dismissed H-1B Case: Architecture

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Q-E-A-
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 26.2016 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner. an architectural services company. seeks to temporarily employ the Beneficiary as an 
'·architectural designer"" under the H-1 B nonimmigrant classification for specialty occupations. 
See Immigration and Nationality Act (the Act) § 101(a)(l5)(H)(i)(b). 8 U.S.C. 
§ 110l(a)(l5)(H)(i)(b). The H-18 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. Vermont Service Center. denied the petition. The Director concluded that the 
Petitioner did not establish that the profTered position qualifies as a specialty occupation in 
accordance with the applicable statutory and regulatory provisions. 
The matter is now before us on appeal. In its appeal. the Petitioner submits additional evidence and 
asserts that the Director erred by finding that the protTered position is not a specialty occupation. 
Upon de novo review. we will dismiss the appeal. 
I. LAW 
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. 
The regulation at 8 C .F.R. § 214.2(h)( 4 )(ii) largely restates this statutory definition. but adds a non­
exhaustive 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: 
Matter of Q-E-A-
(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 perfonned only by an 
individual with a degree: 
(3) The employer normally requires a degree or its equivalent for the position: or 
( ../) 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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term .. degree·· in the criteria 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 S'iam Corp. v. Cherto.ff~ 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 the initial letter of support, the Petitioner provided a general description of the job duties for its 
architectural designer position. In response to the Director's request for evidence. the Petitioner 
expanded the duties of the protTered position as follows: 
l. (20%) Communicate with client representatives and project stakeholders in 
a professional, service-oriented manner, clearly representing technical, 
logistical, and aesthetic issues. 
• Develop outline content and associated graphic presentation using Adobe 
Indesign software to be presented to clients as well as public community 
meetings: 
• Design and present content consisting of plans, diagrams. 3 0 views. program 
analysis, site analysis and narratives corresponding to each concept. 
2. (15%) Manage workflow for specific tasks including door and window 
schedules, interiors construction, materials and finishes selection, space 
utilization, circulation, and furnishing layouts. 
• Organize and maintain project team communication infrastructure, utilizing 
the Newforma content management systems. 
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Matter ofQ-E-A-
3. (22.5%) Work as part of a collaborative interdisciplinary design team, 
communicate in graphic, written, and oral form to convey both design and 
technical ideas and strategies. 
• Identify and analyze design precedents that relate to design approach; 
• Communicate design explorations and resolutions to meet the design 
imperatives: 
• Operate Building Information Modeling software (Revit. Sketchup) to create 
3D models of existing buildings and new interventions. t1oor plans. 
furnishings layouts for public institutional buildings; 
• Conduct product and furniture research for the proposed construction and 
design; 
• Create specification packages for furniture and interior finishes; 
• Translate technical and specification requirements into three-dimensional 
forms, documenting element materiality and construction logic; 
• Operate Building Information Modeling software (Revit) to organize and 
create construction documents. 
4. (22.5'Yo) Investigate and collaborate on design trade-offs and decisions with 
the project team. 
• Utilize in the 30 model and construction documents to integrate the 
architectural design with the engineering disciplines: 
• Ensure that building systems locations and access requirements are 
compatible during construction as well as future operations: 
• Help identify spatial and technical conflicts between building elements and 
systems, and participate in the development and implementation of integrated 
solutions. 
• Draft detailed plans and sections of the proposed architectural work based on 
preliminary concepts. sketches. engineering calculations, specification sheets 
and other data. 
5. (5%) Understand and document codes and requirements as they apply to 
proposed work. 
• Analyze building codes, occupancy guidelines. and site requirements to 
determine their effect on architectural designs. 
6. (15%) Ensure accurate documentation of project scopes through 
communications, drawings, specifications, and diagrams. 
• Review and confirm the accuracy of drawings and corresponding technical 
schedules: 
• Verify that configurations and construction meet code. life safety, and 
accessibility requirements: 
• Create outlines of the proposed scope of work for the purpose of generating a 
cost estimate by professional cost estimators. 
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Alatter ofQ-E-A-
According to the Petitioner, the position requires highly specialized knowledge in architecture, or a 
closely related field. and the attainment of a bachelor's degree or higher. or its equivalent. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below. we determine that the 
Petitioner has not demonstrated that the proffered position satisfies any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) and. therefore. qualities as a specialty occupation. 1 Specifically, the record 
does not establish that the job duties require an educational background. or its equivalent 
commensurate with a specialty occupation. 2 
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 inform this inquiry. \Ve 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 \Vide variety of occupations that it addresses.3 
On the labor condition application (LCA) submitted in support of the H-1 B petition. the Petitioner 
designated the proffered position under the occupational category ··Architectural and Civil Drafters" 
corresponding to the Standard O~:cup~ttiunal Classiliration code 17-3011 at a Level I wage.4 
1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
2 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position. 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 Ham/hook. available at http://www.bls.gov/ooh.i. We do not, 
however, maintain that the Handhook 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 USC IS regularly reviews the l/andhook 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. 
4 We will consider the Petitioner's classification of the proffered position at a Level I wage (the lowest of four assignable 
wage levels) 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 ofjudgment; (2) that she will 
be closely supervised and her work closely monitored and reviewed for accuracy: and (3) that she will receive specitic 
instructions on required tasks and expected results. U.S. Dep't of Labor. Emp't & Training Admin .. Prevailing Wage 
Determination Polic:r Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). available at 
http://tlcdatacenter.com/download/NPWHCGuidance_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. A Level I wage should be considered for research fellows. workers 
in training. or internships. /d. 
4 
Matter (?fQ-E-A-
The Handbook subchapter entitled .. How to Become a Drafter" states in pertinent part: .. Drafters 
generally need to complete postsecondary education in drafting. This is typically done through a 
2-year associate's degree from a technical institute or community college:' 5 
The Handbook does not support the Petitioner's assertion that a bachelor's degree is required for 
entry into this occupation. This passage of the Handbook reports that drafters typically need 
postsecondary education, which can be accomplished through a two-year associate's degree. The 
Handbook does not, however, indicate that there are any specific degree requirements for these jobs. 
On appeal, the Petitioner submits a printout of the Occupational Information Network (O*NET) 
OnLine Summary Report for .. Architectural Drafters... The summary report provides general 
information regarding the occupation: however, it does not support the Petitioner's assertion 
regarding the educational requirements for the occupation. For example, the Specialized Vocational 
Preparation (SVP) rating cited within O*NET's Job Zone designates this occupation as 7 < 8. An 
SVP rating of 7 to less than (""<") 8 indicates that the occupation requires ··over 2 years up to and 
including 4 years" of training. While the SVP rating indicates the total number of years of 
vocational preparation required for a particular position, it is important to note that it does not 
describe how those years are to be divided among training. formal education. and experience- and it 
does not specify the particular type of degree. if any, that a position would require.
6 
Further, the summary report provides the educational requirements of .. respondents ... but does not 
account for I 00% of the .. respondents." The respondents' positions within the occupation are not 
distinguished by career level (e.g., entry-level. mid-level. senior-level). Additionally. the graph in 
the summary report does not indicate that the .. education level" tor the respondents must be in a 
specific specialty. 
Thus, the Petitioner has not provided documentation from a probative source to substantiate its 
assertion regarding the minimum requirement tor entry into this particular position. Thus. 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 degreel.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
5 For additional information regarding the occupational category "Architectural and Civil Drafters." see U.S. Dep't of 
Labor, Bureau of Labor Statistics, Occupational Outlook llandhook. 2016- J7 ed., Architectural and Civil Drafters, 
available at http://www.bls.gov/ooh/architecture-and-engineering/print/drafters.htm (last visited Apr. 25. 20 16). 
6 For additional information, see the O*NET Online Help webpage available at 
http://www.onetonline.org/help/online/svp. 
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Matter of Q-E-A-
contemplates the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
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. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS 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 ,%anti. Inc. v. Reno. 36 F. Supp. 2d 115 L 1165 (D. Minn. 
1999) (quoting Hird!Blaker Corp. v. Sava. 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for vvhich 
the Handbook, or other authoritative source, reports a 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. Furthermore, the Petitioner did not submit 
any letters or affidavits from similar firms or individuals in the Petitioner's industry attesting that 
such firms .. routinely employ and recruit only de greed individuals... Thus. the Petitioner has not 
satisfied the first alternative prong of8 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. 
We reviewed the Petitioner's statements regarding the proffered position; however. in the appeal 
brief, the Petitioner does not assert that it satisfies this prong of the second criterion. Further. the 
Petitioner has not sufficiently developed relative complexity or uniqueness as an aspect of the 
protTered position. Thus, 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, f()r the position. 
6 
(b)(6)
Matter of Q-E-A-
To merit approval of the petition under this criterion. the record must establish that a petitioner's 
imposition of a degree requirement is not a matter of preference for high-caliber candidates but is 
necessitated by performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing the 
Petitioner's claimed self-imposed requirements. then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the Petitioner created a token 
degree requirement. whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty. or its equivalent. See Defensor v. Meissner, 
201 F.3d at 388. Evidence provided in support of this criterion may include. but is not limited to, 
documentation regarding the Petitioner"s past recruiting and hiring practices, as well as information 
regarding employees who previously held the position. 
The Petitioner stated in H-1 B petition that it has 68 employees and was established in 
(approximately 30 years prior to the tiling of the H-1 B petition). On appeal, the Petitioner states that 
in 2014-2015, it has hired ten ''new architectural Staff Designers" including the Beneficiary. The 
Petitioner claims that all of its architectural designers possess at least a bachelor's degree in 
architecture. In support of its assertion, the Petitioner submitted copies of the academic credentials 
of six individuals, and the resumes of three individuals. 7 
To begin with, the Petitioner did not provide the total number of people it has employed to serve in 
the proffered position or any further context as to the reason it limited its past hiring practices to 
2014-2015. Consequently, it cannot be determined how representative the Petitioner's statement 
regarding these individuals is ofthe Petitioner's normal recruiting and hiring practices.s 
Further, the Petitioner did not provide the job duties and day-to-day responsibilities of these 
individuals. For instance, the Petitioner did not submit evidence regarding the complexity of the job 
duties, supervisory duties (if any), independent judgment required or the amount of supervision 
received. Accordingly. it is unclear whether these individuals' duties and responsibilities are the 
same as the protJered position. 
Without more, the Petitioner has not provided sufficient evidence to establish that it normally 
requires at least a bachelor's degree in a specific specialty, or its equivalent. for the proffered 
position. Therefore, it has not satisfied the third criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
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 
7 The Petitioner did not submit evidence establishing that it employs these individuals (e.g., pay statements. tax 
documents). and their names do not appear on its website as member of its team. 
8 See general~r Earl Babbie , 7he Practice (?(Social Research 186-228 (7th ed. 1995). 
Matter<?{ Q-E-A-
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty. or 
its equivalent. 
In support of this criterion. the Petitioner provided a description of the duties of the proffered 
position and information regarding its business operations. The Petitioner claims that the position is 
.. significantly different than that of a drafter as defined by the [Handhook]. and the duties are 
complex enough to require a bachelor"s degree in a specific area. namely architecture.'' According 
to the Petitioner, the position .. requires a higher level of knowledge and skills than a normal drafter 
position .. because the Beneficiary will .. develop design ideas [and] NOT just to enter designs from 
other architects into a computer system... The Petitioner continues by stating that the position is 
··designed for those who have graduated with at least a bachelor"s degree. but who cannot be 
licensed as an architect as they need to log a certain number of hours or architectural work under the 
supervision of a licensed architect. .. 
The evidence does not however, support the Petitioner's assertion. Contrary to the Petitioner's 
assertion that the position is a .. high level Architectural Drafter position as opposed to an entry-level 
position," the Petitioner designated the proffered position on the LCA as a Level I wage level.
9 
As 
discussed earlier. this designation indicates that the proffered position is a low-leveL entry position 
relative to others within the ·'Architectural and Civil Drafters'' occupational category. 10 Further. the 
Petitioner's designation on the LCA does not support its analogy of the proffered position to an 
architectural intern position. 11 
9 The Petitioner's designation of this position as a Level I. entry-level position undermines its claim that the position is 
particularly complex compared to other positions within the sume 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)( I) of the Act. 
10 A Level IV (fully competent) position is designated by DOL for employees who "use advanced skills and diversified 
knowledge to solve unusual and complex problems" and requires a significantly higher wage. For additional information 
regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & Training Admin .. Premiling Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http:l/www.foreignlaborcert.doleta.gov,-pdfiNPWHC _Guidance_ Revised _II_ 2009.pdf. 
11 According to DOL guidance, a statement that the job otTer is for an internship is an indicator that a Level I wage 
should be considered. !d. Thus, the Petitioner's designation of the proffered position as a Level I. entry-level, position 
under the "Architectural and Civil Drafters" classification indicates that it is an entry-level dn?fier position. not an entry­
level or internship-level architect position. The Petitioner simultaneously attempts to distinguish the proffered position 
from "normal" drafter positions by its designing duties, but at the same time. asserts that the Beneficiary is not licensed 
and thus the proffered position is not an architect position. 
The Petitioner was required to provide, at the time of filing the H-1 B petitiOn, an LCA ce11itied for the correct 
occupational category and wage level in order for it to be found to correspond to the petition. To permit otherwise would 
result in a petitioner paying a wage lower than that required by section 212(n}( I )(A) of the Act. by allowing that 
petitioner to simply submit an LCA for a different occupational category or wage level at a lower prevailing wage than 
8 
Matter l?[Q-E-A-
While the Petitioner may believe that the proffered position meets this criterion of the regulations. it 
has not sufficiently demonstrated how the position as described requires the theoretical and practical 
application of a body of highly specialized knowledge and the attainment of a bachelor·s or higher 
degree in a specific specialty. or its equivalent. For instance. the Petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform the tasks. While a few related courses may be 
beneficial in performing certain duties of the position. the Petitioner has not demonstrated how an 
established curriculum of such courses is required. The evidence in the record does not refute the 
Handbook's information to the effect that a two-year associate· s degree is sutticient tor entry into 
the occupation. Without more. the record lacks sufficiently detailed information to distinguish the 
level ofjudgment and understanding necessary to perfonn the duties as specialized and complex. 
In addition, the Petitioner claims that the Beneficiary is well qualified for the position. and 
references her 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 has not 
demonstrated in the record that its proffered position is one with duties sufficiently specialized and 
complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(/). 
IV. CONCLUSION 
Because the Petitioner has not satisfied one ofthe criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). it has not 
demonstrated that the proffered position qualities as a specialty occupation. The burden is on the 
Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act. 8 U.S.C. 
§ 1361: Matter (~lO!iende. 26 I&N Dec. 127. 128 (BIA 2013). Here. that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ~lQ-E-A-. ID# 17289 (AAO Apr. 26. 2016) 
the one that it claims it is offering to the beneficiary. 
9