remanded H-1B Case: Software Development

I-&ens8"r-~ ?.+& 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 195 50964 Office: CALIFORNIA SERVICE CENTER Date: a 81 
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. 5 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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, Director 
Administrative Appeals Office 
WAC 04 195 50964 
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 The director's decision will be withdrawn and the 
matter remanded to the director for entry of a new decision consistent with this opinion. 
The petitioner is a software development and consulting company that seeks to employ the beneficiary as 
a programmer-analyst. The petitioner, therefore, seeks to classify the beneficiary as a nonimmigrant worker 
in a specialty occupation pursuant to section 10 l(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 evidence (RFE); (3) the petitioner's RFE response and supporting documentation; 
(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 beneficiary's work is contingent upon contracts between the petitioner and third-party contractors. The 
director denied the petition on the basis that the petitioner had not demonstrated that the ultimate employment 
of the beneficiary qualified as a specialty occupation. Specifically, the director noted the lack of information 
regarding the beneficiary's proposed duties from an authorized representative of the company for whom the 
beneficiary will ultimately perform the services, as required by 8 C.F.R. § 214.2@)(2)(i)(F) and the failure of 
the petitioner to provide an itinerary as required under 8 C.F.R. 9 214.2@)(2)(i)(B). 
In this case, the USCIS properly requested contracts between the petitioner and the clients or 
prospective employer where the beneficiary would perform services. Although the record 
contains various service agreements between the petitioner and Inc., 
and Megasoft, nowhere in such agreements is the beneficiary's name listed. 
However, each agreement has its own purchase order for a different alien or employee. 
Additionally, there is no comprehensive description of the beneficiary's proposed duties 
from an authorized representative of where the beneficiary will ultimately perform the 
proposed duties. Without such description, the petitioner has not demonstrated that the 
proffered position meets the statutory definition of a specialty occupation. 
On appeal, the petitioner submits an agency agreement and purchase order between the petitioner and 
Cognizant Technology Solutions U.S. Corporation. The purchase order both states the duties to be performed 
by the beneficiary, and estimates that the project end date will be September 30, 2007, which coincides with 
the end date of the petition. 
As such, the petitioner has overcome the grounds for denial of the petition. The petitioner has established 
that it will employ the beneficiary through the end date of the petition and has provided the duties to be 
performed from the petitioner's client. The AAO notes that the work location is Fremont, California, which 
is the work location specified in the LCA. 
However, the petition may not be approved at ths time, as the petitioner has not demonstrated that the work 
to be performed by the beneficiary qualifies for classification as a specialty occupation. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 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 
WAC 04 195 50964 
Page 3 
(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. 4 214.2@)(4)(iii)(A), to qualifl 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. 
4 214.2(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. 
The petitioner is a software development and consulting company with five employees. It proposes to hire 
the beneficiary as a programmer-analyst. In the purchase order submitted on appeal; 
stated that the beneficiary would design and develop program-specific software using Ctt-, UML, C, SOL, 
WND(, ASP, HTML, and Java script;-design databases of tables and fields for storing and processing, using 
Oracle 8i191, SQL Server, and DB2; prepare technical specification documents; implement new processing 
rules, and de-bug and fix system performance and processing faults; design and develop user interface 
software, implement client facing, and web applications; and design, develop, execute, and control schedules 
of pre-defined duration throughout the lifecycle of the program. 
In determining whether a proposed position qualifies as a specialty occupation, CIS looks beyond the title 
of the proposed position and determines, from a review of the duties of the position and any supporting 
evidence, whether the position actually requires the theoretical and practical application of a body of 
highly specialized knowledge, and the attainment of a baccalaureate degree in a specific specialty, as the 
minimum for entry into the occupation as required by the Act. The AAO routinely consults the 
Occupational Outlook Handbook (the Handbook) for its information about the duties and educational 
requirements of particular occupations. 
The duties of the proposed position fall within those noted for computer systems analysts, database 
administrators, and computer scientists, as the Handbook places the occupation of programmer-analyst 
within this group of occupations, noting that "[plrogrammer-analysts design and update the software that 
runs a computer. Because they are responsible for both programming and systems analysis, these workers 
must be proficient in both areas." 
. WAC 04 195 50964 
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The Handbook notes that there is no universally accepted way to prepare for a position in this 
occupational grouping, but that most employers place a premium on some formal college education. 
While a bachelor's degree is a prerequisite for many positions, others may require only a two-year degree. 
For more technically complex positions, persons with graduate degrees are preferred. Many employers 
seek applicants who have a bachelor's degree in computer science, information science or management 
information systems (MIS). MIS programs are usually part of a business school or college and differ 
considerably from computer science programs, emphasizing business and management-oriented course 
work and business computing courses. Employers are increasingly seeking individuals with a master's 
degree in business administration with a concentration in information systems as more firms move their 
business to the Internet. The educational requirements for these positions vary greatly, depending on the 
needs of a particular position. A bachelor's degree in a specific specialty, however, is not a minimum 
requirement for entry into the occupation. Therefore, the proposed position does not qualify as a 
specialty occupation under 8 C.F.R. 9 214.2(h)(4)(iii)(A)(I). 
Nor does the proposed position qualify as a specialty occupation under either prong of 8 C.F.R. 
5 214.2(h)(4)(iii)(A)(2). The first prong of this regulation requires a showing that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. To meet the burden 
of proof imposed by the regulatory language, a petitioner must demonstrate that its degree requirement exists 
in parallel positions among similar organizations. However, no such evidence has been submitted. 
Thus, the position does not qualify under the first prong of the second criterion. The second prong of the 
second criterion will be discussed later in this decision. 
The AAO next turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3), which requires that the petitioner 
demonstrate that it normally requires a degree or its equivalent for the position. To determine a 
petitioner's ability to meet the third criterion, the AAO normally reviews the petitioner's past 
employment practices, as well as the histories, including the names and dates of employment, of those 
employees with degrees who previously held the position, and copies of those employees' diplomas. 
In its response to the director's request for evidence, the petitioner stated that it employs two other 
programmer-analysts, and that one possesses a bachelor's degree, and one possesses a master's degree. 
However, documentary evidence to support this assertion was not presented. Simply going on record 
without supporting documentary evidence is not sufficient for the purpose of meeting the burden of proof 
in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Therefore, the third criterion of 8 C.F.R. 8 214.2(h)(4)(iii)(A) has not been satisfied. 
Finally, the duties to be performed by the beneficiary are not so specialized or complex that knowledge 
required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a 
specific specialty. Nor are the duties so complex or unique that they can be performed only by an 
individual with a degree in a specific specialty. The petitioner has not established that its proposed 
position is more complex than the one outlined in the Handbook, which does not require a four-year 
degree. Also, as described by the petitioner's client, the duties of this position do not appear to be so 
unique or complex that they require the services of an individual with a bachelor's degree. As previously 
noted, not all programmer analyst positions require a bachelor's degree, as some require only a two-year 
degree. 
I 
WAC 04 195 50964 
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Therefore, the proposed position does not qualify as a specialty occupation under the second prong of the 
second criterion of 8 C.F.R. $ 214.2(h)(4)(iii)(A), nor does it qualify under the fourth criterion of that 
regulation. 
The proposed position does not appear to qualify for classification as a specialty occupation under any of 
the four criteria set forth at 8 C.F.R. $8 214.2(h)(4)(iii)(A)(I), (2), (3), and (4). However, the director has 
not addressed this issue, so his decision will be withdrawn, and the petition will be remanded for the 
director to address whether or not the position is a specialty occupation. The director may afford the 
petitioner reasonable time to provide evidence relevant to the issue of whether or not the proposed 
position qualifies for classification as a specialty occupation, as well 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 regulatory requirements for eligibility. As always, the burden of proving eligibility for the 
benefit sought rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. 
ORDER: The director's December 13, 2004 decision is withdrawn. The petition is remanded to the 
director for entry of a new decision, which, if adverse to the petitioner, is to be certified to 
the AAO for review.