dismissed H-1B Case: Business Analytics

U.S. Citizenship 
and Immigration 
Services 
In Re : 6758524 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 22, 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 
10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(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 California Service Center denied the petition, concluding that the Petitioner did 
not establish that the proffered position is a specialty occupation. On appeal, the Petitioner submits a 
brief and additional evidence, asserting that the Director erred in denying the petition . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S .C. § l 184(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: 
( I) 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"). 
II. PROFFERED POSITION 
The Petitioner indicated that it is engaged in the retail distribution and sale of wireless phones and 
related services as an authorized dealer for M-, which is a prepaid wireless service operating in the 
United States as part of a well-known cellular service provider. 1 The Petitioner initially stated that 
the Beneficiary in his role as a "manager of business analytics" would be responsible for: 
Analyzing system problems, programming system fixes to existing applications, 
assisting in the development of program design specifications, and developing new 
programs to automate business processes. He is responsible for a wide variety of 
programming tasks, development, testing, maintenance, and implementation that will 
make the company more profitable through reduced costs and increased revenues. He 
will participate in new software and systems projects assigned to the Reporting and 
Analytics Department to ensure the successful implementation of new systems and 
procedures. 
The Petitioner also described the duties of the position and the relative percentage of time devoted to 
each task, as follows (verbatim): 2 
1 The Petitioner submitted documentation to suppmt the H-lB 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. 
2 We acknowledge that the Petitioner submitted additional information for the job duties, which, for the sake of brevity, 
have not been included herein. However, this material has been closely reviewed and considered, as with all evidence in 
the record. For instance, on appeal the Petitioner discusses the Beneficiary's previous coursework for the purpose of 
2 
• Collaborate with team members to define and build key metrics for various new 
business initiatives. (20%) 
• Evaluate and analyze business performance using advanced statistical methods 
(20%) 
• Promote effective analysis and determine the root cause of organizational 
problems; create effective resolutions in the best interest of the business so that the 
company can operate more efficiently and effectively. (10%) 
• Monitor existing metrics and partner with internal teams to identify process and 
system improvements. (10%) 
• Manage challenges associated with investigating and understanding large date sets. 
(10%) 
• Partner with the leadership team to identify and recommend high impact 
opportunities to make the organization more profitable. (10%) 
• Help identify quality sources of data and emerging tools, vendors, and systems in 
order to improve existing architecture and processes. (5%) 
• Establish a repeatable process and structure to scale the business. (5%) 
• Identify and recommend business opportunities for improvement through analytics. 
(10%) 
III. ANALYSIS 
Upon review of the entire record, we conclude that the Petitioner has not sufficiently established the 
substantive nature of the work the Beneficiary will perform during the intended period of employment, 
which precludes the determination that the proffered 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. 
To begin with, the Petitioner has presented inconsistent evidence regarding the nature, scope and 
magnitude of its business operations. The Petitioner initially states that it "owns and operates 
seventeen (30) locations in the I I area, with operations ranging from basic warehousing, 
software loading, order and accounts management, end-user fulfillment, and reverse logistics." In 
response to the Director's request for evidence (RFE) it provides a list of "all locations we currently 
correlating the need for the Beneficiary's education with the associated job duties of the 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]."). 
3 
operate under [the Petitioner's business name]," which includes 11 business addresses. The Petitioner 
gives no explanation for the variation in the number of business locations that it claims to operate, 
e.g., 17, 30, or 11, nor does it describe the nature of the services provided at the various locations. The 
Petitioner must resolve these inconsistencies and ambiguities 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). 
Further, the Petitioner initially asserts that its "corporate offices" are located at the I Road 
address, the sole location of the Beneficiary's proposed work assignment in the certified labor 
condition application (LCA) submitted in support of the petition. 3 In the RFE response it provides a 
lease for a 3,381 retail establishment in that location executed by a lessee who is a different entity than 
the Petitioner, along with a one-page sub-lease for the facility by the Petitioner - which simply lists 
the Petitioner as "the sub-tenant" for a four and a half year term without including the relevant 
information commonly found in commercial leases, such as whether the sub-lease is for the entire 
premises or a portion thereof: or what the charges be for renting the sub-leased space during the sub­
lease term. The Petitioner also alternately asserts in the RFE response that its "main office address 
[is] at I I Drive,I I Texas I I" not the I I Road location as initially 
stated. We observe that according to publicly available internet sources, a check cashing business 
known as I I is located at thel !Drive location. 4 
The Petitioner does not clarify the actual location of its "corporate offices" or "main office address," 
nor does it discuss whether it is engaged in the provision of check cashing services. The record does 
not reflect whether the Petitioner owns or is otherwise involved in the '~--------' business 
at the "main office address" identified in the RFE response. Here, the Petitioner has provided 
inconsistent and insufficient evidence regarding the nature of its business operations. Additionally, it 
does not adequately document the size and nature of the facility that it operates, if any, at the location 
where the Beneficiary is to be employed. 5 It is the Petitioner's burden to prove by a preponderance 
of evidence that it is qualified for the benefit sought. Matter of Chawathe, 25 I&N Dec. at 3 76. In 
evaluating the evidence, eligibility is to be determined not by the quantity of evidence alone but by its 
quality. Id. 
Importantly, we must review the actual duties the Beneficiary will be expected to perform to ascertain 
whether those duties require at least a baccalaureate degree in a specific specialty, or its equivalent, as 
required for classification as a specialty occupation. To accomplish that task in this matter, we review 
the duties in conjunction with the specific projects and initiatives to which the Beneficiary will be 
assigned within the context of the Petitioner's business operations. To allow otherwise, results in 
generic descriptions of duties that, while they may appear (in some instances) to comprise the duties 
of a specialty occupation, are not related to any actual services the Beneficiary is expected to provide. 
Notably, the Director requested evidence in her RFE, to include an explanation of how the 
Beneficiary's specific job duties relate to the Petitioner's products and services, as well as relevant 
3 A petitioner submits the LCA to the U.S. Department of Labor 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 2 l 2(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). 
4 See google.com and mapquest.com, last searched by the 'I !Drive" address on Apr. 21, 2020. 
5 Matter of Ho, Dec. at 591-92. 
4 
business plans, and organization charts that would delineate the Petitioner's divisional organization 
and staffing hierarchy. In its RFE response, the Petitioner describes its business model, as follows: 
The way our business functions is that we have to buy our [ wireless phones] paying the 
foll price and offer the same products to our customers at either discounted prices or 
for free. When we do this, we get paid back in the form of rebates which are paid out 
in different rebate types based on the promotions. All of our rebate reports contain a 
huge amount of data where we have to figure out a way of comparing each and every 
rebate that is being paid out against the way the product was sold to the customer. Also, 
using the crystal reports that are provided, we also need to measure the company's 
performance against the market. The different aspects that need to be measured are 
revenue generated based on sales and rebates paid, in addition to the performance of 
each employee, each store, and the company against the market. 
Here, the Petitioner initially states that the Beneficiary "will participate in new software and systems 
projects assigned to the Reporting and Analytics Department to ensure the successful implementation 
of new systems and procedures." In the RFE response, the Petitioner provides the above description 
of its business model, and also indicates that "[ w ]e use a POS [point of sale] system called Realtime 
POS which provides us various reports. The person working in the [proffered] position needs to be 
able to make sense of these reports and come up with a business efficiency model that would help our 
business proceed in the right direction." The Petitioner does not farther detail what the development 
of this "business efficiency model" would entail. The organization chart provided in the RFE response 
reflects that the Petitioner employs eight individuals in positions bearing executive or managerial 
titles, including the proffered position, "manager of business analytics," as well as "50+ sales 
representatives," but does not identify the existence of a Reporting and Analytics Department or other 
distinct departments therein. 6 
The Petitioner has emphasized that during the course of his duties the Beneficiary will liaise or interact 
with various personnel and stakeholder groups, to include "[ c ]ollaborat[ing] with team members to 
define and build key metrics for various new business initiatives," and "[p]artner[ing] with the 
leadership team to identify and recommend high impact opportunities to make the organization more 
profitable. Though the Petitioner provided narrative about the job duties of the position, the evidence 
does not show the operational structure within the Petitioner's business operations in a manner that 
would establish the Beneficiary's substantive role. 
Further, though the Petitioner provided a percentage breakdown of the duties devoted to each job task, 
the Petitioner did not adequately explain how the separately discussed system development duties of 
the position align with the Petitioner's job task groupings. 7 Collectively considering the Petitioner's 
various job duty descriptions, 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. 
5 
Collectively considering the evidence of record, we conclude that the Petitioner has not provided 
consistent, probative evidence to substantiate the nature of the Petitioner's operational structure and 
business operations in a manner sufficient to demonstrate the claimed complexity, uniqueness, or 
specialization of the work to be performed by the Beneficiary. 8 For example, the Petitioner references 
the need to better analyze reporting information regarding its phone sales and associated rebate income 
for general marketing and accounting purposes, but the Petitioner has not documented or described 
the existence of any current or prospective software and systems development projects as initially 
asserted in the petition. Based upon the conflicting information the record, we conclude that the 
Petitioner has materially mis presented the substantive nature of the initiatives that will form the basis 
for the services to be provide by the Beneficiary in the proffered position. 
We note that the misrepresentation of a material fact may lead to multiple consequences in 
immigration proceedings. First, as an evidentiary matter, the misrepresentation may impact the review 
and adjudication of the visa petition or immigration application. Ifwe do not believe that a fact stated 
in the petition is true, we may reject that assertion. See section 214(c)(l) of the Act, 8 U.S.C. § 
1184(c)(l); cf Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001); Anetekhai v. INS, 876 
F.2d 1218, 1220 (5th Cir. 1989). The Petitioner's submission of false statements may also call into 
question the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Next, a material misrepresentation 
that is determined to have been willful under section 212(a)(6)(C) of the Act may make an individual 
ineligible to receive a visa and ineligible to be admitted to the United States. See, e.g., Forbes v. INS, 
48 F.3d 439, 442 (9th Cir. 1995). Finally, a finding of willful, material misrepresentation may lead to 
criminal penalties. See 18 U.S.C. §§ 1001, 1546; see also United States v. O'Connor, 158 F. Supp.2d 
697 (E.D. Va. 2001). 
In summary, absent consistent and sufficient evidence of a project or definitive work within the context 
of the Petitioner's business operations, the Petitioner has not established the substantive nature of the 
proffered position. The record lacks evidence sufficiently concrete and informative to demonstrate 
that the proffered position requires a bachelor's degree level of knowledge in a specific specialty. That 
is, the record does not adequately communicate (1) the actual work that the Beneficiary will actually 
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. 
Moreover, in this case the Petitioner submitted a certified labor condition application (LCA) for the 
"Management Analysts" occupational category corresponding to the Standard Occupational 
Classification (SOC) code 13-1111. 9 As noted, the Petitioner provided varying descriptions for the 
8 Matter of Chawathe, 25 l&N Dec. 369. 375-76 (AAO 2010). 
9 The O*NET Summary Report for positions located within the "Management Analysts" occupational category lists the 
following duties: 
• Document findings of study and prepare recommendations for implementation of new systems. 
procedures, or organizational changes. 
• Interview personnel and conduct on-site observation to ascertain unit functions, work performed, and 
methods, equipment, and personnel used. 
• Analyze data gathered and develop solutions or alternative methods of proceeding. 
6 
proffered position which appear facially to comport, in part, with the typical tasks performed by 
individuals employed in the "Management Analysts" occupational category. However, despite the 
Petitioner's categorization of the proffered position as a management analyst, the petition also contains 
detailed narrative that references a position that substantially entails system development functions. 
For example, the Petitioner maintains that the Beneficiary will also perform duties, such as 
"[ a ]nalyzing system problems, programming system fixes to existing applications, assisting in the 
development of program design specifications, and developing new programs to automate business 
processes," and will be engaged in the provision of "a wide variety of programming tasks, 
development, testing, maintenance .... to ensure the successful implementation of new systems and 
procedures." 
In determining the nature of a proffered position, the critical element is not the title of the position, 
but the duties of the underlying position. As part of our analysis, we review the duties of the proffered 
position to assess the duties and determine whether the described duties correspond to the duties and 
tasks listed in the O*NET Summary Report for the occupation designated in the LCA. While the 
Petitioner submitted an LCA designating the "Management Analysts" occupation for the proffered 
position, the Petitioner has not sufficiently established that these duties are consistent with the 
occupational category. Therefore, we are unable to determine whether the proffered position properly 
falls within the "Management Analyst" occupational category corresponding to SOC code 13-1111, 
which raises additional questions regarding the substantive nature of the proffered position. 10 
While the proffered position may qualify as a specialty occupation if the record sufficiently 
demonstrates the duties and the requirement of the position in the context of its business, here the 
Petitioner has not adequately established the substantive nature of the work to be performed by the 
Beneficiary. This precludes a 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 appropriate for review for 
a common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity 
• Plan study of work problems and procedures, such as organizational change, communications. 
information flow, integrated production methods, inventory control, or cost analysis. 
• Confer with personnel concerned to ensure successful functioning of newly implemented systems or 
procedures. 
• Gather and organize information on problems or procedures. 
• Prepare manuals and train workers in use of new forms, reports, procedures or equipment, according to 
organizational policy. 
• Review forms and reports and confer with management and users about fonnat, distribution, and 
purpose, identifying problems and improvements. 
• Develop and implement records management program for filing, protection, and retrieval ofrecords, and 
assure compliance with program. 
• Design, evaluate, recommend. and approve changes of forms and reports. 
The O*NET Summary Report for "Management Analysts," may be viewed at https://www.onetonline.org 
/link/summary/13-1 111 (last visited Apr. 21, 2020). 
10 The Director concluded in her notice denying the petition that the Beneficiary will perform the normal duties of a 
"Management Analyst." We withdraw her detennination in this regard. 
7 
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. 11 
IV. CONCLUSION 
The Petitioner has not presented evidence or argument sufficient to establish that, more likely than 
not, the proffered position is a specialty occupation as defined by the regulations and the statute. 12 In 
visa petition proceedings, it is a 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. 
11 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 further discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
12 Matter of Chawathe, 25 l&N Dec. at 376. 
8