dismissed H-1B Case: Business Technology Solutions

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DATE: JUL 0 8 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave .. N.W .• MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT#: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)( 15)(H)(i)(b) of the 
Immigration and Nationality Act , 8 U.S.C. § 11 Ol(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.F.R. § I 03.5. 
Motions must be filed on a Notice of Appeal or Motion (Form l-2908) within 33 days of the date ofthis 
decision . The Form l-2908 web page (www.uscis.gov /i-290b) contain s the latest information on fee , 
filing location , and other requirements . Please do not mail any motions directly to the AAO. 
Thank you, 
Ron Rosenber 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. 
The matter is now on appeal before the Administrative Appeals Office (AAO). The appeal will 
be dismissed. 
I. FACTUAL AND PROCEDURAL HISTORY 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
business technology solutions company established in with one employee. In order to 
employ the beneficiary in what it designates as a communications systems engineer , 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, finding that the petitioner has not established that it would 
employ the beneficiary in a specialty occupation position. On appeal, the petitioner asserts that 
the director's basis for denial of the petition was erroneous and contends that it satisfied all 
evidentiary requirements . 
The record of proceeding before us contains: (1) the Form I-129 and supporting documentation; 
(2) the director's Request for Evidence (RFE); (3) the petitioner's response to the RFE; (4) the 
director's notice of decision; and (5) the Notice of Appeal or Motion (Form I-290B) and 
supporting documentation . We reviewed the record in its entirety before issuing our decision.' 
For the reasons that will be discussed below, we agree with the director's decision that the 
petitioner has not established eligibility for the benefit sought. Accordingly , the director's 
decision will not be disturbed. The appeal will be dismissed . 
II. SPECIALTY OCCUPATION 
The issue here is whether the petitioner demonstrated by a preponderance of the evidence that it 
will employ the beneficiary in a specialty occupation position. 
A. The 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 
1 
We conduct appellate review on a de novo basis. See Soltan e v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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(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.F.R. § 214.2(h)(4)(iii)(A), to qualifY as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be 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. 
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)(l) 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. See K 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 ofW-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 
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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)(l) 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 . Chertojf, 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 -1 B 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 -1 B vi sa 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 
ofthe 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. 
B. The Proffered Position 
The petitiOner indicated on the Form I-129 that it seeks the beneficiary's services as a 
communications systems engineer to work on a full-time basis for an annual salary of $59,900 
per year. 
In a letter of support dated March 13, 2014, the petitioner stated that the beneficiary will be 
responsible for the following duties: 
• Interviewing clients, determining their communication needs and performing 
business solutions. Well knowledge of programming languages as 
ColdFusion, HTML, Java Script, C++ and .Net for software creation for 
installation of var[ious] equipment according [to] customer needs [and] 
implementing internet services. 
• Fiber optic manipulation and installation, implementation of access control, 
incorporating video communication and monitoring security configuration. 
• Implementation of IP telephone installations incorporation telephone 
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technology and implementation of custom platform per customer demand. 
• Supervise site installation of emergency alarms, video cameras and configure 
each network using security protocols to allow internet communication. 
• Configuration of specialize router, bridges and switches. VPN and secure 
gateway implementation. 
• Guide technical projects and end-to-end communications system engineering 
activities , including system design, QC, test, and activities evaluation. This 
includes but is not limited to leading critical needs and capability assessments, 
early conceptual studies, trade studies, requirements and equipment 
integration, planning, and execution. 
• Analyze and bring new technologies to be competitive in the current market 
place. 
• Support the development of modeling and simulation tools and conduct 
analysis to evaluate the performance of specific communications systems. 
• Develop potential future concepts and technological solutions. 
• Provide systems engineering solutions to advance global connectivity . 
• Analyze 
advance technologies and apply them to enable evolution of existing 
communications systems to higher data rates, IP based solutions, and greater 
interoperability. 
• Maintain communications systems, trouble shooting and diagnose 
communication system issues. 
• Manage communications upgrades/installations. 
• Monitor communications system discrepancies, support test events requiring 
communication support participate in system integration planning, testing, and 
reporting. 
• Manage priorities , following up with clients to record any issues with 
system[ s]. 
• Design system and user manuals for equipment specifications and procedures 
to protect communications from failure, intrusion or misuse. 
• ight (sic] of the afore-mentioned job duties, we required someone with the 
equivalent of at least a Bachelor degree in Electrical Engineering and work 
experience in the job offered. 
In response to the RFE, the petitioner submitted a revised and expanded job description. The 
petitioner did not explain the reasons for discrepancy in the job duties. 
The petitioner also submitted a Labor Condition Application (LCA) in support of the instant 
H-lB petition. The LCA designation for the proffered position corresponds to the occupational 
classification of "Electrical Engineers"- SOC (ONET/OES) Code 17-2071, at a Level I (entry­
level) wage. The LCA also indicated that the beneficiary will work at the petitioner's offices. 
C. Analysis 
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For H -1 B approval, the petitioner must demonstrate a legitimate need for an employee exists and 
to substantiate that it has H -1 B caliber work for the beneficiary for the period of employment 
requested in the petition. It is incumbent upon the petitioner to demonstrate it has sufficient 
work to require the services of a person with at least a bachelor's degree in a specific specialty, 
or its equivalent, to perform duties at a level that requires the theoretical and practical application 
of at least a bachelor's degree level of a body of highly specialized knowledge in a specific 
specialty for the period specified in the petition. 
We find that the evidence of record does not sufficiently establish the substantive nature of the 
proffered position. In establishing the position as a specialty occupation, a petitioner must 
describe the specific duties and responsibilities to be performed by a beneficiary in the context of 
the petitioner's business operations. 
We first note that the petitioner did not provide any information with regard to the order of 
importance and/or frequency of occurrence with which the beneficiary will perform the 
described functions and tasks. Thus, the petitioner did not specify which tasks were major 
functions of the proffered position, and 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, and 
which duties, if any, require 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. 
Further, the petitioner has described the duties comprising the proffered position in generalized and 
generic terms that do not convey sufficient substantive information to establish the relative 
complexity, uniqueness and/or specialization of the proffered position or its duties. For example, 
the petitioner indicated that the beneficiary will "analyze and bring new technologies to be 
competitive in the current market place," "provide systems engineering solutions to advance global 
connectivity," and "develop potential future concepts and technological solutions." However, the 
petitioner did not further elaborate on the specific tasks, methodologies, and applications of 
knowledge that would be required in furtherance of these duties. The overall responsibilities for 
the proffered position contain generalized functions without providing sufficient information 
regarding the particular work, and associated educational requirements, into which the duties 
would manifest themselves in their day-to-day performance within the petitioner's business 
operations. 
Moreover, the record of proceeding contains inconsistent information about the nature of the 
proffered position, which undermines the petitioner's credibility with regard to the services the 
beneficiary will perform, as well as the actual nature and requirements of the proffered position. 
When a petition includes numerous discrepancies, those inconsistencies will raise serious 
concerns about the veracity of the petitioner's assertions. 
For example, the petitioner's description of the job duties does not appear to be consistent with 
the occupational category of "Electrical Engineers." As noted, the petitioner indicated in the 
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LCA that the proffered pos1t10n corresponds to the occupational category of "Electrical 
Engineers." According to the U.S. Department of Labor's Occupational Outlook Handbook 
(Handbook), electrical engineers "design, develop, test, and supervise the manufacturing of 
electrical equipment, such as electric motors, radar and navigation systems, communications 
systems, or power generation equipment" and "also design the electrical systems of automobiles 
and aircraft." The Handbook further states that electrical engineers typically "design new ways 
to use electrical power to develop or improve products" or "do detailed calculations to develop 
manufacturing, construction, and installation standards and specifications. "2 The petitioner did 
not explain how the beneficiary's duties such as "supervis[ing] site installation of emergency 
alarms, video cameras and configure each network using security protocols to allow internet 
communication" relate to the duties of an electrical engineer as described in the Handbook. On 
appeal, the petitioner asserts that the beneficiary will be responsible for the "design development 
and maintenance of technology for communications, ranging from telephones to internet 
systems, ensuring that all components of the system are successfully installed and connected." 
However, the petitioner has not provided sufficient evidence to establish the substantive nature 
of the proffered position. For example, the petitioner submitted copies of its service contracts 
with clients to establish its business operations. The "Terms of Service Agreement Contract" 
dated February 1, 2012 with Service Parcel Es Doral states that the petitioner's services will 
include "on call service" which entails the following: 
• Support to help Guest or Resident to get connected to Internet, Wireless Setting 
instructions. 
• Support the Company 
employees with any networking issue. 
• Help New Residents to configure a new TV set to get the complete TV Line up 
available. 
• Report any quality issue of any kind on any of the Systems included on the SAC. 
• Generate for on Site Service tickets if it required 
The services, as described above, do not appear to relate to the Handbook's description of an 
electrical engineer or explain the beneficiary's role in these types of services. Further, they do 
not provide a sufficient factual basis to persuasively support the claim that the position's actual 
work would require the theoretical and practical application of any particular educational level of 
highly specialized knowledge in a specific specialty directly related to the demands of the proffered 
position. 
2 We recogmze the Handbook as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses. For more information about 
the occupational category of "Electrical and Electronics Engineers," see U.S. Dep't of Labor, 
Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., Electrical and 
Electronics Engineers, available on the Internet at (http://www.bls.gov/ooh/architecture-and­
engineering/electrical-and-electronics-engineers.htm (last viewed June 26, 2015). 
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We also find that the record did not establish relative complexity, specialization and/or uniqueness 
as distinguishing aspects of either the proposed duties or the position that they are said to comprise. 
As evident in the job description quoted above, the record of proceeding presents the duties 
comprising the proffered position in terms of relatively abstract and generalized functions. More 
specifically, they lack sufficient detail and concrete explanation to establish the substantive nature 
of the work and associated applications of specialized knowledge that their actual perf01mance 
would require within the context of the petitioner's particular business operations. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant 
petition. The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four 
assignable wage levels.3 Without further evidence, the evidence does not demonstrate that the 
proffered position is complex or unique as such a position falling under this occupational 
category would likely be classified at a higher-level , such as a Level III (experienced) or Level 
IV (fully competent) position , requiring a significantly higher prevailing wage.4 For example, a 
Level IV (fully competent) position is designated by DOL for employees who "use advanced 
3 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 require limited , if any , exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. The employees 
may perform higher level work for training and developmental purposes. These 
employees work under close supervision and receive specific instructions on required 
tasks and results expected . Their 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 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/NPWHC_Guidance_Revised _ I 1_2009.pdf. 
4 The issue here is that the petitioner's designation of this position as a Level I, entry-level pos1t1on 
undermines its claim that the position is particularly complex , specialized , or unique compared to other 
positions within the same occupation. Nevertheless , it is important to note that a Level I wage­
designation does not preclude a proffered position from classification as a specialty occupation. In 
certain occupations (doctors or lawyers, for example), an entry-level position would still require a 
minimum of a bachelor's degree in a specific specialty, or its equivalent, for entry. Similarly, however , a 
Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that 
higher-level position does not have an entry requirement of at least a bachelor's degree in a specific 
specialty or its equivalent. That is, a position's wage level designation may be a consideration but is not a 
substitute for a determination of whether a proffered position meets the requirements of section 2 I 4(i)(l) 
of the Act. 
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skills and diversified knowledge to solve unusual and complex problems." 5 
The petitioner has not provided sufficient details regarding the nature and scope of the 
beneficiary's employment or any substantive evidence regarding the actual work that the 
beneficiary would perform . Without a meaningful job description , the record lacks evidence 
sufficiently concrete and informative to demonstrate that the proffered position requires a 
specialty occupation's level of knowledge in a specific specialty. The tasks as described fail to 
communicate (1) the actual work that the beneficiary would perform , (2) the complexity , 
uniqueness and/or specialization of the tasks, and/or (3) the correlation between that work and a 
need for a particular level education of highly specialized knowledge in a specific specialty. The 
petitioner's assertions with regard to the position's educational requirement are conclusory and 
unpersuasive, as they are not supported by the job descriptions or substantive evidence. 
The record's failure to establish the substantive nature of the work to be performed by the 
beneficiary precludes a finding that the proffered position is a specialty occupation under 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 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 that it has satisfied any of the criteria at 8 C.F.R. § 
214.2(h)( 4 )(iii)( A), it cannot be found that the proffered position qualifies as a specialt y 
occupation. The appeal will be dismissed. 
III. CONCLUSION AND ORDER 
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; Matt er o.fOtiende , 26 I&N 
Dec. 127, 128 (BIA 2013) . Here, that burden has not been met.6 
ORDER: The appeal is dismissed. 
5 For additional inform ation regarding wage levels as defined by DOL, 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_ll_ 2009 .pdf 
6 As the identified grounds of ineligibility are dispositive of the petitioner's appeal , we need not address 
any additional issues in the record of proceeding