dismissed H-1B Case: Computer Engineering

U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. A3042 
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Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 100 51043 Office: CALIFORNIA SERVICE CENTER Date: OCY 0 3 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(a)(l S)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 04 100 51043 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition 
will be denied. 
The petitioner is a federal contractor. It seeks to hire the beneficiary as a computer engineer bidding analyst. 
The director denied the petition based on his determination that the petitioner had failed to establish that its 
proffered position was a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's denial letter; and (3) Form I-290B, with counsel's brief. The AAO reviewed the record in its 
entirety before reaching its decision. 
The issue before the AAO is whether the petitioner's proffered position qualifies as a specialty occupation. 
To meet its burden of proof in this regard, a petitioner must establish that the job it is offering to the 
beneficiary meets the following statutory and regulatory requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 11 84(i)(l) defines the term 
"specialty occupation" as one 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 term "specialty occupation" is further defined at 8 C.F.R. 5 214.2(h)(4)(ii) as: 
An occupation which requires theoretical and practical application of a body of highly 
specialized knowledge in fields of human endeavor including, but not limited to, architecture, 
engineering, mathematics, physical sciences, social sciences, medicine and health, education, 
business specialties, accounting, law, theology, and the arts, and which requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as ii 
minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(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. 
WAC 04 100 51043 
Page 3 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a 
position's title. The specific duties of the proffered position, combined with the nature of the petitioning 
entity's business operations, are factors to be considered. CIS must examine the ultimate employnlent of the 
alien, and determine whether the position qualifies as a specialty occupation. C' Defensor v. Mei,ssner, 201 
F. 3d 384 (5th Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed 
standards, but whether the position actually requires the theoretical and practical application of a body of 
highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty 
as the minimum for entry into the occupation, as required by the Act. 
The petitioner states that it is seeking the beneficiary's services as a computer engineering bidding analyst. 
Evidence of the beneficiary's duties includes: the Form 1-129; and a February 7, 2004 letter from the 
petitioner. 
At the time of filing, the petitioner stated that the beneficiary's duties entail: (I) determining the orders for 
computer engineering peripherals and components from the weekly publications of CB Disk which publish all 
orders from the Federal Agencies during the week; participation in the formulation, development and 
recommendation to management of a system or program by which purchase requests, including requests for 
quotes, bids and proposals are coordinated and reviewed; receiving and evaluating proposals, quotations and 
components from manufacturers, suppliers and wholesalers (1 5% of time); researching, analyzing, studying 
and being familiar with aircraft components and related products to be procured by the petitioner through 
reading books, the Thomas register, journals, brochures, publications and attendance at trade fairs and 
seminars sponsored by the suppliers and wholesalers (10% of time) (3) conducting test product analysis of 
computer engineering peripherals and components according to prescribed standards; evaluating and 
reporting results of tests on samples submitted for quality assurance testing (20% of time); (4) researching, 
studying and assisting in the development and recommendation of the implementation of a program or policy 
involving the selection of cost effective shipping sources and identifying the most efficient modes of 
transportation; (5) ensuring that the petitioner is purchasing and buying computer engineering peripherals and 
components at the most competitive levels available; maintaining competitive bid or purchasing process to 
ensure most competitive pricing levels (10% of time); participating in drafting, execution of contracts or 
agreements with respect to procurement and purchase of computer engineering peripheral and components; 
maintaining and reviewing contracts and agreements (20% of time); performing final quality assurance tests 
on computer engineering peripherals and components purchased by petitioner by checking against invoice to 
verify conformity (5% of time); and participating in the development of strategic plans in purchasing. budget, 
and forecast and anticipating price and quality changes in components and related products to be procured or 
purchased. The petitioner indicated that a bachelor's degree or equivalent and relevant work experience is 
required for the proffered position. 
The director found that some of the duties of the proffered position resembled a market research analyst but 
that the majority of the duties are those of a marketing manager. The director referred to the Department of 
Labor's Occupational Outlook Handbook (the Handbook) and noted that marketing managers were not 
specialty occupations and concluded that the proffered position was not a specialty occupation. 
WAC 04 100 51043 
Page 4 
On appeal, counsel notes that the petitioner needs to expand its work force in order to work with more 
government agencies. Counsel explains that the petitioner is a government contractor and "diversifying [its] 
business operation by including computer supplies and services required in their various contracts." Counsel 
asserts that the petitioner has current employees with bachelor's degrees who hold the same or related 
positions. Counsel asserts that the proffered position satisfies two of four criteria in that a baccalaureate 
degree or its equivalent is normally the minimum requirement for entry into a particular position and that the 
nature of the duties are so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of baccalaureate degree. 
The AAO noted that the petitioner indicated on the Form 1-129 that it had 35 employees, that it was 
established in 1998 and that it had a gross annual income of $20,264,372.00. The petitioner submitted no 
evidence to corroborate the information on the Form 1-129 or that it has contracts with the federal 
government. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Conlm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO considers the criteria at 8 C.F.R. $9 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher degree 
or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. Factors often 
considered by CIS when determining these criteria include: whether the Handbook reports that the industry 
requires a degree; whether the industry's professional association has made a degree a minimum entry 
requirement; and whether letters or affidavits from firms or individuals in the industry attest that such firms 
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 11 51, 1165 
(D.Minn. 1999)(quoting Hird/Blaker Corp. v. Sava, 812 F. Supp. 872, 1102 (S.D.N.Y. 1989)). 
In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determines, from a review of the duties of the position and any supporting evidence, whether the 
position actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate degree in a specific specialty as the minimum for entry into the 
occupation as required by the Act. 
Upon review of the record, the petitioner has failed to establish that the proffered position qualifies as a 
specialty occupation. The AAO routinely consults the Handbook for information about the duties and 
educational requirements of particular occupations. The duties of the proffered position resemble those of a 
purchasing agent as described in the Handbook. The Handbook indicates the following duties: 
Purchasing managers, buyers, and purchasing agents evaluate suppliers on the basis of price, 
quality, service support, availability, reliability, and selection. To assist them in their search 
for the right suppliers, they review catalogs, industry and company publications, directories, 
and trade journals. Much of this information is now available on the Internet. They research 
the reputation and history of the suppliers and may advertise anticipated purchase actions in 
order to solicit bids. At meetings, trade shows, conferences, and suppliers' plants and 
distribution centers, they examine products and services, assess a supplier's production and 
WAC 04 100 5 1043 
Page 5 
distribution capabilities, and discuss other technical and business considerations that 
influence the purchasing decision. Once all of the necessary information on suppliers is 
gathered, orders are placed and contracts are awarded to those suppliers who meet the 
purchaser's needs. Contracts often are for several years and may stipulate the price or a 
narrow range of prices, allowing purchasers to reorder as necessary. Other specific job duties 
and responsibilities of purchasing managers, buyers, and purchasing agents vary by employer 
and by the type of commodities or services to be purchased. 
Purchasing specialists employed by government agencies or manufacturing firms usually are 
called purchasing directors, managers, or agents; buyers or industrial buyers; or contract 
specialists. These workers acquire materials, parts, machines, supplies, services, and other 
inputs to the production of a final product. Some purchasing managers specialize in 
negotiating and supervising supply contracts, and are called contract or supply managers. 
Purchasing agents and managers obtain items ranging from raw materials, fabricated parts, 
machinery, and office supplies to construction services and airline tickets. The flow of 
work--or even the entire production process---can be slowed or halted if the right materials, 
supplies, or equipment are not on hand when needed. To be effective, purchasing specialists 
must have a working technical knowledge of the goods or services to be purchased. 
According to the Handbook: 
Purchasers and buyers determine which commodities or services are best, choose the 
suppliers of the product or service, negotiate the lowest price, and award contracts that ensure 
that the correct amount of the product or service is received at the appropriate time. 
Similarly, the beneficiary will participate in ensuring that the petitioner is purchasing and buying computer 
engineering peripherals and components at the most competitive levels available; and maintaining the 
competitive bid or purchasing process to ensure most competitive pricing levels. 
The Handbook reports: 
Qualified persons may begin as trainees, purchasing clerks, expediters, junior buyers, or 
assistant buyers. Retail and wholesale firms prefer to hire applicants who have a college 
degree and who are familiar with the merchandise they sell and with wholesaling and 
retailing practices. Some retail firms promote qualified employees to assistant buyer 
positions; others recruit and train college graduates as assistant buyers. Most employers use a 
combination of methods. 
Educational requirements tend to vary with the size of the organization. Large stores and 
distributors, especially those in wholesale and retail trade, prefer applicants who have 
completed a bachelor's degree program with a business emphasis. 
The petitioner fails to establish the first criterion because the Handbook states that large stores and 
distributors prefer, but do not require, applicants with bachelor's degrees with a business emphasis and that 
retail and wholesale firms prefer, but do not require, applicants who have a college degree, though not 
necessarily in a specific specialty. The Handbook explains that a bachelor's degree is not required for a 
purchasing manager position. Accordingly, the petitioner cannot establish that a baccalaureate or higher 
WAC 04 100 51043 
Page 6 
degree or its equivalent in a specific specialty is the normal minimum requirement for entry into the proffered 
position. 
The petitioner has not provided evidence to established the second criterion - that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. 
No evidence is in the record that would show the proffered position is so complex or unique that it can be 
performed only by an individual with a degree. Again, the Handbook reveals that the duties of the proffered 
position are performed by a purchasing manager, a position that does not require a bachelor's degree in a 
specific specialty. 
Nor is there evidence in the record to establish the third criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A): that the 
petitioner normally requires a degree or its equivalent for the position. Counsel submits a listing of eleven 
persons with a listing of their degrees and he claims these persons are employed by the petitioner in specialty 
occupations. However, the petitioner has not established that these persons were employees of the petitioner 
in the position of purchasing manager. The petitioner has not supplied payroll documents, employment 
contracts or degrees as evidence. Without documentary evidence to support the claim, the assertions of 
counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureanc), 19 I&N 
Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
The fourth criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties IS usually 
associated with the attainment of a baccalaureate or higher degree. The job description indicates that the 
duties include "researching, analyzing, studying and be familiar with aircraft components and related products 
to be procured by the petitioner through . . . ." The petitioner indicates that the job focuses on both aircraft 
parts and computer peripherals. The record is not clear that the beneficiary is required to have knowledge of 
aircraft parts as well as computer peripherals. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The petitioner has not described the 
specific duties and responsibilities to be performed by the beneficiary in relation to its particular business 
interests. It has not provided evidence of government contracts or the complexity of the contracts. It cannot 
be concluded that the nature of the specific duties is so specialized and complex that the knowledge required 
to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. Once 
again, the Handbook reveals that the duties of the proffered position are performed by purchasing managers, 
an occupation not requiring a bachelor's degree in a specific specialty. 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER. The appeal is dismissed. The petition is denied.