remanded H-1B Case: Software Engineering

U.S. Department of Homeland Security 
20 Mass Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services -7- 
FILE: WAC 04 127 5 1882 Office: CALIFORNIA SERVICE CENTER Date: * :.$ 2 ? ha@ 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 10 1 (a)(l 5)(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, Director 
Administrative Appeals Office 
WAC 04 127 51882 
Page 2 
DISCUSSION: The director of the service center denied the nonirnrnigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The director's decision is withdrawn and the 
petition remanded for entry of a new decision. 
The petitioner is a computer store that seeks to employ the beneficiary as a software engineer. The petitioner, 
therefore, endeavors to classify the beneficiary 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. 9 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the ground that the proffered position is not a specialty occupation. On 
appeal, counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. $ 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. 9 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
9 214.2(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 record of proceeding before the AAO contains: (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 
WAC 04 127 51882 
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director's denial letter; and (5) Form I-290B and supporting documentation. The MO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a software engineer. Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's support letter; 
and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail studying and creating a flowchart of the petitioner's business 
procedures and transactions with clients such as purchasing, pricing, shipping, making and receiving 
payments, and financing patterns; developing, creating, modifying, and implementing Internet-based and 
general computer applications software for custonlers and companies; analyzing user needs and developing 
software solutions; adapting software such as accounting, invoicing, and customer-control programs to the 
petitioner's hardware systems, and maintaining software systems; designing or customizing software for 
customers' use with the aim of optimizing operational efficiency; and creating, updating, and maintaining 
Internet processing systems for automated ordering, shipping, and collecting transactions. The petitioner 
requires a bachelor's degree in computer engineering or a related field and related experience. 
The director stated that the proposed position resembles a programmer analyst as that occupation is depicted 
in the Department of Labor's (DOL) Occupational Outlook Handbook (the Handbook), and that the 
Handbook reveals that that occupation does not require a bachelor's degree in a specific specialty. According 
to the director, scientific or engineering applications would normally require a person with a degree in 
computer science or a related field; a computer store would need someone with less than a baccalaureate 
degree. 
On appeal, counsel refers to an opinion letter by ~r.hich states that based on industry 
standards the proposed position requires a person with a baccalaureate degree in the computer field. Counsel 
asserts that the director should have referenced the Handbook's information about a software engineer instead 
of a database administrator. 
Upon review of the record, the petitioner has established one of the four criteria outlined in 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The fourth criterion at 8 C.F.R. § 2 14.2(h)(4)(iii)(A) requires that the petitioner 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. As described in a March 18, 2004 letter, 
the petitioner states that it needs a software engineer to computerize business hnctions in order to reduce 
costs and maintain business operations. Rather than purchasing a ready-made system, the petitioner stated 
that it will develop one to fit business operations. The June 16, 2004 letter from   stated that the 
proposed duties correspond to those of a programmer/analyst, which is a title that embraces tasks involving 
analysis, specification, and the design and realization of computer and network systems. The letter also 
indicated that the tools required by the petitioner such as Java, VB, PERL, and UNIX and Windows operating 
systems are complex, requiring a baccalaureate degree in computer science, computer information systems, or 
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management information systems. ~r stated that the proposed position, by industry standards, 
normally requires a baccalaureate degree in a computer-related field. 
As described by the petitioner and supported by the evidence in the record, the AAO finds that the petitioner 
establishes that the proposed duties are specialized and complex, requiring a bachelor's degree in a relevant 
field such as computer science. Consequently, the petitioner establishes the fourth criterion at 8 C.F.R. 
$ 214.2(h)(4)(iii)(A). 
The AAO must now consider whether the beneficiary is qualified to perform the proposed position. 
Although the beneficiary holds a bachelor of sciences degree from an institution in Korea, the petition may 
not be approved as the record contains no evidence demons&ating that the beneficiary's baccalaureate degree 
is the educational equivalent of a U.S. baccalaureate degree in computer science or a related discipline from 
an accredited college or university in the United States. The director must afford the petitioner reasonable 
time to provide evidence pertinent to the issue of whether the beneficiary is qualified for the proposed 
position, and any other evidence the director may deem necessary. The director shall render a new decision 
based on the evidence of record as it relates to the regulatory requirements for eligibility. The burden of 
proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 
$1361. 
ORDER: The director's August 24, 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.