remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-C-S- INC 
Non- Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 23, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting firm, seeks to temporarily employ the 
Beneficiary as a "systems analyst" under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ ll0l(a)(15)(H)(i)(b). The H-IB 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, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not established that the Beneficiary is qualified to perform the services of the 
proffered systems analyst position. 
The matter is now before us on appeal. In its appeal, the Petitioner submits previously provided , 
evidence and asserts that the Director erred when determining that the Beneficiary is not qualified to 
perform the services of the systems analyst position. 
We conduct de novo review on appeal, but there are threshold matters that must be resolved before 
we may address the merits of the Director's decision and the Petitioner's appeal. Specifically, a 
beneficiary's credentials to perform a particular job are relevant only when the job is found to be a 
specialty occupation. As will be discussed, the record does not establish that the proffered position 
requires a baccalaureate or higher degree in a specific specialty, or its equivalent. Additionally, the 
record is deficient in establishing the Petitioner's employer-employee relationship with the 
Beneficiary. Accordingly, the matter will be remanded to the Director for further development of 
the record and a new decision. 
Matter ofC-C-S- Inc 
I. SPECIALTY OCCUPATION 
We will first discuss whether the proffered position qualifies as a specialty occupation. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the tenn "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 regulations largely restate this statutory definition, but add a non-exhaustive list of fields of 
endeavor. 8 C.F.R. § 214.2(h)( 4)(ii). In addition, the regulations provide that the protlered 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 have consistently interpreted the term "degree" in these criteria 
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. Chert off; 484 F.3d 139, 14 7 (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"); Def"ensor v. Mei.<;sner, 201 F.3d 384, 387-88 
(5th Cir. 2000). 
We note that, as recognized by the court in Def"ensor, where the work is to be performed for entities 
other than the petitioner, evidence of the client companies' job requirements is critical. De(ensor, 
201 F.3d at 387-88. The court held that the former Immigration and Naturalization Service had 
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Matter ofC-C-S- Inc 
reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence that 
a proffered position qualifies as a specialty occupation on the basis of the requirements imposed by 
the entities using the beneficiary's services. !d. Such evidence must be sufficiently detailed to 
demonstrate the type and educational level of highly specialized knowledge in a specific discipline 
that is necessary to perform that particular work. 
B. Proffered Position 
In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as its "systems analyst.'' In 
a letter submitted in support of the petition, the Petitioner stated the following regarding the 
proffered position (bullet points added and paraphrased for clarity): 
• Analyze business requirements, procedures, and analyze legacy systems and 
modeling business processes; 
• Identify problems and learn specific input and output requirements, such as forms 
of data input, how data is to be summarized, and formats for reports as well as 
write detailed description of user needs, program functions, and steps required to 
develop or modify computer program; 
• Review computer system capabilities, workflow, and scheduling limitations to 
determine if requested program or program change is possible within existing 
system; and 
• Review requirements models with end users and design target system. 
According to the Petitioner, the "minimum level of education required by our company and by 
general current industry standards is a Bachelor Degree (or equivalent) in a related field and 
preferably some relevant experience." 1 
C. Analysis 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation. Specifically, the record does not (1) describe the position's duties with 
sufficient detail; and (2) establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 2 
1 
The Petitioner stated on the Fonn 1-129, that the Beneficiary would work offsite. In response to the Director's request 
for evidence, the Petitioner submitted a letter from the end client which repeated the Petitioner's description of duties 
and added that the Beneficiary would remain on-call for any critical issues arising during off hours. The end client stated 
that a bachelor's degree in a related field and relevant experience would be required to perform these duties. 
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 ofC-C-S- Inc 
On the labor condition application (LCA) 3 submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Computer Systems Analysts" 
corresponding to the Standard Occupational Classification code 15-1121.
4 
Upon review of the 
general description of duties, the Petitioner has not provided sufficient evidence of what the 
Beneficiary will actually do in the proposed position so that we may analyze and ascertain the 
educational requirements required to perform those duties. The Petitioner and the end client in this 
matter provided an overview of the duties of the occupation of a general computer systems analyst, 
without detailing the proposed day-to-day tasks as those duties relate to the end client's actual 
project. That is, the Petitioner has not provided context for the generally described duties within the 
Petitioner's organization and, more importantly, within the end client's organization. 
Additionally, both the Petitioner and the end client accept a bachelor's degree, without further 
requiring that that degree be in any specific specialty. However, a petitioner must demonstrate that 
the proffered position requires a precise and specific course of study that relates directly and closely 
to the position in question. There must be a close correlation between the required specialized 
studies and the position; thus, the mere requirement of a degree, without further specification, does 
not establish the position as a specialty occupation. Cl Matter of Michael Hertz Assocs., 19 I&N 
Dec. 558, 560 (Comm 'r 1988) ("The mere requirement of a college degree for the sake of general 
education, or to obtain what an employer perceives to be a higher caliber employee, also does not 
establish eligibility."). While a general-purpose bachelor's degree may be a legitimate prerequisite 
for a particular position, requiring such a degree, without more, will not justify a finding that a 
particular position qualifies for classification as a specialty occupation. Royal Siam, 484 F.3d at 
147. 
The Petitioner's vague description of the protlered position's duties precludes a finding that the 
proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the 
substantive nature of that work that determines (1) the normal minimum educational requirement for 
entry into the particular position, which is the focus of criterion 1; (2) industry positions which are 
parallel to the proffered position and thus appropriate for review for a common degree requirement, 
3 
The Petitioner is required to submit a certified LCA 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 20 15). 
4 
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: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions 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://ficdatacenter.com/download/NPWHC_Guidance_Revised_ll_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. 
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Matter ofC-C-S-Inc 
under the first alternate prong of criterion 2; (3) the level of complexity or uniqueness of the 
proffered position, which is the focus of the second alternate prong of criterion 2; ( 4) the factual 
justification for a petitioner normally requiring a degree or its equivalent, when that is an issue under 
criterion 3; and (5) the degree of specialization and complexity of the specific duties. which is the 
focus of criterion 4. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation and the petition could not be approved on this basis alone. 
Even if the Petitioner had established that the protlered position is a computer systems analyst 
position, we note that the U.S. Department of Labor's Occupational Outlook Handbook (Handhook) 
does not indicate that such a position qualifies as a specialty occupation in that the Handbook does 
not state a normal minimum requirement of a U.S. bachelor's or higher degree in a specific 
specialty, or its equivalent, for entry into the occupation. 5 
The subchapter of the Handbook entitled "How to Become a Computer Systems Analyst" states, m 
relevant part, the following: 
A bachelor's degree in a computer or infonnation science field is common, although not 
always a requirement. Some fim1s hire analysts with business or liberal atis degrees 
who have skills in information technology or computer programming. 
Education 
Most computer systems analysts have a bachelor's degree in a computer-related field. 
Because these analysts also are heavily involved in the business side of a company, it 
may be helpful to take business courses or major in management information systems. 
Some employers prefer applicants who have a master's degree in business 
administration (MBA) with a concentration in inforn1ation systems. For more 
technically complex jobs, a master's degree in computer science may be more 
appropriate. 
Although many computer systems analysts have technical degrees, such a degree is not 
always a requirement. Many analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. 
5 We recognize the Handbook as an authoritative source on the duties and educational requirements of the wide variety 
of occupations that it addresses. 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 HandhoiJk on 
the duties and educational requirements of the wide variety of occupations that it addresses. 
5 
(b)(6)
Matter ofC-C-S- Inc 
Many systems analysts continue to take classes throughout their careers so they can 
learn about new and innovative technologies. Technological advances come so rapidly 
in the computer field that continual study is necessary to remain competitive. 
Systems analysts must understand the business field they are working in. For example, 
a hospital may want an analyst with a thorough understanding of health plans and 
programs such as Medicare and Medicaid, and an analyst working for a bank may need 
to understand finance. Having knowledge of their industry helps systems analysts 
communicate with managers to detennine the role of the information technology (IT) 
systems in an organization. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Computer Systems Analyst," https://www.bls.gov/ooh/computer-and-infom1ation­
technology/computer-systems-analysts.htm#tab-4 (last visited Feb. 22, 2017). 
Upon review of the educational requirements for a computer systems analyst as reported in the 
Handbook, the Handbook indicates at most that a bachelor's or higher degree in a computer or 
information science field may be a common preference, but not a standard occupational, entry 
requirement. In fact, this chapter notes that many computer systems analysts only have liberal arts 
degrees and programming or technical experience. See id. Thus, the Handbook ·s report is insufficient 
to conclude that simply by virtue of its occupational classification the position qualifies as a specialty 
occupation. 
When the Handbook does not suppmi the proposition that a proffered position is one that meets the 
statutory and regulatory provisions of a specialty occupation, it is incumbent upon the Petitioner to 
provide persuasive evidence that the proffered position more likely than not satisfies this or one of the 
other three criteria, notwithstanding the absence of the Handbook's support on the issue. In such case, it 
is the Petitioner's responsibility to provide probative evidence (e.g., documentation from other 
objective, authoritative sources) that supports a finding that the particular position in question qualifies 
as a specialty occupation. Whenever more than one authoritative source exists, an adjudicator will 
consider and weigh all of the evidence presented to determine whether the patiicular position qualifies 
as a specialty occupation. 
In that regard, we have reviewed the opinion letter prepared by a professor in the 
Computer Science Department at offers a comparison of 
the duties of the proffered position to the occupation of a computer systems analyst as described in the 
Occupational Information Network's (O*NET) catalog of careers. He also references the Handbook':·; 
report on the educational requirements for the occupation of a computer systems analyst and concludes 
that the "responsibilities of the position under analysis are so sophisticated that they could only be 
undertaken by someone with a strong undergraduate education, supplemented by IT training or 
experience." fmiher concludes "that the position of Systems Analyst is a specialty 
occupation requiring one of the computer-related baccalaureate degrees or equivalent experience." 
6 
(b)(6)
Matter ofC-C-S- Inc 
However, neither the Handbook nor O*NET reports that a bachelor's degree in a computer-related 
subject is the minimum requirement for the occupation of a computer systems analyst. Moreover, 
appears unaware that the Petitioner accepts a general bachelor's degree as sufficient to perfom1 
the duties of the proffered position and that the Petitioner assigned a Level I wage to the proffered 
position, a wage-level which is appropriate for a comparatively low, entry-level systems analyst 
position, relative to others within the same occupation. Thus, opinion is not in accord with 
all the facts in the matter and we question the foundation of his opinion and his understanding of the 
Petitioner's own academic requirements and level ofresponsibility expected for the profTered position. 
We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of 
Caron lnt'l. Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in 
accord with other information or is in any way questionable, we are not required to accept or may 
give less weight to that evidence. !d. 
As the Petitioner was not previously accorded the opportunity to address the deficiencies in the 
record regarding the specialty occupation nature of the profTered position, we will remand the record 
for further development of this issue. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP ANALYSIS 
We will also briefly address the issue of whether or not the Petitioner qualifies as an H-1 B employer. 
The United States Supreme Court determined that where federal Jaw fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. 
Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. fiH Creative Non-Violence v. Reid, 490 
U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party." 
!d.; see also Clackamas Gastroenterology Assocs .. P.C v. Wells, 538 U.S. 440,445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United 
Ins. Co. ofAm., 390 U.S. 254,258 (1968)). 
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Matter ofC-C-S- Inc 
As such, while social security contributions, worker's compensation contributions. unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still 
relevant factors in determining who will control the Beneficiary, other incidents of the relationship, 
e.g., who will oversee and direct the work of the Beneficiary, who will provide the instrumentalities 
and tools, where will the work be located, and who has the right or ability to affect the projects to 
which the Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. As noted above, the record of 
proceedings lacks sufficient documentation evidencing exactly what the Beneficiary would do for 
the period of time requested. We also observe that the record does not clearly identify the 
Beneficiary's supervisor or who will instruct the Beneficiary on his daily tasks while located at the 
Petitioner's end client's facility. Further, the record does not include the master services agreement 
between the mid-vendor and the end client in this matter or a statement of work that includes the 
proposed employment. 6 Given this lack of evidence, the Petitioner has not established who will 
have actual control over the Beneficiary's work or duties, or the condition and scope of the 
Beneficiary's services. Without full disclosure of all of the relevant factors, we are unable to 
properly assess whether the requisite employer-employee relationship will exist between the 
Petitioner and the Beneficiary. 
As the Petitioner was not previously accorded the opportunity to address the deficiencies in the 
record regarding the employer-employee relationship on appeal, we will remand the record for 
further development of this issue as well. 
III. BENEFICIARY QUALIFICA TJONS 
As referenced above, we do not need to examine the issue of the Beneficiary's qualifications, 
because the Petitioner has not provided sufficient evidence to demonstrate that the proffered position 
is a specialty occupation. The Beneficiary's credentials to perform a particular job are relevant only 
when the job is found to be a specialty occupation. Absent a determination that a baccalaureate or 
higher degree in a specific specialty, or its equivalent, is required to perform the duties of the 
proffered position, it also cannot be determined whether the Beneficiary possesses that degree, or its 
equivalent. Therefore, we need not and will not address the Beneficiary's qualifications further. 
IV. CONCLUSION 
As discussed in this decision, the evidence of record does not establish eligibility for the benefit 
sought. On remand, the Director should afford the Petitioner an opportunity to submit additional 
evidence and legal arguments. 
6 
The statement of work included in the record is for work to be completed by September 30, 2016, prior to the 
Beneficiary's intended employment period. Additionally, while the Beneficiary is named as the subcontractor employee, 
the statement of work describes the scope of work as the work of an SQL database engineer. 
8 
Matter ofC-C-S-Inc 
ORDER: The decision of the Director, California Service Center, is withdrawn. The matter is 
remanded to the Director, California Service Center, for further proceedings 
consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofC-C-S- Inc, ID# 188728 (AAO Feb. 23, 2017) 
9