dismissed H-1B Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 5982980 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 27, 2020 
The Petitioner seeks to extend the Beneficiary's temporary employment as a "civil engineer/project 
manager" under the H-lB nonimmigrant classification for specialty occupations . See Immigration and 
Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C . § 1101(a)(15)(H)(i)(b) . 
The California Service Center Director denied the petition, concluding that the record does not 
establish that the proffered position qualifies as a specialty occupation and that the Beneficiary does 
not have a license to perform a civil engineer's duties. 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence .1 
The Administrative Appeals Office (AAO) reviews the questions in this matter de nova. 2 Upon de 
nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S .C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor 's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F .R. § 214 .2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
1 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc ., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. ANALYSIS 
The Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
The record does not establish that the job duties, as described, require the theoretical and practical 
application of a body of a highly specialized knowledge attained through at least a baccalaureate 
degree in a specific discipline. 3 
A. Nature of the Position 
On the labor condition application (LCA) 4 submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Civil Engineer" corresponding to 
the Standard Occupational Classification (SOC) code 17-2051. The Petitioner provided a broad 
outline of the proffered position, indicating that the Beneficiary will perform the following duties 
(paraphrased and bullet points added): 
• Processes, tracks, and distributes submittals and shop drawings; 
• Manages document control processes, including change orders, subcontractor 
billings, field production tracking, purchasing and contract administration; 
• Inspects project sites to monitor progress and ensure conformance to design 
specifications and safety or sanitation standards; 
3 The Petitioner appears to assert on appeal that ifit establishes one of the four criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it 
has established the position is a specialty occupation. However, in addition to satisfying one or more of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A), a petitioner must also satisfy the statutory definition of specialty occupation. That is the 
regulatory criteria supplement but do not replace, the statutory definition. See Section 214(i)(l) of the Act 8 U.S.C. 
§ 1 l 84(i)(l). 
4 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either 
the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the employer 
to other employees with similar experience and qualifications who are performing the same services. Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.731(a). 
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• Conducts quality control inspections of completed work; 
• Ensures equipment and materials are in accordance with contract drawings and 
specifications by monitoring and coordinating construction activities; 
• Responsible for overall project planning, operations and scheduling, resource 
allocation, project accounting and control, providing technical direction, and 
ensuring compliance with quality standards; 
• Provides technical advice to industrial or managerial personnel regarding design, 
construction, or program modifications or structural repairs; and, 
• Manages and directs the construction, operations, or maintenance activities at 
project site. 
In response to the Director's request for evidence (RFE), the Petitioner added component tasks for the 
bullet-pointed duties listed above and noted that some of the tasks are common to both civil engineers 
and construction managers. We reviewed all the duties, including the component tasks, but note that 
the proposed duties are so abstract that they could encompass any number of occupations. The 
Petitioner does not explain why the few general duties it lists as only civil engineering tasks should 
not also be considered construction manager tasks. This is an important distinction because the two 
occupations require different levels of education and licensing to perform them. For example, the 
Petitioner does not off er any analysis explaining why managing document control processes and 
project administration, monitoring project sites, performing quality control inspections, ensuring 
equipment is available, and project planning require a civil engineering degree or even a bachelor's 
degree in a specific specialty, or its equivalent. The general descriptions provided do not include the 
necessary detail to ascertain the nature and level of responsibility of the proposed position. It is also 
not possible to conclude that the duties as generally described correspond to the occupation designated 
on the LCA. 
Additionally, three of the eight tasks in the Petitioner's description of proposed duties are taken 
directly from the Department of Labor's Occupational Information Network's (O*NET) summary 
report for "Civil Engineers" SOC code 17-2051. However, when discussing an occupational title, a 
petitioner cannot repeat portions of the generalized descriptions found in the O*NET in order to 
demonstrate that a position is a specialty occupation or that the position is a particular occupation. 
Such a generalized description is necessary when defining the range of duties that may be performed 
within an occupation but cannot be relied upon by a petitioner when discussing the duties attached to 
specific employment. The Petitioner must detail the actual tasks involved and the context in which 
the particular duty is performed in conjunction with its business operations. 
Even when reviewing the component duties for the outlined tasks, 5 the Petitioner does not provide the 
necessary detail for an analysis of the proposed duties. For example, the Petitioner indicates that the 
O*NET task of inspecting project sites to monitor progress and ensure conformance to design 
specifications and safety or sanitation standards would include monitoring the progress of a project, 
ensuring that projects are completed within set timeframes, arranging meetings for project progress, 
preparing progress reports, monitoring use of resources, initiating corrective action when necessary, 
5 We also note that even when listing the component duties of two of three tasks taken from the O*NET, the Petitioner 
paraphrases the O*NET, rather than elaborating on how the generalized information from the O*NET translates into the 
Beneficiary's actual day-to-day duties. 
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and undertaking site checks and inspections to monitor progress. The Petitioner does not elaborate on 
what this actually involves. Without more it appears these are managerial functions and do not 
necessarily require engineering knowledge at a degreed civil engineer level. Again, the broadly stated 
duties are insufficient to establish the nature of the position and establish that the proposed position 
corresponds to the occupation designated on the LCA. 
The Petitioner also includes a press release on one of its projects that refers to the Beneficiary as the 
project manager and another individual as the project engineer. Thus, it appears that at some point the 
Beneficiary may have performed primarily as a project manager and not as an engineer. The record 
overall does not provide a definitive description of what the Beneficiary will do on a daily basis and 
that the duties performed are the duties of a civil engineering occupation. Additionally, the Director 
questioned the Beneficiary's lack of an engineering license in the RFE and the Petitioner's response 
was that all engineering aspects of the Beneficiary's work would be placed under the general 
supervision of a licensed engineer. In the decision, the Director questioned why, if the Beneficiary 
had been performing the duties of a civil engineer, this had not been done previously. That is, it is 
questionable whether the Beneficiary had actually been performing the duties of an engineer under the 
previous H-1 B employment. The Petitioner did not offer a response or explanation on appeal. We 
reiterate here that the general description of the proposed duties does not include sufficient detail to 
conclude that the Beneficiary had been or will be performing engineering tasks. 
We also reviewed the Petitioner's declaration regarding the number and type of projects it has been 
awarded and completed. Although the Petitioner claims that the Beneficiary has been involved in 
these projects, other than the press release mentioned above, the record does not include evidence 
establishing the Beneficiary's actual role and whether he performed the duties of a construction 
manager, an unlicensed engineer, or some other role on the mentioned projects. Although the 
Petitioner's advertisements for the proposed position include a statement that a bachelor's degree in 
civil engineering is a requirement, the 2015 advertisement also requires 7 years of experience; the 
2018 advertisement listing a higher salary, requires 2-7 years of experience. The Petitioner in its letters 
in support of the position does not refer to an experience requirement. Thus, the Petitioner's actual 
requirements for the position are also ambiguous. 
Moreover, as with all H-1 B petitions, the record must establish that a petitioner's stated degree 
requirement is not a matter of preference for high-caliber candidates but is necessitated instead by 
performance requirements of the position. See Defensor, 201 F.3d at 387-88. The critical element is 
not the title of the position, or the fact that an employer has routinely insisted on certain educational 
standards, but whether performance of the position actually requires the theoretical and practical 
application of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher 
degree in the specific specialty, or its equivalent, as the minimum for entry into the occupation as 
required by section 214(i)(l) of the Act. As discussed above, the Petitioner has not satisfied these 
essential elements of the statutory definition of specialty occupation. 
The Petitioner also questions the Director's analysis of the various job postings it submitted to 
demonstrate that a bachelor's degree in a specific discipline, or its equivalent, is common in the 
Petitioner's construction industry. The Petitioner submitted three job postings for civil engineering 
positions and four job postings for project manager positions. The three civil engineering postings are 
all for positions that are not parallel to the position proffered here. Two of the postings offer brief one 
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sentence descriptions, so that even if the Petitioner's position description was thorough we could not 
compare the two; and two of the postings indicate that a license and either four or five years of 
experience are required in addition to the bachelor's degree. 6 The project manager job postings also 
do not depict positions that are parallel to the proffered position. The descriptions of proposed duties 
are general, and three of the four job postings require from three to ten years of experience. The fourth 
job posting indicates preference will be given to candidates with 20 years of experience. These job 
postings do not include sufficient information to conclude that there is a common industry standard 
for positions that are parallel to the proffered position. 
The Petitioner also cites to Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012), 
and Rcy and Co. v. USCIS, 85 F. Supp. 3d 1241, 1246 (W.D. Wash. 2015), as well as non-precedent 
decisions. 7 However, the issue is not whether the position could be performed by one or more degrees; 
rather the issue here is the lack of detailed information regarding the proposed duties. That is, the 
description does not include sufficient information, so that we may ascertain the nature of the proffered 
position and determine whether the duties described require a bachelor's degree in a specific 
discipline, or its equivalent, and whether the certified LCA corresponds to and supports the petition. 
The record is deficient in this regard. 
The duties as described do not illuminate the substantive application of knowledge involved or any 
particular educational requirement associated with such duties. The Petitioner has not established the 
substantive nature of the work to be performed by the Beneficiary, which therefore precludes a 
conclusion that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because 
it is the substantive nature of that work that determines (1) the normal minimum educational 
requirement for entry into 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. 
Upon review of the totality of the evidence submitted, the Petitioner has not established that more 
likely than not, the proffered position is a specialty occupation under any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Moreover, the record does not demonstrate that performing the duties described 
would require the theoretical and practical application of a body of highly specialized knowledge and 
the attainment of at least a bachelor's degree in a specific specialty or its equivalent. 
6 One of these job postings requires that the candidate possess a five-year civil engineering degree. 
7 We observe 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 l&N Dec. 715, 719-20 (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. Id. Similarly, while 8 C.F.R. § 103.3( c) provides that our precedent decisions are binding on all USCTS employees 
in the administration of the Act, unpublished decisions are not similarly binding. 
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B. Past Approvals 
We note that U.S. Citizenship and Immigration Services (USCIS) recently clarified that "an 
adjudicator's fact-finding authority ... should not be constrained by any prior petition approval, but 
instead should be based on the merits of each case. "8 It was also emphasized that "the burden of proof 
remains on the petitioner, even where an extension of nonimmigrant status is sought." As discussed, 
the Petitioner has not established that the position proffered here qualifies as a specialty occupation 
and has not sustained its burden to establish eligibility for the immigration benefit sought. 
ORDER: The appeal is dismissed. 
8 USCIS recently rescinded USCIS Policy Memorandum, PM-602-0151, Rescission of Guidance Regarding Deference to 
Prior Determinations of Eligibility in the Adjudication of Petitions/or Extension of Nonimmigrant Status (Oct. 23, 2017), 
https://www.uscis.gov/sites/default/files/USCTS/Laws/Memoranda/2017/2017-10-23Rescission-of-Deference­
PM6020151.pdf Even if the memo had not been rescinded, it did not advise adjudicators to approve an extension petition 
when the facts of the record do not demonstrate eligibility for the benefit sought. On the contrary, the memorandum's 
language acknowledged that a petition should not be approved where, as here, the Petitioner has not demonstrated that the 
petition should be granted. We are not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. Sec, e.g., Matter of Church Scientology 
Int'!, 19 I&N Dec. 593, 597 (Comm'r 1988); see also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 
1987). Furthermore, we are not be bound to follow a contradictory decision of a service center. La. Philharmonic 
Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *3 (E.D. La. 2000), ajj'd, 248 F.3d 1139 (5th Cir. 2001). 
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