dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
InRe: 8160781 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 30, 2020 
The Petitioner, a clinical research organization, seeks to temporarily employ the Beneficiary as a 
"software QA engineer 2" under the H-lB 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-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 did 
not establish that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits a brief and asserts that the Director erred in denying the petition. 
Upon de nova review, we will dismiss the appeal. 1 
I. ANALYSIS 
Upon review of the entire record, for the reasons set out below, we have determined that the Petitioner 
has not demonstrated that the proffered position qualifies as a specialty occupation. 
The Director concluded that the Petitioner did not establish that the proffered position qualifies as a 
specialty occupation . In her decision, the Director thoroughly discussed the Petitioner's failure to 
meet any of the four regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). Upon consideration 
of the entire record, including the evidence submitted and arguments made on appeal, we adopt and 
affirm the Director's decision with the comments below. See Matter of P. Singh, Attorney, 
26 I&N Dec. 623 (BIA 2015) (citing Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994)); see also 
Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996) ("[I]f a reviewing tribunal decides that the facts and 
evaluative judgments prescinding from them have been adequately confronted and correctly resolved 
by a trial judge or hearing officer, then the tribunal is free simply to adopt those findings" provided 
the tribunal's order reflects individualized attention to the case). 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Regarding the Director's discussion of the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), we would 
add that there are some occupations for which detailed profiles have not been developed in U.S. 
Department of Labor's (DOL) Occupational Outlook Handbook (Handbook), such as for the 
occupational category "Computer Occupations, All Other," designated by the Petitioner. Therefore, it 
is the Petitioner's responsibility to provide probative evidence ( e.g., documentation from other objective, 
authoritative sources) that supports a conclusion that the particular position qualifies as a specialty 
occupation. For our determination, we will consider and weigh all of the evidence provided. 
The Petitioner cites to DOL's Occupational Information Network (O*NET) summary report for 
"Software Quality Assurance Engineers and Testers," listed as SOC code 15-1199.01 for our 
consideration under this criterion. 
Though relevant, the information the Petitioner submits from O*NET does not establish the Petitioner's 
eligibility under the first criterion, as it does not establish that a bachelor's degree in a specific specialty, 
or the equivalent, is normally required. 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, the Specific Vocational Preparation (SVP) rating, which is defined as 
"the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, 
and develop the facility needed for average performance in a specific job-worker situation," cited within 
O*NET's Job Zone designates this position as having an SVP 7 < 8. This indicates that the occupation 
requires "over 2 years up to and including 4 years" of training. 2 While the SVP rating provides the total 
number of years of vocational preparation required for a particular position, it is important to note that 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. 3 The O*NET 
summary report for this occupation also does not specify that a degree is required, but instead states, 
"most of these occupations require a four-year bachelor's degree, but some do not." Similar to the SVP 
rating, the Job Zone Four designation does not indicate that any academic credentials for Job Zone Four 
occupations must be directly related to the duties performed. 
Further, we note that the O*NET summary report provides the educational requirements of 
"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. Thus, the Petitioner's 
reliance on the 70% of "respondents" claiming to hold a bachelor's degree as a demonstration that a 
bachelor's degree is the normal requirement for the occupation is misguided. We note that the same 
survey indicates that 15% of "respondents" reported possessing an "associate's degree," 7% reported 
possessing a "post-secondary certificate," and further, 8% are unaccounted for. Regardless, a requirement 
for a bachelor's degree alone is not sufficient. Instead, we construe 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 
2 This training may be acquired in a school, work, military, institutional, or vocational environment. Specific vocational 
training includes: vocational education, apprenticeship training, in-plant training, on-the-job training, and essential 
experience in other jobs. 
3 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/ 
online/svp. 
2 
position.4 See Royal Siam Corp., 484 F.3d at 147 (describing "a degree requirement in a specific 
specialty" as "one that relates directly to the duties and responsibilities of a particular position"). O*NET, 
therefore, does not support the assertion that at least a bachelor's degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for these positions. 
Nor is the case law the Petitioner cites sufficient to satisfy the first criterion. The Petitioner asserts that 
the Director has mischaracterized the Handbook to conclude that a bachelor's degree in a specific 
specialty is not normally the minimum requirement for the proffered position. The Petitioner cites to 
Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252 (S.D.N.Y. 2017) as relevant here. 
We first note that we are not bound to follow the published decision of a United States district 
court. See Matter of K-S-, 20 I&N Dec. 715, 719-20 (BIA 1993). Nevertheless, even ifwe considered 
the logic underlying the matter, we conclude that the Petitioner has not demonstrated that the proffered 
position qualifies as a specialty occupation. 
As recognized by another court, while the Handbook may establish the first regulatory criterion for 
certain professions, many occupations are not described in such a categorical manner. 5 See Innova 
Sols., Inc. v. Baran, 2019 WL 3753334, at *8 (N.D. Cal. Aug. 8, 2019) (declining to follow Next 
Generation Tech., Inc.). Id. For example, "[the Handbook's] description for the Computer 
Programmer occupation does not describe the normal minimum educational requirements of the 
occupation in a categorical fashion." Id.; see also Xiaotong Liu v. Baran, 2018 WL 7348851 (C.D. 
Cal. Dec. 21, 2018). "Accordingly, [the Petitioner] could not simply rely on [the Handbook] profile, 
and instead had the burden to show that the particular position offered to [the Beneficiary] was among 
the Computer Programmer positions for which a bachelor's degree was normally required." See 
Innova Sols., Inc. 2019 WL 3753334, at *8. 
Moreover, the court in Next Generation Tech., Inc. relied in part on a USCIS policy memorandum 
regarding "Computer Programmers" indicating generally preferential treatment toward computer 
programmers, and "especially" toward companies in that particular petitioner's industry. However, 
USCIS rescinded the policy memorandum cited by the court in Next Generation Tech. Inc. 6 
Here, the Handbook has not developed a detailed profile for this occupation and O*NET does not 
support the Petitioner's assertions. Further, the Petitioner has not sufficiently established that a 
bachelor's degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. 
Regarding the Director's discussion of the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), we would add 
the following analysis regarding the expert opinion letter authored bvl I Professor 
in the Department of Computer Systems Technology at the I J College of Technology 
I I In his letter,I I (1) describes the credentials that he asserts qualify him to opine 
4 Nor is it apparent whether these credentials were prerequisites to these individuals' hiring. 
5 Such professions would include surgeons or attorneys, which indisputably require at least a bachelor's degree for entry 
into the occupation. 
6 See USCIS Policy Memorandum PM-602-0142, Rescission of the December 22, 2000 "Guidance memo on HlB 
computer related positions" (Mar. 31, 2017), https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-
0142-H-1 BComputerRelatedPositionsRecission.pdf. 
3 
upon the nature of the proffered position; (2) describes the duties of the Beneficiary's proffered position; 
and (3) states that these duties require at least at least a bachelor's degree in com}uter science, computer 
engineering, or a related specialized field. We carefully evaluated I 's assertions in support 
of the instant petition but find them insufficient. 
FirstJ Is expertise, regarding current industry degree requirements for software QA engineer 
positions is not established in the record. His supporting documentation indicates that his experience over 
the past 21 years has been in an academic setting as an "associate professor" within a university. The 
documentation indicates that I I performed some information technology- related work at 
other companies prior to his academic role. Further, the documentation does not list any recent relevant 
consulting work in the Petitioner's area of business and indicates that his most recent publication was in 
2005. 
Further, without further clarification, it is unclear howl ~ s education, training, skills, or 
experience would translate to expertise regarding the current recruiting and hiring practices of an 
enterprise engaged in" (1) manufacturing uncompounded medicinal chemicals and their derivatives (i.e., 
generally for use by pharmaceutical preparation manufacturers) and/or (2) grading, grinding, and milling 
uncompounded botanicals" (as designated by the Petitioner in the petition) or similar organizations for 
project leaders/computer systems analysts (or parallel positions). 7 
Second, I I briefly described the Petitioner's business similarly to the Petitioner's initial letter 
of support in these proceedings. While I I provides a brief: general description of the 
Petitioner's business activities, he does not demonstrate in-depth knowledge of its operations or explain 
how the duties of the position would actually be performed in the context of its business enterprise. 
Furthermore, while I lreferenced the duties of the proffered position and stated that "it is a 
standard practice in a variety of industries, including companies seeking substantial IT project 
management services, such as [the Petitioner], to hire fully trained project managers, such as the software 
QA engineer 2 herein, and to ensure that the candidates for said positions possess the requisite specialty­
level training," he did not reference, cite, or discuss any studies, surveys, industry publications, 
authoritative publications, or other sources of empirical information which he may have consulted to 
complete his evaluation. While he also stated that "it is a common industry practice for companies 
engaged in substantial business technology functions, such as [the Petitioner], to hire for such positions 
from bachelor's-level programs in computer science, computer engineering, or a related specialized 
field," he did not submit any evidence to substantiate his claims. As such, it remains unclear how D I ~eached his conclusions as to the industry educational requirements for the proffered position. 
Additionally,! I briefly described the duties of the proffered position and concluded that the 
proffered position is a senior-level position that requires a bachelor's degree, or equivalent, in computer 
science, computer engineering, or a related specialized field. However,! I did not reference 
the specifics of the particular tasks upon which the Beneficiary would work in meaningful detail. For 
7 The Petitioner designated its business operations under the North American Industry Classification System code 325411, 
which is for "Medicinal and Botanical Manufacturing" and is described as an industry that "comprises establishments 
primarily engaged in (1) manufacturing uncompounded medicinal chemicals and their derivatives (i.e., generally for use 
by pharmaceutical preparation manufacturers) and/or (2) grading, grinding, and milling uncompounded botanicals." For 
additional information, see https://www.census.gov/ cgi-bin/sssd/naics/naicsrch. 
4 
example, while we appreciate his brief discussions of the generic duties for the proffered position 
provided by the Petitioner, that description still falls short of providing a meaningful discussion of what 
the Beneficiary would actually do in the proffered position and how those duties actually require the 
theoretical and practical application of a body of highly srcialized knowledge. As such, we conclude 
that the Petitioner has not demonstrated thatl adequately assessed the nature of the position 
and appropriately determined parallel positions based upon the job duties and level of responsibilities. 
We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of 
Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in accord 
with other information or is in any way questionable, we are not required to accept or may give less weight 
to that evidence. Id. Consistent with Caron Int 'l, we conclude that this evaluation does not satisfy 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
On appeal, the Petitioner provides an outline of the courses completed by the Beneficiary in acquiring his 
degree and contends that the Beneficiary's coursework "directly correlates to the complex duties required 
at [the Petitioner]." However, while the Petitioner claims that the Beneficiary is well qualified for the 
position, and references his qualifications, including detailed information about the courses related to the 
knowledge required in order to perform the duties of the proffered position, the test to establish a position 
as a specialty occupation is not the education 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. Simply 
providing a long list of the Beneficiary's qualifications, coursework, or courses available in a degree 
program, does not sufficiently develop relative complexity or uniqueness of the particular position. 
II. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden here, and the petition will remain denied. 
ORDER: The appeal is dismissed. 
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