remanded H-1B Case: Computer Software

identiwing data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 04 229 5 1212 Office: VERMONT SERVICE CENTER Date: AUG 3 fj ?GJ6 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1 lOl(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC04229 51212 
Page 2 
DISCUSSION: 
 The director 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 The director's decision will be withdrawn. The petition 
will be remanded for entry of a new decision. 
The petitioner is a computer software development and consulting company that seeks to employ the 
beneficiary as a programmer analyst. The petitioner, therefore, endeavors to classify the beneficiary as a 
nonimmigrant 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 record of proceeding before the AAO contains (1) the 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) the Form I-290B and supporting documentation. The AAO reviewed the record in its 
entirety before issuing its decision. 
The record reflects that the beneficiary has been in the United States, in H-4 and H-1B status, since September 22, 
1998. The petitioner filed an application for alien labor certification for the beneficiary on September 19,2003. 
The petitioner filed the instant petition on July 30, 2004, requesting that the beneficiary be granted an additional 
year of H-1B status pursuant to the American Competitiveness in the Twenty-First Century Act (AC-21) (as 
amended by the Twenty-First Century DOJ Appropriations Authorization Act (DOJ-21)). The requested start 
date of employment in the petition was July 31,2004. 
The director denied the petition, holding that since 365 days had not elapsed between the filing of the application 
for alien labor certification and the filing of the instant petition, the beneficiary did not meet the requirements set 
forth at AC-21 (as amended by DOJ-21) and therefore did not qualify for a seventh year of H-1B status. 
As a general rule, section 214(g)(4) of the Act, 8 U.S.C. 3 1184(g)(4), provides that "the period of authorized 
admission of [an H-1B nonimmigrant] shall not exceed 6 years." However, AC-21 removed the six-year 
limitation on the authorized period of stay in H-1B visa status for aliens whose labor certifications or 
immigrant petitions remain pending due to lengthy adjudication delays, and DOJ-21 broadened the class of 
H-1B nonimmigrants able to avail themselves of this provision. 
As amended by section 11030(A)(a) of DOJ-21, section 106(a) of AC-21 states the following: 
(a) EXEMPTION FROM LIMITATION. -- The limitation contained in section 214(g)(4) of 
the Immigration and Nationality Act (8 U.S.C. 5 1184(g)(4)) with respect to the duration of 
authorized stay shall not apply to any nonimrnigrant alien previously issued a visa or 
otherwise provided nonimmigrant status under section lOl(a)(lS)(H)(i)(b) of such Act 
(8 U.S.C. 5 1101(a)(lS)(H)(i)(b)), if 365 days or more have elapsed since the filing of any of 
the following: 
(1) Any application for labor certification under section 212(a)(5)(A) of such Act 
(8 U.S.C. 5 1182(a)(5)(A)), in a case in which certification is required or used by the 
alien to obtain status under section 203(b) of such Act (8 U.S.C. 5 1153(b)). 
(2) A petition described in section 204(b) of such Act (8 U.S.C. 5 1154(b)) to accord 
the alien a status under section 203(b) of such Act. 
EAC 04 229 51212 
Page 3 
Section 11030(A)(b) of DOJ-21 amended section 106(a) of AC-21 to state the following: 
(b) EXTENSION OF H-1B WORKER STATUS--The Attorney General shall extend the stay 
of an alien who qualifies for an exemption under subsection (a) in one-year increments until 
such time as a final decision is made- 
(1) to deny the application described in subsection (a)(l), or, in a case in which such 
application is granted, to deny a petition described in subsection (a)(2) filed on behalf 
of the alien pursuant to such grant; 
(2) to deny the petition described in subsection (a)(2); or 
(3) to grant or deny the alien's application for an immigrant visa or for adjustment of 
status to that of an alien lawfully admitted for permanent residence. 
Two recent Citizenship and Immigration Services (CIS) policy memoranda have clarified how CIS is to 
implement these provisions of AC-21 and DOJ-21. In accordance with these two policy memoranda, the 
AAO has determined that the beneficiary is eligible for an exemption from the six-year limitation on his H-IB 
classification under section 106(a) of AC-21, and for an extension of his H-1B status for a seventh year under 
section 106(b) of AC-21. 
Both memoranda provide, in part, that an alien who is otherwise eligible for an H-1B extension does not need 
to first file a form I- 129 requesting an extension of time to allow the beneficiary to complete the six years, and 
then file an additional Form 1-129 requesting an extension of time beyond the six years. Memorandum from 
William R. Yates, Associate Director for Operations, Citizenship and Immigration Services, Department of 
Homeland Security, Interim Guidance for Processing Form 1-140 Employment-Based Immigrant Petitions and 
Form 1-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 
2000 (AC 21)(Public law 106-313) HQPRD7016.2.8-P (May 12,2005); Memorandum from William R. Yates, 
Associate Director for Operations, Citizenship and Immigration Services, Department of Homeland Security, 
Interim Guidance Regarding the Impact of the Department of labor's (DOL) PERM Rule on Determining Labor 
Certijication Validity, Priority Dates for Employment-Based Form 1-140 Petitions, Duplicate Labor Certijication 
Requests and Requests for Extension of H-IB Status Beyond the 6th Year: Adjudicator's Field Manual Update 
AD05-15. HQPRD7016.2.8 (September 23, 2005). The second memorandum, at page 5, states, in part, the 
following: 
Once [the requirements of Section 106(a) of AC-211 have been met, the alien may be granted 
an extension beyond the 6-year maximum on or prior to the date the alien reaches the 6-year 
maximum. Such extensions may only be granted in one-year increments, but may be 
requested on a single (combined) extension request for any remaining time left in the initial 
6-year period. Requiring the filing of two extension petitions merely increases petitioner and 
CIS workloads, and has no basis in statute. 
The date of the filing of the application for alien labor certification, September 19,2003, is less than 365 days 
prior to the July 31,2004 requested employment start date specified on the Form 1-129. This would appear to 
preclude the beneficiary from a seventh year of H-1B status, as, at first glance, the application for alien labor 
certification appears to not have been filed more than 365 days prior to the petition's requested employment 
EAC 04 229 5 12 12 
Page 4 
start date. However, the AAO has reviewed the record and determined that the alien's maximum period of 
stay in H-1B status expires on September 22, 2004, which is more than 365 days after the filing date of the 
Form ETA-750. Thus, the beneficiary will begin working under the seventh year extension of status under 
AC-21 on September 23, 2004. That date is more than 365 days after the application for alien labor 
certification was filed. Under the CIS guidance quoted above, the petitioner may combine the extension 
request to complete the alien's six year maximum and to extend for a seventh year under AC-21 on one Form 
1-129 petition. 
Accordingly, the petitioner has overcome the ground for denial in the director's decision. The petition may 
not be approved, however, unless the record establishes that the proffered position qualifies as a specialty 
occupation and that the beneficiary is qualified to perform services in a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 
As provided in 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. 
5 214.2(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 proffered position. 
The petitioner describes itself as a software development and consulting firm, established in 2001, with seven 
employees and a projected gross annual income of $700,000. In a letter accompanying Form 1-129 the 
petitioner described the proffered position as follows: 
EAC 04 229 51212 
Page 5 
[The beneficiary] will be working as in-house project development ProgrammerlAnalyst with 
our computing systems professionals currently working on fine-tuning and improving the 
above mentioned software development and implementation project. [He] will utilize [his] 
training and expertise as he performs a broad range of networking knowledge, and 
programming duties. [He] will be responsible for maintaining the network systems and 
development of applications: provide guidance to quality assurance team for testing, [advise] 
client of all general purpose routines; provide system security and administration including 
user rights and restrictions; write store procedures and triggers using Oracle 7.1, Oracle 
Developerl2000, and PLJSQL 2.0 to perform payroll, month-end and annual processing; 
design user interface; develop reduplication module; develop main base classes in system; 
create a core library containing functions providing several utilities to handle windows for 
displaying and capturing information; handle notification of windows events and process 
them; handle listboxes and other controls notification functions; design windows through 
Open Interface design painter; design toolbars; develop modules to allow specifications of 
common database tableslcolumns; maintain system. 
The technical environment in which the beneficiary will be working, the petitioner indicates, includes the 
following: 
Hardware - SUNSPARC stations, Intel 80 x 86 based computers, IBM PC-A 
Lannua~es - C, PLISQL 2.0 
Operating System - MS Windows 95, MS Windows NTl3.5 114.0, MS DOS 6.22, 
S Solaris 4.5, UNIX 
Software - Oracle 7.1, Oracle Developer/2000 
According to the petitioner, the minimum educational requirement for the proffered position is a bachelor's 
decree in computer science andlor a master of computer applications, science, commerce, engineering, civil 
engineering, industrial production, mechanical engineering, electrical engineering, electronics, electronics and 
communications, electronics and telecommunications, electronics engineering, business administration, or the 
equivalent in education and relevant work experience. The beneficiary is qualified for the job, the petitioner 
declares, by virtue of his bachelor of technology (electronics and communications) from Nabarjuna 
University in India, awarded in December 1981, and a one-year post graduate diploma in computer 
applications from the Institute of Computer Software Sciences in India, awarded on April 8, 1993, together 
with extensive experience as a programmerlanalyst. 
The AAO notes that the nature of the petitioner's business is unclear. The petitioner states in its Form 1-129 
and letter of support that it is a computer software development and consulting company with seven 
employees and projected gross annual income of $700,000, though no tax returns or wage records have been 
submitted. Nor have any contracts between the petitioner and its clients been provided indicating the nature 
of the petitioner's business. Going on record without supporting documentation does not satisfy the 
petitioner's burden of proof. See Matter of Sofici, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The AAO further notes that the 
petitioner had twelve petitions approved for H-1B workers, yet lists only seven employees. The petition will 
be remanded for the director to determine whether the petitioner will employ the beneficiary in a specialty 
occupation. 
If the petitioner is an employment contractor, the AAO notes, it must submit proof that the duties the 
beneficiary will perform at the ultimate work location will be in a specialty occupation. In determining the 
EAC 04 229 51212 
Page 6 
nature of a particular position, and whether it qualifies as a specialty occupation, the duties that will actually 
be performed are dispositive, not the title of the position. The petitioner must show that the duties of the 
position normally require a degree in a specialty field. The critical issue is not the employer's self-imposed 
standard, but whether the position actually requires the theoretical and practical application of a body of 
highly specialized knowledge and the attainment of a baccalaureate or higher degree in the specific specialty 
as a minimum for entry into the occupation. C$ Defensor v. Meissner, 201 F.3d 384,387-88 (5th Cir. 2000). 
CIS routinely consults the DOL Handbook as an authoritative source of information about the duties and 
educational requirements of particular occupations. Factors typically considered are whether the Handbook 
indicates a degree is required by the industry; 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 HiraBlaker Corp. v. Sava, 7 12 F.Supp. 1095, 1 102 
(S.D.N.Y. 1989)). CIS also analyzes the specific duties and complexity of the position at issue, with the 
Handbook's occupational descriptions as a reference, as well as the petitioner's past hiring practices for the 
position. See Shanti Inc. v. Reno, id., at 1165-66. 
The duties of the proffered position combine the functions of a computer programmer and a computer systems 
analyst, as described in the DOL Handbook. Computer programmers are described in the Handbook, in 
pertinent part, as follows: 
Computer programmers write, test, and maintain the detailed instructions, called programs, 
that computers must follow to perform their functions. Programmers also conceive, design, 
and test logical structures for solving problems by computer . . . . 
[Allthough simple programs can be written in a few hours, programs that use complex 
mathematical formulas whose solutions can only be approximated or that draw data from 
many existing systems may require more than a year of work. In most cases, several 
programmers work together as a team under a senior programmer's supervision. 
Programmers write programs according to the specifications determined primarily by 
computer software engineers and systems analysts. After the design process is complete, it is 
the job of the programmer to convert that design into a logical series of instructions that the 
computer can follow. The programmer codes these instructions in a conventional 
programming language such as COBOL; an artificial intelligence language such as Prolog; or 
one of the most advanced object-oriented languages, such as Java, C++, or ACTOR. . . . . 
Programmers generally know more than one programming language and, because many 
languages are similar, they often can learn new languages relatively easily . . . . 
Many programmers update, repair, modify, and expand existing programs . . . . 
[Plrogrammers in software development companies may work directly with experts from 
various fields to create software - either programs design for specific clients or packaged 
EAC 04 229 51212 
Page 7 
software for general use - ranging from games and educational software to programs for 
desktop publishing and financial planning . . . . 
In some organizations, particularly small ones, workers commonly known as programmer- 
analysts are responsible for both the systems analysis and the actual programming work . . . . 
Handbook, 2006-07 edition, at 104-05. With respect to the educational requirements of the occupation, the 
Handbook states as follows: 
Although there are many training paths available for programmers . . . the level of education 
and experience employers seek has been rising due to the growing number of qualified 
applicants and the specialization involved with most programming tasks. Bachelor's degrees 
are commonly required, although some programmers may qualify for certain jobs with two- 
year degrees or certificates. The associate degree is a widely used entry-level credential for 
prospective computer programmers . . . . 
[I]n the absence of a degree, substantial specialized experience or expertise may be needed. 
Even when hiring programmers with a degree, employers appear to place more emphasis on 
previous experience. 
Some computer programmers hold a college degree in computer science, mathematics, or 
information systems, whereas others have taken special courses in computer programming to 
supplement their degree in a field such as accounting, inventory control, or another area of 
business . . . . As indicated by the following tabulation, more than two-thirds of computer 
programmers had a bachelor's or higher degree in 2004. 
High school graduate or less 
 8.3% 
Some college, no degree 14.1% 
Associate degree 10.2% 
Bachelor's degree 49.1% 
Graduate degree 18.3% 
Id. at 105-06. As the foregoing information indicates, a baccalaureate or higher degree in a specific specialty 
is not the normal minimum requirement for entry into a computer programming position. One-third of 
computer programmers have either a two-year associate degree, some college courses but no degree, or a high 
school education or less. Moreover, some baccalaureate degree holders earned their degrees in disciplines not 
directly related to the computer field. Accordingly, a computer programmer does not meet the first alternative 
criterion of a specialty occupation at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(I). 
Computer systems analysts are described in the DOL Handbook, 2006-07 edition, at 116: 
Computer systems analysts solve computer problems and apply computer technology to meet 
the individual needs of an organization. They help an organization to realize the maximum 
EAC 04 229 51212 
Page 8 
benefit from its investment in equipment, personnel, and business processes. 
 Systems 
analysts may plan and develop new computer systems or devise ways to apply existing 
systems' resources to additional operations. They may design new systems, including both 
hardware and software, or add a new software application to harness more of the computer's 
power. Most systems analysts work with specific types of systems - for example, business, 
accounting, or financial systems, or scientific and engineering systems - that vary with the 
kind of organization . . . . 
Systems analysts . . . use techniques such as structured analysis, data modeling, information 
engineering, mathematical model building, sampling, and cost accounting to plan the system. 
They specify the inputs to be accessed by the system, design the processing steps, and format 
the output to meet users' needs. 
 They also may prepare cost-benefit and return-on- 
investment analyses to help management decide whether implementing the proposed 
technology will be financially feasible. 
When a system is accepted, systems analysts determine what computer hardware and 
software will be needed to set the system up. They coordinate tests and observe the initial 
use of the system to ensure that it performs as planned. They prepare specifications, flow 
charts, and process diagrams for computer programmers to follow; then, they work with 
programmers to "debug" or eliminate, errors from the system . . . . 
With respect to the educational requirements of the occupation, the Handbook states as follows: 
[Wlhile there is no universally accepted way to prepare for a job as a systems analyst, most 
employers place a premium on some formal college education. .Relevant work experience 
also is very important. For more technically complex jobs, persons with graduate degrees are 
preferred. 
Many employers seek applicants who have at least a bachelor's degree in computer science, 
information science, or management information systems (MIS) . . . . Employers are 
increasingly seeking individuals with a master's degree in business administration (MBA), 
with a concentration in information systems, as more firms move their business to the 
Internet. 
Despite employers' preference for those with technical degrees, persons with degrees in a 
variety of majors find employment as system analysts. The level of education and type of 
training that employers require depend on their needs . . . . 
Id. at 117. The foregoing information indicates that, while a baccalaureate or master's degree in a computer- 
related specialty is favored by many employers of computer systems analysts, it is not the normal minimum 
requirement for entry into such a position. Some companies still accept baccalaureate degrees which are not 
closely related to the computer field, if the individual has acquired sufficient computer knowledge through work 
experience, and some companies may accept relevant work experience in lieu of any baccalaureate degree. 
Accordingly, a computer systems analyst does not meet the first alternative criterion of a specialty occupation at 
8 C.F.R. 5 214.2 (h)(4)(iii)(A)(I). 
EAC 04 229 5 1212 
Page 9 
Based on the foregoing analysis, the AAO determines that the proffered position - described as a combination 
computer programmer and computer systems analyst - does not qualify as a specialty occupation under 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(l) because a baccalaureate or higher degree in a specific specialty or its 
equivalent is not the normal minimum requirement for entry into the position. If the petitioner is an 
employment contractor, the record does not establish the position as a specialty occupation as no job duties 
have been submitted from the ultimate work location. 
As for the second alternative criterion of a specialty occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2), there is 
no evidence in the record that a degree requirement is common to the petitioner's industry in parallel 
positions among similar organizations. Nor does the evidence of record show that the proffered position is so 
complex or unique that it can only be performed by an individual with a specialty degree. There is no 
evidence of record about the nature of the beneficiary's duties in relation to the petitioner's business. Thus, 
the AAO cannot conclude that the position is unique or more complex than that of a typical computer 
programmer andlor systems analyst, positions which the Handbook indicates do not normally require a degree 
in a computer-related specialty to perform. Accordingly, the proffered position does not qualify as a specialty 
occupation under either prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
With respect to the third alternative criterion of a specialty occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3), 
the petitioner stated in a letter accompanying the Form 1-129 that the proffered position requires a degree in a 
range of computer-, engineering-, or business-related disciplines, or the equivalent in education and work 
experience. Thus, the petitioner acknowledges that relevant work experience can substitute for a 
baccalaureate or higher degree, which is consistent with information in the Handbook, previously discussed, 
that relevant work experience in the computer field can substitute for a specialty degree and qualify an 
individual for a computer programmer and/or systems analyst position. The proffered programmer/analyst 
position does not qualify as a specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3), therefore, because 
the record does not establish that the petitioner normally requires a specialty degree or its equivalent for the 
position. 
Finally, the proffered position does not meet the fourth alternative criterion of a specialty occupation, at 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(4), because the record does not establish that the duties of the position are so 
specialized and complex that knowledge usually associated with a baccalaureate or higher degree is required 
to perform them. The job duties of record, which are not described in relation to the petitioner's clientele or 
specific projects, have not been established as more specialized or complex than those of a typical computer 
programmer andlor systems analyst, positions which the Handbook indicates do not normally require 
baccalaureate level knowledge in a specific specialty. As far as the record shows, the duties of the proffered 
position could be performed by an individual with less than baccalaureate level knowledge in a specific 
specialty. If the petitioner is an employment contractor, there is no evidence from the ultimate work location 
establishing that baccalaureate level knowledge in a specialty is required. Accordingly, the position does not 
qualify as a specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
For the reasons discussed above, the proffered position does not meet any of the qualifying criteria of a 
specialty occupation enumerated under 8 C.F.R. 5 214.2(h)(4)(iii)(A). The petitioner has not established that 
the beneficiary will be coming temporarily to the United States to perform services in a specialty occupation, 
as required under section 101 (a)( lS)(H)(i)(b) of the Act, 8 U.S.C. 5 1 101(a)(lS)(H)(i)(b). 
EAC 04 229 5 1212 
Page 10 
In addition, section 214(i)(2) of the Act, 8 U.S.C. 5 1184(i)(2), provides that an alien must have the following 
credentials to be qualified to perform the services of a specialty occupation: 
(A) 
 full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) 
 completion of the degree described in paragraph (l)(B) for the occupation, or 
(C) 
 (i) experience in the specialty equivalent to the completion of such degree, and (ii) 
recognition of expertise in the specialty through progressively responsible positions 
relating to the specialty. 
As further explained in 8 C.F.R. 5 214.2(h)(4)(iii)(C), an alien must meet one of the following criteria to 
qualify to perform the services of a specialty occupation: 
(I) 
 Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) 
 Hold a foreign degree determined to be equivalent to a United States baccalaureate or 
higher degree required by the specialty occupation from an accredited college or 
university; 
(3) 
 Hold an unrestricted State license, registration or certification which authorizes him 
or her to fully practice the specialty occupation and be immediately engaged in that 
specialty in the state of intended employment; or 
(4) 
 Have education, specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree in 
the specialty occupation, and have recognition of expertise in the specialty through 
progressively responsible positions directly related to the specialty. 
Criteria (I) and (3) are inapplicable to the beneficiary in this petition. With regard to the second criterion, 
there is no evidence in the record, such as a report from an academic credentials evaluation service, affirming 
that the beneficiary's education in India - which includes a bachelor of technology (electronics and 
communications) from Nabarjuna University and a post graduate diploma in computer applications from the 
Institute of Computer Software Sciences - is equivalent to a degree in a specialty from an accredited U.S. 
college or university. Thus, the record does not establish that the beneficiary is qualified under 8 C.F.R. 
5 214.2(h)(4)(iii)(C)(2) to perform services in a specialty occupation. 
For the purpose of deciding whether the beneficiary is qualified under 8 C.F.R. 5 214.2(h)(4)(iii)(C)(4), 
8 C.F.R. 5 214.2(h)(4)(iii)(D) provides that the determination shall be based on one or more of the following: 
(I) 
 An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
EAC 04 229 51212 
Page 11 
which has a program for granting such credit based on an individual's training and/or 
work experience; 
(2) 
 The results of recognized college-level equivalency examinations or special credit 
programs, such as the College Level Examination Program (CLEP), or Program on 
Noncollegiate Sponsored Instruction (PONSI); 
(3) 
 An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 
(4) 
 Evidence of certification or registration from a nationally-recognized professional 
association or society for the specialty that is known to grant certification or 
registration to persons in the occupational specialty who have achieved a certain level 
of competence in the specialty; 
(5) 
 A determination by the Service [CIS] that the equivalent of the degree required by 
the specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and that 
the alien has achieved recognition of expertise in the specialty occupation as a result 
of such training and experience. For purposes of determining equivalency to a 
baccalaureate degree in the specialty, three years of specialized training and/or work 
experience must be demonstrated for each year of college-level training the alien 
lacks. For equivalence to an advanced (or Masters) degree, the alien must have a 
baccalaureate degree followed by at least five years of experience in the specialty . . . 
It must be clearly demonstrated that the alien's training and/or work experience 
included the theoretical and practical application of specialized knowledge required 
by the specialty occupation; that the alien's experience was gained while working 
with peers, supervisors, or subordinates who have a degree or its equivalent in the 
specialty occupation; and that the alien has recognition of expertise in the specialty 
evidenced by at least one type of documentation such as: (i) Recognition of expertise 
in the specialty occupation by at least two recognized authorities ' in the same 
specialty occupation; (ii) Membership in a recognized foreign or United States 
association or society in the specialty occupation; (iii) Published material by or about 
the alien in professional publications, trade journals, books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation in a foreign country; 
or (v) Achievements which a recognized authority has determined to be significant 
contributions to the field of the specialty occupation. 
Only the fifth criterion applies to the instant petition. As previously discussed, there is no report on the 
beneficiary's education from an academic credentials evaluation service analyzing its equivalence in U.S. 
1 
 Recognized authority means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. A recognized authority's 
opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such 
opinions, citing specific instances where past opinions have been accepted as authoritative and by whom; (3) 
how the conclusions were reached; and (4) the basis for the conclusions supported by copies or citations of 
any research material used. 8 C.F.R. 5 214.2(h)(4)(ii). 
EAC 04 229 51212 
Page 12 
academic credit. Though the record includes the beneficiary's resume and letters from previous employers 
confirming that the beneficiary worked for them, none of that documentation demonstrates that the 
beneficiary was working with peers, supervisors, or subordinates who have at least a baccalaureate degree, or 
its equivalent, in a computer-related specialty. Nor is there any documentation in the record showing that the 
beneficiary has been recognized for his expertise in a computer-related specialty. Thus, the record does not 
establish that the beneficiary has any specialized work experience in the computer field that can be counted 
toward a degree equivalence in the specialty, as required by 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) for the 
beneficiary to be qualified under 8 C.F.R. 5 214.2(h)(4)(iii)(C)(4) to perform services in a specialty 
occupation. 
For the reasons discussed above, the record fails to establish that the beneficiary is qualified to perform 
services in a specialty occupation under any of the criteria enumerated under 8 C.F.R. $ 214.2(h)(4)(iii)(C). 
Notwithstanding the previous approval of H-1B status, the current petition to continue the beneficiary's H-1B 
classification cannot be approved unless the record establishes current eligibility. As the director has not 
addressed whether the proffered position is a specialty occupation and whether the beneficiary is qualified to 
perform services in a specialty occupation, the petition will be remanded in order for the director to rule on 
these issues. The director may afford the petitioner reasonable time to provide pertinent evidence. The 
director shall then issue a new decision based on the evidence of record with respect to whether the 
programmer analyst position is a specialty occupation and whether the beneficiary is qualified to perform 
services in a specialty occupation. As always, the burden of proof rests with the petitioner. See section 291 
of the Act 8 U.S.C. $ 1361. 
ORDER: 
 The director's decision of March 14,2005 is withdrawn. The petition is remanded to the director 
for entry of a new decision. If adverse to the petitioner, the decision shall be certified to the 
AAO for review.