dismissed H-1B Case: Clinical Research

U.S. Citizenship 
and Immigration 
Services 
In Re: 10621833 
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 : OCT . 5, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonimmigrant classification 
for specialty occupations . Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(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 record did not 
establish that the proffered position is a specialty occupation . In these proceedings, it is the Petitioner 's 
burden to establish eligibility for the requested benefit by a preponderance of the evidence. 1 We 
review the questions in this matter de nova. 2 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 2 l 4(i)(l) of the Act, 8 U.S.C. § 1 l 84(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: 
1 Section 291 of the Act; Matter ofChawathe, 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) . 
( 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. 3 
II. PROFFERED POSITION 
The Petitioner, a clinical research company, states that the Beneficiary will be employed as a "statistical 
analyst/programmer I" and provided the following job duties for the position:4 
• Assist [Database and Statistical Programming (DSP)] members with transforming 
specifications in statistical analyses plan into fully documented, validated programs 
supporting both safety and efficacy displays and analysis datasets required for 
clinical study reports; 
• Independently testing, maintaining, and documenting programs for use in creating 
study datasets in standard data tabulation model format, analysis datasets, statistical 
tables, figures, and listings; 
• Assist Clinical Data Management with creating well documented validated 
standard and nonstandard edit check and monitoring programs to support the 
clinical trial team to ensure the integrity, accuracy and completeness of the data in 
preparation for clinical reporting; 
• Adhere to statistical analysis plans and standard operating procedures while 
completing routine programming activities; 
• Meet milestones as assigned with high quality; 
• Perform other duties as directed by management or senior programming personnel; 
• Contribute to the completion of routine technical tasks by providing programming 
assistance as part of the [DSP] team to test, maintain, and document programs for 
clinical trials in drug development; and 
3 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"); see also Defensor v. 
Meissner. 201 F.3d 384, 387 (5th Cir. 2000). 
4 While we will not quote the entire description for the sake of brevity, we have reviewed and considered it in full. 
2 
• Assist with the development of project-related database and statistical 
programming solutions under the direction of the DSP Lead. 
According to the Petitioner, the position requires at least a bachelor's degree or foreign academic 
equivalent in statistics, biostatistics, computer science or related field of study. 5 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record (1) does not describe the position's duties with sufficient substantive detail; 
(2) does not establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation; and (3) has inconsistencies that undermine the Petitioner's 
claims regarding the proffered position. 
A. First Criterion 
We tum first 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. To inform this inquiry, we will consider the information contained 
in the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the 
duties and educational requirements of the wide variety of occupations it addresses. 6 
On the labor condition application (LCA) submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Programmers" 
corresponding to the standard occupational classification (SOC) code 15-1131, at a Level I ( entry 
level) wage. 7 
The Petitioner asserts the Handbook "clearly indicates that the occupational classification normally 
requires a bachelor's degree as the entry-level education required for this occupation," citing to Next 
Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252,267 (S.D.N.Y. 2017). 8 We first note that we 
5 The Petitioner submitted documentation to suppmt the H-lB petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
6 We do not maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category 
designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered 
position, and we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. Nevertheless, to satisty the first criterion, the burden of proof remains on the Petitioner to 
submit sufficient evidence to support a finding that its particular position would normally have a minimum, specialty 
degree requirement, or its equivalent for entry. 
7 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-lB 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, expenence, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.73l(a). 
8 The court in Next Generation Tech., Inc. relied in part on a U.S. Citizenship and Immigration Services (USCTS) policy 
memorandum regarding "Computer Programmers" indicating generally preferential treatment toward "computer 
programmers," and "especially" toward companies in that pa1ticular petitioner's industry. However, USCTS rescinded the 
3 
are not bound to follow the published decision of a United States district court. 9 Even when 
considering the logic underlying the matter and reviewing the information describing this occupational 
category in the Handbook, we conclude that the Handbook does not establish that a bachelor's degree 
in a specific specialty is normally the minimum requirement for "computer programmers." 10 
While the Handbook may establish the first regulatory criterion for certain professions, many 
occupations are not described in such a categorical manner. 11 For example, "[ the Handbook's] 
description for the Computer Programmer occupation does not describe the normal minimum 
educational requirements of the occupation in a categorical fashion." 12 The subchapter of the 
Handbook entitled "How to Become a Computer Programmer" states "[ m Jost computer programmers 
have a bachelor's degree in computer science or a related subject; however, some employers hire 
workers with an associate's degree" or with "experience in specific programming languages." 13 Thus, 
the Handbook's report is insufficient to conclude the position qualifies as a specialty occupation 
simply by virtue of its occupational classification, as individuals who have less than a bachelor's 
degree in a specific specialty, or its equivalent, can obtain computer programmer positions. By 
recognizing that employers hire workers who have other degrees or experience in specific 
programming languages, the Handbook does not support a claim that a bachelor's or higher degree is 
a normal, minimum entry requirement for this occupation. 14 
Although the Handbook's report is insufficient to categorically establish this occupation is a specialty 
occupation, it does not preclude the Petitioner from establishing its particular position is a specialty 
occupation with other authoritative sources or under another regulatory criteria. The Petitioner refers 
to the Occupational Information Network (O*NET) as an alternate authoritative source for the 
proffered position's educational requirements. More particularly, the Petitioner submits O*NET's 
"Education" chart for "computer programmers," depicting 88% of employers requiring at least a 
bachelor's degree. 15 While O*NET, which provides general information regarding the occupation, 
acknowledges that "most of these occupations require a four-year bachelor's degree," 16 it does not 
demonstrate that at least a bachelor's degree in a spec[fic specialty or its equivalent is required. 
policy memorandum cited by the court in Next Generation Tech. Inc. See USCTS Policy Memorandum PM-602-0142, 
Rescission of the December 22, 2000 "Guidance memo on HI B computer related positions" (Mar. 3 L 2017), 
https://www.uscis.gov/sites/ default/files/files/nativedocuments/PM-6002-014 2-H-
l BComputerRelatedPositionsRecission.pdf. 
9 See Matter of K-S-, 20 T&N Dec. 715, 719-20 (BIA 1993). 
10 See Innova Sols., Inc. v. Baran, 399 F. Supp. 3d 1004, 1015 (N.D. Cal. 2019) (declining to follow Next Generation 
Tech .. Inc.). 
11 Such professions would include surgeons or attorneys, which indisputably require at least a bachelor's degree in a 
specific specialty for entry into the occupation. 
12 lnnova Sols., Inc. v. Baran, 399 F. Supp. 3d at 1015; see also Xiaotong Liu v. Baran, 2018 WL 7348851 (C.D. Cal. Dec. 
21, 2018). 
13 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers, 
https://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm. (last visited Oct. 1, 2020). 
14 The Petitioner asserts that a "fair reading of the [ Handbook] reveals ... the degree would normally be in a range of 
closely related studies all heavily focused on the study of quantitative and programming theories." The Petitioner does not 
clarity this assertion, nor does it explain where in the Handbook it is referencing to come to its conclusion. Again, the 
Petitioner's reliance on the Handbook's profile of this occupation, without more, is insufficient to establish that the 
proffered position requires a bachelor's degree in a specific specialty, or the equivalent. 
15 O*NET OnLine Summary Report for ·'15-1131.00 Computer Programmers," 
https://www.onetonline.org/link/summary/15- l 131.00 (last visited Oct. 1, 2020). 
16 Id. 
4 
Similarly, the Petitioner relies on DOL's Prevailing Wage Determination Policy Guidance, at 
Appendix D, which categorizes "computer programmers" as "Code 5: Bachelor's degree. Completion 
of the degree program generally requires at least 4 years but not more than 5 years of full-time 
equivalent academic work." 17 This document provides prevailing wage guidance and does not specify 
a degree field or specialty required by the occupation nor does it indicate that the "bachelor's degree" 
must be in a specific specialty directly related to the occupation. 18 Therefore, O*NET and the DOL's 
Prevailing Wage Determination Policy Guidance information do not establish that a baccalaureate or 
higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry 
into the particular position. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two, alternative prongs. The first prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2), contemplates common industry practice, while the alternative prong narrows 
its focus to the Petitioner's specific position. 19 To satisfy this first prong, the Petitioner must establish 
that the "degree requirement" (i.e., a requirement of a bachelor's or higher degree in a specific 
specialty, or its equivalent) is common to the industry in parallel positions among similar 
organizations. 
We generally consider the following sources of evidence to determine if there is such a common degree 
requirement: 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 establish that such firms "routinely employ and 
recruit only degreed individuals." 20 
As previously discussed, the Petitioner has not established that an authoritative source reports at least 
a bachelor's degree in a specific specialty, or its equivalent, is required for the proffered position, and 
we incorporate our previous discussion on this matter. The Petitioner did not submit evidence from 
an industry professional association or from firms in the industry indicating such a degree is a 
minimum requirement for entry into the position. 
The Petitioner submitted copies of job advertisements as evidence that its degree requirement is 
standard among its peer organizations for parallel positions to the proffered position. However, for a 
petitioner to establish that an advertising organization is similar, it must demonstrate that the petitioner 
and the organization share the same general characteristics. Without such evidence, postings 
submitted by a petitioner are generally outside the scope of consideration for this criterion, which 
17 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009); http://flcdatacenter.com/download/NPWHCGuidance _Revised_ 11 _ 2009.pdf 
18 Id. 
19 As there are several arguments and documents submitted in support of the second prong of the second criterion that also 
overlap with criterion four, we will analyze these two criteria together. 
20 See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Co1p. v. Sava, 712 F. Supp. 
1095, 1102 (S.D.N.Y. 1989) ( considering these "factors" to inform the commonality of a degree requirement)). 
5 
encompasses only organizations that are similar to the petitioner. 21 When determining whether the 
petitioner and the advertising organization share the same general 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). 
The Petitioner describes itself as a clinical research organization (CRO) providing consulting and 
outsourcing services to support its clients' clinical trials, regulatory submissions, safety surveillance 
and outcomes research programs. The Petitioner only provides three advertisements to establish a 
common industry standard for parallel positions within similar companies. As explanation, the 
Petitioner states "it is not possible to find organizations that are in the same industry as the petitioner, 
as it is a very large multinational organization involved in a wide variety of businesses, notably, the 
pharmaceutical services industry." However, the Petitioner does not explain how the three advertising 
organizations are similar to its organization. Moreover, such a limited number of postings, which 
appear to have been consciously selected, have little probative value in establishing a common industry 
standard for parallel positions within similar companies. 22 
The Petitioner also submits an opinion letter froml I atD 
I !College of Technology, LJniversity I las evidence of an individual from the 
industr attesting that firms routinely employ and recruit only degreed individuals. Withinl I 
's eighteen-page opinion letter, he allots five paragraphs for an industry analysis. In his 
analysis, ~-------~ categorizes the proffered position as a "data science and statistical 
analysis position" rather than one in computer programming and describes the duties as follows: 
the development of statistical models, the manipulation and transformation of data, data 
modeling, the performance of statistical tests and analyses, the development of scalable 
data solutions, the development and execution of ETL processes, data mining, the 
performance of business intelligence, programming, SQL scripting, the performance of 
data analytics, and the generation of business insights. 
This description, highlighting data and statistical analysis, does not align with the duties of a 
"Computer Programmer" as presented in the Handbook 23 or O*NET, 24 both of which, generally 
21 The Petitioner asserts that "[p]ursuant to USCIS' H-IB Training Materials and Guidance, the petitioner is under no 
obligation to provide evidence of the relatedness of the other companies- only evidence of 'job postings for similar 
positions within other companies, expert opinion letters."' The Petitioner does not provide a copy of the guidance it is 
referring to and we are unaware of USCIS guidance that would so reduce the evidentiary requirements of 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A)(2), which requires that the degree requirement is common to the industry in parallel positions among 
similar organizations. 
22 See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 1995). 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 195-96 ( 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"). 
23 See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers, 
https://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm (last visited Oct. 1, 2020). 
24 See O*NET OnLine Summary Report for "15-1131.00 Computer Programmers," 
https://www.onetonline.org/link/summary/15- l l 3 l .OO (last visited Oct. 1, 2020). 
6 
describe the duties as writing, revising, and repairing programs. For this reason, it is not clear that the 
Professor's industry analysis is for a computer programmer position. Moreover, other than the 
Petitioner, I I does not reference other companies or organizations in his analysis. 
Therefore, the record is also unclear as to whetherl ,I when describing the industry 
requirements, is referring to companies similar in nature and who share general characteristics such as 
size, and revenue to the Petitioner. Similarly,~------~does not analyze how the proffered 
position is parallel to other positions in similar organizations in the industry. 
Although~ ______ _.states repeatedly that "it is widely recognized that individuals holding 
a position such as the Statistical Analyst/Programmer I position herein necessarily must have at least 
a bachelor's-level degree in Statistics, Biostatistics, Computer Science, or a related specialized field," 
he does not analyze the commonality of these specific degrees in the industry or credibly establish that 
the industry routinely seeks individuals with specialized knowledge obtained from these specific 
degrees. Instead he makes broad sweeping statements such as "Computer Science is a common 
industry requirement for all positions in the computer field including positions covering the data 
science, data analytics, statistics, data modeling, and business intelligence." The conclusion the 
Petitioner requests us to draw froml ts opinion is not self-evident, and we are not 
required to accept cursory or primarily conclusory statements as demonstrating eligibility. 25 I I 
I lbases his opinion on "his vast experience in the areas of information technology, data 
science, statistics, data analytics, and mathematics, as well as the evaluation of professional position 
of employment in these fields." However, an opinion that bases its conclusions on generalities is 
insufficient to satisfy the H-1B regulatory requirements. 26 While he also states "hiring data from 
publicly available resources serve to support this overall trend and the industry-standard approach to 
hiring for such positions" he does not specify the "publicly available resources" he references. 
Moreover, the record contradicts his statement that hiring data is publicly available as the Petitioner 
has stated "it is not possible to find organizations that are in the same industry as the petitioner." 
As~------~ s statements are inconsistent with the record and his opinion letter lacks sufficient 
detail to support a common degree re[uirement in the industry, for positions that are parallel to the 
Petitioner's position, we conclude that_ Is letter lends little probative value towards 
satisfying 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 27 
Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.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. Evidence 
provided in support of this criterion may include, but is not limited to, documentation regarding the 
25 Innova Sols., Inc. v. Baran, 338 F. Supp. 3d 1009, 1023 (N.D. Cal. 2018); see also 1756, Inc. v. Att "y Gen, 
745 F. Supp. 9, 17 (D.D.C. 1990) (finding USCTS acted properly in not crediting petitioner's conclusory assertions). 
26 See Xiaotong Liu v. Baran, No. SACV1800376NSKESX, 2018 WL 7348851, at *l 0 (C.D. Cal. Dec. 21, 2018) (finding 
USCTS acted properly when it determined that such generalizations do not explain how the author came to their conclusion, 
which is insufficient to meet the regulatory requirements). 
27 See Matter of Caron Int'!, 19 l&N Dec. at 795 (finding the service is not required to accept or may give less weight to 
an advisory opinion when it is "not in accord with other information or is in any way questionable.") 
7 
Petitioner's past recruitment and hiring practices, as well as information regarding employees who 
previously held the position. 
While the Petitioner states it is comprised of 37 employees and has been in business since 2013, it 
does not provide the total number of people it has employed to serve in the proffered position. 28 It 
provides an organizational chart for its "programming operations," of which there are four 
components. Resumes were provided for employees of only two of the four components. The record 
does not clarify whether the other two components have employees other than their associate directors. 
Three resumes were provided for the "analyst/programmer I" position, evidencing statistics degrees 
and an electrical engineering degree. One resume was provided for the "analyst programmer II" 
position, evidencing a degree in biostatistics & epidemiology. The other resumes provided were for 
positions higher up the organizational chain and it is unclear if these individuals ever held the 
"analyst/programmer I" position or what the evidentiary relevance their resumes provide. The past 
hiring practice for the "analyst/programmer I" position is not provided, nor is an explanation provided 
for the absence of this evidence. The record is therefore unclear on how representative of a sample 
the submitted resumes provide. For these reasons, the Petitioner has not persuasively established that 
it normally requires at least a bachelor's degree in a specific specialty, or its equivalent, for the 
position. 29 
Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. Second Prong of Second Criterion and Fourth Criterion 
The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) 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. The fourth criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(4) 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. 
When determining whether a position is a specialty occupation, we look at whether the position 
actually requires the theoretical and practical application of a body of highly specialized knowledge 
28 The brief provided in response to the Director's request for evidence (RFE) states the Petitioner, "is a very large 
multinational organization involved in a wide variety of businesses, notably, the pharmaceutical services industry" and the 
company documents provided in response to the RFE indicate the Petitioner is part of a larger organizational structure. 
29 The Petitioner asse1is that "where the [Handbook] states that 'most' employers require a degree and the petitioner 
submits evidence of its own degree requirement or industry standard for similar employers ... [it] meet[s] the 
preponderance standard that ... [a] bachelor's degree or the equivalent is required for the position." However, 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 perfmmance requirements of the position. See Defensor, 201 F.3d at 387-88. Were we limited 
solely to reviewing a petitioner's claimed self-imposed requirements, an organization could bring any individual with a 
bachelor's degree to the United States to perform any occupation as long as the petitioning entity created a token degree 
requirement. Id. Moreover, even if the Petitioner had established that it requires a bachelor's degree to perform the duties 
of the proffered position, the Petitioner must still satisfy the statutory requirement that the position itself requires the 
theoretical and practical application of a body of highly specialized knowledge and the attainment of a baccalaureate or 
higher degree in a specific specialty, or its equivalent, as the minimum for ently into the occupation. See section 214(i)(l) 
of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation). The Petitioner has not done so here. 
8 
attained through at least a baccalaureate degree in a specific discipline. Upon review of the totality of 
the record, the Petitioner has not sufficiently explained or documented why the proffered position is 
so "complex or unique" or "specialized and complex" that a bachelor's degree in a specific specialty 
is required. Moreover, inconsistencies and ambiguities in the record make it difficult to establish the 
substantive nature of the proffered position. 
The Petitioner submits a document labeled "work product." This document has pages of code, 
followed by charts. Without context for, or an explanation on how drafting this code requires 
specialized knowledge, the submission does not independently establish that the proffered position is 
"complex or unique" or "specialized and complex." In its response to the RFE, the Petitioner provides 
a letter describing the projects for which the Beneficiary is responsible. One project has the 
Beneficiary exploring statistical testing procedures and conducting simulations to compare sample 
size applying "various statistical models with [ statistical analysis software (SAS)] procedures." As 
described, we are unable to determine if the Beneficiary will require specialized knowledge in statistics 
or whether the software will perform the statistical analysis and the Beneficiary would benefit from a 
statistical course or some experience with statistics. 30 
The Petitioner also relies on the opinion letter by I Ito establish the specialized nature 
of the proffered position's duties. As discussed herein, the Petitioner has the burden to provide 
relevant, probative, and credible evidence to establish that its claim is "more likely than not" or 
"probably" true. For much of his analysis,! ~oes not qualify his declarations with 
sufficiently detailed and qualified analysis. His summary statements are unsupported by explanations, 
references to the record, or citations to studies, surveys, industry publications, authoritative 
publications, or other sources of empirical information. As discussed previously, some ofl I 
I Is statements are inconsistent with the record. 31 I ~ conclusory statements, 
coupled with the number of inconsistencies with the record, is insufficient to assist the Petitioner in 
satisfying its burden of proof 32 
We now look to the duties of the position. The initial duties presented in the record appear to align 
with that of "Computer Programmer," SOC 15-1131, as it has the Beneficiary assisting team members 
30 The job description states that the proffered position works with statisticians. The Handbook acknowledges that 
"[p ]rogrammers who work in specific fields, such as healthcare or accounting, may take classes in that field to supplement 
their degree in computer programming." 
31 Another example includes! h statement that "it would be impossible to handle the required job duties 
... without at least a bachelor's degree in Statistics, Biostatistics, Computer Science, or a closely related field." However, 
one of the three employees that Petitioner indicates is in a ·'statistical analyst/programmer I" position has an electrical 
engineering degree. Neither the Petitioner nor~=====~address this discrepancy or explain how an electrical 
engineering degree would be a related field . .__ _____ __, also mistakenly refers to the Petitioner as having a 
"courier business" and describes the duties in a manner that is not supported by the record, i.e. ·'[i]n the subject role, [the 
Beneficiary]' s statistical analysis and data analytics would be used to influence the direction of the Company's business 
decisions and strategy launches." As an analyst/programmer I, it seems unlikely that the Beneficiary would have such 
responsibilities placed upon him and the Professor does not provide insight as to where in the record he draws this 
conclusion. The Petitioner has designated the proffered position as a Level I position on the submitted LCA, indicating 
that it is an entry-level position for an employee who has only basic understanding of the occupation. Sec U.S. Dep't of 
Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009); http://flcdatacenter.com/download/NPWHCGuidance _Revised_ 11 _ 2009 .pdf. 
32 Matter of Caron Int'/, 19 l&N Dec. at 795(The service is not required to accept or may give less weight to an advisory 
opinion when it is "not in accord with other information or is in any way questionable."). 
9 
with transforming a statistical analysis plan into a validated program, testing and maintammg 
programs, and providing programming assistance under the direction ofleadership, etc. The duties do 
not appear "complex or unique" or "specialized and complex" and are not described in a manner to 
evidence that performing the duties would require a bachelor's degree in a specific specialty. 33 
In response to the RFE, the Petitioner provides explanatory descriptions of the duties, however, these 
descriptions extend beyond those of a computer programmer and do not sufficiently relate to the 
general duty they are meant to expand upon. For example, one of the general duties has the Beneficiary 
"contribut[ing] to the completion of routine technical tasks by providing programming assistance" 
while the explanatory description involves the "design [ of] appropriate statistical models" and 
"run[ning] multiple statistical models (logistic regression, survival analysis)." Running statistical 
models seems more than a routine technical task and appears to be outside the scope of the duties of a 
computer programmer. Other duties presented in response to the RFE also appear to not align with 
that of a computer programmer, such as integrating and converting data. 34 While we need not 
determine which occupational category best applies to the proffered position, we note similarities 
between the detailed duties and those o±: for example, "Software Developers, Applications," SOC 
15-1132, 35 and "Computer Systems Analysts," SOC 15-1121. 36 To the extent the proffered position's 
duties fall under more than one occupational category, as the expanded duties seem to indicate, the 
Petitioner must choose the relevant occupational code for the highest paying occupation, 37 which is 
not "Computer Programmers." 38 The Petitioner's expansion of duties which includes duties that are 
33 On appeal, the Petitioner emphasizes that the statistical and computer science tenns used in the duties, such as, "adhere 
to statistical ana~vsis plans" ( emphasis in the original) and "[ c ]ontribute to the completion of routine technical tasks by 
providing programming assistance" ( emphasis in the original) are "substantially data-driven" techniques and "the 
individual must have a solid understanding of statistical analysis and computer science." However, the Petitioner does not 
establish how "adhering to" a plan establishes the need for a degree in statistics. Nor does the Petitioner establish how 
"providing programming assistance" necessitates the need for a computer science degree. Moreover, the description does 
not establish that the level of knowledge required to fulfill the position's duties would require more specialized knowledge 
than that imparted in an associate degree in a technology or analytical field or certifications in programming languages. 
34 The explanatory duty descriptions are also simply unclear in some instances. For example, under the general duty "assist 
with the development of project-related database and statistical programming solutions" the explanatory description states, 
"[ d]ata [ m ]ining: review literature and clinical records to explore the relationship between a given disease and a drug." 
Based on this description, it is unclear if the Beneficiary will be data mining by reviewing data sets looking for conelations 
or will be literally reviewing literature. While the first interpretation would make the most sense if the Beneficiary would 
be running data mining programming, the additional description, which reads "when multiple possible resources are 
applicable, the best one should be chosen to explain the scenario and most closed [sic] to the study" obfuscates the duty, 
making it difficult to ascertain its complexity and whether it would be typically performed by a "computer programmer." 
35 Software developers modify existing software, design systems, manipulate data for analysis, use scientific analysis and 
mathematical models, etc. and are tasked with "[a]ppl[ing] mathematical principles or statistical approaches to solve 
problems in scientific or applied fields. See O*NET OnLine Summary Report for "15-1132.00 - Software Developers, 
Applications," https://www.onetonline.org/link/summary/15-l 132.00 (last visited Oct. 1, 2020). 
36 Computer systems analysts examine data processing problems to implement and improve computer systems, etc. and 
use techniques such as structured analysis, data modeling, and information engineering. See O*NET OnLine Summary 
Report for "15-1121.00 - Computer Systems Analysts," https://www.onetonline.org/link/summary/15-1121.00 (last 
visited Oct. I, 2020). 
37 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Detennination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009); http://flcdatacenter.com/download/NPWHCGuidance _Revised_ 11 _ 2009.pdf 
38 At the time the Petitioner's LCA was certified, the Level I prevailing wage in the area of intended employment for 
"Software Developers, Applications" was $31.25 per hour, and $31.20 for a "Computer Systems Analysts," which is higher 
than the prevailing wage for "Computer Programmers," which was $27.76 per hour. See 
https ://flcdatacenter. com/O ES WizardStart.aspx. 
10 
not typical of the "Computer Programmers" occupation, strongly suggests that the Petitioner has not 
submitted a certified LCA that corresponds to the petition. 39 
The Petitioner's LCA wage level selection also appears inconsistent with the record. The Petitioner 
selected a Level I ( entry level) wage as consonant with the job requirements, necessary experience, 
education, and special skills/other requirements of the proffered position. 40 However, the Petitioner 
submits the Beneficiary's job offer identifying the proffered position as a "statistical 
analyst/programmer II." Based on the description of the "statistical analyst/programmer II" position, 41 
the Petitioner's organizational chart, and relevant coursework chart, 42 the supporting record indicates 
that this position involves more education and experience than the duties typically performed by entry 
level "computer programmers," rendering a Level I wage rate inappropriate. 43 
The position description's lack of detail, the record's inconsistencies, and the ambiguities with the 
occupational classification and wage level cloud the record on the position's substantive nature and 
our ability to determine the proffered position's level of "specialization and complexity" or 
"complexity or uniqueness." 
The Petitioner has not sufficiently developed the proposed position such that it satisfies the second 
alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) or 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
E. Minimum Requirements 
The record satisfies neither the statutory nor the regulatory definitions of the term "specialty 
occupation," and we could end our analysis here and dismiss the appeal on that basis. However, on 
appeal, the Petitioner raises arguments opposing the Director's assessment of its minimum entry 
requirements, which we will therefore address. 
The Director found the Petitioner did not establish the proffered position as a specialty occupation 
because the its minimum entry requirements were in a wide variety of disparate academic fields. The 
Petitioner contends that an occupation need not require only a narrowly defined, specific degree to 
qualify as a specialty occupation for H-lB visa purposes, citing to Residential Finance Corp. v. USCIS, 
839 F. Supp. 2d 985 (S.D. Ohio 2012), Tapis Int'! v. INS, 94 F. Supp. 2d 172 (D. Mass. 2000), and 
RELX, Inc. v. Baran, 397 F. Supp. 3d 41, 54 (D.D.C. 2019). While we agree that the bachelor's degree 
39 See Section 212(n)(l) of the Act; 20 C.F.R. § 655.731(a). 
40 A prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering 
the experience, education, and skill requirements of the Petitioner's job opportunity. See U.S. Dep't of Labor, Emp't & 
Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009); 
http://flcdatacenter.com/download/NPWHCGuidance _Revised_ 11 _ 2009 .pdf. 
41 According to the job advertisement listing the requirements for a "statistical analyst/programmer II," the Petitioner is 
requesting a "minimum 4 years of experience in the pharmaceutical/biotech industry for Bachelor's and 2 years for 
Master's degree." 
42 The coursework chart states each duty "requires fundamental knowledge of principles taught in the [B]eneficiary's 
Master's [programs]." 
43 According to the DOL's Policy Guidance, a position that requires more than two years of experience or a master's degree 
would require a wage level increase. See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination 
Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009); 
http://flcdatacenter.com/download/NPWHCGuidance _Revised_ 11 _ 2009 .pdf. 
11 
does not have to be a degree in a single specific specialty, this agreement is predicated upon the fields 
of study including a "body of specialized knowledge" and attainment of a bachelor's or higher degree 
in the specific specialty that is directly related to the position. 44 
Here, the Petitioner misreads the Director's decision denying the H-lB petition. The Director did not 
determine, for example, that the proffered position, which the Petitioner claims is located within the 
"Computer Programmers" occupational category, could only qualify as a specialty-occupation 
position if the Petitioner mandated a degree in "computer programming." Instead, the Director found 
the Petitioner did not establish how each of its acceptable qualifying fields of study is directly related 
to the position's duties and responsibilities. While the Petitioner's requirements are identified as a 
bachelor's degree in statistics, biostatistics, computer science, or a related field, the Petitioner does 
not sufficiently explain how an academic field, such as biostatistics, is directly related to the position's 
duties and responsibilities. For example, the Petitioner provides a chart of the relevant coursework 
that would assist in performing the proffered duties, but courses in statistics and biostatistics are not 
listed.45 Moreover, the Petitioner indicates that it would accept a bachelor's degree from even more 
fields, so long as the degrees were in "related quantitative" fields. 46 However, degrees related only 
through general quantitative underpinnings are not sufficiently finite to be the equivalent of a "body 
of highly specialized knowledge" attained by a bachelor's degree in a specific specialty, or its 
equivalent. The Petitioner does not establish how such a divergent range of degrees could form either 
a body of highly specialized knowledge or a specific specialty to meet the statutory and the regulatory 
definitions of the term "specialty occupation." 47 
IV. CONCLUSION 
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 establish that the Petitioner satisfied the statutory 
and regulatory definitions of specialty occupation. In visa petition proceedings, it is the petitioner's 
44 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 conelation between the required "body of highly specialized 
knowledge" and the position, however, a minimum entry requirement of a degree in two disparate fields, such as 
biostatistics and 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 particular position's duties and 
responsibilities. Section 214(i)(l )(B) of the Act ( emphasis added). 
45 The courses listed include engineering physics, analytics, physics, math, mechanical engineering, and one computer 
science course on programming. 
46 According to I l statistics, biostatistics, computer science, or a related field "provide a foundation in 
data analysis and business analytics, offer a quantitative framework" and "[a]n individual who lacks at least a bachelor's 
degree in a suitable technical, quantitative field would be unable to handle the requisite duties of the position." On appeal, 
the Petitioner similarly asserts that studies in related quantitative fields embody the type of "discipline" or "highly 
specialized knowledge" that falls squarely within the statutory and regulatory definition ofH-IB specialty occupation. 
47 "A position that requires applicants to have any bachelor's degree, or a bachelor's degree in a large subset of fields, can 
hardly be considered specialized." Caremax, Inc. v. Holder, 40 F.Supp.3d 1182, 1187-88 (N.D. Cal. 2014). 
12 
burden to establish eligibility for the immigration benefit sought. 48 The Petitioner has not met that 
burden. 
ORDER: The appeal is dismissed. 
48 Section 291 of the Act, 8 U.S.C. § 1361. 
13