dismissed H-1B Case: Business

U.S. Citizenship 
and Immigration 
Services 
In Re: 5848467 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 23, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB 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-IB 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 California Service Center denied the petition, concluding that the evidence of 
record did not establish that (1) the proffered position qualifies as a specialty occupation, and (2) the 
Beneficiary is qualified to serve in the claimed specialty-occupation position. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 1 
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: 
1 We follow the preponderance of the evidence standard. Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010) . 
(]) 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 construe the term "degree" 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. ANALYSIS 
For the reasons set out below, we determine that the proffered position does not qualify as a specialty 
occupation. Specifically, the record provides inconsistent and insufficient information regarding the 
proffered position, which in tum precludes us from understanding the position's substantive nature 
and the determination of whether the proffered position qualifies as a specialty occupation. 2 
As a preliminary matter, we conclude that the Petitioner has not consistently stated the minimum 
educational requirement for this position. It specified different types of degrees ( either a bachelor's 
or a master's degree) in submitted documents throughout the proceeding. The Petitioner initially did 
not detail its educational requirements for the position, other than to reference the Beneficiary's 
education credentials and indicate that he was qualified for the position. 3 In response to the Director's 
request for evidence (RFE), it stated that at a minimum a bachelor's degree in business, or a closely 
related field is required, while it also contemporaneously provided a supplemental job description for 
the position which called for an advanced degree in business and relevant experience for entry into the 
position. 
2 The Petitioner submitted documentation to support the H-1 B 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 We are required to follow long-standing legal standards and determine first, whether the proffered position qualifies for 
classification as a specialty occupation, and second, whether the Beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 T&N Dec. 558, 560 (Comm'r 1988) ('The 
facts of a beneficiary's background only come at issue after it is found that the position in which the petitioner intends to 
employ him falls within [a specialty occupation]."). 
2 
On appeal, the Petitioner reiterates the inconsistent requirements presented within its RFE response. 
However, the Petitioner does not explain the reasons for the variances in the position requirements within 
the material in the record. The Petitioner must resolve this inconsistency in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). In light of the inconsistencies and ambiguities regarding the minimum educational 
requirements for the position, the record does not establish that the position qualifies as a specialty 
occupation. 
Further, the Petitioner's contention on appeal that the proffered position "requires, as a minimum, a 
degree in business or a closely related field" is inadequate to establish that the proposed position 
qualifies as a specialty occupation. The claimed requirement of a degree in majors such as "business" 
for the proffered position, without further specialization, is inadequate to establish that the proposed 
position qualifies as a specialty occupation. A petitioner must demonstrate that the proffered position 
requires a precise and specific course of study that relates directly and closely to the position in 
question. Since there must be a close correlation between the required specialized studies and the 
position, the requirement of a degree with a generalized title, such as business administration, without 
further specification, does not establish the position as a specialty occupation. Cf Matter of Michael 
Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its equivalent. 
As discussed supra, we interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a 
degree in a specific specialty that is directly related to the proposed position. We have consistently 
stated that, although a general-purpose bachelor's degree, such as a degree in business, may be a 
legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify 
a finding that a particular position qualifies for classification as a specialty occupation. Royal Siam 
Corp., 484 F.3d at 147. 
On appeal, the Petitioner cites to Tapis Int'l v. Immigration and Naturalization Service, 94 F. Supp. 
2d 172 (D. Mass. 2000) and states that "the court held that a position may qualify as a specialty 
occupation if the employer requires a bachelor's degree or its equivalent." The Petitioner asserts that 
"[f]or the "equivalent" language to have any reasonable meaning it must encompass .... various 
combinations of academic and experienced based training." We agree with the district court judge in 
Tap is, that in satisfying the specialty occupation requirements, both the Act and the regulations require 
a bachelor's degree in a specific specialty, or its equivalent, and that this language indicates that the 
degree does not have to be a degree in a single specific specialty. 4 
4 Specifically, in Tapis, the U.S. district court found that while the former Immigration and Naturalization Service (INS) 
was reasonable in requiring a bachelor's degree in a specific field, it abused its discretion by ignoring the portion of the 
regulations that allows for the equivalent ofa specialized baccalaureate degree. According to the U.S. district court, TNS's 
interpretation was not reasonable because then H-1 B visas would only be available in fields where a specific degree was 
offered, ignoring the statutory definition allowing for "various combinations of academic and experience based 
training." Tapis Int'! v. INS, 94 F. Supp. 2d at 176. The court elaborated that ·'[i]n fields where no specifically tailored 
baccalaureate program exists, the only possible way to achieve something equivalent is by studying a related field ( or 
fields) and then obtaining specialized experience." 
3 
Notably, the Petitioner has not consistently stated the minimum requirements for the position in this 
case. Rather, it has presented varied minimum educational requirements, including the obtainment of 
a master's degree or a bachelor's degree in business. Further, though the Petitioner emphasizes on 
appeal, that a "candidate [ for the proffered position] would ideally possess a degree with diversity 
training, international exposure and a developed global perspective," and asserts that the position 
requires "specialized knowledge in the area of business, economics, and finance," it has not 
specifically quantified any particular type or length of work experience or training for entry into the 
position, beyond the aforementioned degree requirements. Here, the Petitioner has not sufficiently 
clarified the variances in its position requirements for us to determine what they actually are, nor has 
it explained how the facts of this case are similar to Tap is. 5 
We also do not conclude that the Tapis court states that any position can qualify as a specialty 
occupation based solely on the claimed requirements of a petitioner. Instead, we must examine the 
actual employment requirements, and, on the basis of that examination, determine whether the position 
qualifies as a specialty occupation. See generally Defensor, 201 F.3d 384. The focus is neither the 
title of the position, the knowledge of the beneficiary, nor the fact that an employer has routinely 
insisted on certain educational standards, but whether performance of the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge and the attainment 
of a baccalaureate or higher degree in a specific specialty as the minimum for entry into the occupation 
as required by the Act. 
The Petitioner also cites Residential Finance v. US. Citizenship and Immigration Services, 839 
F. Supp. 2d 985 (S.D. Ohio 2012), to argue that "[t]he knowledge and not the title of the degree is 
what is important." 6 Section 214(i)(l)(B) of the Act. The Residential Finance court observed that 
"knowledge [in a specific specialty ( or its equivalent)] and not the title of the degree" is the essence 
of the requirement at section 214(i)(l)(B) of the Act. 839 F. Supp. 2d at 997. The Residential Finance 
court opined that "there is no apparent requirement that the specialized study need[ s to] be in a single 
academic discipline as opposed to a specialized course of study in related business specialties" for the 
purpose of classifying a proffered position as a specialty occupation. Id. at 996-97. We agree with 
the Residential Finance court's proposition that "[t]he knowledge and not the title of the degree is 
what is important." However, as noted above, there must be a close correlation between the required 
"body of highly specialized knowledge" and the position; therefore, a minimum entry requirement of 
a degree in disparate fields would not meet the statutory requirement that the degree be "in the specific 
specialty ( or its equivalent)," unless the Petitioner establishes how each field is directly related to the 
duties and responsibilities of the particular position. The Petitioner has not done so here. 
5 In contrast to the broad precedential authority of the case law of a United States circuit court, we are not bound to follow 
the published decision of a United States district court in matters arising even within the same district. See K-S-, 20 l&N 
Dec. at 719-20. Although the reasoning underlying a district judge's decision will be given due consideration when it is 
properly before us, the analysis does not have to be followed as a matter of law. Id. 
6 The Petitioner also refers to an unpublished decision in which we determined that the position of hotel management 
analyst proffered in that matter qualified as a specialty occupation. The Petitioner has famished no evidence to establish 
that the facts of the instant petition are analogous to those in the unpublished decision. While 8 C.F.R. § I 03.3( c) provides 
that our precedent decisions are binding on all USCTS employees in the administration of the Act, unpublished decisions 
are not similarly binding. 
4 
In any event, the Petitioner has not famished sufficient evidence to establish that the facts of its petition 
are analogous to those in Residential Finance. 7 We also note again that, in contrast to the broad 
precedential authority of the case law of a U.S. circuit court, we are not bound to follow the published 
decision of a U.S. district court in matters arising even within the same district. See Matter of K-S-, 
20 I&N Dec. at 719-20. It is also important to note that in a subsequent case reviewed in the same 
jurisdiction, the court agreed with our analysis of Residential Finance. See Health Carousel, LLC v. 
users, No. 1: 13- CV-23, 2014 WL 29591 (S.D. Ohio 2014). 
Again as discussed, the Petitioner asserts that the duties of the proffered position can be performed 
with only a general-purpose bachelor's degree, i.e., a bachelor's (or master's) degree in business, 
without farther specification. That statement alone indicates that the proffered position is not in fact 
a specialty occupation. Though this issue precludes approval of this H-1 B petition, we will 
nonetheless review the evidence of record regarding the proffered position, to farther examine whether 
the Petitioner has established the substantive nature of the proffered position in order to demonstrate 
that the position qualifies as a specialty occupation. 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the duties of the 
proffered position such that we may discern the nature of the position and whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a baccalaureate degree in a specific discipline. When determining whether a position 
is a specialty occupation, we look at the nature of the business offering the employment and the 
description of the specific duties of the position as it relates to the performance of those duties within 
the context of that particular employer's business operations. 
The Beneficiary is to be employed by the ~---------------~ which is a 
I I research organization affiliated with the Petitioner. 8 The Petitioner's stated mission is D 
~----,-------I " The current research studies underway at the Petitioner's research center 
,..!f~o~cu!::!;;s~o!!n!:=::::;-----t which the Petitioner indicates "may lead to breakthroughs in the treatment of 
~I ----~I diseases," such as Alzheimer's, dizziness and balance disorders, and epilepsy. 
On the LCA9 submitted in support of the H-1B petition, the Petitioner designated the proffered position 
under the occupational category "Statisticians" corresponding to the Standard Occupational 
Classification (SOC) code 15-2041 from the Occupational Information Network (O*NET), with a 
Level II wage. The Petitioner asserts in its RFE response and on appeal that the proffered position 
closely relates to the occupational category of "Clinical Data Managers," corresponding to the SOC 
7 We note that the district judge's decision in Residential Finance appears to have been based largely on the many factual 
errors made by the Director in the decision denying the petition. We further note that the Director's decision in that case 
was not appealed to us. Based on the district comi's conclusions and description of the record, if that matter had first been 
appealed through the available administrative process, we may very well have remanded the matter to the service center 
for a new decision for many of the same reasons articulated by the district court if these enors could not have been remedied 
by us in our de novo review of the matter. 
8 Hereinafter, for the sake of clarity, we will refer to D-, as the Petitioner. 
9 A petitioner submits the LCA to the U.S. Department of Labor (DOL) to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.73l(a). 
5 
code 15-2041.02, which is a subset of the "Statisticians" occupational category. However, we are not 
persuaded by the Petitioner's submissions in this regard. While the position's duties may comport in 
part to the "Clinical Data Managers" occupational category, many of the job duties presented in record 
appear to be consonant with the typical duties performed by those employed in the "Clinical Research 
Coordinators" SOC code 11-9121.01 occupation, which is a subset of the "Natural Science Managers" 
SOC code 11-9121 occupational category. 
The Petitioner initially described the "clinical research data associate" position's duties, as follows: 
1. Processing clinical data, including receipt, entry, verification and filing of 
information among various ongoing studies; 
2. Implementing proper data collection techniques and processes for project-specific 
or study-specific data capture, and resolving identified problems, errors or 
omissions in data entry; 
3. Formatting data sets as requested and as stipulated in any applicable study 
agreements; 
4. Analyzing internal study data sets as required by study goals and parameters; 
5. Assisting the Clinical Research Coordinator in communicating the [Petitioner's] 
capabilities, experiences and successes to existing and potential research partners 
through regular correspondence, both domestic and international; 
6. Communicating with sponsor study monitor to ensure proper data collection as well 
as to gain feedback on how study is processing; 
7. Performing industry research to identify strong potential research opportunities and 
keep [the Petitioner] apprised of key industry developments, regulatory changes 
and major market trends; 
8. Assisting with department budgeting and analysis of [the Petitioner] fonding 
sources and financial outlook; 
9. Explaining specifics of research study, including requirements, medication, 
potential side effects, and medical care received, and referring to investigator when 
appropriate; 
10. Explaining testing procedures associated with study, including psychometric tests, 
and diagnostic or interventional procedures, and referring to investigator when 
appropriate; 
11. Updating research partners and patients on results of study findings when 
completed; 
12. Identifying potential study candidates through review of physician appointment 
lists, patient medical records, and general advertisement when appropriate; and 
13. Implementing systems to dispense and return study medication with FDA 
guidelines. 
Later in the RFE response, the Petitioner expanded upon the position's job duties and discussed how 
the position "fits into [the Petitioner's] organizational hierarchy, which for the sake of brevity we will 
summarize, as follows: 
6 
[The Beneficiary] will report directly to the [Chief Medical Officer]. He will be the 
second in position in the organizational hierarchy as it relates to [the Petitioner's] 
clinical research. Under [the Beneficiary's] position in the organizational hierarchy are 
10 Research Assistants and Research Associates who [the Beneficiary] will oversee. 
The [Petitioner's] Clinical Research Coordinator requires an educated individual to 
identify and develop new opportunities through communication with healthcare 
providers, pharmaceutical companies and contract research organizations. . . . 
[O]ngoing monitoring for improvement, optimization, and farther development 
potential [for the Petitioner's clinical research programs] is an important aspect of the 
position .... The Clinical Research Data Associate would in addition to [ entry level 
clinical research duties], set study goals, communicate [the Petitioner's] capabilities to 
prospects, hold research teams to study deadlines, and represent the research 
organization domestically and internationally. Each of these position requirements call 
for a graduate degree and relevant experience. 
[] [The Beneficiary] will be required to analyze whether research partnerships make 
sense from a financial perspective and make recommendations to the [Chief Medical 
Officer] for him to determine whether [the Petitioner] should enter in to such 
partnerships. [The Beneficiary] will also be responsible for assisting with [the 
Petitioner's] budgets and fonding sources .... [He] will perform key industry research 
to ensure that [the Petitioner] remains up to date on developments in clinical research, 
regulatory updates, and trends in the marketplace .... He will also be responsible for 
liaising with study sponsors to gain feedback for [ the Petitioner] to ensure that the 
sponsors are satisfied with the way the studies are being conducted. [He] will not just 
be meeting with clinical trial participants and recording research outcomes. 
The O*NET information about the "Clinical Data Managers" occupational category states that they 
typically "[a]pply knowledge of health care and database management to analyze clinical data, and to 
identify reports and trends." Examples of the typical duties of "Clinical Data Managers" include: 10 
• Design and validate clinical databases, including designing or testing logic checks; 
• Process clinical data, including receipt, entry, verification, or filing of information; 
• Generate data queries, based on validation checks or errors and omissions identified 
during data entry, to resolve identified problems; 
• Develop project-specific data management plans that address areas such as coding, 
reporting, or transfer of data, database locks, and work flow processes; [and] 
• Monitor work productivity or quality to ensure compliance with standard operating 
procedures. 
1° For more information about the "Clinical Data Managers" occupational category in O*NET, see the O*NET summary 
report for "Clinical Data Managers," available at http://www.onetonline.org/link/summary/15-2041.02 (last visited Jan. 
22, 2020). Note: The O*NET Online summary report for 'Clinical Data Managers" provides 20 typical tasks. Although 
we omit the remaining 15 tasks for brevity, we have reviewed and considered each of them. 
7 
In contrast, O*NET information about the "Clinical Research Coordinators" occupational category 
states that they typically "[p ]lan, direct, or coordinate clinical research projects. Direct the activities 
of workers engaged in clinical research projects to ensure compliance with protocols and overall 
clinical objectives. May evaluate and analyze clinical data." Examples of the typical duties of 
"Clinical Research Coordinators" include: 11 
• Assess eligibility of potential subjects through methods such as screening 
interviews, reviews of medical records, or discussions with physicians and nurses; 
• Identify protocol problems, inform investigators of problems, or assist in problem 
resolution efforts, such as protocol revisions; 
• Prepare study-related documentation, such as protocol worksheets, procedural 
manuals, adverse event reports, institutional review board documents, or progress 
reports; 
• Participate in preparation and management of research budgets and monetary 
disbursements; 
• Participate in the development of study protocols including guidelines for 
administration or data collection procedures; 
• Instruct research staff in scientific and procedural aspects of studies including 
standards of care, informed consent procedures, or documentation procedures; 
• Review scientific literature, participate in continuing education activities, or attend 
conferences and seminars to maintain current knowledge of clinical studies affairs 
and issues; 
• Maintain contact with sponsors to schedule and coordinate site visits or to answer 
questions about issues such as incomplete data; 
• Inform patients or caregivers about study aspects and outcomes to be expected; and 
• Solicit industry-sponsored trials through contacts and professional organizations. 
We observe that many of the job duties of the proffered position, such as "assisting with [the 
Petitioner's] budgets and funding sources," "perform[ing] key industry research to ensure that [the 
Petitioner] remains up to date on developments in clinical research, regulatory updates, and trends in 
the marketplace," "[i]dentifying potential study candidates through review of physician appointment 
lists, patient medical records, and general advertisement when appropriate," and "oversee[ing] - 10 
Research Assistants and Research Associates," appear to closely correspond to the "Clinical Research 
Coordinators" tasks described in the O*NET summary report for the occupation. Based on the 
material presented in the record of proceeding, we are unable to conclude that the proffered position 
properly falls solely within the "Clinical Data Managers" occupational category corresponding to SOC 
code 15-2041.02, which raises questions regarding the substantive nature of the proffered position. 12 
11 For more information about the "Clinical Research Coordinators" occupational category in O*NET, see the O*NET 
summary report for "Clinical Research Coordinators," available at http://www.onetonline.org/link/summary/11-9121.0l 
(last visited Jan. 22, 2020). Note: The O*NET Online summary report for "Clinical Research Coordinators" provides 31 
typical tasks. Although we omit the remaining 21 tasks for brevity, we have reviewed and considered each of them. 
12 The Petitioner must also resolve these inconsistencies and ambiguities with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 T&N Dec. at 591-92. 
8 
In general, if the duties of a proffered position involve more than one occupational category (i.e., 
"Clinical Data Managers" and "Clinical Research Coordinators"), the DOL's "Prevailing Wage 
Determination Policy Guidance" states that the employer "should default directly to the relevant 
O*NET-SOC occupational code for the highest paying occupation." 13 At the time the Petitioner's 
LCA was certified, the Level II prevailing wage for "Clinical Research Coordinators" in the area of 
intended employment was $101,338 per year, which is significantly higher than the prevailing wage 
for "Clinical Research Managers" of $48,797 per year. 14 Thus, if the Petitioner's duties for the 
position fall under more than one occupational category, it should have chosen the relevant 
occupational code for the highest paying occupation, which was not "Clinical Research Managers." 
As the Petitioner indicates that it will pay the Beneficiary $48,797, a rate significantly less than the 
prevailing wage for "Clinical Research Coordinators," the Petitioner has not established that LCA 
corresponds to the petition, including the occupational category certified therein. 15 
Lastly, the Petitioner has not established the scope and nature of the Beneficiary's role as a clinical 
research data associate within the context of its clinical research endeavors. While the Petitioner has 
provided statements indicating that the Beneficiary will perform a wide range of job duties, it did not 
provide sufficient information with regard to the order of importance or frequency of occurrence ( e.g., 
regularly, periodically, or at irregular intervals) with which the Beneficiary will perform these duties. 
Thus, the record does not specify which tasks are major functions of the proffered position. For 
example, the Petitioner notes that the Beneficiary will, among many other duties, "assist with [the 
Petitioner's] budgets and funding sources .... ," "[a]nalyz[e] internal study data sets .... ," and 
"[ e ]xplain[] specifics of research study, including requirements, medication, potential side effects, and 
medical care received." The Petitioner has not sufficiently established whether the Beneficiary will 
be predominantly engaged in performing research center budgetary tasks, data analytics, or counseling 
others about the specifics of the Petitioner's research studies. Collectively considering the initial and 
subsequently provided job duties, we are not able to determine from the record the duties which will 
encompass the predominant job functions of the proffered position, and which duties, will be 
incidental to the Beneficiary's employment. 16 That is, the record does not adequately communicate 
(1) the actual work that the Beneficiary will perform; (2) the complexity, uniqueness, or specialization 
of the tasks; and (3) the correlation between that work and a need for a particular level of education 
and knowledge. 
For all of the reasons discussed, the Petitioner has not established the substantive nature of the 
proffered position. We are therefore precluded from finding that the proffered position satisfies any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
13 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. See U.S. Dep't of Labor. Emp't & 
Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009); 
http://flcdatacenter.com/download/NPWHCGuidance _Revised_ 11 _ 2009 .pdf 
14 For more information on the prevailing wages, see https://flcdatacenter.com/OESWizardStart.aspx. (Last visited Jan. 
22, 2020). 
15 See Section 212(n)(l) ofthe Act; 20 C.F.R. § 655.731(a). 
16 Matter of Ho, 19 T&N Dec. at 591-92. 
9 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 
2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the second 
alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree 
or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. As the Petitioner has not established 
eligibility under any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not demonstrated that the proffered 
position qualifies as a specialty occupation. 17 
III. BENEFICIARY'S QUALIFICATIONS 
The Director also found that the Beneficiary would not be qualified to perform the duties of the 
proffered position. However, we are required to follow long-standing legal standards and determine 
first, whether the proffered position qualifies for classification as a specialty occupation, and second, 
whether the Beneficiary was qualified for the position at the time the nonimmigrant visa petition was 
filed. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ('The facts of a 
beneficiary's background only come at issue after it is found that the position in which the petitioner 
intends to employ him falls within [a specialty occupation]."). As discussed in this decision, the 
Petitioner has not established that the proffered position is a specialty occupation. Therefore, we need 
not and will not address the Beneficiary's qualifications farther. 
IV. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
17 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not fiuiher discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
10