dismissed H-1B Case: Web Development

MATTER OF T-H-D-G-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 19, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a web development and marketing firm, seeks to temporarily employ the Beneficiary 
as a "web developer" under the H-1 B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(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 additional evidence and asserts that the Director erred in her 
findings. Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act defines the term "specialty occupation" as an occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(:6) 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 ofthe 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; 
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Matter ofT-H-D-G-
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" in the criteria at 
8 C.F.R. § 214.2(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 proposed position. See Royal Siam Corp. v. Cherh?{f; 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-1B petition, the Petitioner stated that the Beneficiary will serve as a "web developer." In 
response to the Director's request for evidence (RFE), the Petitioner provided the following job 
duties for the position (verbatim): 
1) Analyze clients' needs, design web sites, and integrate websites with other 
computer applications; Develop, record and maintain cutting-edge web-based 
PHP applications and perform site-building activities, including creating and 
modifying views, contexts, and blocks in order to match functionality specified in 
designs; Convert design mock-ups into pixel-perfect, fully functioning, 
maintainable code for various devices and platforms and make sure it is 
compatible with all web browsers and email clients for both mobile and desktop. 
Utilize libraries, such as Google Web Toolkit, WebRTC, and jQuery and its 
associated plugins, to enable rapid JavaScript application development. (20% of 
the time will be used on this task) 
2) Convert written, graphic, audio, and video components to websites using 
advanced applications and technologies; implement new features and integrate 
them with third part web APis forE-commerce sites 
and Perform database integration, application programming interfaces 
(APis). 7). Design and develop new 
responsive email templates, taking into 
account the features and limitations of the elJlail marketing platform and ensuring 
maximum compatibility with major email clients. (20% of the time will be used 
on this task) 
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Matter ofT-H-D-G-
3) Determine web site functionality, features and design implementations, including 
user interfaces, primary web pages, and campaign landing pages; Contribute to 
the development of the current (and future) platforms as well as creating 
custom website templates for large-scale clients. Provide high-quality code 
solutions to meet client needs in the implementation, enhancement and support of 
projects; optimize websites to ensure they 
render consistently in cross-browser environments with the best SEO principles. 
(15% of the time will be used on this task). 
4) Contribute to both engineering and design discussions within the group. (5%) 
5) Determine the scope of a task and provide solutions that operate within that scope. 
(5%) 
6) Design information-architectures and template integration for Content 
Management Systems, including template development for content management 
system 
maintenance, JavaScript interactivity and enhancement; Develop web 
application and Content Management System (CMS)-based web development 
( - from requirements gathering through design, testing, deployment, 
and maintenance, including theme and plugin development. Maintain 
overall system architecture, including data relationships between the order 
management system, and third-party solutions (35% of the time will be used on 
this task). 
According to the Petitioner, the positiOn reqmres a bachelor's degree 111 computer science, 
information technology, or a related field. 
III. ANALYSIS 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation. 1 Specifically, the record does not establish that the job duties reqmre an 
educational background , or its equivalent, commensurate with a specialty occupation? 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of 
1 Although some aspects ofthe regulatory criteria may overlap, we will address each of the criteria individually. 
2 The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
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Matter ofT-H-D-G-
Labor's Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses. 3 
On the labor condition application (LCA)4 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Web Developer" corresponding 
to the Standard Occupational Classification code 15-1134. 
The Handbook states the following about the educational requirements of positions located within the 
"Web Developers" occupational category: "Educational requirements for web developers vary with the 
setting they work in and the type of work they do. Requirements range from a high school diploma to a 
bachelor's degree. An associate's degree in web design or related field is the most common 
requirement." U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook. 
2016-17 ed., "Web Developers," http://www.bls.gov/ooh/computer-and-information-technology/web­
developers.htm#tab-4 (last visited April 3, 20 17). The Handbook also states that "for more technical 
positions ... some employers prefer workers who have at least a bachelor's degree in computer science, 
programming, or a related field." Id. 
According to the Handbook, the occupation accommodates a wide spectrum of educational 
credentials, including less than a bachelor's degree in a specific specialty. The Handbook states that 
an associate's degree in web design or a related field "is the most common requirement." It also 
indicates that a high school diploma is acceptable in certain settings. Furthermore, while the 
Handbook's narrative indicates that some employers prefer web designers with a bachelor's degree, 
the Handbook does not report that such bachelor's degrees are normally required. We note that an 
employer's preference for degreed workers is not the same as a requirement of such. 
The Petitioner relies on Young China Daily v. Chappell, 742 F. Supp. 552 (N.D. Cal. 1989), 
asserting that the Director erroneously focused on the size of the Petitioner in reviewing the petition 
and reaching her decision. While we concur that we should not limit our review to the size of a 
petitioner and must consider the actual responsibilities of the proffered position, we find that it is 
reasonable to assume that the size of an employer's business has or could have an impact on the 
claimed duties of a particular position. See EG Enters., Inc. v. Dep "t of Homeland Sec., 467 F. Supp. 
3 
All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and we regularly review the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
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The Petitioner is required to submit a certified LCA to us to demonstrate that it will pay an H-1 B worker the higher of 
either the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the 
employer to other employees with similar experience and qualifications who are performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
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Matter ofT-H-D-G-
2d 728 (E.D. Mich. 2006). The size of a petitioner may be considered as a component of the nature 
of the petitioner's business, as the size .impacts upon the actual duties of a particular position. 
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The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the 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 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy 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. 
In determining whether there is such a common degree requirement, factors often considered by us 
include: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry attest that such firms "routinely employ and 
recruit only degreed individuals." See Shanti. Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava. 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its protTered position is one for which 
the Handbook, or other authoritative source, reports a 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. 
In support of this criterion, the Petitioner submitted copies of job announcements placed by other 
employers. However, upon review ofthe documents, we find that the Petitioner's relianceon the job 
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Absent evidence to support a finding that the duties to be performed by the Beneficiary in relation to the Petitioner's 
claimed operations are sufficiently complex to require the services of a degreed web developer, or that a degree 
requirement is common to the industry, the Petitioner's reliance on Young China Dai~v is not persuasive. Regardless, in 
contrast to the broad precedential authority of the case law of a United States circuit court, we are not bound to follow 
the published decision of a United States district court in matters arising within the same district. See Matter of K-S-, 20 
I&N Dec. 715, 719-20 (BIA 1993). Although the reasoning underlying a district judge's decision will be given due 
consideration when it is properly before us, the analysis does not have to be followed as a matter of law. !d. 
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Matter ofT-H-D-G-
announcements is misplaced. First, we note that some of the job postings do not appear to involve 
organizations similar to the Petitioner. For example, the Petitioner is a six-person, web development 
and marketing firm, whereas the advertising organizations include: 
• - an IT and software development company in the manufacturing industry; 
• -a world leader in 3D imaging and measurement system; 
• - a financial services company with approximately 200 million 
customer accounts; 
• - a leading global information services company; and 
• -
a company with a team of 26 communications experts. 
In addition, some of the postings (e.g., Recruitwise and KForce) appear to be for staffing agencies 
for which no information is provided regarding the hiring employers. The Petitioner also submitted 
a posting for a for which no information is provided regarding the hiring 
employer. 
The Petitioner did not supplement the record of proceedings to establish that these advertising 
organizations are similar. When determining whether the Petitioner and the organization share the 
same general characteristics, such factors may include information regarding the nature or type of 
organization, and, when pertinent, the particular scope of operations, as well as the level of revenue 
and staffing (to list just a few elements that may be considered). It is not sufficient for the Petitioner 
to claim that an organization is similar and in the same industry without providing a legitimate basis 
for such an assertion. Without further information, the advertisements appear to be for organizations 
that are not similar to the Petitioner , and the Petitioner has not provided probative evidence to suggest 
otherwise. 
Moreover, some of the postings do not indicate that a bachelor's degree in a directly related specific 
specialty (or its equivalent) is required.6 For instance, the posting for a' · states 
that a degree in computer science is required, but does not specify the degree level (e.g., associate's, 
vocational degree, baccalaureate). The other job postings suggest, at best, that a bachelor's degree is 
sometimes required for web developer positions , but not a bachelor's degree in a .spec?fic .specialty (or 
its equivalent). 7 
6 As discussed, the degree requirement set by the statutory and regulatory framework of the H-1 B program is not just a 
bachelor's or higher degree, but a bachelor's degree in a specific specialty that is directly related to the duties of the 
position. See section 214(i)( I )(b) of the Act and 8 C.F.R . § 214.2(h)( 4 )(ii). Furthermor e, a desire for a degree in a field 
is not necessarily an indication of a minimum requirement. 
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It must be noted that even if all of 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), the Petitioner 
has not demonstrated what statistically valid inferences , if any, can be drawn from the advertisements with regard to 
determining the common educational requirements for entry into parallel position s in similar organizations. See 
generally Earl Babbie , The Practice ~(Social Research 186-228 ( 1995). Moreover, given that there is no indication that 
the advertisements were randomly selected, the validity of any such inferences could not be accurately determined even 
if the sam piing unit were sufficiently large. See id. at 195-196 (explaining that "[r]andom se lection is the key to [the) 
Matter ofT-H-D-G-
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. 8 That is, not every deficit of every job posting has been addressed. 
Without more, the Petitioner has not provided sufficient 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). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
On appeal, the Petitioner asserts that the duties of the proffered position are so complex and unique 
that only an individual with a bachelor's degree in computer science, information technology, or a 
related field can perform the duties. In support of this assertion, the Petitioner submits copies of the 
Beneficiary's sample work products. However, the Petitioner did not sufficiently explain how these 
documents distinguish and differentiate the duties of the proffered position from the typical duties 
performed by other web developers, and why the proffered duties require a baccalaureate (or higher 
degree) in a specific specialty, or its equivalent, as claimed. 
Furthermore, 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 
it may believe are so complex and unique. While a few related courses may be beneficial in 
performing certain duties of the position, the Petitioner has not demonstrated 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 proffered position. The description of the duties 
does not specifically identify any tasks that are so complex or unique that only a specifically degreed 
individual could perform them. The record does not establish which of the duties, if any, of the 
proffered position would be so complex or unique as to be distinguishable from those of similar but 
non-degreed or non-specialty degreed employment. 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references her 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
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"). 
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The Petitioner did not provide any independent evidence of how representative the job postings are of the pm1icular 
a~vertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
h1re, they are not evidence of the actual hiring practices of these employers. 
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Matter of T-H-D-G-
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently develop relative 
complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. 
Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
In response to the RFE, the Petitioner submitted a copy of a job advertisement for the proffered 
position. The Petitioner did not provide documentation establishing 
when the job advettisement was 
posted but it appears that it was created after the RFE was issued. The Petitioner must establish 
eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible for the 
benefit through adjudication. 8 C.F.R. § 103.2(b)(l). 
The Petitioner also stated that the Beneficiary has been working in the position of web developer and 
has attained a bachelor's degree. However, the documentation submitted by the Petitioner shows 
that the Petitioner employs other web developers but it did not provide the educational background 
for these employees. Thus, we cannot determine if a bachelor's degree in a specific specialty was 
required for these employees to till the position of web developer. 
The Petitioner did not provide further information or evidence regarding its recruiting history for the 
position advertised. Consequently, it cannot be determined how representative this one job posting 
is of the Petitioner's hiring practices for the prot1ered position. As it is only a solicitation tor hire, it 
is not evidence of the Petitioner's actual hiring practices. Without additional information, the 
submission is not persuasive in establishing that the Petitioner normally requires at least a bachelor's 
degree in a specific specialty, or its equivalent, for the position. Therefore, the Petitioner has not 
satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
In support of this criterion, the retitioner submitted a letter from of the 
In the letter, asserts that the web developer position offered to the 
Beneficiary is "sufficiently specialized and complex that the knowledge required to perform the 
duties is usually associated with the attainment of a baccalaureate or higher degree in computer 
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Matter ofT-H-D-G-
science, information technology, or related field." However, does not provide 
documentary evidence to corroborate his claims. His testimony does not substantiate his 
conclusions, such that we can conclude that the Petitioner has shouldered its burden of proof For 
example, he does not reference, cite, or discuss probative studies, surveys, industry publications, 
authoritative publications, or other sources of empirical information which he may have consulted to 
complete the evaluation. 
Furthermore, we note that did not discuss the duties of the proffered position in any 
substantive detail. Rather, he states the duties listed in the Petitioner's support letter. Thus, there is 
no indication that he possesses any knowledge of the Petitioner's proffered position beyond this job 
description, e.g., visited the Petitioner's business, observed the Petitioner's employees, interviewed 
them about the nature of their work, or documented the knowledge that these workers apply on the 
job prior to documenting his opinion regarding the proffered position. His level of familiarity with 
the actual job duties as they would be performed in the context of the Petitioner's business has 
therefore not been substantiated. 
For the reasons discussed, we find that opinion letter lends little probative value to the 
matter here. Matter of Caron Int'l, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not 
required to accept or may give less weight to an advisory opinion when it is "not in accord with 
other information or is in any way questionable."). 
Upon review of the totality of the record, the Petitioner has not established that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. For the reasons discussed above, the evidence of record does not satisfy the fourth 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
IV. CONCLUSION 
Because the Petitioner has not satisfied one ofthe 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. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-H-D-G-, ID# 2325;24 (AAO Apr. 19, 2017) 
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