U.S. Citizenship and Immigration Services

MATTER OF IN-S-T-

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAY22,2017

PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a computer company, seeks to temporarily employ the Beneficiary as a "programmer" under the H-lB 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-lB 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 Vermont Service Center denied the petition, concluding that the evidence of record does not establish that the proffered position qualifies as a specialty occupation.

On appeal, the Petitioner states that the initial filing was lacking in evidence because it had misplaced it. The Petitioner continues by requesting that we review the new evidence submitted on appeal.

Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section 214(i)(l) ofthe 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.

The regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) largely restates this statutory definition, but adds a non­exhaustive 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:

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(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" at 8 C.F.R. § 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. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000).

II. PROFFERED POSITION

In response to the Director's request for evidence (RFE), the Petitioner submitted the following duties for the proffered position:

Responsible for coordinating onsite/offshore client deliverables, conduct technical 10% discussions, resolve incidents/design enhancements related to the Project

Collaborate with other engineers, and management, to achieve optimal application 10% architecture and design; Communicate proactively with team members, infrastructure, security, and quality assurance to continuously improve processes and engineering excellence;

Developing efficient, secure applications, peer-review code, and document 30% solutions within an agile-blended software environp:1ent; Using Spring MVC, Drools and Micro Services, Core Java and multithreaded programming and RESTful Web services, JMS and messaging systems, Agile Methodologies and Tools;

Develop web applications using Java Script, HTML5, jQuery, AJAX, CSS, Maven, 20% Jenkins, Subversion, CVS, iBatis, Hibernate;

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-Writing Unit Tests using JUnit and mocking frameworks on application server 20% platforms: Apache, Tomcat, Web Sphere, JBoss, etc;

Participating in architecture and development methodologies of n-tier systems and 10% document including business logic flows and technical writing;

According to the Petitioner, the proffered position requires at least a bachelor's degree or master's degree in a "directly related field, or the equivalent with related experience as a Programmer."1

III. ANALYSIS

We have determined that the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does not establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation? . A. First Criterion

We tum first to the criterion at 8 C.F.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. To )nform this inquiry, 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

1 With the appeal, the Petitioner submitted evidence it describes as' Project Description and documentation." This evidence provides several job duties for an unnamed position and the percentage of time to be spent on each duty. However, the document does not include the job title - and the description and percentages of time vary considerably from the information previously provided by the Petitioner about the proffered position. Moreover, the document states that a bachelor's degree in computers or any other field (emphasis added) is acceptable (in the section "Required Skills for Job)." Thus, it does not indicate that a degree in a discipline directly related to the duties of the position is required. Therefore, it does not support the Petitioner's claim that it qualifies as a specialty occupation. The document also inexplicably states that a "Master's Degree in Computer Science with Major on [sic] Computer Information System" is required (in the section "Qualifications and Technical Skills)." We find that as the information in this document appears to be internally inconsistent and varies considerably from the Petitioner's prior job description, we cannot conclude that it refers to the proffered position. 2 The Petitioner submitted documentation to support the H-1 8 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. · 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. T-hat 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 would normally have a minimum, specialty degree requirement, or its equivalent, for entry ..

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On the LCA submitted in support of the H-1B petition, the Petitioner designated the proffered position under the occupational category "Computer Programmers" corresponding to the Standard Occupational Classification code 15-1131.4

The subchapter of the Handbook entitled "How to Become a Computer Programmer" states the following: "Most computer programmers have a bachelor's degree in computer science or a related subject; however, 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.).

According to the Handbook, the requirements to perform the duties of a computer programmer incorporate a wide spectrum of educational credentials, including less than a bachelor's degree in a specific specialty. For example, the Handbook states that some employers hire workers who have an associate's degree. Furthermore, while the Handbook's narrative indicates that most computer programmers obtain a degree (either a bachelor's or associate's degree) in computer science or a related field, the Handbook does not report that at least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry.

In this case, the Petitioner has not established that the proffered position falls under an occupational category for which the Handbook, or another authoritative source, indicates that normally the minimum requirement for entry is at least a bachelor's degree in a specific specialty, or its equivalent.5 The Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).

B. 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 concentrates upon the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific position.

4 The Petitioner classified the proffered position at a Levell wage. 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 Levell (entry) wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. 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 _II_ 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. 5 We hereby withdraw the Director's statement that the position of programmer is traditionally considered a specialty occupation. The Director does not cite to any authoritative or objective source to support this statement.

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1. 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.

When determining whether there is such a common degree requirement, factors often considered include: whether the Handbook 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)).

The Petitioner has not established that its proffered position is one for which the Handbook (or other independent, authoritative sources) reports an industry-wide 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. Also, there are no submissions from the industry's professional association indicating that it has made a degree a minimum entry requirement.

In support of this criterion, the Petitioner submitted a "chart showing that similar job titles in the same field of industry require at least a Bachelor Degree." The chart was prepared by the Petitioner and purports to list the company, the job description, the minimum job requirements, and the Internet address for the job advertisements. We note, however, that we are not required to conduct additional research on the Internet or to access websites as there may be a number of concerns with these sites (e.g., the links may have expired or the postings may have been removed, there may be security concerns or viruses associated with these links, the links may be restricted). It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25,I&N Dec. 799, 806 (AAO 2012). Any suggestion that U.S. Citizenship and\Immigration Services (USCIS) mu~t access and review websites, while being impractical and inefficient, would also be a shift in the evidentiary burden from the Petitioner to USCIS, which would be contrary to section 291 of the Act, 8 U.S.C. §1361. If the Petitioner wishes for us to consider these links, it must provide printouts for us to review.

Furthermore, when we reviewed the chart, we observe that the Petitioner provided little or no information regarding the hiring employers (e.g.,

and The Petitioner did not supplement the record of proceedings to establish that these advertising organizations are similar.

When determining whether the Petitioner and the organization share the same general characteristics, such factors may include information regarding the nature or type of organization, and, when pertinent, the particular scope of operations, as well as the level of revenue and staffing (to list just a few elements that may be' considered). It is not sufficient for the Petitioner to claim that

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an organization is similar and in the same industry without providing a legitimate basis for such an assertion.

As the documentation does not establish that the Petitioner has met this prong of the regulations, further analysis regarding the specific information contained in each of the entries in the Petitioner's chart is not necessary. 6

Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's degree in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar organizations. The Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2).

2. 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.

In this matter, the evidence of record does not distinguish the proffered position as unique from or more complex than other computer programmer positions that can be performed by persons without at least a bachelor's degree in a specific specialty, or its equivalent.

In support of its assertion that the proffered position qualifies as a specialty occupation, the Petitioner submitted a description of the proffered position and information regarding its business operations. While the Petitioner may believe that the position meets this prong of the regulations, we note, however, the record lacks evidence supporting the Petitioner's claim. For example, the Petitioner designated the proffered position as an entry-level position within the occupational category by selecting a Level I wage. 7 This designation, when read in combination with the evidence presented and the Handbook's account of the requirements for this occupation, suggests

6 The Petitioner did not provide any independent evidence of how representative the job postings are of the particular advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for hire, they are not evidence of the actual hiring practices of these employers. Moreover, not all of the postings are for parallel positions. 7 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-designation 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)(l) of the Act.

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that the particular position is not so complex or unique that the duties can only be performed an individual with bachelor's degree or higher in a specific specialty, or its equivalent.8

The Petitioner claims that the Beneficiary is well-qualified for the position, and references his 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 sufficiently develop relative complexity or uniqueness as an aspect of the duties of the position, and it did not identify tasks that are so complex or unique that only a specifically degreed individual could perform them. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2).

C. 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 degree in a specific specialty, or its equivalent, for the position.

The record must establish that a petitioner's stated degree requirement is not a matter of preference for high-caliber candidates but is necessitated instead by performance requirements of the position. See Defensor v. Meissner, 201 F.3d at 387-88. Were USCIS limited solely to reviewing a petitioner's claimed self-imposed requirements, an organization could bring any individual with a bachelor's degree to the United States to perform any occupation as long as the petitioning entity created a token degree requirement. !d. Evidence provided in support of this criterion may include, but is not limited to, documentation regarding the Petitioner's past recruitment and hiring practices, as well as information regarding employees who previously held the position.

The Petitioner submitted documentary evidence (including the job duties, a certificate, and pay statements) for one employee. This individual possesses a foreign "course completion certificate" but the Petitioner did not submit an academic credential evaluation to establish that he possesses the equivalent of a U.S. bachelor's degree in a directly related field. In addition, the individual serves as a "senior programmer" rather than in an entry-level programmer position. (The Petitioner designated the proffered position as entry-level position as indicated by the Level I wage on the LCA.) Moreover, the salary of the senior programmer was $63,400 in 2015, which is significantly higher than the salary offered to the Beneficiary of $45,500 - further suggesting that the positions are not the same or similar.

The Petitioner began its business operations in 2007 (approximately nine years before the H-lB petition was filed). Without more, the Petitioner has not demonstrated that the documentation submitted regarding one employee (who serves in a different position) establishes that the Petitioner

8 The evidence of record does not establish that this position is sig]1ificantly 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.

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normally requires a bachelor's degree in a specific specialty, or its equivalent, for the proffered position.9 .

Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3).

D. 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.

Although the Petitioner generally refers to the Beneficiary's duties as "specialized," we find that the Petitioner has not sufficiently developed relative specialization and complexity as an aspect of the proffered position. For example, the Petitioner stated that the Beneficiary will be "responsible for coordinating onsite/offshore client deliverables"; "collaborate with other engineers, and management"; "develop web applications;" and, "writ[ e] Unit Tests." In addition, the job description lists several tools the Beneficiary will utilize but does not explain if these tools and applications require any specialized knowledge to apply them.

On appeal, the Petitioner submits a new list of job duties entitled ' Project Description" for an unnamed position and which includes tasks that were not provided in the initial petition. 10 The new job duties include several new systems and applications such as

as well as working on spring performance issues. The job description provided with the original petition and in response to the RFE did not include these systems, and the Petitioner does not clarify why the job duties and requirements have been significantly modified. It appears that the project description may not actually relate to the proffered position.

Moreover, the proposed duties in the record are not described with sufficient specificity to show that they are more specialized and complex than other computer programmer positions that are not usually associated with at least a bachelor's degree' in a specific specialty, or its equivalent. We incorporate our earlier discussion and analysis regarding the duties of the proffered position, and the designation of the position in the LCA as a Level I (entry-level) position, and not as the higher Level III (referring to "special skills or knowledge") or Level IV (referring to "complex or unusual problems") wage levels.

9 The Petitioner did not provide sufficient supporting evidence that it employs any other programmers or that these individuals were required to hold a bachelor's degree in one of the disciplines stated by the Petitioner (or its equivalent). 10 On appeal, the Petitioner states that it misplaced existing documents and worked to get updated documents. It submitted a new statement of work. We reviewed the documentation; however, the evidence further calls into question the Petitioner's claimed agreement because it was purportedly signed by more than a week after the submission of the appeal. Without more, the document does not support the Petitioner' s claim.

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The Petitioner has not provided sufficient evidence that the duties, as generally described, require more than technical proficiency in the information technology field. The Petitioner. has not demonstrated 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).

IV. CONCLUSION )

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 as a specialty occupation.

ORDER: The appeal is dismissed.

Cite as Matter of IN-S-T-, ID# 344048 (AAO May 22, 2017)

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