remanded H-1B Case: Computer Science

MATTER OF P-C-&S- LTD. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 28,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a technology services provider, seeks to temporarily employ the Beneficiary as a 
"programmer analyst" under the H-1B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-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 California Service Center denied the petition, concluding that the Petitioner did 
not establish that the Beneficiary is qualified to serve in a specialty occupation position in 
accordance with the applicable statutory and regulatory provisions. 
In its appeal, the Petitioner submits additional evidence and asserts that the Beneficiary is qualified 
to serve in a specialty occupation position. 
The Director's decision will be withdrawn, and the petition will be remanded for entry of a new 
decision. 
I. BENEFICIARY'S QUALIFICATIONS 
The Director denied the petition, concluding that the Petitioner did not establish that the Beneficiary 
is qualified to perform the services in a specialty occupation. However, U.S. Citizenship and 
Immigration Services is required to follow long-standing legal standards and determine first, 
whether the proffered position qualifies as a specialty occupation, and second, whether a beneficiary 
was qualified for the position at the time the nonimmigrant visa petition was filed. Cf' Matter of 
Michael Hertz Assoc., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The facts of a beneficiary's 
background only come at issue after it is found that the position in which the petitioner intends to 
employ him falls within [a specialty occupation]."). In the instant case, the record of proceedings 
does not establish that the proffered position qualifies as a specialty occupation. Thus, the matter 
will be remanded to the Director. 
Matter of P-C-&S- Ltd. 
II. PROFFERED POSITION 
In its letter of support, the Petitioner provided the following job duties for the proffered position: 
Beneficiary's duties will be the following: Analyze, design, test, and implement 
computer programs for banking, financial and other complex commercial business 
applications; Prepare functional specifications documents mapping the business 
requirements to programs; Prepare charts and diagrams to assist in problem analysis; 
Convert project specifications and statements of problems and procedures to detailed 
logical flowcharts for coding into computer language applying skills in structured 
analysis and design; Determine feasibility, cost and time required, compatibility with 
current system and computer capability; Assist in customization of programs, and 
related procedures to increase their operating efficiency or adapt to new 
programs/systems requirements; Write program documentation describing the 
program development, coding, installation, and operation procedures; Train users to 
use program, and provide technical assistance to program users; Install and test 
programs and monitor performance of program after implementation etc. 
According to the Petitioner, the proffered position requires a bachelor's degree, or its equivalent, in 
computer science, computer information systems, information technology, computer engineering, 
electrical, electronics and communication, or a related technical field. 
III. SPECIALTY OCCUPATION 
Although not addressed in the Director's decision, we conclude that the record, as presently 
constituted, does not establish that the proffered position qualifies for classification as a specialty 
occupation. 1 Accordingly, the Director should review this issue on remand. 
A. 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 
(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. 
1 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. 
2 
Matter of P-C-&S- Ltd. 
The regulation at 8 C.P.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 el(try 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 have consistently interpreted 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. See Royal Siam Corp. v. Cherto.ff, 484 F.3d 139, 147 (1st Cir. 2007) (describing 
"a degree requirement in a specific specialty" as "one that relates directiy to the duties and 
responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Analysis 
The current record does not demonstrate that the proffered position qualifies as a specialty 
. 2 
occupatiOn. 
1. First Criterion 
We turn first to the criterion at 8 C.P.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. We recognize the U.S. Department of Labor's (DOL) 
Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses. 3 
2 Although some aspects of the regulatory criteria may overlap, we will address each ofthe criteria individually. 
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 
3 
Matter of P-C-&S- Ltd. 
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 "Computer Programmers" 
corresponding to the Standard Occupational Classification code 15-1131 at a Level I wage. 5 
The Handbook subchapter entitled "How to Become a Computer Programmer" states, in pertinent 
part, that "some employers hire workers with an associate's degree." Bureau of Labor Statistics, 
U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers (2016-17 
ed.). Accordingly, although a person may be employed as a computer programmer and may use 
information technology skills and knowledge in the course of his or her job, this is not suflicient to 
establish the position as requiring a bachelor's or higher degree in a directly related discipline (or its 
equivalent). Furthermore, the Petitioner did not directly assert eligibility or provide evidence in 
support of this criterion. Thus, the present record does not satisfy the criterion at 8 C.F.R. 
§ 214.2(h)(4)(i1i)(A)(l). 
2. 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. 
a. 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. 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
4 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, 545-46 (AAO 2015). 
5 
The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates that the 
Beneficiary: (I) will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) will be 
closely supervised and the work closely monitored and reviewed for accuracy; and (3) will receive specific instruction~ 
on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination 
Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.com/download/ 
NPWHC_Guidance_Revised_11_2009.pdf A prevailing wage determination starts with an entry-level wage and 
progresses to a higher wage level after considering the experience, education, and skill requirements of the Petitioner's 
job opportunity. !d. 
4 
Matter of P-C-&S- Ltd. 
In determining whether there is such a common degree requirement, factors we often consider 
include: whether the Handbook (or another independent, authoritative source) 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)). 
In its initial submission, the Petitioner stated that a degree requirement is common to the industry. 
However, it did not exjJlain how this conclusion was reached, and there is a lack of evidence supporting 
the Petitioner's statement. For instance (as already discussed), the Petitioner has not established that its 
proffered position is one for which the Handbook (or other independent, 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. Furthermore, the Petitioner has not 
offered evidence from an industry professional association, or from firms or individuals in the industry, 
indicating such a degree is a minimum requirement. Consequently, the present record does not meet the 
first prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
b. 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. Throughout the proceedings, the Petitioner has not claimed to qualify under this 
criterion. Therefore, the present record does not satisfy the second prong of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(2). 
3. 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 or higher degree in a specific specialty, or its equivalent, for the 
position. The Petitioner does not assert eligibility' or provide evidence in support of this criterion. 
Thus, the present record does not satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
4. 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. 
Matter of P-C-&S- Ltd. 
In the initial filing, the Petitioner claimed that its requirements for the proffered position are based on 
the specialized and complex nature of the job. In support of its statement, the Petitioner provided a job 
description and information regarding its business operations. 
While the Petitioner asserted that the position is specialized and complex, we note that it designated the 
proffered position as an entry-level position within the occupational category by selecting a Level I 
wage. 6 This designation, when read in combination with the evidence presented and the Handbook's 
account of the requirements for this occupation, does not support the Petitioner's statement that the 
nature of the duties is so specialized and complex to qualify under this criterion. 7 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references the 
Beneficiary's qualifications. However, the test to establish a position as a specialty occupation is not 
the education or experience of a proposed beneficiary, but whether the position itself requires at least a 
bachelor's degree in a specific specialty, or its equivalent. The Petitioner did not identifY any tasks that 
only a specifically degreed individual could perform them. The present record does not demonstrate 
that its proffered position is one with duties sufficiently specialized and complex to satisfy 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(4). 
The present record does not satisfy at least one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
IV. CONCLUSION 
The Director's decision will be withdrawn as the present record does not establish that the Petitioner 
has met the threshold requirement that the proffered position is a specialty occupation, as section 
214(i)(l)(B) of the Act requires. Because the Director did not address this deficiency, we will 
remand this matter to the Director for further action and entry of a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of P-C-&S- Ltd., ID# 547165 (AAO July 28, 2017) 
6 
The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-de~ignation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
7 
The evidence of record does not establish that this position is significantly different from other positions within the 
occupational category such that it refutes the Handbook's information to the effect that some courses are advantageous to 
obtaining such a position, but not specifying that the degree must be in a specific specialty.