dismissed H-1B Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 8797675 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 24. 2020 
The Petitioner, a construction company, seeks to temporarily employ the Beneficiary as a "civil 
engineer" under the H-lB nonimmigrant classification for specialty occupations . See Immigration 
and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C . § l 10l(a)(l5)(H)(i)(b). The H-lB 
program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that 
requires both (a) the theoretical and practical application of a body of highly specialized knowledge 
and (b) the attainment of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a 
minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the evidence of record 
does not establish that the proffered position qualifies as a specialty occupation. The matter is now 
before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § l 184(i)(l), defines the term "specialty occupation" as an 
occupation that requires : 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
( I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). 
II. PROFFERED POSITION 
The Petitioner is a construction company that provides "design/build services" and renovations 
including "[ d]rywall removal and installation, carpentry, carpeting, supply and install furniture, 
painting, electrical, duct and gutter cleaning, roofing and demolition." The Petitioner seeks to employ 
the Beneficiary as a "civil engineer." On the labor condition application (LCA) submitted in support 
of the H-1 B petition, the Petitioner designated the proffered position under the occupational category 
"Civil Engineers" corresponding to the Standard Occupational Classification (SOC) code 17-2051, at 
a Level I wage. 1 The Petitioner initially provided the following job duties (verbatim): 
1. Planning and Designing for government and private construction projects, and Bid 
Packaging, which are supported by key competencies like Strategic Management 
Foundations, Construction Management Practices, Construction Productivity. 
Estimate quantities and Cost of materials, equipment, or labor to determine Project 
Feasibility. Inspect project sites to monitor progress and ensure conformance to 
design specifications and safety or sanitation standards as per Federal Regulations 
and Contract Specifications utilizing Civil Engineering Principles and by using 
Construction Management Software, Procore to maintain all the submittals and 
progress of the Construction Project. Analyze Survey Reports, Maps, Drawings, 
and Blueprints. 
1 A petitioner submits the LCA to the U.S. Department of Labor to demonstrate that it will pay an H-1 B worker the higher 
of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid by the 
employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655.731(a). 
2 
2. Comprise of Project Risk Monitoring, Inspection of Construction Sites and 
Adopting Sophisticated Lean Construction Concepts and Methodologies. Identify 
Environmental Risks and Develop Risk Management Strategies for Civil 
Engineering Projects. Compute Load and Grade Requirements, Water Flow Rates, 
or Material Stress (Steel Girders/Concrete) factors to determine and conform to 
Design Specifications using Civil Engineering Principles of Structural Analysis, 
Soil Mechanics and Strength of Materials with the help of design software 
StaadPro. Test Soils or Materials to determine the Adequacy of Strength of 
Foundations, Concrete, Asphalt, or Steel using civil Engineering Principles. 
Manage and Direct the Construction, Operations, or Maintenance activities at 
project site using Project Management Software Procore and Primavera P6 to 
ensure that the Construction is on schedule. Identify Engineering Problems and 
assess Potential Project Impact. 
3. Achieve Organizational Objectives on Client Engagements that Promote the 
Analysis of Data Collected and Application Knowledge, Specialized Techniques in 
Construction Estimating, Planning, Building Construction and Modeling. Provide 
Technical Analysis/Input by using Civil Engineering Principles to the site Foremen 
and Government Inspection Personnel regarding Design, Construction, or Program 
Modifications or Structural Repairs as required on Construction site. 
4. Deliver Technological Solutions in areas like Computer Aided Design (CAD) by 
using Autocad, which is a Civil Engineering Software and using Primavera P6, a 
Construction Scheduling Software Tool to help with a Streamlined Design and 
Documentation of Projects conforming to Industry Standards. Plan and Design 
Structures using computer assisted Design or Drawing Tools. 
5. Review Construction Manuals to Familiarize and Implement the Emerging Civil 
Engineering concepts on Construction Projects in order to Deliver Consistent and 
Quality Services to Clients. 
6. The beneficiary shall work under the supervision of Project Manager. 
(Emphasis in the original). 
In its response to the Director's request for evidence (RFE), the Petitioner provided a revised version 
of duties with percentages of time the Beneficiary would spend on each duty. We note that the 
percentages of time listed by the Petitioner in its RFE response letter only adds to 95 percent, and the 
Petitioner did not state what the Beneficiary's responsibilities would be for the remaining 5 percent. 
On appeal, the Petitioner submitted yet another version of the duties with different percentages of time 
the Beneficiary would spend on each duty. However, the percentages of time listed by the Petitioner 
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on appeal only adds to 80 percent, and the Petitioner does not state what the Beneficiary's 
responsibilities would be for the remaining 20 percent. 2 
The Petitioner requires a "Bachelor's Degree in Civil Engineering with necessary academic 
background" for the proffered position. 
III. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record contains inconsistencies that 
undermine the Petitioner's claims regarding the proffered position and lacks sufficient evidence of the 
services that the Beneficiary will perform. 3 
When determining whether a position is a specialty occupation, we look at the nature of the business 
offering the employment and the description of the specific duties of the position as it relates to the 
particular employer. To ascertain the salient aspects of the proposed employment, we look to the Form 
I-129, Petition for a Nonimmigrant Worker, and the documents filed in support of the petition. A 
crucial aspect of this matter is whether the Petitioner has sufficiently and consistently described the 
duties of the proffered position such that we may discern the nature of the position and whether the 
position actually requires the theoretical and practical application of a body of highly specialized 
knowledge attained through at least a baccalaureate degree in a specific discipline. Here, the record 
contains inconsistent and insufficient information regarding the proffered duties. Moreover, the duties 
provided for the Beneficiary are vague and do not convey the actual day-to-day tasks and the knowledge 
required to perform them. 
First, and as stated above, the Petitioner provided different versions of the duties in response to the 
Director's RFE and on appeal with varying percentages of time the Beneficiary would spend on each 
duty. While the percentages of the duties in the RFE response added to 95 percent, the percentages of 
the duties submitted on appeal only added to 80 percent. The Petitioner did not explain the difference 
in the percentages it indicated and did not state what the Beneficiary's responsibilities would be for 
the remaining time. The Petitioner must resolve these inconsistencies with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other 
evidence submitted in support of the requested immigration benefit. Id. 
2 For the sake of brevity, we will not quote the versions of the duties submitted in response to the RFE and on appeal; 
however, we have closely reviewed and considered the duties. We note that the Petitioner also included a listing of the 
Beneficiary's previous coursework for the purpose of correlating the need for the Beneficiary's education with the 
associated job duties of the position. However, we are required to follow long-standing legal standards and determine 
first, whether the proffered position qualifies for classification as a specialty occupation, and second, whether the 
Beneficiary was qualified for the position at the time the nonimmigrant visa petition was filed. Cf Matter of Michael 
Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988) ("The facts of a beneficiary's background only come at issue after 
it is found that the position in which the petitioner intends to employ him falls within [ a specialty occupation]."). 
3 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
4 
On appeal, the Petitioner submits a statement from its vice president in which he states that the 
construction projects are "required to be inspected at various stages of the construction during which 
the presence of Civil Engineer is absolutely necessary to address any concerns of the Federal 
Inspections in terms of complying with the Engineering Specification of the Contracts" ( emphasis 
omitted). To demonstrate the availability of work, the Petitioner submitted copies of two contracts 
awarded by the federal government - one for a project in Maryland and the other for a project in 
Illinois. However, we note that these contracts were awarded to 'I I with 
an address different than the Petitioner's address. The record contains insufficient evidence 
demonstrating the business relationship between the Petitioner and I 14 Moreover, the information 
contained in the contract is limited in scope and does not adequately establish the services to be 
provided by the Beneficiary such as duties or educational requirements for the position. Without 
additional documents, the contracts awarded tol I has little probative weight towards establishing 
the actual work to be performed by the Beneficiary for any specific period or location. 
Moreover, the Petitioner states that it requires a civil engineer "to oversee the day[-]to[-]day 
construction and make site visits" and inspect "various stages of the construction and be present luring I 
~1 inspections." However, as noted above, one of the contracts it submitted is located at 
L_J Illinois. The Petitioner stated that the Beneficiary would work at its Virginia location and did 
not state that his duties would include traveling to out-of-state projects. In the alternative, the 
Petitioner did not explain how from a remote location, the Beneficiary would inspect and oversee 
projects, which farther raises questions regarding the substantive nature of the position. 
Furthermore, even if we were to accept these contracts as contract awards for the Petitioner, they still 
would not demonstrate that, at the time of filing the petition, the Petitioner had a project for the 
Beneficiary covering the intended period of employment. One of the contracts was awarded on June 
28, 2019 and the other on August 20, 2019 - after filing the petition.5 The record does not contain a 
contract that was in existence at the time of filing the petition requiring the services of the Beneficiary 
as a civil engineer. 6 
USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking 
at the time the petition is filed. See 8 C.F .R. § 103 .2(b )(1 ). A visa petition may not be approved based 
on speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). The 
agency made clear long ago that speculative employment is not permitted in the H-lB program. See, 
e.g., 63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). While a petitioner is certainly permitted to 
petition for H-1 B classification on the basis of facts not in existence at the time the instant petition 
was filed, it must nonetheless file a new petition to have these facts considered in any eligibility 
4 In response to the Director's RFE, the Petitioner stated that the Beneficiary worked for "as art of 
his Curricular Practical Training while he was enrolled in an Executive MBA Program at Universii-'-t...._ _____ ---,, 
However, the record contains insufficient information explaining the relationship, if any, between 
' and the Petitioner. .__ ______ _. ~-----~ 
5 The Petition was filed on April 12, 2019. 
6 Even if these contracts were executed prior to filing the petition, they would have little probative weight towards 
establishing the actual work to be performed by the Beneficiary as they do not establish the services to be provided by the 
Beneficiary such as duties or educational requirements for the position. 
5 
determination requested, as the agency may not consider them in this proceeding pursuant to the law 
and legal precedent cited, supra. As stated above, the record does not include evidence of the 
Beneficiary's proposed work in relation to any contracts, agreements, work orders, or invoices. 
Without definitive work within a framework of particular projects, we cannot ascertain the actual 
nature, duration, level of responsibility, and availability of the proposed work. For the reasons 
discussed above, we conclude that the petition was filed for employment that was speculative, and, 
therefore for which the substantive nature of the associated duties had not been established. 
Aside from the issues noted above, the record does not contain a sufficiently detailed description of 
the Beneficiary's duties to establish that the position 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. The duties such as "Planning and Designing for government 
and private construction projects," "Estimate quantities and Cost of materials, equipment, or labor to 
determine Project Feasibility," "Inspect project sites to monitor progress," "Identify Environmental 
Risks and Develop Risk Management Strategies for Civil Engineering Projects," "Provide Technical 
Analysis/Input by using Civil Engineering Principles," and "Review Construction manuals to 
Familiarize and Implement the Emerging Civil Engineering concepts on the Construction Projects" do 
not illuminate the substantive application of knowledge involved or any particular educational 
requirement associated with such duties. Such a generalized description does not establish a necessary 
correlation between the proffered position and a need for a particular level of education, or its 
equivalency, in a body of highly specialized knowledge in a specific specialty. 
The Petitioner also states that the Beneficiary's duties include testing soils or materials to determine 
the adequacy and strength of foundations, but it does not describe what the testing involves and the 
techniques the Beneficiary would use. The Petitioner did not establish how these duties require an 
individual with a bachelor's or higher degree in a specific specialty, or its equivalent. While the 
position may require that the Beneficiary possess some skills and technical knowledge in order to perform 
these duties, the Petitioner has not sufficiently explained how these tasks require the theoretical and 
practical application of a body of highly specialized knowledge, and the attainment of a bachelor's or 
higher degree in the specific specialty ( or its equivalent) as a minimum for entry into the occupation. 
We further note that the Petitioner requires a "Bachelor's Degree in Civil Engineering with necessary 
academic background." However, the Petitioner does not explain what it means by "necessary academic 
background." It is unclear whether the Petitioner was intending to state additional degree requirements 
or skills that may be gained through additional course work. Therefore, we cannot make a determination 
how the "necessary academic background" requirement relates to the duties of the proffered position. 
With the broadly described duties, and the lack of evidence regarding work specific to a particular 
project, the record lacks sufficient information to understand the nature of the actual proffered position 
and to determine that the duties require the theoretical and practical application of a body of highly 
specialized knowledge attained by a bachelor's degree, or higher, in a specific discipline. 
On appeal, in addressing the Director's conclusion that the duties provided were taken from the 
Department of Labor's Occupational Information Network (O*NET), the Petitioner states that the job 
duties contained in O*NET "have been compiled with a thorough research of the industry, reflect 
accurately the industry standard . . . " ( emphasis omitted). However, this type of generalized 
6 
description may be appropriate when defining the range of duties that may be performed within an 
occupational category, but it fails to adequately convey the substantive work that the Beneficiary will 
perform within the Petitioner's business operations and, thus, cannot be relied upon by a petitioner 
when discussing the duties attached to specific employment. In establishing a position as a specialty 
occupation, the Petitioner must describe the specific duties and responsibilities to be performed by the 
Beneficiary in the context of its business operations, demonstrate that a legitimate need for an 
employee exists, and substantiate that it has H-lB caliber work for the Beneficiary for the period of 
employment requested in the petition. 7 
The Petitioner also submitted an opinion letter authored by .__ ______ __,, a professor at the 
.___~ ___ ____.University. In his letter, the professor (1) describes the credentials that he asserts 
qualify him to opine upon the nature of the proffered position; (2) describes aspects of the previously 
discussed job duties proposed for the Beneficiary; and (3) states that these duties require at least a 
"Bachelor's Degree in Civil Engineering, a related area, or the equivalent." We carefully evaluated 
the professor's assertions in support of the instant petition but find them insufficient. 
The professor states that he reviewed the position requirements and lists two versions of the duties. 
However, he does not provide an analysis of the requirements of the proffered position within the 
context of the Petitioner's on-going projects. While we appreciate the professor's discussion of duties 
provided by the Petitioner, his analysis falls short of providing a meaningful discussion of what the 
Beneficiary will actually do in the proffered position and how those duties require the theoretical and 
practical application of a body of highly specialized knowledge. As a result, we conclude that the 
Petitioner has not demonstrated that the professor possessed the requisite information to adequately 
assess the nature of the position and appropriately determine the educational requirements of the 
position, based upon the job duties and level of responsibilities. 
The professor also concludes that it is the industry standard for a company such as the Petitioner to 
hire a civil engineer and require that individual to have at least a bachelor's degree in civil engineering 
or a related area. He goes on to state that the success of the Petitioner or "similarly situated companies" 
is "largely dependent on the ability and expertise of [a] Civil Engineer or someone in a similar 
professional position" and concludes that "the industry standard for a position such as Civil Engineer 
... [is] a Bachelor's Degree in Civil Engineering, a related area, or the equivalent." However, there 
is no indication that he has conducted any research or studies pertinent to the educational requirements 
for such positions ( or parallel positions) and no indication of recognition by professional organizations 
that he is an authority on those specific requirements. While the professor briefly discusses the 
growing rate of individuals employed as a civil engineer, he does not reference, cite, or discuss studies, 
surveys, industry publications, authoritative publications, or other sources of empirical information, 
which he may have consulted in arriving at his conclusion regarding the industry standard of the 
educational requirements for the proffered position. 
In summary, we conclude that the letter from the professor is insufficient to support the Petitioner's 
assertion that the proffered position qualifies as a specialty occupation. As a matter of discretion, we 
7 On appeal, the Petitioner draws a distinction between civil engineers and construction managers. However, as discussed 
above, the Petitioner has not provided a sufficiently detailed description of the duties to enable us to make a determination 
regarding the substantive nature of the position. Therefore, we will not discuss this assertion. 
7 
may use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int 'l, Inc., 19 I&N 
Dec. 791, 795 (Comm'r 1988). However, we will reject an opinion or give it less weight ifit is not in 
accord with other information in the record or if it is in any way questionable. Id. We are ultimately 
responsible for making the final determination regarding an individual's eligibility for the benefit 
sought; the submission of expert opinion letters is not presumptive evidence of eligibility. Id.; see 
also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while 
undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but rather is admissible 
only if 'it will assist the trier of fact to understand the evidence or to determine a fact in issue."'). 
The Petitioner also submitted photographs of various construction work, men standing on sidewalks 
with surveying equipment, and an aerial view of a location with notations of piping instructions. 
However, these photographs do not sufficiently identify a specific project, demonstrate the stage of 
the projects, the remaining work, if any, to be performed to complete the projects, and the type of 
engineering resources, if any, necessary for the projects. They do not sufficiently establish the 
Beneficiary's day-to-day work in relation to these projects. 
The Petitioner has not established the substantive nature of the Beneficiary's work. Consequently, this 
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. 
Therefore, the Petitioner has not established that the proffered position is a specialty occupation. 
ORDER: The appeal is dismissed. 
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