dismissed H-1B Case: Business Services

(b)(6)
DATE: 
IN RE: 
PETITION: 
MAY 2 6 2015 
PETITION RECEIPT #: 
Petitioner: 
Beneficiary: 
U.S. Department of Homeland Se<curity 
U<S< Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave<, N<W<, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.P.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
EJJ'I'���gJ 
Administrative Appeals Office 
REV 3/2015 www.uscis.gov 
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Page 2 
DISCUSSION: The Director, California Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a "Back 
offices services for startups" company established in 2010. In order to employ the beneficiary in 
what it designates as a sales engineer position, the petitioner seeks to classify her as a nonimmigrant 
worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b ). 
The director denied the petition on September 24, 2014, concluding that the evidence of record did 
not establish that the proffered position qualifies as a specialty occupation in accordance with the 
applicable statutory and regulatory provisions. On appeal, the petitioner asserts that the director's 
basis for denial of the petition was erroneous and contends that the petitioner satisfied all evidentiary 
requirements. 
The record of proceeding before us contains: (1) the petitioner's Form I-129 and supporting 
documentation; (2) the director's request for evidence (RFE); (3) the petitioner's response to the 
RFE; (4) the notice of decision; and (5) the Form I-290B and supporting materials. We reviewed the 
record in its entirety before issuing our decision. 
For the reasons that will be discussed below, we agree with the director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the appeal will be dismissed. 1 
I. FACTUAL AND PROCEDURAL HISTORY 
In this matter, the petitioner stated in the Form I-129 that it seeks the beneficiary's services as a sales 
engineer on a full-time basis. In the March 18, 2014 letter of support, the petitioner explained its 
services, stating that it allows companies to "focus on their business plans and operations, rather than 
worrying about their 'back office', i.e., their Accounting (banking, bookkeeping, reporting, bills & 
expenses) and Human Resources (payroll, benefits, talent management, and compliance) functions." 
The petitioner further indicated that it provided its services to clients on a subscription basis, and 
claimed that the subscription plan included the services of an Account Manager, a Controller, an 
Accounting Manager, a Bookkeeper, a Senior HR Manager, and an HR Manager. 
Regarding the proffered position, the petitioner provided the following overview of the position: 
Due to the highly technological aspect of our customized system, [the petitioner] 
requires a Sales Engineer with a scientific background to interact with our internal 
teams and our clients. The Sales Engineer plays a critical role in the long-term 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
��� �-- ·-·· ·· �- - --�� ·�·�-------------------
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success of [the petitioner]. The successful candidate will be responsible for actively 
driving and managing the technology evaluation stage of the sales process, working 
in conjunction with the sales team as the key technical advisor and product advocate 
for our product. On top of this, he or she will work with the [petitioner's] team to 
build and deliver training to customers and staff members across all of our products. 
The position's responsibilities include: 
• Cultivating an advisory relationship with founders and CEOs of [the 
petitioner's] customer base of high-tech startups and small/medium-s ize 
businesses. 
• Planning and modifying product configurations to meet customer needs. 
• Acting as a liaison between customers and the Product Management team to 
interpret requirements. 
• Preparing and delivering technical presentations that explain products or 
services to customer and prospective customers. 
• Arranging for demonstrations or trial installations of equipment. 
• Creating sales or service contracts for products or services. 
• Maintaining client information and opportunities on the company CRM 
system. 
• Strategically adding value to [the petitioner] by identifying areas for growth in 
process improvement including development of the CRM system. 
• Developing and delivering a training schedule for the [petitioner's] system to 
our team and our customers. 
• Analyzing training needs to develop new training programs or modify and 
improve existing programs. 
• Conducting or arranging for ongoing technical training and personal 
development classes for staff members and customers. 
• Developing and organizing training manuals, multimedia visual aids, and 
other educational materials for customers and staff. 
• Developing testing and evaluation procedures. 
The petitioner did not provide any further information with regard to the order of importance and/or 
frequency of occurrence with which the beneficiary will perform the functions and tasks. Thus, the 
petitioner did not specify which tasks were major functions of the proffered position, nor did it 
establish the frequency with which each of the duties would be performed (e.g., regularly, 
periodically or at irregular intervals). As a result, the petitioner did not establish the primary and 
essential functions of the proffered position. 
The petitioner further asserted that "a successful and ideal candidate will possess a bachelor's degree 
in science (Computer Science, Engineering, Physics) or a related degree," and claimed that this was 
its minimum educational requirement. The petitioner submitted an educational evaluation report 
indicating that the beneficiary's combined education in the United Kingdom is the equivalent of a 
U.S. Master of Science degree in Physics. The petitioner also submitted a copy of the beneficiary's 
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foreign diQloma, as well as a letter from the Deputy University Registrar at the University of 
which stated that the beneficiary received a Master of Science degree in Engineering 
with a major in Nanotechnology in 2011? 
Further, the petitioner submitted a Labor Condition Application (LCA) in support of the instant 
H-1B petition. The LCA designation for the proffered position corresponds to the occupational 
category "Sales Engineer" - SOC (ONET/OES Code) 41-9031, at a Level I (entry level) wage. 
Finally, the petitioner submitted additional documentary evidence, including inter alia printouts 
from its website, copies of the beneficiary's recent paystubs, and an excerpt from the U.S. 
Department of Labor's (DOL's) Occupational Outlook Handbook (Handbook) addressing the 
occupation of Sales Engineers. 
The director found the initial evidence insufficient to establish eligibility for the benefit sought, and 
issued an RFE on May 12, 2014. The director noted that the evidence submitted was insufficient to 
establish eligibility for the benefit sought. The director further outlined the specific evidence to be 
submitted. 
On July 25, 2014, the petitioner's counsel responded to the RFE. The response addressed the 
director's queries, and included the following documentary evidence: 
1. Letter dated July 21, 2014 from 
2. Letter dated July 23, 2014 from 
expert opinion; 
the petitioner's General Manager; 
Ph.D., submitted for consideration as an 
3. Copies of job vacancy announcements for other Sales Engineer positions; 
4. Copies of job vacancy announcements for Sales Engineer positions with 
5. A copy of a news article dated November 30, 2012; and 
6. A copy of the petitioner's job vacancy announcement for the position of Front End 
Developer. 
The petitioner also submitted additional details regarding the proffered position, claiming that the 
majority of the beneficiary's time (90%) would be spent "act[i ng] as liaison between the Client's 
technical staff and [the petitioner's] Engineer Team." The petitioner claimed that the remaining 10% 
of her time would be devoted to other duties, including: 
• Train Client on how to use product once completed 
• Attend trade shows to generate leads 
• Research competitive workflow and business process management software 
solutions 
2 We note that the registrar's letter is not accompanied by copie s of the beneficiary 's diploma or transcripts. 
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The director reviewed the information provided by the petitioner. Although the petitioner claimed 
that the beneficiary would serve in a specialty occupation, the director determined that the evidence 
of record did not establish how the beneficiary's immediate duties would necessitate services at a 
level requiring the theoretical and practical application of at least a bachelor's degree level of a body 
of highly specialized knowledge in a specific specialty. The director denied the petition on 
September 24, 2014. Counsel submitted an appeal of the denial of the H-1B petition. 
II. STANDARD OF REVIEW 
On appeal, counsel for the petitioner indicates that the "preponderance of the evidence" standard is 
relevant to this matter, and that the petitioner established through credible and uncontested evidence 
that the proffered position is a specialty occupation. With respect to the preponderance of the 
evidence standard, Matter of Chawathe, 25 I&N Dec. 369, 375-376 (AAO 2010), states in pertinent 
part the following: 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of 
evidence that he or she is eligible for the benefit sought. 
* * * 
The "preponderance of the. evidence" standard requires that the evidence 
demonstrate that the applicant's claim is "probably true," where the determination 
of "truth" is made based on the factual circumstances of each individual case. 
* * * 
Thus, in adjudicating the application pursuant to the preponderance of the 
evidence standard, the director must examine each piece of evidence for 
relevance, probative value, and credibility, both individually and within the 
context of the totality of the evidence, to determine whether the fact to be proven 
is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits 
relevant, probative, and credible evidence that leads the director to believe that the 
claim is "more likely than not" or "probably" true, the applicant or petitioner has 
satisfied the standard of proof. See INS v. Cardoza-Foncesca, 480 U.S. 421, 431 
(1987) (discussing "more likely than not" as a greater than 50% chance of an 
occurrence taking place). If the director can articulate a material doubt, it is 
appropriate for the director to either request additional evidence or, if that doubt 
leads the director to believe that the claim is probably not true, deny the 
application or petition. 
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Applying the preponderance of the evidence standard, we find that the petitioner has not overcome 
the basis for the director's denial in this matter. 
III. THELAW 
For an H-lB petition to be granted, the petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.P.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the m1mmum 
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 
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NON-PRECEDENT DECISION 
(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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)( 4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc. , 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of 
W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214. 2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(1) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 proffered 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"). Applying this standard, USCIS regularly approves H-lB petitions for qualified 
aliens who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty, or its equivalent, directly related to the duties and responsibilities of 
the particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether 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 the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
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IV. ANALYSIS 
NON-PRECEDENT DECISION 
The petitioner stated that the beneficiary would be employed in a sales engineer position. However, 
to determine whether a particular job qualifies as a specialty occupation, USCIS does not simply rely 
on a position's title. The specific duties of the proffered position, combined with the nature of the 
petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F.3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether 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 the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
When determining whether a position is a specialty occupation, we must 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 particular employer. To ascertain the intent of a petitioner, USCIS looks to the Form 
1-129 and the documents filed in support of the petition. It is only in this manner that the agency can 
determine the exact position offered the location of employment, the proffered wage, et cetera. 
Pursuant to 8 C.P.R. § 214.2(h)(9)(i), the director has the responsibility to consider all of the 
evidence submitted by a petitioner and such other evidence that he or she may independently require 
to assist his or her adjudication. Further, the regulation at 8 C.P.R. § 214.2(h)(4)(iv) provides that 
"[ a ]n H-1B petition involving a specialty occupation shall be accompanied by [ d] ocumentation ... 
or any other required evidence sufficient to establish .. . that the services the beneficiary is to 
perform are in a specialty occupation." 
We will first review the record of proceeding in relation 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. 
We reviewed the chapter of the Handb ook entitl ed "Sales Engineers ," including th e sections 
regarding the typical duties and requirements for this occupational category.3 However, the 
Handbook does not indicate that "Sales Engineers" comprise an occupational group for which at 
least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. 
3 We recognize the Handbook as an authoritative source on the duties and educational requirements of the wide 
variety of occupations that it addresses. The Handbook, which is available in printed form, may also be 
accessed at http://www.stats.bls.gov/oco/. Our references to the Handbook are to the 2014 - 20 15 ed ition 
available online. We hereby incorporate into the record of proceeding the chapter of the Handbook regarding 
"Sales Engineers. " 
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The subchapter of the Handbook entitled "How to Become a Sales Engineer" states the following 
about this occupational category: 
A bachelor's degree is typically required to become a sales engineer. Successful sales 
engineers combine technical knowledge of the products or services they are selling 
with strong interpersonal skills. 
Education 
Sales engineers typically need a bachelor's degree in engineering or a related field. 
However, a worker without a degree, but with previous sales experience as well as 
technical experience or training, sometimes holds the title of sales engineer. Workers 
who have a degree in a science, such as chemistry, or in business with little or no 
previous sales experience, also may be called sales engineers. 
University engineering programs generally require 4 years of study. They vary in 
content, but all programs include courses in math and the physical sciences. In 
addition, most programs require developing strong computer skills. 
Some programs offer a general engineering curriculum; students then specialize on 
the job or in graduate school. Most programs, however, require students to choose an 
area of specialization. The most common majors are electrical, mechanical, or civil 
engineering, but some programs offer additional majors, such as chemical, 
biomedical, or computer hardware engineering. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Sales Engineers, available at http://www.bls.gov/ooh/sales/sales-engineers.htm#tab-4 (last visited 
May 20, 2015). 
Moreover, when reviewing the Handbook, we must note that the petitioner designated the proffered 
position under this occupational category at a Level I on the LCA.4 This design ation is ind icative of 
4 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage 
rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have 
only a basic understanding of the occupation. These employees perform routine tasks that 
requi re limited, if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. The employees may 
perform hi gher level work for training and developmental purposes. These employees work 
under close supervision and receive specific instructions on required tasks and results 
expected. Thei r work is closely monitored and reviewed for accuracy. Statements that the 
job offer is for a research fellow, a worker in training, or an internship are indicators that a 
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a comparatively low, entry-level position relative to others within the occupation and signifies that 
the beneficiary is only expected to possess a basic understanding of the occupation and will perform 
routine tasks that require limited, if any, exercise of judgment. In accordance with the relevant DOL 
explanatory information on wage levels, the beneficiary will be closely supervised and her work 
closely monitored and reviewed for accuracy. Furthermore, she will receive specific instructions on 
required tasks and expected results. DOL guidance indicates that a Level I designation is 
appropriate for a research fellow, a worker in training, or an internship. This designation suggests 
that the beneficiary will not serve in a high-level or leadership position relative to others within the 
occupational category. 
The Handbook does not indicate that at least a bachelor's degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into this occupation. Rather, the 
occupation accommodates other paths for entry, including less than a bachelor's degree in a specific 
specialty. The Handbook specifically states that while sales engineers typically need a bachelor's 
degree in engineering or a related field, it also states that a worker without a degree, but with 
previous sales experience as well as technical experience or training, sometimes holds the title of 
sales engineer. The Handbook does not report that previous sales experience as well as technical 
experience or training must be the equivalent of a bachelor's degree in a specific specialty. 
Moreover, the Handbook states that "workers who have a degree in a science, such as chemistry, or 
in business with little or no previous sales experience, also may be called sales engineers." In 
general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum of 
a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in the 
specific specialty (or its equivalent)" requirement of section 214(i)(l)(B) of the Act. In such a case, 
the required "body of highly specialized knowledge" would essentially be the same. Since there 
must be a close correlation between the required "body of highly specialized knowledge" and the 
position, however, a minimum entry requirement of a de.gree in two disparate fields, such as science 
and business, 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 responsibili tie s of th e particular position such that the required "body of highly specialized 
knowledge" is essentially an amalgamation of these different specialties. Section 214(i)(l)(B) of the 
Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," we 
do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
Level I wage should be considered. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/ 
NPWH C _Guidance_ Revised _11_ 2009. pdf. 
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occupations if they permit, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 214(i)(l)(B) of the Act; 8 C.P.R. § 214. 2(h)(4)(ii). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
· 
Again, the Handbook indicates that the duties of the proffered position can be performed by an 
individual with a bachelor's degree in an unspecified "science," business, or engineering. The issue 
here is that it is not readily apparent that these three fields of study are closely related or that each 
one is directly related to the duties and responsibilities of the particular position proffered in this 
matter. 
The requirement of a bachelor's degree in business is inadequate to establish that a 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 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, without further specification, does not establish the 
position as a specialty occupation. Cf Matter of Michael Hertz Associates, 19 I&N Dec. 558 
(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 explained above, USCIS interprets the degree requirement at 8 C.P.R. § 
214. 2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
position. USCIS has consistently stated that, although a general-purpose bachelor's degree, such as a 
degree in business administration, 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. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 
(1st Cir. 2007). 
On appeal, counsel focuses on the definition of the word "typ ically," noting that it is defined as 
"generally or normally" or "in the usual way." Counsel asserts that, based on a reading of this 
definition in light of the Handbook's conclusion that "Sales engineers typically need a bachelor's 
degree in engineering or a related field," the Handbook in essence is stating that sales engineers 
"normally" need a degree in engineering or a related field, and thus the petitioner's claim based on 
the evidence of record is "probably true." In further support of this contention, counsel cites to 
Residential Fin. Corp. v. U.S. Citizenship & Immigration Services, 839 F. Supp. 2d 985 (S.D. Ohio 
2012), for the proposition that '"[a] petition should be decided on the actual record, utilizing the 
correct portions of relevant resources, and for the actual position to be filled."' 
While we agree generally with the aforementioned proposition, we again note that the petitioner did 
not establish that the particular position offered in this matter requires a bachelor's or higher degree 
in a specific specialty, or its equivalent, directly related to its duties in order to perform those 
duties. We recall the petitioner's claim that its minimum entry requirement for the position is a 
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degree in Computer Science, Engineering, physics, or a related subject, and note that the petitioner's 
willingness to accept a candidate with a degree in any of these disparate fields demonstrates that the 
particular position proffered in this matter does not have a normal minimum entry requirement of a 
bachelor's or higher degree in a specific specialty, or its equivalent, under the petitioner's own 
standards. Accordingly, as the evidence of record fails to establish a standard, minimum 
requirement of at least a bachelor's degree in a specific specialty, or its equivalent, for entry into the 
particular position, it does not support the proffered position as being a specialty occupation and, in 
fact, supports the opposite conclusion. 
Here and as indicated above, the petitioner, who bears the burden of proof in this proceeding, has not 
established either (1) that computer science and engineering in general are closely related fields or 
(2) that engineering or any and all engineering specialties are directly related to the duties and 
responsibilities of the proffered position. Absent this evidence, it cannot be found that the particular 
position proffered in this matter has a normal minimum entry requirement of a bachelor's or higher 
degree in a specific specialty or its equivalent under the petitioner's own standards. Accordingly, as 
the evidence of record does not establish a standard, minimum requirement of at least a bachelor's 
degree in a specific specialty or its equivalent for entry into the particular position, it does not 
support the proffered position as being a specialty occupation and, in fact, supports the opposite 
conclusion. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty (or its equivalent)" requirement of section 214(i)(l)(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since 
there must be a close correlation between the required "body of highly specialized knowledge" and 
the position, however, a minimum entry requirement of a degree in disparate fields, such as an 
unspecified "science," business, or engineering, 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 such that the 
required body of highl y specializ ed knowledge is es sentially an amalgamation of these dif feren t 
specialties. Section 214(i)(l)(B) of the Act (emphasis added). For the aforementioned reasons, 
however, the petitioner has not met its burden to establish that the particular position offered in this 
matter requires a bachelor's or higher degree in a specific specialty, or its equivalent, directly related 
to its duties in order to perform those tasks. 
In any event, counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in Residential Fin. Corp. v. U.S. Citizenship & Immigration Services.5 We also 
5 It is noted that the dis trict judge's decision in that case appears to have been based largely on the many 
factual errors made by the service center in its decision denying the petition. We further note that the service 
center director's decision was not appealed to us. Based on the di strict court's findings 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 decis ion for many of the same reasons articulated by 
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note that, 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 Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). 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. !d. at 719. 6 
In response to the RFE, counsel submitted an advisory opinion from Ph.D., Professor 
of Computer Science at University. However, as discussed below, the letter from 
is not persuasive in establishing the proffered position as a specialty occupation position.7 
stated that the petitioner provided him with copies of the beneficiary's academic 
credentials, as well as a copy of the petitioner's March 18, 2014 and July 21, 2014 letters, both of 
which were submitted to USCIS in support of the instant petition. also states that he 
reviewed the petitioner's website for further information. Upon review of opinion letter, 
there is no indication that he possesses any knowledge of the petitioner's proffered position beyond 
this information. He does not demonstrate or assert in-depth knowledge of the petitioner's specific 
business operations or how the duties of the position would actually be performed in the context of 
the petitioner's business enterprise. There is no evidence that has visited the petitioner's 
business, observed the petitioner's employees, interviewed them about the nature of their work, or 
documented the knowledge that they apply on the job. His opinion does not relate his conclusion to 
specific, concrete aspects of this petitioner's business operations to demonstrate a sound factual basis 
for the conclusion about the educational requirements for the particular position here at issue. 
In the letter, reviews the petitioner's description of the job description provided by the 
petitioner in the same support letters submitted to USCIS. He states the proffered position "r equires 
an in-depth knowledge of both engineering and sales, " and further claims that the proffered position 
"is a complex, highly technical occupation with specific knowledge requirements that are gained in a 
curriculum leading to a Bachelor's degree in Computer Science, Engineering, Physics, or a related 
field." He also notes that the duties of the proffered position "are typical for a Sales Engineer 
working for a customized software company." conclud es that the proffered pos ition "is a 
complex, technical specialty occupation requiring a Bachelor's degree in Computer Science, 
Engineering, Physics, or a related field as a minimum education requirement." 
the dist rict court if these errors could not have been remedie d by us in our de novo review of the matter. 
6 Furthermore, we note that in Health Carousel, LLC v. U.S. Citizenship & Immigration Services, 2014 WL 
29591 (S.D. Ohio 2014), the court which decided Residential Finance concurred with our analysis of that 
case. 
7 Recognized authority means a person or organization with expertise in a particular fi eld, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested . 8 C.F.R. § 214.2(h)(4)(ii). 
A recognized authority's opinion must state: (1) the writer's qualifications as an expert; (2) the writer's 
experience giving such opinions, citing specific instances whe re past opinions have been accepted as 
authoritative and by whom; (3) how the conclusions were reached; ·and (4) the basis for the conclusions 
supported by copies or citations of any research material used. !d. 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
However, it must be noted that there is no indication that the petitioner and counsel advised 
that the petitioner characterized the proffered position as a low, entry-level, position for a beginning 
employee who has only a basic understanding of the occupation (as indicated by the wage-level on 
the LCA). The wage-rate indicates that the beneficiary will be expected to perform routine tasks that 
require limited, if any, exercise of judgment; that he will be closely supervised and his work closely 
monitored and reviewed for accuracy; and that he will receive specific instructions on required tasks 
and expected results. It appears that would have found this information relevant for his 
opinion letter. Moreover, without this information, the petitioner has not demonstrated that 
possessed the requisite information necessary to adequately assess the nature of the petitioner's 
position and appropriately determine parallel positions based upon job duties and responsibilities. 
We consider this a significant omission, as it suggests an incomplete review of the position in 
question and a faulty factual basis for ultimate conclusion. 
Moreover, asserts a general industry educational standard for organizations similar to the 
petitiOner, without referencing any supporting authority or any empirical basis for the 
pronouncement. Likewise, he does not provide a substantive, analytical basis for his opinion and 
ultimate conclusion. Accordingly, the very fact that he attributes a degree requirement to such a 
generalized treatment of the proffered position undermines the credibility of his opinion. 
Importantly, his statements are not supported by copies or citations of research material that may 
have been used. 9 He has not provided sufficient facts that would support the contention that the 
proffered position requires at least a bachelor's degree in a specific specialty. We may, in our 
discretion, use as advisory opinion statements submitted as expert testimony. However, where an 
opinion is not in accord with other information or is in any way questionable, we are not required to 
accept or may give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 
(Comm'r 1988). 
Here, letter does not cite specific instances in which his past opinions have been accepted 
or recognized as authoritative on this particular issue. There is no indication that he has published 
any work or conducted any re se arch or studie s pertin ent to the education al requ ire me nts for such 
positions (or parallel positions) in the petitioner's industry for similar organizations, and no 
indication of recognition by professional organizations that he is an authority on those specific 
requirements. He claims to possess expertise in the field of computer science, but he did not identify 
the specific elements of his knowledge and experience that he may have applied in reaching his 
conclusions here. 
9 Going ori record without supporting documentary evid ence is not sufficient for purposes of meeting the 
burden of proof in these proceedi ngs. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
(b)(6)
NON-PRECEDENT DECISION 
PagelS 
In summary, for the reasons discussed above, we conclude that the opinion letter rendered by 
is not probative evidence to establish the proffered position as a specialty occupation. The 
conclusions reached by lack the requisite specificity and detail and are not supported by 
independent, objective evidence demonstrating the manner in which he reached such conclusions. 
Therefore, we decline to defer to findings and ultimate conclusions, and further find that his 
opinion letter is not probative evidence towards satisfying any criterion of the regulation at 8 C.F.R. 
§ 214.2( h)(4)(iii)(A). 
Finally, we note counsel's reference on appeal to unpublished decisions in which we determined that 
the position of sales engineer proffered in those matters qualified as a specialty occupation. Counsel 
suggests that our determinations in those decisions further support determination that the 
proffered position in this matter is a specialty occupation. Counsel, however, has furnished no 
evidence to establish that the facts of the instant petition are analogous to those in the unpublished 
decision. While 8 C.F.R. § 103.3(c) provides that our precedent decisions are binding on all USCIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
In the instant case, the petitioner has not established that the proffered position falls under an 
occupational category for which the Handbook (or other objective, authoritative source) indicates 
that at least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry into the occupation. Furthermore, the duties and requirements of the proffered 
position as described in the record of proceeding by the petitioner do not indicate that the position is 
one for which a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally 
the minimum requirement for entry. Thus, the evidence of record does not satisfy the first criterion 
of 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions that 
are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered position, and also 
(3) located in organi zations th at are simil ar to th e pe titione r. 
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 Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.Minn. 1999) 
(quotingHird!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 which 
the Handbook (or other objective, authoritative source), reports a standard, industry-wide requirement 
for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. Further, the petitioner did not submit documentation 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
from the industry's professional association indicating that it has made a degree a minimum entry 
requirement. 
We acknowledge that the record of proceeding contains an opinion letter from However, 
as previously discussed in detail, we find that the opinion letter does not merit probative weight 
towards satisfying any criterion at 8 C.F.R. § 214.2( h)(4)(iii)(A) or establishing the proffered 
position as a specialty occupation. Although claims that "it is the general practice for 
companies the size and nature of the [petitioner]" to hire sales engineers with at least a bachelor's 
degree in computer science, engineering, physics, or a related field, provides no 
explanation regarding the basis for this conclusion. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
In support of the H-1B petition, the petitioner provided several job announcements. However, upon 
review of the evidence, we find that the petitioner's reliance on the job announcements is misplaced. 
In the Form 1-129, the petitioner stated that it is a company that provides "Back office services for 
startups" with 64 employees. The petitioner also reported its gross annual income as approximately 
$3 million. Although requested on the Form 1-129, the petitioner did not provide its net annual 
income. The petitioner designated its business operations under the North American Industry 
Classification System (NAICS) code 541511. 10 This NAICS code is designated for "Custom 
Computer Programming Services." The U.S. Department of Commerce,· Census Bureau website 
describes this NAICS code by stating the following: 
This U.S. industry comprises establishments primarily engaged in writing, modifying, 
testing, and supporting software to meet the needs of a particular customer. 
U.S. Dep't of Commerce, U.S. Census Bureau, 2012 NAICS Definition, 541511-Custom Computer 
Programming Services, available at http ://www .census.gov/cgi-bin/sssd/naics/naicsrch (last visited 
May 20, 2015). 
For the petitioner to establish that an organization is similar under this criterion of the regulations, it 
must demonstrate that the petitioner and the organization share the same general characteristics. 
Without such information, evidence submitted by a petitioner is generally outside the scope of 
consideration for this criterion, which encompasses only organizations that are similar to the 
petitioner. When determining whether the petitioner and the organization share the same general 
10 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used 
to classify business establishments according to type of economic activity and, each establishment is 
classified to an industry according to the primary business activity taking place there. See 
http://www.census.gov/eos/www/naics/ (last visited May 20, 2015). 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
characteristics, such factors may include information regarding the nature or type of organization, 
and, when pertinent, the particular scope of operations, as well as the level of revenue and staffing 
(to list just a few elements that may be considered). 
Upon review of the documentation, the petitioner fails to establish that a requirement of a bachelor's 
or higher degree in a specific specialty, or its equivalent, is common to the petitioner's industry in 
positions that are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the petitioner. 
For example, the record includes advertisements from which claims to be "the 
global leader in customer relationship management (CRM) software," and claims to employ 10,001+ 
employees. Without further information, these advertisements appear to be for an organization that 
is not similar to the petitioner and the petitioner has not provided any probative evidence to suggest 
otherwise. Consequently, the record is devoid of sufficient information regarding the advertising 
organization to conduct a legitimate comparison of the organizations to the petitioner. That is, the 
petitioner did not provide sufficient information to establish that the advertising company and the 
petitioner share the same general characteristics, as well as information regarding which aspects or traits 
(if any) it shares with the advertising organization. 
In addition, contrary to the purpose for which the advertisements were submitted, they do not 
establish that at least a bachelor's degree in a specific specialty, or its equivalent, is required for the 
positions. For example, all of the job postings indicate that a degree in a variety of disciplines is 
acceptable for the advertised positions. Again, since there must be a close correlation between the 
required "body of highly specialized knowledge" and the position, a minimum entry requirement of a 
degree in disparate fields would not meet the statutory requirement that the degree be "in the specific 
specialty," unless the petitioner establishes how each field is directly related to the duties and 
responsibilities of the particular position such that the required "body of highly specialized 
knowledge" is essentially an amalgamation of these different specialties. Section 214(i)(1)(B) of the 
Act (emphasis added). Thus, upon review, the advertisements do not indicate that a bachelor's 
degree in a specific specialty that is directly related to the duties of the position is required. 
Further, some of the advertised positions do not appear to be for parallel positions. For instance, 
requires a candidate for its. Sales Engineer position to possess "10 years of experience 
with at least 5 in a technical sales role. II As previously discussed, the petitioner designated the 
proffered position on the LCA as a Level I (entry) position in comparison to others within the 
occupation. The advertised position appears to be for a more senior position than the proffered 
position. 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
As the documentation does not establish that the petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary.U That is, not every deficit of every job posting has been addressedP 
Thus, based upon a complete review of the record, the petitioner has not established that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common to 
the petitioner's industry in positions that are identifiable as being (1) in the petitioner's industry, (2) 
parallel to the proffered position, and also (3) located in organizations that are similar to the 
petitioner. For the reasons discussed above, the petitioner has not satisfied the first alternative prong 
of 8 C.F.R. § 214. 2(h)(4)(iii)(A)(2). 
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. 
As discussed previously, the petitioner itself does not require at least a baccalaureate degree in a 
specific specialty, or its equivalent, for the proffered position. Rather a degree in a range of 
disciplines (i. e., computer science, engineering, physics or related field) is acceptable for the 
proffered position. The Handbook expands the range of acceptable degrees further to include a 
general-purpose "business" degree with no specialization. Although the petitioner asserts that a 
bachelor's degree is required to perform the duties of the proffered position, it has not demonstrated 
that the duties require the theoretical and practical application of a body of highly specialized 
knowledge, and attainment of a bachelor's or higher degree in a specific specialty (or its equivalent). 
We acknowledge that in response to the RFE, counsel claimed that the proffered position involves 
complex and/or unique duties. In the instant case, the petitioner provided information regarding the 
proffered position and evidence regarding its business operations. We reviewed the record in its 
entirety and note that while the petitioner provides some insights into the proffered position and its 
11 Notably, the petitioner and counsel did not provide any independent evidence of how representative these job 
advertisements are of the particular advertising employers' recruiting history for the type of jobs advertised. 
Further, as they are only solicitations for hire, they are not evidence of the employers' actual hiring practices. 
12 
It must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a 
specific specialty (or its equivalent) is common to the industry in parallel positions among similar 
organizations (which they do not), the petitioner fails to demonstrate what statistically valid inferences, if any, 
can be drawn from the advertisements with regard to determining the common educational requirements for 
entry into parallel positions in similar organizations. See generally Earl Babbie, The Practice of Social 
Research 186-228 (1995). Moreover, given that there is no indication that the advertisements were randomly 
selected, the validity of any such inferences could not be accurately determined even if the sampling unit were 
sufficiently large. See id. at 195- 196 (explaining that "[ r]andom selection is the key to [the] process [of 
probability sampling]" and that "random selection offers access to the body of probability theory, which 
provides the basis for estimates of population parameters and estimates of error"). 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
business activities, the evidence does not establish that the proffered 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. Further, it must be noted that it is not the volume of documentation that 
establishes eligibility for the benefit sought, but rather the relevance, probative value, and credibility 
of the documentation - both individually and within the context of the totality of the evidence. 
In addition, the petitioner and counsel 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 duties that counsel claims are so complex or unique. While a few related courses may 
be beneficial, or even required, in performing certain duties of the position, the petitioner has not 
demonstrated how an established curriculum of such courses leading to a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is required to perform the duties of the proffered 
position. 
In the record of proceeding, counsel relies on opinion letter to assert that the proffered 
position "is a complex, highly technical occupation with specific knowledge requirements that are 
gained in a curriculum leading to a Bachelor's degree in Computer Science, Engineering, Physics, or 
a related field." We incorporate our earlier discussion and analysis regarding the opinion letter, and 
again note that the letter does not establish that the proffered position qualifies as a specialty 
occupation under any of the criterion at 8 C.P.R. § 214.2(h)(4)( iii)(A). 
We again note that the LCA indicates a Level I (entry level) wage. As previously mentioned, the 
wage level of the proffered position indicates that the beneficiary is only required to have a basic 
understanding of the occupation; that she will be expected to perform routine tasks that require 
limited, if any, exercise of judgment; that she will be closely supervised and her work closely 
monitored and reviewed for accuracy; and that she will receive specific instructions on required 
tasks and expected results. Without further evidence, it is not credible that the petitioner's proffered 
position is complex or unique as such a position would likely be classified at a higher-level, such as 
a Level III (experienced) or Level IV (fully competent) position, requiring a significantly higher 
prevaili ng wage . For example, 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. "1 3 
In summary, the description of the duties does not specifically identify any tasks that are so complex 
or unique that only a specifically degreed individual could perform them. The record lacks 
sufficiently detailed information to distinguish the proffered position as more complex or unique 
from other positions that can be performed by persons without at least a bachelor's degree in a 
specific specialty or its equivalent. The petitioner has not demonstrated that this position, which it 
13 For additional information regarding the wage levels, see U.S. Dep't of Labor, Emp't & Training Admin., 
Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), 
available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance _Revised _11_ 2009.pdf. 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
characterized in the LCA as an entry-level position relative to other positions in the occupation, is so 
complex or unique that it can be performed only by an individual with at least a baccalaureate degree 
in a specific specialty, or its equivalent. 
The petitioner indicates that the beneficiary's academic credentials and experience qualify her to 
serve in the proffered position. However, the test to establish a position as a specialty occupation is 
not the credentials and skills of a proposed beneficiary, but whether the position itself requires the 
theoretical and practical application of a body of highly specialized knowledge, and attainment of a 
bachelor's or higher degree in the specific specialty (or its equivalent). Upon review of the record of 
proceeding, we find that the petitioner has not established the proffered position as satisfying the 
second prong of the criterion at 8 C.P.R. § 214.2 (h)(4)(iii)(A)(2). 
The third criterion of 8 C.P.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. We 
usually review the petitioner's past recruiting and hiring practices, as well as any other information 
provided by the petitioner in support of the petition. 
To satisfy this criterion, the record must establish that a petitioner's imposition of a degree requirement 
is not merely a matter of preference for high-caliber candidates but is necessitated by performance 
requirements of the position. In the instant case, the record does not establish a prior history of 
recruiting and hiring for the proffered position only persons with at least a bachelor's degree in a 
specific specialty, or its equivalent. 
While a petitioner may assert that a proffered position requires a specific degree that opinion alone 
without corroborating evidence cannot establish the position qualifies as a specialty 
occupation.14 Were USCIS limited solely to reviewing a 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 artificially created a token degree requirement, 
whereby all individuals employed in a particular position possessed a baccalaureate or higher degree 
in the specific spec ialty or its equ ivalent. See Defensor v. Meissner, 201 F.3d at 388. In other 
words, if a petitioner's stated degree requirement is only designed to artificially meet the standards 
for an H-lB visa and/or to underemploy an individual in a position for which he or she is 
overqualified and if the proffered position does not in fact require such a specialty degree or its 
equivalent to perform its duties, the occupation would not meet the statutory or regulatory definition 
of a specialty occupation. See section 214(i)(l) of the Act; 8 C.P.R. § 214. 2(h)(4)(ii) (defining the 
term·"specialty occupation"). 
The petitioner stated in the Form I-129 petition that it has approximately 64 employees and that it 
14 Any such assertion would be undermined in this particular case by the fact that the petitioner indicated in 
the LCA that its proffered position is a comparatively low-level position relative to others located within the 
occupation. 
(b)(6)
NON-PRECEDENT DECISION 
Page 21 
was established in 2010 (approximately 4 years prior to the H-lB submission). In support of the 
petition, the petitioner submitted an internal job announcement for the position of Front End 
Developer. The job posting from its website indicates that it requires a bachelor's degree or 
equivalent in computer science or a related math/science degree, indicating that a variety of degrees 
would be acceptable for entry into this position. Moreover, the record does not contain evidence 
establishing that this advertisement is for the same position as the "Sales Engineer" position 
proffered to the beneficiary. 
Upon review of the record, 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. Thus, the petitioner has not satisfied the third criterion of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)( A). 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty or 
its equivalent. 
The petitioner provided information regarding the proffered position and its business operations. 
While the evidence provides someinsights into the petitioner's business activities, the documents do 
not establish that the nature of the specific duties of the proffered position is so specialized and 
complex that the knowledge required to perform them is usually associated with the attainment of a 
baccalaureate or higher degree in a specific specialty, or its equivalent. 
In the instant case, we note that relative specialization and complexity have not been sufficiently 
developed by the petitioner as an aspect of the proffered position. We incorporate the earlier 
discussion and analysis regarding the duties of the proffered position, and the designation of the 
proffered position in the LCA as a Level I position (out of four assignable wage-levels) relative to 
others within the occupational category, and hence one not likely distinguishable by relatively 
specialized and complex duties. Without further evidence, the petitioner has not established that the 
proffered position is one with specialized and complex duties as such a position would likely be 
classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) position, 
requiring a substantially higher prevailing wage. As previously discussed, 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. 
We again acknowledge the opinion letter from and note his claim that that the nature of 
the specific duties is so specialized and complex that only an individual with a bachelor's degree in 
computer science, engineering, physics, or a related specialty could perform them. However, as we 
previously explained, we find that the opinion letter does not merit probative weight towards 
satisfying any criterion at 8 C.P.R. § 214 .2(h)(4)(iii)(A) or establishing the proffered position as a 
specialty occupation. 
(b)(6)
NON-PRECEDENT DECISION 
Page 22 
The petitioner has submitted inadequate probative evidence to satisfy this criterion of the 
regulations. Thus, the petitioner has not established that the nature of the specific duties of the 
position is so specialized and complex that the knowledge required to perform the duties is usually 
associated with the attainment of a baccalaureate or higher degree in a specific specialty, or its 
equivalent. We, therefore, conclude that the evidence of record does not satisfy the criterion at 
8 C.P.R. § 214. 2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the evidence of record does not establish that the 
petitioner has satisfied any of the criteria at 8 C.P.R. § 214. 2(h)(4)(iii)(A) and, therefore, it cannot be 
found that the proffered position qualifies as a specialty occupation. The appeal will be dismissed 
and the petition denied for this reason.15 
V. 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; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
15 As this issue precludes approval of the petition we will not discuss any of the additional deficiencies we 
have observed on appeal.