dismissed H-1B Case: Computer Science

MATTER OF SMGG~---
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 11, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a __________ seeks to temporarily employ the Beneficiary as a "network 
and computer systems administrator" under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The 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 proffered position 
does not qualify under any specialty occupation criterion at 8 C.F.R . § 214 .2(h)(4)(iii)(A) . 
On appeal , the Petitioner asserts that the Director erred in her decision 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act , 8 U.S.C. § 1184(i)(l) , defines the term "specialty occupation" as an 
occupation that requires : 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor 's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition , but adds a non­
exhaustive list of fields of endeavor. In addition , the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter of SMGG□ 
(]) 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 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as a "network and computer 
systems administrator" and perform the following job duties: 
• Maintain and administer computer networks and related computing environments 
including computer hardware, systems software, applications software, and all 
configurations. 
• Perform data backups and disaster recovery operations. 
• Diagnose, troubleshoot, and resolve hardware, software, or other network and system 
problems, and replace defective components when necessary. 
• Configure, monitor, and maintain email applications or virus protection software. 
• Operate master consoles to monitor the performance of computer systems and networks, 
and to coordinate computer network access and use. 
• Monitor network performance to determine whether adjustments need to be made, and to 
determine where changes will need to be made in the future. 
• Plan, coordinate, and implement network security measures to protect data, software, and 
hardware. 
• Analyze equipment performance records to determine the need for repair or replacement. 
• Confer with network users about how to solve existing system problems. 
• Recommend changes to improve systems and network configurations, and determine 
hardware or software requirements related to such changes. 
• Design, configure, and test computer hardware, networking software and operating system 
software. 
• Perform routine network startup and shutdown procedures, and maintain control records. 
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Matter of SMGG- □ 
• Load computer tapes and disks, and install software and printer paper or forms. 
• Train people in computer system use. 
• Maintain logs related to network functions, as well as maintenance and repair records. 
• Gather data pertaining to customer needs, and use the information to identify, predict, 
interpret, and evaluate system and network requirements. 
• Coordinate with vendors and with company personnel to facilitate purchases. 
• Implement and provide technical support for voice services and equipment, such as private 
branch exchange, voice mail system, and telecom system. 
• Maintain an inventory of parts for emergency repairs. 
• Research new technologies by attending seminars, reading trade articles, or taking classes, 
and implement or recommend the implementation of new technologies. 
According to the Petitioner, the position requires a minimum of a bachelor's degree in computers, 
engineering, or an information technology related field, or the equivalent. 
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. 1 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 2 
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 recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses. 3 
1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
2 The Petitioner submitted documentation to support the H- IB 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. 
3 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 satisfy 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. 
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Matter of SMGG~....._ _ _. 
On the labor condition application (LCA)4 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Network and Computer Systems 
Administrators" corresponding to the Standard Occupational Classification (SOC) code 15-1142. 5 
In pertinent part, the Handbook states that "[ m Jost employers require network and computer systems 
administrators to have a bachelor's degree in a field related to computer or information science. Others 
may require only a postsecondary certificate or an associate's degree." 6 While the Handbook does 
states that "most" employers require at least a bachelor's-level degree, it also states that some 
employers require only an associate's-level degree, and further, some employers do not even require 
an academic degree at all. Therefore, the Handbook does not support the conclusion that this position, 
or any "Network and Computer Systems Administrators" position categorically, satisfies criterion(]). 
On appeal, the Petitioner contends that the words "most employers" in the Handbook is a significant 
declaration, since it suggests that the term "others" refers to the minority of positions which require 
lesser degrees. The Petitioner then points to the O*NET's summary report for 
"Network and Computer Systems Administrators" which indicates that 52% of respondents have at 
least a bachelor's degree. The Petitioner concludes that, since 52% of respondents have at least a 
bachelor's degree, it is more likely than not that this position is one of those positions requiring at least 
a bachelor's degree in a specific specialty, and is clearly not one of the "others" operating in the 
minority that require a lesser degree "based on the job duties expected of the beneficiary, alone." 
We are not persuaded. First of all, O*NET does not actually state that 52% of positions within this 
occupation possess a bachelor's degree in a specific specialty. O*NET only reports on respondents' 
general education level, without regard to any academic specialty. 7 Further, 30% of respondents in 
O*NET only possess an associate's level of education or a post-secondary certificate. While less than 
a majority, it is still a significant percentage of persons who do not have at least a bachelor's level of 
education. And O*NET does not account for the remaining 18% of respondents. Considered all 
together, these statistics strongly suggest that there is no standard minimum entry requirement for the 
occupation, as required. 
Second, even if we could assume that 52% of positions within this occupation require a bachelor's 
degree in a specific specialty, the Petitioner has not established why its particular position is "clearly" 
within this majority group, as opposed to the minority group of "others" that do not require a 
bachelor's-level degree. This is because the Petitioner has not sufficiently differentiated its proffered 
4 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-IB 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). 
5 The Petitioner classified the proffered position at a Level II wage. A wage determination starts with an entry-level wage 
(Level I) and progresses to a higher wage level (up to Level TV) after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://t1cdatacenter.com/download/NPWHC _Guidance_ Revised_ 11 _ 2009.pdf 
6 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Network and Computer Systems 
Administrator, https://www.bls.gov/ooh/computer-and-information-technology/network-and-computer-systems­
administrators.htm#tab-4 (last visited Sep. 3, 2019). 
7 Nor are the respondents' positions within the occupation distinguished by career level ( e.g., entry-level, mid-level, senior­
level) or other characteristics. 
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Matter of SMGG~._ _ ____. 
position from other positions within the general occupation. As we will explain infra, the proffered 
duties are described in generic terms copied verbatim from O*NET. This type of description may be 
appropriate when defining the range of duties that may be performed within an occupational category, 
but it does not adequately convey the substantive work that the Beneficiary would perform within the 
Petitioner's business operations and, thus, generally cannot be relied upon when discussing the duties 
attached to specific employment. While the Petitioner provided additional job duties, these additional 
duties are also inadequate to distinguish this position from other positions requiring only an associate's 
degree or postsecondary certificate. 
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 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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong contemplates 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 
1. First Prong 
To satisfy this first prong of the second criterion, 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. 
Under this prong, the Petitioner relies on job advertisements from var,rn1s coruoauir including 
Siouxland Community Health Services, Kalamazoo Family Health Center, • and Action 
Financial Services LLC, among others. These companies span several industries, including the 
healthcare industry, aerospace and defense industry, staffing/recruiting industry, and city government. 
The Petitioner contends that, based on these advertisements from companies in "other industries," "the 
Service can note [that] a variety of specific degrees could be considered applicable and relevant for 
the position of Network and Computer Systems Administrator; farther illuminating the complexities 
of the position and its wide application to numerous industries, including the printed circuit board 
manufacturing industry." 
But the focus of this prong is on industry standards, specifically, degree requirements for similar 
organizations in the same industry as the Petitioner. As the submitted advertisements are outside of 
this range, they are not probative under this particular prong, and we decline to farther analyze the 
specific information contained in each of the postings. 
Similarly, the Petitioner relies on two affidavits from its current employees, attesting that the proffered 
position requires at least a bachelor's degree in a computer-related field. It is not apparent how these 
affidavits from the Petitioner's own employees are relevant under this prong, which again, focuses on 
industry standards within similar organizations. 
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Matter of SMGG~~-~ 
The Petitioner additionally relies on a letter from a past president of .__ _______ __. 
I lanother printed.__ _________ ~ This letter states that the company "only 
recruited individuals with a minimum of a Bachelor's degree in Computers, Engineering, I.T[.] or 
Engineering related field for the position of Network and Computer Systems Administrator." It further 
states that such a position requires this particular degree "because the requisite duties are complex and 
demand such specialty knowledge," and that this degree requirement "is common in the industry." 
However, the letter does not provide any further explanation or data to support its claims. For example, 
it does not explain what job duties this particular company requires of its Network and Computer 
Systems Administrators. It also does not explain how many individuals it recruited for this position, 
or the actual qualifications of the recruited individuals. Without more, the conclusory statements in 
this letter bear little probative weight. 
We therefore conclude that the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which 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. 
In the appeal brief, the Petitioner points to the same job duties we recited above in Section II. The 
Petitioner claims that these particular job duties are "relevant, probative, unique, specific, and complex 
duties." However, as we mentioned in our discussion of criterion (]), these job duties are generic: 
they are copied verbatim, in the exact order, as the duties listed in the O*NET summary report for the 
"Network and Computer Systems Administrators" occupation. 8 
We acknowledge the Petitioner's "Work Allocation" chart which provides some more details about 
the job duties. But even when we consider these additional duties, we find that they are still too vague 
to adequately convey the substantive work that the Beneficiary would perform within the Petitioner's 
business operations. To illustrate, for the job duty of "Maintain and administer computer networks 
and related computing environments including computer hardware, systems software, applications 
software, and all configurations" (which is from O*NET), the Petitioner stated that the Beneficiary 
"will perform this duty by: 
• Administers, monitors and engineers hardware, software and network systems to ensure 
optimum performance and security. 
• Analyze proposed engineering changes of functional, allocated, and product baseline to 
determine impact and effects on product and system. 
• Configure data inputs into products data management tools and configure trace system to 
ensure configuration and revision control integrity of technical baselines. 
• Validate and verify hardware and software configuration status based on created, converted 
and captured key information on the production computer systems." 
8 O*NET Summary Rep011 for the "Network and Computer Systems Administrators," 
https://www.onetonline.org/link/summary/15-l 142.00 (last visited Sep. 9, 2019). 
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Matter of SMGG- □ 
We are unable to understand what these additional job duties would actually entail. For instance, the 
Petitioner has not explained the extent to which the Beneficiary would engineer hardware or analyze 
proposed engineering changes, or the depth of the Beneficiary's analysis of proposed engineering 
changes, or how he would perform these functions in his capacity as a network and computer systems 
administrator. The Petitioner has not explained what steps the Beneficiary would take to validate and 
verify hardware and software configuration, or how this particular duty fits in within the broader 
O*NET duty of maintaining and administering computer networks and related computing 
environments. Nor has it explained what specific "product and system" the Beneficiary would work 
on within the broader context of the Petitioner's operations as a circuit board manufacturer. 
The Petitioner submitted documents briefly explaining its manufacturing/production process and 
capabilities. But notably absent from these documents - one of which contains an employee list - is 
any mention of a network and computer systems administrator position. Even in its organizational 
chart, the Petitioner simply highlighted multiple departments ("Production Support & Purchasing," 
"Modernizing CAM," "Technology Support," "Technology Support & Maintenance" within 
"Production Support", "Technology Support & Maintenance" within "Industrial Support", and 
"Testing (Hardware & Software)," without further explaining where the Beneficiary would be placed 
and whether there are other employees within each department. These generalized descriptions do not 
adequately convey what the Beneficiary's role would be within the organization, i.e., whether he 
would primarily perform support and maintenance functions, or whether he would perform higher 
level functions, and if so, whether there would be adequate lower level staff to relieve him of 
performing non-qualifying duties. 9 
In establishing a position as a specialty occupation, a petitioner must describe the specific duties and 
responsibilities to be performed by a beneficiary in the context of that petitioner's business operations, 
as well as demonstrate a legitimate need for an employee exists, and substantiate that it has H-1 B 
caliber work for the beneficiary for the period of employment requested in the petition. Simply 
submitting a generic job description that is not specific to the Beneficiary and the Petitioner's 
operations is insufficient to establish the substantive nature of the proffered position. Overall, we find 
that the Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the 
duties of the position, and it did not identify any tasks that are so complex or unique that only a 
specifically degreed individual could perform them. 
Accordingly, the Petitioner has not satisfied the second 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. 
9 While no provision in the law for specialty occupations permits the performance of non-qualifying duties, we will view 
the performance of duties that are incidental to the primary duties of the proffered position as acceptable when they are 
unpredictable. intermittent, and of a minor nature. Anything beyond such incidental duties, however, e.g .. predictable. 
recurring, and substantive job responsibilities, must be specialty occupation duties or the proffered position as a whole 
cannot be approved as a specialty occupation. 
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Matter of SMGG~~--_. 
Evidence provided in support of this criterion may include, but is not limited to, documentation 
regarding the Petitioner's past recruitment and hiring practices, as well as information regarding 
employees who previously held the position. The record does not contain such evidence. Although 
the Petitioner submits affidavits from two computer systems analysts it currently employs, neither 
affiant speaks to the Petitioner's normal recruitment and hiring practices for the proffered position. 
Nor does either affiant indicate that he or she would have the authority or knowledge to speak about 
the Petitioner's normal recruitment and hiring practices. 
The Petitioner claims that "[i]t is at the foll discretion of the Employer and Petitioner to choose 
qualified candidates based on their degrees and specialized knowledge on a position-by-position 
basis." We understand that the Petitioner has foll discretion over its hiring process, but this does not 
demonstrate that the proffered position requires a certain degree. The record must establish that a 
petitioner's stated degree requirement is not a matter of preference for high-caliber candidates but is 
necessitated instead by performance requirements of the position. See Defensor v. Meissner, 201 F.3d 
384, 387-88 (5th Cir. 2000). 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. The record does not adequately demonstrate that the Petitioner's stated degree 
requirement is necessitated by the position's actual performance requirements. 
Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) 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. 
Although the Petitioner does not specifically discuss this criterion on appeal, it previously submitted 
an expert opinion letter from.__ ______ _. as evidence under this criterion. We do not find 
I ts letter persuasive. Specifically,'-------~ only referenced the Petitioner's 
list of duties that are identical to the job duties in O*NET. Based on these duties, he concluded that 
the proffered position "requires the theoretical and practical application of an advanced, highly 
specialized body of knowledge in the field of Computer Science, Engineering, or IT related fields." 
Again, this type of generic job duties may be appropriate when defining the range of duties that may 
be performed within an occupational category, but it does not adequately convey the substantive work 
that the Beneficiary would perform within the Petitioner's business operations. It is not a sufficient 
source of information to support his conclusions about the specialization or complexity of the 
proffered position. The I I did not acknowledge O*NET, or the Handbook, or 
otherwise explain why this particular position is any different from other "Network and Computer 
Systems Administrators" positions which could be performed by persons without at least a bachelor's 
degree in a specific specialty. 
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Matter of SMGG~._ __ _. 
We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of 
Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in accord 
with other information or is in any way questionable, we are not required to accept or may give less weight 
to that evidence. Id. For the reasons above, we find~-----~s conclusions about the proffered 
position are not entitled to significant weight. 
Therefore, the Petitioner has not demonstrated in the record that its proffered position is one with 
duties sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
As the Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
established that the proffered position qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter of SMGG-~I -~I ID# 4719880 (AAO Sept. 11, 2019) 
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