remanded H-1B Case: Computer Science

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 4 1 101 (a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
WAC 03 248 503 18 
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DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The director's decision will be withdrawn 
and the matter remanded to the director for the entry of a new decision. 
The petitioner is an investment company with several mobile home parks that seeks to employ the 
beneficiary as a computer programmer and to classify him as a nonirnrnigrant worker in a specialty 
occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the job title on the Labor Condition Application (LCA) was 
different than the job title listed on the Form 1-129. On appeal, counsel contends that the two job titles 
fall under the same occupational category, that the wage determinations for both job titles are less than the 
proffered salary, and that the two job titles are interchangeable in the computer industry. 
The record of proceeding before the AAO contains, in part: (1) Form 1-129 and supporting 
documentation; (2) the director's request for additional evidence; (3) the petitioner's response to the 
director's request; (4) the director's denial letter; and (5) Form I-290B and supporting documentation. 
The AAO reviewed the record in its entirety before issuing its decision. 
The petitioner states that it is seeking the beneficiary's services as a computer programmer. Evidence of 
the beneficiary's duties includes the Form 1-129 with accompanying employment offer letter, the response 
to the WE, and additional evidence submitted with the appeal. The petitioner described the duties of the 
proposed position in the following manner with a corresponding breakdown of time to be spent on each 
duty: 
Document, develop, test and implement portions of software system 
 22.5 hours 
Meet outside vendors, site managers and 3'* party software providers 
 2.5 
Interface with owner - report progress, discuss problem areas 
Learn what is desired for that particular phase 
 5.0 
Create procedures manual - first determine existing procedures; 
research to determine best practices for this sector, and 
then explain changes to those who will be inputting data into system. 
 10.0 
On appeal, the petitioner has overcome the director's basis for denying the petition. 
 Counsel has 
demonstrated that the petitioner intends to employ the beneficiary as a computer programmer. The Form 
1-129 lists the Job Title as "Software Engineer" but lists the Non-Technical Description of the Job as 
"Programmer." The petitioner's employment offer letter to the beneficiary lists the proposed position as 
"computer programmer." The fax cover sheet to the Arizona Department of Economic Security lists the 
position as "software programmer." In the response to the WE, counsel stated that the petitioner wanted 
to amend the Form 1-129 to change the job title to "computer programmer." On appeal, counsel asserts 
that the two job titles are interchangeable in the computer industry. The proposed job duties resemble 
those of a computer programmer as described in the Department of Labor's Occupational Outlook 
Handbook (Handbook). Since the original LCA was approved for a computer programmer, the job 
description matches that of a computer programmer, and the petitioner intends to employ the beneficiary 
as a computer programmer, despite the fact that the job title on the Form 1-129 and the LCA are not 
identical, the petitioner has met the requirements of 8 C.F.R. 5 214.2(h)(4)(i)(B)(l). 
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The petition may not be approved, however, because the AAO finds that the evidence in the current 
record does not establish that the proposed position is a specialty occupation as required by the 
Immigration and Naturalization Act (Act) and the relevant Citizenship and Immigration Services (CIS) 
regulations. 
Section 214(i)(l) of the Act, 8 U.S.C. fj 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) 
 theoretical and practical application of a body of highly specialized knowledge, and 
(B) 
 attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one 
of the following criteria: 
(I) 
 A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) 
 The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its particular 
position is so complex or unique that it can be performed only by an individual with a 
degree; 
(3) 
 The employer normally requires a degree or its equivalent for the position; or 
(4) 
 The nature of the specific duties is so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
214.2(h)(4)(iii)(A) to mean not just any bachelor's or higher degree, but one in a specific specialty that 
is directly related to the proposed position. 
The proposed position does not meet the first criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(I) - a bachelor's 
or higher degree or its equivalent is normally the minimum requirement for entry into the particular 
position. Employers consider those with a variety of degrees and relevant work experience suitable for 
jobs in this area. While some employers prefer, but do not require, computer programmers to possess 
bachelor's degrees in computer science or related fields, others only require a two-year associate's degree. 
The Handbook also indicates that entry-level programmers, some of whom hold bachelor's degrees, but 
not necessarily in a computer-related field, and some of whom only hold associate's degrees, can advance 
into software engineer positions within the organization they work in. Since a bachelor's degree in 
computer science or a related field is not the normal minimum requirement for entry into computer 
programmer positions, the petitioner fails to establish that the proposed position is a specialty occupation 
under the first criteria at 8 C.F.R. tj 2 14.2(h)(4)(iii)(A). 
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The proposed position does not meet the two alternative prongs of the second criterion at 8 C.F.R. 
fj 214.2(h)(4)(iii)(A)(Z) - the degree requirement is common to the industry in parallel positions among 
similar organizations or a particular position is so complex or unique that it can be performed only by an 
individual with a degree. Factors often considered by CIS when determining these criteria include: whether 
the Handbook reports that the industry requires a degree; whether the industry's professional association has 
made a degree a minimum entry requirement; and whether letters or affidavits from firms or individuals in 
the industry attest that such firms "routinely employ and recruit only degreed individuals." See Shanti, Inc. v. 
Reno, 36 F. Supp. 2d 1 15 1, 1 165 (D. Minn. 1999)(quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 
1102 (S.D.N.Y. 1989)). The petitioner has not provided any evidence that the requirement of a bachelor's 
degree is common to the industry in parallel positions among similar trailer park owners. In addition, the 
employer has not shown that this particular computer programmer position is so complex or unique that 
only an individual with a bachelor's degree in a computer-related field can perform it. 
The proposed position does not meet the third criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(3) - the employer 
normally requires a degree or its equivalent for the position. As the record does not contain any evidence of 
the petitioner's past hiring practices for the position, the petitioner has not met its burden of proof in this 
regard. 
Finally, the evidence does not establish that the proposed position is a specialty occupation under the 
fourth criterion at 8 C.F.R. tj 2 14.2(h)(4)(iii)(A)(4): 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 
bachelor's or higher degree in a computer-related field. To the extent that they are depicted in the record, 
the duties do not appear so specialized and complex as to require the highly specialized knowledge 
associated with a bachelor's or higher degree, or its equivalent, in a specific specialty. The petitioner has 
not presented any evidence to establish that its computer programmer position is distinguishable fi-om 
those of other computer programmers. Again, the Handbook indicates computer programmer positions 
do not normally require a bachelor's degree in a computer-related field for entry into the occupation. 
No evidence contained in the record demonstrates that the proposed position is a specialty occupation. As 
the director has not made a determination on whether or not the position is a specialty occupation, the 
director's decision will be withdrawn and this petition will be remanded to allow the director to rule on 
the issue. The director may afford the petitioner reasonable time to submit evidence pertinent to the issue 
of whether the position is a specialty occupation and any other evidence the director may deem necessary. 
The director shall then render a new decision based on the evidence of record as it relates to the statutory 
and regulatory requirements for eligibility. 
As always, the burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 
U.S.C. fj 1361. 
ORDER: 
 The director's October 4, 2004 decision is withdrawn. The petition is remanded to the 
director for entry of a new decision, which if adverse to the petitioner, shall be certified to 
the AAO for review.