the university 
has a program for granting such credit, and written verification or other documents or records to clearly 
substantiate that the evaluator is actually employed by the university. 
In response, counsel submitted a second evaluation by a professor that counsel asserted is authorized to grant 
college-level credit for training and/or experience in the field of computer information systems. Counsel 
asserted that this evaluation does not include his work experience gained with his H-3 visa. Counsel 
submitted letters from the beneficiary's previous employers. 
The director found that the evidence submitted by the petitioner did not establish that the evaluation of the 
beneficiary's training and/or experience met the regulations. The director found that the petitioner did not 
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submit evidence that Florida International University has a program for granting college level credit for 
training and experience. The director noted that the information about the author does not establish that he 
has authority to grant college level credit for various graduate and undergraduate degree programs in the 
Division of Computer Science of Florida International University. The directed noted that a credentials 
evaluation service may not evaluate an alien's work experience or training; it can only evaluate educational 
credentials See 8 C.F.R. 214.2(h)(4)(iii)(D)(3). 
On appeal, counsel contends that the professor from Florida International University is able to grant college- 
level credit and submits another letter on appeal in support of her contentions. The second letter is dated June 
2, 2002 from the Office of General Counsel and indicates that Professor Batra has advisory authority to grant 
college-level credit to students based on their work experience. This letter further explains that "this advisory 
authority is limited solely to certain courses within the College of Business Administration." 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(D), equating the beneficiary's credentials to a United States 
baccalaureate or higher degree shall be determined by one or more of the following: 
(1) An evaluation from an official who has authority to grant college-level credit for training 
and/or experience in the specialty at an accredited college or university which has a program 
for granting such credit based on an individual's training and/or work experience; 
(2) The results of recognized college-level equivalency examinations or special credit programs, 
such as the College Level Examination Program (CLEP), or Program on Noncollegiate 
Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service which specializes in 
evaluating foreign educational credentials; 
(4) Evidence of certification or registration from a nationally-recognized professional association 
or society for the specialty that is known to grant certification or registration to persons in the 
occupational specialty who have achieved a certain level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the specialty 
occupation has been acquired through a combination of education, specialized training, 
and/or work experience in areas related to the specialty and that the alien has achieved 
recognition of expertise in the specialty occupation as a result of such training and 
experience. 
The record does not indicate that Florida International University has a program for granting credit in the 
School of Computer Science based on training and experience. Thus, the experiential portion of the 
evaluation may not be considered under 8 C.F.R. 5 214.2(h)(4)(iii)(D)(I). An evaluator may evaluate 
educational credentials only. 8 C.F.R. 5 2 14.2(h)(4)(iii)(D)(3). 
The petitioner has not met the terms of 8 C.F.R. 5 214.2(h)(4)(iii)(D)(l) and has not established that the 
beneficiary has the equivalent of a bachelor's degree in the specific specialty required by the specialty 
occupation. The petitioner has failed to establish that the beneficiary is qualified to perform the duties of the 
proffered position. Accordingly, the AAO shall not disturb the director's denial of the petition. 
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As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 
1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.