This appeal was not successful at this stage
The AAO dismissed the appeal, affirming the denial because the petitioner failed to demonstrate that the proffered 'program analyst' position qualifies as an H-1B specialty occupation under any of the four regulatory criteria. Additionally, the LCA designated the position under 'Computer Programmers,' which does not uniformly require a specific bachelor's degree, undermining the specialty occupation claim.
An internet marketing company petitioned for an H-1B worker as a 'program analyst,' but the California Service Center denied the petition, and the AAO affirmed on de novo review. The AAO found that the LCA improperly classified the position under 'Computer Programmers,' an occupation for which some employers hire workers with only an associate's degree, while the petitioner simultaneously claimed the role encompassed higher-paying occupations like software developer and systems analyst. The petitioner failed to satisfy any of the four H-1B specialty occupation criteria: the Occupational Outlook Handbook, O*NET data, and industry letters did not establish that a specific bachelor's degree is universally required, the expert opinion letter was superficial and unsupported by independent research, the petitioner's own job advertisement was created after filing and thus not credible, and the duties were not shown to be so complex or unique as to require a specifically degreed individual. A separate LCA compliance issue — potential underpayment given the mismatch between the selected occupational code and the actual duties described — further precluded approval.
What failed: The petitioner's LCA designated the position under 'Computer Programmers,' an occupational category that does not universally require a specific bachelor's degree, while simultaneously claiming the duties encompassed higher-classified and higher-paid occupations, creating an internal inconsistency. The expert opinion letter from a computing professor was rejected because it merely restated the job description without any independent investigation of the actual duties, site visits, or research on minimum educational requirements. Industry support letters and job postings from other employers failed because the petitioner did not establish that those companies were truly comparable organizations, that the advertised positions were truly parallel, or that the positions uniformly required a specific-specialty bachelor's degree rather than any general degree.
Takeaway: H-1B petitioners must ensure their LCA occupational classification accurately reflects the highest-paying occupation the position encompasses, and must supply concrete, independently researched evidence — not generic letters or post-filing job ads — demonstrating that a specific bachelor's degree (not just any degree) is a genuine entry-level requirement for the proffered position as it will actually be performed in their business context.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating H-1B criteria.
● Evidence that moved the needle
- See summary above for details.
● Evidence that wasn't enough alone
- The petitioner's LCA designated the position under 'Computer Programmers,' an occupational category that does not universally require a specific bachelor's degree, while simultaneously claiming the duties encompassed higher-classified and higher-paid occupations, creating an internal inconsistency
- The expert opinion letter from a computing professor was rejected because it merely restated the job description without any independent investigation of the actual duties, site visits, or research on minimum educational requirements
- Industry support letters and job postings from other employers failed because the petitioner did not establish that those companies were truly comparable organizations, that the advertised positions were truly parallel, or that the positions uniformly required a specific-specialty bachelor's degree rather than any general degree.
Expert opinion letter from a dean/professor of computing and technology, which merely restated the job duties from the RFE response without substantive analysis, site visits, or independent research.
Letters from three comparable companies stating that a bachelor's degree in computer science or related discipline is the industry standard — found inadequate because the companies' similarity to the petitioner was unsubstantiated and the letters did not show actual hiring practices with specific credentials.
Job postings from other employers — found insufficient because the organizations were not shown to be similar, some positions were more senior, some accepted general degrees (e.g., business administration), and none demonstrated statistically valid commonality of a specific-specialty degree requirement.
O*NET summary report for Computer Programmers — did not establish that a specific bachelor's degree is universally required; some employers hire with an associate's degree.
Petitioner's own post-filing job advertisement for program analyst — dismissed as not independent or objective evidence because it was created after the petition was filed.
Federal Register Vol. 69, No. 247 Appendix A list of professional occupations — expressly limited to labor certification recruitment purposes and not applicable to H-1B specialty occupation determinations.
The LCA designated the position under 'Computer Programmers' (SOC 15-1131) even though the petitioner claimed the duties encompassed systems analyst, software developer, network architect, and database administrator functions, which carry higher prevailing wages — suggesting the wrong occupational classification and potentially inadequate wage offer.
The petitioner relied on Federal Register Appendix A (professional recruitment occupations list) as evidence of specialty occupation status, which the AAO found expressly inapplicable to H-1B specialty occupation determinations.
Completed
I-129 filed
Program analyst at an Internet marketing company, involving computer programming, systems analysis, software development, and related IT functions
Completed
California Service Center — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2018-05-17
AAO decision — Dismissed
The AAO dismissed the appeal, affirming the denial because the petitioner failed to demonstrate that the proffered 'program analyst' position qualifies as an H-1B specialty occupation under any of the four regulatory criteria. Additionally, the LCA designated the position under 'Computer Programmers,' which does not uniformly require a specific bachelor's degree, undermining the specialty occupation claim.
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.
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