dismissed H-1B Case: Software Services

(b)(6)
DATE: JUN 0 5 2015 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service: 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
NO REPRESENTATIVE OF RECORD 
INSTRUCTIONS: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www .uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Ron Rosen erg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
I. INTRODUCTION 
On the Form I-1 29 visa petition, the petitioner describes itself as an eight-employee software 
services company established in In order to employ the beneficiary in what it designates as a 
programmer analyst position at a salary of $68,000 per year, 1 the petitioner seeks to classify him as 
a nonimmigrant worker in a specialty occupation pursuant to section 10 1 ( a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S .C. § 11 01 (a)(l5 )(H)(i)( b) . 
The director denied the petition, concluding that the evidence of record did not establish that the 
proffered position qualifies for classification as a specialty occupation. 
The record of proceeding before us contains the following: (1) the Form I-129 and supporting 
documentation; (2) the director's request for additional evidence (RFE); (3) the petitioner's response 
to the RFE; (4) the director's letter denying the petition; and (5) the Form I-2908, Notice of Appeal 
or Motion, and supporting documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the director's basis for denying this petition. Accordingly, the appeal will be dismissed, and the petition 
will be denied. 
II. STANDARD OF REVIEW 
In the exercise of our administrative review in this matter, as in all matters that come within our 
purview, we follow the preponderance of the evidence standard as specified in the controlling 
precedent decision, Afatter of Chawathe, 25 I&N Dec. 36 9 (AAO 201 0), unless the law specifically 
provides that a different standard applies. In pertinent part, that decision states the following: 
Ex cept where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of evidence 
that he or she is eligible for the benefit sought. 
* * * 
1 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was certified 
for use with a job prospect within the "Computer Systems Analysts" occupational classification, 
SOC (O*NET/OES) Code 15-1121, and a Level I (entry-level) prevailing wage rate, the lowest of the four 
assignable wage-levels. 
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The "preponderance of the evidence" of "truth" is made based on the factual 
circumstances of each individual case. 
* * * 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof. See INS v. Cardoza-Foncesca, 480 U.S. 421, 431 (1 987) 
(discussing "more likely than not" as a greater than 50% chance of an occurrence 
taking place). If the director can articulate a material doubt, it is appropriate for the 
director to either request additional evidence or, if that doubt leads the director to 
believe that the claim is probably not true, deny the application or petition. 
Id. at 375-76. 
Again, we conduct our review of service center decisions on a de novo basis. See Soltane v. DOl, 
381 F.3d at 145. In doing so, we apply the preponderance of the evidence standard as outlined in 
Matter of Chawathe. Upon our review of the present matter pursuant to that standard, however, we 
find that the evidence in the record of proceeding does not support counsel's contentions that the 
evidence of record requires that the petition at issue be approved. Applying the preponderance of 
the evidence standard as stated in Matter of Chawathe, we find that the director's determination that 
the evidence of record does not establish that the proffered position is a specialty occupation was 
correct. Upon our review of the entire record of proceeding, and with close attention and due regard 
to all of the evidence, separately and in the aggregate, submitted in support of this petition, we find 
that the evidence of record does not establish that the claim of a proffer of a specialty occupation 
position is "more likely than not" or "probably" true. In other words, as the evidentiary analysis of 
this decision will reflect, the petitioner has not submitted relevant, probative, and credible evidence 
that leads us to believe that the petitioner's claim that the proffered position qualifies as a specialty 
occupation is "more likely than not" or "probably" true. 
III. SPECIALTY OCCUPATION 
A. Law 
To meet the petitioner's burden of proof in establishing the proffered pos1t10n as a specialty 
occupation, the evidence of record must establish that the employment the petitioner is offering to 
the beneficiary meets the following statutory and regulatory requirements. 
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Section 21 4(i)(l) of the Act, 8 U.S.C. § 11 84(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. § 21 4.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.P.R. § 21 4.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.P.R. § 21 4.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1 ) of the Act and 8 C.P.R. § 21 4.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1 988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1 989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.R. 
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§ 214. 2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.P.R. 
§ 21 4.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Def ensor v. Meissner, 201 
F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.P.R. § 21 4.2(h)(4)(iii)(A) must therefore be 
read as providing supplemental criteria that must be met in accordance with, and not as alternatives 
to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 21 4(i)(l) of the Act and the regulation at 8 C.P.R. 
§ 21 4.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCrS) consistently interprets the 
term "degree" in the criteria at 8 C.P.R. § 21 4.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Che rtoff, 484 F.3d 139, 147 (1 st Cir. 2007) (describing "a degree requirement 
in a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCrS regularly approves H-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCrS 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. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. 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. 
B. Analysis 
Based upon a complete review of the record of proceeding, we agree with the director and find that 
the evidence of the record fails to establish that the position as described constitutes a specialty 
occupation. 
In its support letter dated March 28, 2014, the petitioner stated that the beneficiary's duties would 
include the following: 
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• Design and develop .NET-based applications that meet data integrity, 
performance, business, and Security objectives for complex application features 
using tools like Visual Studio and interaction with SQL Server databases 
• Provide high-level technical options that may span multiple systems 
• Identify high-level systems impacts 
• Translate high-level requirements into detailed designs 
• Develop and maintain thorough technical documentation 
• Provide technical estimates 
• Perform thorough unit testing and some functional testing as needed 
• Support our architecture efforts by following and adhering to the standards set 
forth by the architecture group and devising consistent solutions to maintain the 
integrity of application 
• Provide innovative ideas and solutions in an ever-changing environment 
• Possess solid communication skills and a strong customer focus 
• Maintain knowledge of emerging technologies 
The director found the initial evidence insufficient to establish eligibility for the benefit sought, and 
issued an RFE. The petitioner was asked to submit probative evidence to establish that the 
proffered position is a specialty occupation. The director outlined the specific evidence to be 
submitted. In response to the director's RFE, the petitioner submitted, among others, a letter from 
its director dated September 8, 2014, a letter from , CEO of the end client, 
and a Statement of Work (SOW). According to Mr. the beneficiary would perform the 
following duties: 
• Design and develop .NET -based applications that meet data integrity, 
performance, business, and Security objectives for complex application features 
using tools like Visual Studio and interaction with SQL Server databases 
• Provide high-level technical options that may span multiple systems 
• Identify high-level systems impact 
• Translate high-level requirements into detailed designs 
• Develop and maintain thorough technical documentation 
• Provide technical estimates 
• Perform thorough unit testing and some functional testing as needed 
• Support our architecture efforts by following and adhering to the standards set 
forth by the architecture group and devising consistent solutions to maintain the 
integrity of application 
• Provide innovative ideas and solutions in an ever-changing environment 
The specific duties listed in SOW include the following: 
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• Full Lifecycle support including analysis, design, development, unit testing, 
documentation and maintenance of local by using C#, ASP.net, SQL, XML, 
JavaScript 
• Design and develop .NET-based applications that meet data integrity, 
performance, business, and Security objectives for complex application features 
using tools like Visual Studio and interaction with SQL Server databases 
• Provide high-level technical options that may span multiple systems 
• Identify high-level systems impact 
• Acquiring and maintaining the data sets 
• Data modelling, analytics building 
• UI interface development and testing 
• Translate high-level requirements into detailed designs 
• Develop and maintain thorough technical documentation 
• Provide technical estimates 
• Perform thorough unit testing and some functional testing as needed 
• Support our architecture efforts by following and adhering to the standards set 
forth by the architecture group and devising consistent solutions to maintain the 
integrity of application 
• Provide innovative ideas and solutions in an ever-changing environment 
According to SOW, the services provided for the end client include the following: 
Project Name I Team Services 
-
Design, Development, Scalability, and 
Maintenance 
Design, Development, Scalability, and 
Maintenance 
Design, Development, Scalability, and 
Maintenance of the websites 
Business Intelligence Data OLTP and OLAP Data warehouse design, 
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Analysis development and maintenance 
Analysis of the user group studies data 
Develop the role based and Growth Rate reports 
BI Dashboards creation and maintenance 
Social Integration Integrating the profiles with social 
integration and the predictive data analysis 
Maintain and [sic] the user Maintaining the use [sic] info, customer info into 
base, future design, Data the structured data format and integrating the big 
Analytics data to provide the analytical capabilities to make 
business decision. 
While the petitioner states that the beneficiary would be assigned to a position within the computer 
systems analysts occupational category, the SOW indicates that the services that would be provided 
by the beneficiary are primarily in designing, developing, and maintaining websites of the end 
client. The record of proceeding lacks sufficient, and consistent, information regarding the nature 
and scope of the beneficiary's employment and substantive evidence regarding the specialty 
occupation work that he would perform. Without a consistent and meaningful job description, the 
record lacks evidence sufficiently concrete and informative to demonstrate that the proffered 
position requires 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. The tasks as described does not communicate (1 ) the 
substantive nature and scope of the beneficiary's employment within the petitioner's business 
operations; (2) the actual work that the beneficiary would perform for the end client; (3) the 
complexity, uniqueness and/or specialization of the tasks; and/or ( 4) the correlation between that 
work and a need for a particular educational level of highly specialized knowledge in a specific 
specialty. 
We further note that although the petitioner submitted SOW, the record does not contain a master 
agreement or a contract that is associated with the SOW. Therefore, we are unable to determine the 
terms and conditions of the work that the beneficiary would provide for the end client. Moreover, 
we note that the SOW authorizes six consultants but does not identify the beneficiary by name. 
Furthermore, it does not provide such details as the beneficiary's specific role in the projects. 
Moreover, the LCA submitted by the petitioner in support of the instant position was certified for 
use with a job prospect within the "Computer Systems Analys ts" occupational category, SOC 
(O*NET/OES) Code 15- 11 21 and a Level I (entry-level) prevailing wage rate, the lowest of the four 
assignable wage-levels. The Prevailing Wage Determination Policy Guidance issued by the U.S. 
Department of Labor (DOL) states the following with regard to Level I wage rates: 
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Level I (entry) wage rates are assigned to job offers for beginning level employees 
who have only a basic understanding of the occupation. These employees perform 
routine tasks that require limited, if any, exercise of judgment. The tasks provide 
experience and familiarization with the employer's methods, practices, and programs. 
The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored 
and reviewed for accuracy. Statements that the job offer is for a research fellow, a 
worker in training, or an internship are indicators that a Level I wage should be 
considered.2 
The proposed duties' level of complexity, uniqueness, and specialization, as well as the level of 
independent judgment and occupational understanding required to perform them, are questionable, as 
the petitioner submitted an LCA certified for a Level I, entry-level position. The LCA's wage-level 
indicates that the proffered position is actually a low-level, entry position relative to others within the 
same occupation. In accordance with the relevant DOL explanatory information on wage levels, this 
wage rate indicates that the beneficiary is only required to possess a basic understanding of the 
occupation; that he will be expected to perform routine tasks requiring limited, if any, exercise of 
judgment; that he will be closely supervised and his work closely monitored and reviewed for 
accuracy; and that he will receive specific instructions on required tasks and expected results. 
We find that the petitioner's assertion with regard to the educational requirement for the position is 
conclusory and unpersuasive, as it is not supported by the job description or probative evidence. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
·the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter of Treasure Craft of Calif ornia, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Moreover, as reflected in the descriptions of the position as quoted above, the petitioner describes 
the proposed duties in terms of generalized and generic functions that do not convey sufficient 
substantive information to establish the relative complexity, uniqueness and/or specialization of the 
proffered position or its_ duties. The abstract level of information provided about the proffered 
position and its constituent duties is exemplified by the petitioner's assertion that the beneficiary 
will "[p]rovide high-level technical options, " "[i]dentify high-level system impacts," "[p]rovide 
technical estimates, " "provide innovative ideas and solutions." However, notably, the statements 
provide no insight into the beneficiary's actual duties, nor do they include any information regarding 
the specific tasks that the beneficiary will perform. Similarly, the duties listed in SOW include 
"[ a]cquiring and maintaining the data sets" without sufficiently describing what data sets would be 
acquired and the specific tasks that the beneficiary will perform in maintaining such data. 
2 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/ 
pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf (last visited May 20, 2015). 
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Similarly, "[ d]ata modelling, analytics building" does not provide sufficient detail to demonstrate 
complexity and specialization in the tasks the beneficiary would complete. Again, such 
generalization is noted in "UI [(user interface)]3 interface development and testing/' which lacks 
specifics regarding the type of tasks the beneficiary would perform in developing and testing user 
interface. Accordingly, without further information, the petitioner did not credibly convey how it 
would be able to sustain an employee performing these duties at the level required for the H-lB 
petition to be granted for the entire period requested. That is, the overall responsibilities for the 
proffered position contain generalized functions without providing sufficient information regarding 
the particular work, and associated educational requirements, into which the duties would manifest 
themselves in their day-to-day performance within the petitioner's or the end client's business 
operations. 
This type of generalized description may be appropriate when defining the range of duties that may 
be performed within an occupational category, but it fails to adequately convey the substantive 
work that the beneficiary will perform within the petitioner's business operations and, thus, cannot 
be relied upon by a petitioner when discussing the duties attached to specific employment. In 
establishing a position as a specialty occupation, a petitioner must describe the specific duties and 
responsibilities to be performed by a beneficiary in the context of the petitioner's business 
operations, demonstrate that a legitimate need for an employee exists, and substantiate that it has 
H-lB caliber work for the beneficiary for the period of employment requested in the petition. 
Without a meaningful job description, the record lacks evidence sufficiently concrete and 
informative 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 (1) the actual work 
that the beneficiary would perform, (2) the complexity, uniqueness and/or specialization of the 
tasks, and/or (3) the correlation between that work and a need for a particular level education of 
highly specialized knowledge in a specific specialty. 
Nevertheless, assuming, arguendo, that the proffered duties as described by the petitioner, and listed 
in the SOW, would in fact be the duties to be performed by the beneficiary, we will nevertheless 
analyze them and the evidence of record to determine whether the proffered position as described 
would qualify as a specialty occupation. To that end and to make our determination as to whether 
the employment described above qualifies as a specialty occupation, we will first address the 
criteria at 8 C.F.R. § 21 4.2(h)( 4)(iii)(A)(1), which is satisfied by establishing that a baccalaureate or 
higher degree, or its equivalent, in a specific specialty is normally the minimum requirement for 
entry into the particular position that is the subject of the petition. 
We recognize the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook (the 
Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
3 See http://www.webopedia.com;TERM/U/user_interface.html (last visited May 20, 2015). 
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of occupations it addresses.4 As noted above, the LCA that the petitioner submitted in support of 
this petition was certified for a job offer falling within the "Computer Systems Analysts" 
occupational category. 
The Handbook states the following with regard to the educational requirements necessary for 
entrance into this field: 
A bachelor's degree in a computer or information science field is common, although 
not always a requirement. Some firms hire analysts with business or liberal arts 
degrees who have skills in information technology or computer programming. 
Education 
Most computer systems analysts have a bachelor's degree in a computer-related field. 
Because these analysts also are heavily involved in the business side of a company, it 
may be helpful to take business courses or major in management information 
systems. 
Some employers prefer applicants who have a master's degree in business 
administration (MBA) with a concentration in information systems. For more 
technically complex jobs, a master's degree in computer science may be more 
appropriate. 
Although many computer systems analysts have technical degrees, such a degree is 
not always a requirement. Many analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. 
Many systems analysts continue to take classes throughout their careers so that they 
can learn about new and innovative technologies and keep their skills competitive. 
Technological advances come so rapidly in the computer field that continual study is 
necessary to remain competitive. 
Systems analysts must understand the business field they are working in. For 
example, a hospital may want an analyst with a background or coursework in health 
management, and an analyst working for a bank may need to understand finance. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-1 5 ed., 
"Computer Systems Analysts," http://www .bls.gov/ooh/computer-and-information-technology/ 
computer-systems-analysts.htm#tab-4 (last visited May 20, 2015). 
4 The Handbook, which is available in printed form, may also be accessed online at 
http://www.stats.bls.gov/oco/. Our references to the Handbook are from the 2014-15 edition available 
online. 
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The Handbook does not state a normal minimum requirement of a U.S. bachelor's or higher degree 
in a specific specialty or its equivalent for entry into this occupational category; rather the 
Handbook indicates at most that a bachelor's or higher degree in a computer or information science 
field may be a common preference, but not a standard occupational, entry requirement. In fact, this 
chapter indicates that many computer systems analysts, including programmer analysts, may have 
liberal arts degrees combined with programming or technical experience. See id. 
Moreover, the end client stated that its minimum educational requirement for the proffered position 
is a bachelor's degree in "Computer Science, Engineering, Business or equivalent field. " In general, 
provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum of a 
bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in the 
specific specialty (or its equivalent)" requirement of section 21 4(i)(l )(B) of the Act. In such a case, 
the required "body of highly specialized knowledge" would essentially be the same. Since there 
must be a close correlation between the required "body of highly specialized knowledge" and the 
position, however, a minimum entry requirement of a degree in two disparate fields, such as 
business and engineering, would not meet the statutory requirement that the degree be "in the 
specific specialty (or its equivalent)," unless the petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required "body of 
highly specialized knowledge" is essentially an amalgamation of these different specialties. Section 
21 4(i)(l)(B) of the Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," 
we do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
occupations if they permit, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 21 4(i)(l)(B) of the Act; 8 e.F.R. § 21 4.2( h)(4)(i i). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
Therefore, absent evidence of a direct relationship between the claimed degrees required and the 
duties and responsibilities of the position, it cannot be found that the proffered position requires 
anything more than a general bachelor's degree. As explained above, users interprets the degree 
requirement at 8 e.F.R. § 21 4. 2(h)(4)(iii)(A) to require a degree in a specific specialty that is 
directly related to the proposed position. users has consistently stated that, although a general­
purpose bachelor's degree, such as a degree in business, may be a legitimate prerequisite for a 
particular position, requiring such a degree, without more, will not justify a finding that a particular 
position qualifies for classification as a specialty occupation. See Royal Siam Corp. v. Cherto.ff, 484 
F.3d 13 9, 147 (1s t eir. 2007). 
When, as here, the Handbook does not support the proposition that the proffered position satisfies 
this first criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A), it is incumbent upon the petitioner to provide 
persuasive evidence that the proffered position otherwise satisfies the criterion, notwithstanding the 
absence of the Handbook's support on the issue. In such case, it is the petitioner's responsibility to 
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provide probative evidence (e. g., documentation from other authoritative sources) that supports a 
favorable finding with regard to this criterion. The regulation at 8 C.F. R. § 214 .2(h)(4)( iv) pro vides 
that "[a]n H-1B petition involving a specialty occupation shall be accompanied by [ d]ocumentation 
... or any other required evidence sufficient to establish ... that the services the beneficiary is to 
perform are in a specialty occupation." Again, going on record without supporting docu mentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. JVfatter 
of So.ffici at 16 5. 
As we discussed earlier, the evidence in the record of proceeding does not established that the 
proffered position falls within an occupational category for which the Handbook, or other authoritative 
source, indicates that a requirement for at least a bachelor's degree in a specific specialty, or its 
equivalent, is normally required for entry into the occupation. Furthermore, the duties and 
requirements of the proffered position as described in the record of proceeding do not indicate that the 
particular position that is the subject of this petition is one for which a baccalaureate or higher degree in 
a specific specialty, or its equivalent, is normally the minimum requirement for entry. 
As the evidence in the record of proceeding does not establish that at least a baccalaureate degree in 
a specific specialty, or its equivalent, is normally the minimum requirement for entry into the 
particular position that is the subject of this petition, the petitioner has not satisfied the criterion 
described at 8 C.P . R. § 214 .2(h)(4)(iii)(A) (J) . 
Next, we will review the record of proceeding regarding the first of the two alternative prongs of 
8 C.F .R. § 21 4. 2(h)( 4 )(iii)(A)(2) . This prong alternatively calls for a petitioner to establish that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for 
positions that are identifiable as being (1 ) in the petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the petitioner. 
Here and as already discussed, the evidence of record does not establish that the petitioner's proffered 
position is one for which the Handbook reports an industry-vvide requirement for at least a bachelor's 
degree in a specific specialty or its equivalent. Furthermore, in its RFE response letter, the petitioner 
states the following: 
[T]here is no sense in printing thousands of job postings as it is well established that a 
computer systems analyst/programmer analyst requires a bachelor[']s degree and 
USCIS is well aware that the majority ofi- 129 H-1 [B] applications filed by information 
technology firms hire individuals with a bachelor[']s degree. 
The petitioner goes on to say that according to the "OFLC 20 12 annual report ... 23 7,267 positions 
certified by Department of [L ]abor for the position of computer systems analyst." The petitioner 
states that the amount of labor condition applications certified "proves it is a specialty occupation. " 
We disagree. 
DOL has stated clearly that its LCA certification process is cursory, that it does not involve 
substantive review, and that it makes the petitioner responsible for the accuracy of the information 
(b)(6)
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Page 14 
entered in the LCA. With regard to LCA certification, the regulation at 20 C. F.R. § 655 .715 states 
the following: 
Certification means the determination by a certifying officer that a labor condition 
application is not incomplete and does not contain obvious inaccuracies. 
Likewise, the regulation at 20 C. F.R. § 655. 73 5(b) states, in pertinent part, that "[i]t is the 
employer's responsibility to ensure that ETA [(the DOL's Employment and Training 
Administration)] receives a complete and accurate LCA. " 
The regulation at 8 C. F.R. § 214. 2(h)(4)(i)(B)(2 ) specifies that certification of an LCA does not 
constitute a determination that an occupation is a specialty occupation: 
Certification by the Department of Labor [DOL] of a labor condition application in an occupational 
classification does not constitute a determination by that agency that the occupation in question is a 
specialty occupation. The director shall determine if the application involves a specialty occupation 
as defined in section 214 (i)( l) of the Act. The director shall also determine whether the particular 
alien for whom H-lB classification is sought qualifies to perform services in the specialty 
occupation as prescribed in section 214(i)(2) of the Act. 5 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL 
regulations note that the U.S. Department of Homeland Security (DHS) (i.e., its immigration 
benefits branch, USCIS) is the department responsible for determining whether the content of an 
LCA filed for a particular Form I-1 29 actually supports that petition. See 20 C. F.R. § 655. 705 (b), 
which states, in pertinent part (emphasis added): 
For H-IB visas ... DHS accepts the employer's petition (DHS Form I-129) with the 
DOL certified LCA attached. In doing so, the DHS determines whether the petition 
is supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements of H -1 B visa classification. 
The regulation at 20 C. F.R. § 655. 705(b) requires that USCIS ensure that an LCA actually supports 
the H-lB petition filed on behalf of the beneficiary. Therefore, the petitioner's reliance on the 
certified LCA to demonstrate that the position is a specialty occupation is misplaced, and the 
petitioner submits no other evidence for consideration under this category. 
Thus, based upon a complete review of the record, we find that the evidence of record does not 
establish that a requirement for at least a bachelor's degree in a specific specialty, or its equivalent, 
5 See also 56 Fed. Reg. 61111, 61112 (Dec. 2, 1991) ("An approved labor condition application is not a 
factor in determining whether a position is a specialty occupation."). 
(b)(6)
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Page 15 
is common for positions that are identifiable as being (1 ) in the petitioner's industry, (2) parallel to 
the proffered position, and also (3) located in organizations that are similar to the petitioner. 
Thus, for the reasons discussed above, the evidence of record does not satisfy the first alternative 
prong of 8 C.F. R. § 21 4. 2(h)(4)(iii)(A)(2 ). 
We will next consider the second alternative prong of 8 C. F.R. § 21 4. 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 indi vidual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In the instant case, the evidence of record does not credibly demonstrate relative complexity or 
uniqueness as aspects of the proffered position. Specifically, it is unclear how the programmer analyst 
position, as described, necessitates the theoretical and practical application of a body of highly 
specialized knowledge such that a person who has attained a bachelor's or higher degree in a specific 
specialty or its equivalent is required to perform them. Rather, we find, that, as reflected in this 
decision's earlier quotation of duty descriptions from the record of proceeding, the evidence of 
record does not distinguish the proffered position from other positions falling within the "Computer 
Systems Analysts" occupational category, which, the Handbook indicates, do not necessarily 
require a person with at least a bachelor's degree in a specific specialty or its equivalent to enter 
those positions. 
More specifically, the petitioner did not demonstrate how the 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, the petitioner did not submit information relevant to a detailed course of study leading 
to a specialty degree and did not establish how such a curriculum is necessary to perform the duties 
of the proffered position. While related courses may be beneficial, or even essential, in performing 
certain duties of a programmer analyst position, the petitioner did not demonstrate how an 
established curriculum of such courses leading to a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is required to perform the duties of the petitioner's proffered position. 
As stated earlier, the claimed requirement of a degree in a major such as "Business Administration " 
for the proffered position, without specialization, is inadequate to establish that the proposed 
position qualifies as a specialty occupation. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
Again, we incorporate by reference and reiterate our earlier discussion that the LCA indicates that 
the position is a low-level (entry-level) position relative to others within the occupation. Based 
upon the wage rate, the beneficiary is only required to perform routine tasks that require limited, if 
any, exercise of judgment. Accordingly, given the Handbook's indication that typical positions 
located within the "Computer Systems Analysts" occupational category do not require at least a 
bachelor's degree in a specific specialty, or the equivalent, for entry, it is not credible that a position 
involving limited exercise of judgment would contain such a requirement. 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
Without further evidence, it is simply not credible that the petitioner's proffered position is complex 
or unique, as such a position would likely be dassif ied at a higher-level, such as a Level IV (fully 
competent) position, requiring a significantly higher prevailing wage. For instance, a Level IV 
(fully competent) position is designated by DOL for employees who "use advanced skills and 
diversified knowledge to solve unusual and complex problems." Even a position involving a Level 
II wage, which would exceed the complexity of the one proposed by the petitioner, would involve 
only "moderately complex tasks that require limited judgment." 
For all of these reasons, it cannot be conduded that the evidence of record satisfies the second 
alternative prong of 8 C. F.R. § 21 4.2( h)(4)(iii)(A)(2). 
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. We 
normally review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position. 
To merit approval of the petition under this criterion, the record must establish that the imposition 
of a degree requirement by the petitioner is not merely a matter of preference for high-caliber 
candidates but is necessitated by performance requirements of the position. In the RFE letter, the 
petitioner states that it has "numerous [H-1B ] approvals by USCIS for programmer analysts. This is 
in itself shows that USCIS agrees we hire programmer analysts with bachelor[']s degree" and 
submits a list of employee names and their respective receipt numbers. We disagree. The record 
contains no evidence that the petitioner employs or has employed the other employees in the same 
or similar position as the proffered position and that the employees possess the qualifying degree. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Afatter of Soffici at 16 5. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported 
assertions that are contained in the current record, the approvals would constitute error on the part 
of the director. We are not required to approve petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 19 88). It would be "absurd to 
suggest that [USCIS] or any agency must treat acknowledged errors as binding precedent." Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 10 84, 10 90 (6th Cir. 1987), cert. denied, 485 U.S. 10 08 (1 988). 
A prior approval does not compel the approval of a subsequent petition or relieve the petitioner of 
its burden to provide sufficient documentation to establish current eligibility for the benefit sought. 
55 Fed. Reg. 26 06, 26 12 (Jan. 26, 1990). A prior approval also does not preclude USCIS from 
denying an extension of an original visa petition based on a reassessment of eligibility for the 
benefit sought. See Texas A& M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 
(5th Cir. 2004). Furthermore, our authority over the service centers is comparable to the 
relationship between a court of appeals and a district court. Even if a service center director had 
approved the nonimmigrant petitions on behalf of the beneficiary, we would not be bound to follow 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 11 39 (5th Cir. 2001) , cert. denied, 122 S.Ct. 51 (200 1) . 
While a petitioner may believe or otherwise assert that a proffered position requires a degree in a 
specific specialty, that opinion alone without corroborating evidence cannot establish the position as 
a specialty occupation.6 Were USCIS limited solely to reviewing a petitioner's claimed self­
imposed requirements, then any individual with a bachelor's degree could be brought to the United 
States to perform any occupation as long as the employer artificially created a token degree 
requirement, whereby all individuals employed in a particular position possessed a baccalaureate or 
higher degree in the specific specialty or its equivalent. See Defensor v. Meissner, 20 1 F. 3d at 
387. In other words, if a petitioner's degree requirement is only symbolic and the proffered position 
does not in fact require such a specialty degree or its equivalent to perform its duties, the occupation 
would not meet the statutory or regulatory definition of a specialty occupation. See section 
21 4(i)(l) of the Act; 8 C.P.R. § 214.2(h)(4)(ii) (defining the term ''specialty occupation"). The 
record does not contain docum entary evidence demonstrating a hiring history of the petitioner. As 
the record of proceeding does not demonstrate that the petitioner normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the proffered position, it does not 
satisfy 8 C.F. R. § 214.2(h)( 4)(iii)( A)(J). 
Next, we find that the evidence of record does not satisfy the criterion at 8 C. F.R. 
§ 214. 2(h)( 4 )(iii)( A)( 4), which requires the petitioner to establish that the nature of the proffered 
position's 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 the specific specialty or its 
equivalent. 
Again, relative specialization and complexity have not been sufficiently developed by the petitioner 
as an aspect of the proffered position's duties. In other words, the proposed duties have not been 
described with sufficient specificity to show that their nature is more specialized and complex than 
programmer analyst positions whose duties are not of a nature so specialized and complex that their 
performance requires knowledge usually associated with a degree in a specific specialty. In 
reviewing the record of proceeding under this criterion, we reiterate our earlier discussion regarding 
the Handbook's entries for positions falling within the ''Computer Systems Analysts" occupational 
category. Again, the Handbook does not indicate that a bachelor's degree in a specific specialty, or 
the equivalent, is a standard, minimum requirement to perform the duties of such positions, and the 
record indicates no factors that would elevate the duties proposed for the beneficiary above those 
discussed for similar positions in the Handbook. With regard to the specific duties of the position 
proffered here, we find that the record of proceeding lacks sufficient, credible evidence establishing 
that they are so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a bachelor's degree in a specific specialty, or the equivalent. 
6 Any such assertion would be undermined in this particular case by the fact that the petitioner indicated on 
the LCA that the proffered position is a comparatively low, entry-level position relative to others within its 
occupation. 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
Moreover, we incorporate our earlier discussion regarding the wage-level designation on the LCA, 
which is appropriate for duties whose nature is less complex and specialized than required to satisfy 
this criterion. We find that both on its own terms and also in comparison with the two higher wage­
levels that can be designated in an LCA, by the submission of an LCA cettified for a wage-level I 
(entry-level), the petitioner effectively attests that the proposed duties are of relatively low 
complexity as compared to others within the same occupational category. This fact is materially 
inconsistent with the level of complexity required by this criterion. 
As earlier noted, the Prevailing Wage Determination Policy Guidance issued by DOL states the 
following with regard to Level I wage rates: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who 
have only a basic understanding of the occupation. These employees perform routine 
tasks that require limited, if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. The employees 
may perform higher level work for training and developmental purposes. These 
employees work under close supervision and receive specific instructions on required 
tasks and results expected. Their work is closely monitored and reviewed for accuracy. 
Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Level I wage should be considered [emphasis in original]. 7 
The pertinent guidance from DOL, at page 7 of its Prevailing Wage Determination Po licy Guidance 
describes the next higher wage-level as follows: 
!d. 
Level II (qualified) wage rates are assigned to job offers for qualified employees 
who have attained, either through education or experience, a good understanding of 
the occupation. They perform moderately complex tasks that require limited 
judgment. An indicator that the job request warrants a wage determination at Level 
II would be a requirement for years of education and/or experience that are generally 
required as described in the O*NET Job Zones. 
The above descriptive summary indicates that even this higher-than-designated wage level is 
appropriate for only "moderately complex tasks that require limited judgment." The fact that this 
higher-than-here-assigned, Level II wage-rate itself indicates performance of only "moderately 
complex tasks that require limited judgment," is very telling with regard to the relatively low level 
of complexity imputed to the proffered position by virtue of its Level I wage-rate designation. 
7 U.S. Dep't of Labor, Emp't & Trainin g Admin., Prevailing Wage Determination Policy Guidance, 
Nona gri c. Immig ration Programs (rev. Nov. 2009), avai lable at http://www.fore ign laborcer t.dol eta. gov/ 
pdf/NPW HC_Gu idan ce_Rev ised_ l l_ 2009.pdf (la st vi sited May 20, 20 1 5). 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
Further, we note the relatively low level of complexity that even this Level II wage-level reflects 
when compared with the two still-higher LCA wage levels, neither of which was designated on the 
LCA submitted to support this petition. 
The aforementioned Prevailing Wage Determination Policy Guidance describes the Level III wage 
designation as follows: 
!d. 
Level III (experienced) wage rates are assigned to job offers for experienced 
employees who have a sound understanding of the occupation and have attained, 
either through education or experience, special skills or knowledge. They perform 
tasks that require exercising judgment and may coordinate the activities of other 
staff. They may have supervisory authority over those staff. A requirement for years 
of experience or educational degrees that are at the higher ranges indicated in the 
O*NET Job Zones would be indicators that a Level III wage should be considered. 
Frequently, key words in the job title can be used as indicators that an employer's job 
offer is for an experienced worker. ... 
The Prevailing Wage Determination Policy Guidance describes the Level IV wage designation as 
follows: 
!d. 
Level IV (fully competent) wage rates are assigned to job offers for competent 
employees who have sufficient experience in the occupation to plan and conduct 
work requiring judgment and the independent evaluation, selection, modification, 
and application of standard procedures and techniques. Such employees use 
advanced skills and diversified knowledge to solve unusual and complex problems. 
These employees receive only technical guidance and their work is reviewed only for 
application of sound judgment and effectiveness in meeting the establishment's 
procedures and expectations. They generally have management and/or supervisory 
responsibilities. 
As already noted, by virtue of this submission, the petitioner effectively attested that the proffered 
position is a low-level (entry-level) position relative to others within the occupation, and that, as 
clear by comparison with DOL's instructive comments about the next higher level (Level II), the 
proffered position did not even involve "moderately complex tasks that require limited judgment" 
(the level of complexity noted for the next higher wage-level, Level II). 
For all of these reasons, the evidence in the record of proceeding does not establish that the 
proposed duties meet the specialization and complexity threshold at 8 C.F .R. 
§ 21 4.2 (h)(4)(iii)(A)( 4) . 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
As the evidence of record does not satisfy at least one of the criteria at 8 C.F .R. 
§ 21 4.2(h)( 4 )(iii)(A), it cannot be found that the proffered position is a specialty occupation. 
Accordingly, the appeal will be dismissed and the petition will be denied on this basis. 
We do not need to examine the issue of the beneficiary's qualifications, because the petitioner has 
not provided sufficient evidence to demonstrate that the proffered position is a specialty occupation. 
In other words, the beneficiary's credentials to perform a particular job are relevant only when the 
job is found to be a specialty occupation. 
IV. CONCLUSION AND ORDER 
The petition will be denied and the appeal dismissed for the above stated reason. 8 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. § 13 61; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 20 13). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied. 
8 As the issues discussed above are dispositive of the petitioner's eligibility for the benef it sought in this 
matter, we will not address and wil l instead reserve our determination on the numerous additional issues and 
deficiencies we observe in the record of proceeding with regard to approval of the H- 1 B petition.