dismissed H-1B Case: Software Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 19713835 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 7, 2022 
The Petitioner, a software technology company, seeks to temporarily employ the Beneficiary as a "QA 
lead" under the H-1B nonimmigrant classification for specialty occupations. Immigration and 
Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 
program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that 
requires both (a) the theoretical and practical application of a body of highly specialized knowledge 
and (b) the attainment of 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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that the proffered position is a specialty occupation. The matter is now before us on appeal. 
On appeal, the Petitioner asserts that the Director erred by denying the petition. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 
(AAO 2010). We review the questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N 
Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). 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 position. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
II. ANALYSIS 
The Petitioner stated that the Beneficiary will be employed as a "QA lead" and that the position 
requires a minimum of a bachelor's degree in computer science, computer engineering, electrical 
engineering, or a related field or its equivalent. The Petitioner initially provided a list of duties, which 
was updated with more detail with their request for evidence (RFE) response. While we will not list 
each duty here, we have reviewed and considered each one. Upon review of the record in its totality 
and for the reasons set out below, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. Specifically, the record does not include 
sufficient consistent, probative evidence establishing that the job duties require an educational 
background, or its equivalent, commensurate with a specialty occupation.1 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
1 The Petitioner submitted documentation to support the H-lB petition, including evidence regarding the proffered position. 
While we may not discuss every document submitted, we have reviewed and considered each one. 
2 
entry into the particular position. We recognize the U.S. Department of Labor's (DOL) Occupational 
Outlook Handbook (Handbook) as a useful source of information regarding the duties and educational 
requirements of the wide variety of occupations that it addresses. The Petitioner designated the 
proffered position on the labor condition application (LCA) as a detailed Occupational Information 
Network (O*NET) Standard Occupation Classification (SOC) code 15-1199.09 "Information 
Technology Project Managers" under the SOC occupation 15-1199 "Computer Occupations, All 
Other" occupation. 2 
The Handbook is a career resource offering information on hundreds of occupations. However, there are 
occupational categories which the Handbook does not cover in detail, and instead provides only summary 
data.3 The subchapter of the Handbook titled "Data for Occupations Not Covered in Detail" states, in 
relevant part, that the "[ t ]ypical entry-level education" for a variety of occupations within the category of 
"[c ]omputer occupations, al I other" is a "[b ]achelor' s degree," without indicating that the bachelor's 
degree must be in a specific specialty. Thus, the Handbook is not probative in establishing that these 
positions comprise an occupational group for which the normal minimum requirement for entry is at least 
a bachelor's degree in a specific specialty, or its equivalent. 
Next, the Petitioner argues O*NET demonstrates that positions located within this occupation are 
specialty occupation positions, because the occupation's job zone and required education suggests a 
bachelor's degree is normal. Contrary to the assertion of the Petitioner, O*NET does not state a 
requirement for a bachelor's degree for this occupation. Rather, it assigns this occupation a job zone 
"four" rating, which groups it among occupations for which "most ... require a four-year bachelor's 
degree, but some do not." See https://www.onetonline.org/Archive_ONET­
SOC_2010_ Taxonomy_09_2020/link/summary/15-1199.09 (last visited Mar. 7, 2022). Even if O*NET 
stated that a bachelor's degree is required to enter positions located within SOC 15-1199.09, "Information 
Technology Project Managers" (which it does not), O*NET does not describe the normal minimum 
educational requirements with sufficient specificity to establish that the positions falling within the 
occupational category are specialized. The O*NET Summary Report for SOC 15-1199.09, "Information 
Technology Project Managers" includes general information about the occupation. For example, 
O*NET includes specialized vocational preparation (SVP), job zone, education, and the knowledge or 
skills generally associated with the occupation. However, O*NET does not specify particular fields of 
study when discussing the type of preparation or degrees that might be needed to perform a particular 
occupation. Accordingly, O*NET does not establish that a bachelor's degree in a specific specialty, or 
the equivalent, is normally required. It does not satisfy the first criterion. 
The Petitioner also argues that the first regulat01y criterion does not restrict "specific specialty" to at 
least a bachelor's in a single specific degree program, and cites to a district court case, Raj and Co. v. 
2 O*NET Online updated the occupation code of SOC 15-1199.09, Information Technology Project Managers to SOC 15-
1299.09 on November 17, 2020. For the purposes of this decision, we will refer to the occupation to the code and name 
at the time of the Director's decision, SOC 15-1199.09, Information Technology Project Managers. See 
https://www.onetonline.org/Archive_ONET-SOC_2010_ Taxonomy_09_2020/link/summary/15-1199.09 (last visited 
Mar. 7, 2022). 
3 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Data for Occupations Not Covered in 
Detail (Sep. 8, 2021), https://www.bls.gov/ooh/about/data-for-occupations-not-covered-in-detail.htm. Here, the 
Handbook does not provide specific information for various occupations which might be classified within the occupational 
category. 
3 
USCIS, 85 F. Supp. 3d 1241 (W.D. Wash. 2015). While we agree with the Petitioner that the 
regulatory provisions do not restrict qualifying occupations to a single, specifically tailored and titled 
degree program, that is not the issue. The issue is that neither the Handbook nor O*NET discuss the 
type of preparation or degrees that might be needed to perform the duties of positions in this 
occupation, SOC 15-1199.09, "Information Technology Project Managers," and therefore, neither can 
be used to establish that a bachelor's degree in a specific specialty, or the equivalent, is normally 
required to satisfy the first criterion. 
The Petitioner also cites Next Generation Tech., Inc. v. Johnson as relevant here and uses it to support 
a conclusion concerning the meaning of what is "normally" the minimum requirement for the position. 
Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252 (S.D.N.Y. 2017). We question the 
applicability of Next Generation Tech., Inc. in the instant matter, as it analyzed our reading of the 
Handbook concerning the entry requirements for positions located within a different and separate 
occupational category of "Computer Programmers." Moreover, while the Handbook may establish 
the first regulatory criterion for certain professions,4 many occupations are not described in such a 
manner. As just discussed, neither the Handbook nor O*NET include information regarding this 
occupation conclude that the occupation is a specialty occupation. 
As the foregoing demonstrates, the Petitioner has not provided sufficient documentation from a 
probative source to substantiate its assertion regarding the normal minimum requirement for entry into 
this particular position. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may show 
that its particular position is so complex or unique that it can be performed only by an individual with 
a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong contemplates 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position.5 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
We generally consider the following sources of evidence to determine if there is such a common degree 
requirement: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry establish that such firms "routinely employ and 
recruit only degreed individuals."6 
4 Such professions would include surgeons or attorneys, which indisputably require at least a bachelor's degree for entry 
into the occupation . 
5 We will discuss the second prong of the second criterion in section D below. 
6 See Shanti , Inc. v. Reno, 36 F. Supp . 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Corp . v. Sava, 712 F. Supp . 
1095, 1102 (S.D.N .Y. 1989) (considering these "factors" to inform the commonality of a degree requirement)). 
4 
The Petitioner has not established that its proffered position is one for which the Handbook (or other 
independent, authoritative sources) reports an industry-wide requirement for at least a bachelor's 
degree in a specific specialty, or its equivalent. Thus, we incorporate by reference the previous 
discussion on the matter. 
The Petitioner argues that the four job postings submitted in response to the Director's RFE confirm that 
the Petitioner's degree requirements are similar to those normally required in their industry, software. 
Specifically, the Petitioner argues the job postings were placed by software companies and their duties 
parallel those of the proffered position. On appeal, the Petitioner submits additional information to 
demonstrate the companies placing the job postings conduct business in the software industry. 
To be relevant for consideration under this prong, the descriptions on the job postings must describe 
positions that are parallel to the proffered position and the job postings must have been placed by 
organizations that (1) conduct business in the Petitioner's industry and (2) are also "similar" to the 
Petitioner. Absent such evidence, job postings submitted by the Petitioner are generally outside the 
scope of consideration for this prong, which encompasses only organizations that are similar to the 
Petitioner. 
Although the Petitioner and the companies may perform some similar services, they do not appear 
similar to the Petitioner. The Petitioner indicates they have over 2,000 employees in the United States. 
However, the documents submitted with the job postings show all four of the companies have an 
approximate workforce of 51 to 200 individuals. Moreover, even if these companies were similar 
organizations within the same industry, we would still conclude the Petitioner has not established that 
the positions on the job postings are parallel to the proffered position. 
Our review of the job postings confirms that these positions are different from, and not "parallel" to, 
the Petitioner's position." For example, the proffered position's duties include leading a project 
quality assurance (QA) team. However, two of the job postings' duties do not include leading a team. 
We also note some of these positions have entry requirements that differ from those of the Petitioner's 
position. The proffered position requires no experience; however, two job postings require at least 
seven years and another posting requires five years of experience. Also, one job posting only requires 
a general bachelor's degree and not a degree in a specific specialty. As such, these job postings do 
not advertise a "parallel position" to the proffered position. 
Even if all of the job descriptions and requirements on the job postings indicated that a requirement of 
a bachelor's degree in a specific specialty is common to the industry in parallel positions among similar 
organizations (which they do not), we would still be compelled to observe that the Petitioner does not 
demonstrate what statistically valid inferences, if any, can be drawn from the job postings with regard 
to the common educational requirements for entry into parallel positions in similar organizations.7 
Moreover, given that there is no indication that the advertisements were randomly selected, the validity 
7 See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 1995). 
5 
of any such inferences could not be accurately determined even if the sampling unit were sufficiently 
large.8 
As such, the Petitioner has not provided sufficient probative evidence to establish that a bachelor's degree 
in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar 
organizations. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally 
requires a bachelor's degree in a specific specialty, or its equivalent, for the position. Evidence 
provided in this criterion may include, but is not limited to, an organizational chart showing the 
Petitioner's hierarchy and staffing levels with corresponding and experience requirements for this 
position, as well as documentary evidence of past employment practices for the position. 
On appeal, the Petitioner asserts their requirement of at least a bachelor's degree in computer science, 
computer engineering, electrical engineering or a related field, or its equivalent is normal and 
minimally required for entry into the proffered position and similar positions within its organization. 
In support of this criterion, the Petitioner submitted an organizational chart that lists the names and 
title of six people, including the Beneficiary, and four of their resumes. First, none of the other 
individuals hold the same title as the Beneficiary, "QA lead." 9 The record does not include any job 
duties performed by these employees, or the job advertisements for their positions. Therefore, we do 
not know what the recruitment process for hiring these individuals involved or whether specialized 
degrees were prerequisites. As such, the record contains insufficient evidence that these individuals 
have or had the same or similar substantive responsibilities, duties, and performance requirements as 
the proffered position. In addition, the Petitioner has not provided the total number of people it has 
employed in the past to serve in the proffered position, nor has it provided information about its past 
hiring history for the proffered position. Therefore, the Petitioner has not demonstrated that it 
normally requires a bachelor's degree in the specific specialty for the proffered position. 
Even if the Petitioner always requires a bachelor's degree in a specific specialty to perform the duties 
of the proffered position, the record must still establish that a petitioner's stated degree requirement is 
not a matter of preference for high-caliber candidates but is necessitated instead by performance 
requirements of the position. See Defensor v. Meissner, 201 F.3d at 387-88. The Petitioner in this 
matter has not persuasively established that it normally requires at least a bachelor's degree in a 
specific specialty, or its equivalent, for the position proffered here. Therefore, the Petitioner has not 
satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
8 See id. at 195-96 (explaining that "[r]andom selection is the key to [the] process [of probability sampling]" and that 
"random selection offers access to the body of probability theory, which provides the basis for estimates of population 
parameters and estimates of error"). 
9 We also question the accuracy of the information of the submitted documents, because the job titles on the resumes 
appear to conflict with the titles listed on the organizational chart. 
6 
D. Second Prong of the Second Criterion and Fourth Criterion 
The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) is satisfied if the Petitioner shows 
that its particular position is so complex or unique that it can be performed only by an individual with 
at least a bachelor's degree in a specific specialty, or its equivalent. The fourth criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature of the specific duties is so 
specialized and complex that the knowledge required to perform them is usually associated with the 
attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent.10 
Upon review of the totality of the record, we conclude that the Petitioner has not sufficiently explained 
or documented why the duties are so "complex or unique" and "specialized and complex" unique that 
a bachelor's degree in a specific specialty is required. When determining whether a position is a 
specialty occupation, we look at whether the position actually requires the theoretical and practical 
application of a body of highly specialized knowledge attained through at least a baccalaureate degree 
in a specific discipline. The Petitioner's initial list of job duties were expanded in their RFE response 
by providing the tools and technologies for one of the duties and the percentage of time the Beneficiary 
would devote to each tasks. Although the Petitioner provided more details to the duties, the Petitioner 
fails to sufficiently establish how these duties require specialized knowledge. 
The record does not contain a sufficiently detailed description of the Beneficiary's duties to establish 
that the position 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, or its 
equivalent. For example, the Petitioner stated that the Beneficiary's duties include "[l]ead the project 
QA team"; "[e ]nsure to deliver projects on time and with high quality"; "[a ]ssess project scope (before 
and during requirements gathering) and create or refine detailed level-of-effort estimates"; and "[s]ync 
up with project team on a regular basis to discuss the quality issues and progress." However, the 
general description of the duties does not illuminate the substantive application of knowledge involved 
or any particular educational requirement associated with leading the team or delivering and assessing 
the project. As most of the duties appear general, the proffered position's duties do not demonstrate 
how they are "complex or unique" and "specialized and complex." As such, the Petitioner does not 
establish that the job duties it describes requires the theoretical and practical application of a body of 
highly specialized knowledge. 
The duties and description also feature use of tools for which the Petitioner has not explained why 
skills using such technologies could not be gained through certifications in these technologies, through 
a vocational (associate's) degree, or a computer bootcamp. For example, the Petitioner states that the 
Beneficiary would work on "[ e ]nterprise level Salesforce implementations" and uses I cloud 
management center (CMC), Application life Cycle management (ALM) and Azure Devops (ADO)." 
However, the Petitioner makes little effort to explain how use of these technologies makes the position 
"specialized and complex" or "complex or unique" or requires a bachelor's degree in computer 
science, computer engineering, information technology, or a related field. 
10 The Petitioner does not challenge the fourth criterion on appeal, but states that proffered position meets all of the 
criterion. We have briefly addressed elements of the fourth criterion in this section. 
7 
We now turn to the position evaluation provided by of University. In 
his letter I (1) describes the credentials that he asserts qualify him to opine upon 
the nature of the proffered position; and (2) states the position is complex unique and can only be done 
by an individual with a bachelor's degree in computer science, computer engineering, electrical 
engineering, or a related field. Specifically, the professor argues the position's job duties correspond 
to some of the knowledge contained in the 2013 Curriculum Guidelines for Undergraduate Programs 
in Computer Science (Curriculum), published by the Association of Computing Machinery (ACM). 
In the professor's opinion, any of Petitioner's job duties could be matched to the knowledge areas 
listed in the Curriculum, suggesting a high degree of competence and that the job duties can only be 
satisfactorily performed by an individual with bachelor's-level competence in computer science, 
computer engineering, electrical engineering, or a related technical field. 
However, s assertions are not persuasive. Although the proffered position may 
require certain knowledge competencies within the computing field that is also found in the 
aforementioned university curriculum guideline, the professor does not explain why the specific duties 
themselves require knowledge associated with at least a bachelor's degree in a specific specialty. Also, 
the Curriculum does not indicate that a bachelor's degree in a specific specialty is necessary to obtain 
the knowledge for the particular position, but its purpose is to develop a postsecondary computer 
science curriculum.11 The professor's reliance on the Curriculum document is not persuasive as it 
does not support a conclusion that the Petitioner's particular position is so complex or unique that only 
a specifically degreed individual could perform them or that the duties are specialized and complex 
such that the duties are usually associated with a bachelor's degree in a specific specialty. 
Moreover, the professor opines that the duties of the Petitioner's position are so complex and unique that 
"only a candidate who has attained at least a Bachelor's degree in Computer Science, Computer 
Engineering, Electrical Engineering, or its equivalent" can fulfill the proffered position's responsibilities. 
However, he does not discuss other methods that also could lead to a sufficiently similar knowledge set, 
for example, the amount of required training or experience to gain this knowledge, alternate degrees, or 
certificates that would be acceptable. As such, the opinion letter does not provide a sufficient basis to 
establish that the duties described are "complex or unique" or "specialized and complex" such that the 
position requires a bachelor's degree in a specific specialty. 
In light of all the above, the Petitioner did not sufficiently develop relative specialization and 
complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks 
that are so specialized and complex or unique that only a specifically degreed individual could perform 
them. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2) or 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. Moreover, the record 
does not establish that the Petitioner satisfied the statutory and regulatory definitions of specialty 
occupation. 
11 Association for Computing Machinery, 2013 Curriculum Guidelines for Undergraduate Programs in Computer Science 
https://www.acm.org/binaries/content/assets/education/cs2013_web_final.pdf. 
8 
Ill. CONCLUSION 
As set forth above, we conclude that the evidence of record does not establish, more likely than not, 
that the proffered position qualifies for classification as a specialty occupation. Accordingly, 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. 
ORDER: The appeal is dismissed. 
9