dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re : 9845663 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 28, 2020 
The Petitioner, a consumer goods and retail company, seeks to temporarily employ the Beneficiary as 
a "support associate" under the H-lB nonimmigrant classification for specialty occupations . See 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C . 
§ l 10l(a)(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 California Service Center denied the petition, concluding that the evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. The matter is 
now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
corning temporarily to the United States to perform services .. . in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § l 184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(l) of the Act, but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F .R. § 214.2(h)( 4 )(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 1 Lastly, 
1 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii) . We construe the tenn "degree" to mean not just any 
8 C.F.R. § 214.2(h)(4)(i)(A)(I) states that an H-lB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (1) the normal 
minimum educational requirement for entry into the particular position, which is the focus of criterion 
1; (2) industry positions which are parallel to the proffered position and thus appropriate for review 
for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, 
when that is an issue under criterion 3; and (5) the degree of specialization and complexity of the 
specific duties, which is the focus of criterion 4. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b )(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
II. PROFFERED POSITION 
In a letter initially submitted in support of the petition, the Petitioner stated that as a "support 
associate," the Beneficiary will: 
... own and drive operational projects while providing leadership and participating in 
the overall planning, execution, and success of a complex cross-functional team. 
Duties will also include: analyzing and pinpointing data trends to drive root cause 
resolution and proposing and delivering solutions for optimizing the existing [the 
Petitioner] platform; identifying and communicating effective solutions; driving 
internal and customer-facing platform improvements, while advancing process 
standardizations for new and existing business processes; providing recommendations 
and proactive advice throughout all phases of web service implementation for key 
customers; and making recommendations for new [the Petitioner] features and 
offerings that will fit within the existing architecture. 2 
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"). 
2 The Petitioner expanded on these duties in its response to the Director's request for evidence (RFE). For the sake of 
brevity, we will not quote the version submitted in its RFE response; however, we have closely reviewed and considered 
the duties. 
2 
The Petitioner stated that the position requires "at least a Bachelor's degree, or equivalent, in Network 
Engineering, Systems Administration, Computer Science or a related field." 
III. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the services in a specialty occupation that the Beneficiary would perform during the requested period 
of employment, which precludes a determination of whether the proffered position qualifies as a 
specialty occupation under sections 101(a)(l5)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).3 Specifically, the record (1) does not 
describe the position's duties with sufficient detail to demonstrate the substantive nature of the 
proffered position; and (2) does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 
The Petitioner submitted a certified labor condition application (LCA) 4 for "Operations Research 
Analysts" corresponding to standard occupational classification (SOC) Code 15-2031 with a Level I 
wage. 5 However, the duties do not appear consistent with the occupational category "Operations 
Research Analysts," designated for the proffered position. The DOL's Occupational Outlook 
Handbook (Handbook) states that "Operations Research Analysts" "use advanced mathematical and 
analytical methods to help organizations solve problems and make better decisions." 6 They "collect 
and organize information from a variety of sources, such as computer databases, sales histories, and 
customer feedback," or "use statistical analysis, simulations, predictive modeling, or other methods to 
analyze information and develop practical solutions to business problems." 7 For example, they may 
"help decide how to organize products in supermarkets or help companies figure out the most effective 
way to ship and distribute products." 8 
3 The Petitioner submitted documentation to suppmt the H-lB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
4 A petitioner submits the LCA to the Department of Labor (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, experience, and qualifications. Section 212(n)(l) of the Act; 20 
C.F.R. § 655.73 l(a). 
5 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. 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_ 1 l _ 2009 .pdf 
6 All of our references to the Handbook may be accessed at the Internet site http://www.bls.gov/ooh/. We consider the 
information contained in the Handbook regarding the duties and educational requirements of the wide vaiiety of occupations 
that it addresses. We do not, however, maintain that the Handbook is the exclusive source ofrelevant 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. However, the burden of proof remains on the Petitioner to submit 
sufficient evidence to establish that the proffered position qualifies as a specialty occupation. 
7 https://www.bls.gov/ooh/math/operations-research-analysts.htm#tab-2. Last visited on May 20, 2020. 
8 Id. 
3 
On the other hand, the Petitioner indicated that the Beneficiary will "find the right solution for each 
customer based on their networking and storage needs" and "work with customer of all sizes and scales 
from product start to launch." While the duties in the Handbook deal with process improvement within 
an organization, the duties described by the Petitioner indicate that the Beneficiary would directly deal 
with customers to address technical issues the customers may be experiencing. The duties as described 
by the Petitioner do not suggest that the Beneficiary would be involved in business operations at large 
by analyzing statistical data or predictive modeling and developing practical solutions to improve 
processes. While some of the duties such as "advancing process standardizations for new and existing 
business processes" or "making recommendations for new ... features and offerings that will fit within 
the existing architecture" could correspond to duties of"Operations Research Analysts," the additional 
information contained in the record raises further questions regarding the fundamental nature of the 
proffered position. 
For example, the Petitioner provided a letter from~--------~, an associate professor at 
City University I I In his letter, the professor stated the following regarding the proffered 
position:9 
One of the services offered by the Support Associate concerns assisting customers in 
selecting the right technologies to implement their applications using [the Petitioner] 
services and technologies. The Support Associate works with customers . . . 
concerning their requirements, including non-functional requirements such as 
performance requirements. The Support Associate obtains all necessary information 
to document and understand these requirements and, based on this information, 
identifies solutions to customer needs. The Support Associate proposes these solutions 
to customers, including documenting how the functionality of [the Petitioner] services 
addresses customer requirement, and providing data such as performance tests to 
demonstrate suitability for non-functional requirements. 
The proffered duties involving direct customer interaction also noted in the following excerpt from 
the professor's letter: 
The Support Associate is also responsible for providing support for customer technical 
issues and service outages. In order to document, research, and process such issues, 
the Support Associate uses the company's internal ... case tracking system. The 
Support Associate again collect customer information to assess cases, and, based on 
this information, may route cases to other support professionals (such as professionals 
that specialize in a particular issues [sic]), or investigate and resolve issues himself .... 
Depending on the nature of the issue, the Support Associate may quickly apply known 
solutions, or identify temporary workarounds to restore service quickly, and 
subsequently work to identify longer-term solutions to customer issues. 
9 While the professor quotes excerpts from the Handbook regarding the Operations Research Analysts occupational 
category, he does not provide a meaningful analysis why the proffered duties as described properly fall within this category. 
Therefore, we find the professor's opinion letter lends little probative value to the matter here. Matter of Caron Int ·1, 
19 l&N Dec. 791, 795 (Comm'r 1988) (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."). For the sake of brevity, we will not 
address other deficiencies within the professor's analysis of the proffered position. 
4 
These duties appear to be more aligned with the duties of "Computer Network Architects" 
occupational category (SOC code 15-1143) or "Computer Systems Engineers/Architects" (SOC code 
15-1199.02), rather than the duties of "Operations Research Analysts" occupational category. For 
example, Computer Network Architects "[e]valuate network designs to determine whether customer 
requirements are met efficiently and effectively" and Computer Systems Engineers/ Architects 
"[ c ]ommunicate with staff or clients to understand specific system requirements" and "[p ]rovide 
technical guidance or support for the development or troubleshooting of systems." 10 
With respect to the LCA, the DOL provides clear guidance for selecting the most relevant O*NET 
occupational code classification. 11 The "Prevailing Wage Determination Policy Guidance" states the 
following: 
In determining the nature of the job offer, the first order is to review the requirements 
of the employer's job offer and determine the appropriate occupational classification. 
The O*NET description that corresponds to the employer's job offer shall be used to 
identify the appropriate occupational classification . . . . If the employer's job 
opportunity has worker requirements described in a combination of O*NET 
occupations, the NPWHC should default directly to the relevant O*NET-SOC 
occupational code for the highest paying occupation. For example, if the employer's 
job offer is for an engineer-pilot, the NPWHC shall use the education, skill and 
experience levels for the higher paying occupation when making the wage level 
determination. 
Here, the prevailing wages for positions in the "Computer Network Architects" and "Computer 
Systems Engineers/ Architects" occupational categories at Level I wage in the area of employment are 
higher at $80,330 and $78,520 respectively per year than the prevailing wage for "Operations Research 
Analysts," which is $70,034 per year. 12 Thus, according to DOL guidance, the Petitioner should have 
chosen the relevant occupational code for the highest paying occupation. As such, the attested wage 
rate of $70,600 per year on the Form I-129 would fall below that required by law at that time for the 
proffered position. 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL 
regulations note that the Department of Homeland Security (DHS) (i.e., its immigration benefits 
branch, USCIS) is the department responsible for determining whether the content of an LCA filed for 
a particular Form I-129 actually supports that petition. The regulations state, in pertinent part: 
For H-lB visas ... DHS accepts the employer's petition (DHS Form I-129) with the 
DOL certified LCA attached. In doing so, the DHS determines whether the petition is 
supported by an LCA which corresponds with the petition, whether the occupation 
10 See https://onetonline.org/link/summary 15-1143.00 and https://onetonline.org/link/summary/15-1199.02. Last visited 
on May 20, 2020. 
11 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _ Guidance 
_Revised_l 1_2009.pdf 
12 Prevailing wage information can be found at https://www.flcdatacenter.com/OESWizardStart.aspx. 
5 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements of H-1 B visa classification. 
20 C.F.R. § 655.705(b) (emphasis added). 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-lB petition filed on behalf of the Beneficiary. Here, the Petitioner has not established that the 
LCA corresponds to the claimed duties of the proffered position, which raises questions regarding the 
substantive nature of the proffered position. 
Moreover, the proffered duties suggest that the Beneficiary will be interacting with other teams in the 
organization in performance of his duties. For example, the Petitioner stated that the Beneficiary will 
"[ o ]wn and drive operational projects while providing leadership and participating in the overall 
planning, execution, and success of a complex cross-functional team" and that he will identify and 
communicate effective solutions "with other members of support." However, the record does not 
contain insufficient information regarding the Petitioner's business operations that would delineate its 
organization, and the Beneficiary's position within its overall organizational hierarchy. The Petitioner 
did not submit an organizational chart demonstrating various departments or teams within its 
organization with which the Beneficiary will be interacting. Therefore, the extent of his duties cannot 
be determined. The evidence does not show the operational structure within the Petitioner's business 
operations in a manner that would establish the Beneficiary's relative role therein. The Petitioner has 
not adequately evidenced the scope of the Beneficiary's responsibilities within the context of its 
business operations. 
Aside from the issues noted above, the record does not contain a sufficiently detailed description of 
the Beneficiary's duties to establish that the position requires the theoretical and practical application 
of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in 
the specific specialty, or its equivalent. The duties such as "[i]dentifying and communicating effective 
solutions" and "[p ]roviding recommendations and proactive advice throughout all phases of web 
service implementation for key customers" do not illuminate the substantive application of knowledge 
involved or any particular educational requirement associated with such duties. 13 Such a generalized 
description does not establish a necessary correlation between the proffered position and a need for a 
particular level of education, or its equivalency, in a body of highly specialized knowledge in a specific 
specialty. With the broadly described duties, the record lacks evidence to demonstrate that the 
proffered position requires a bachelor's degree level of knowledge in a specific specialty. That is, the 
record does not adequately communicate (1) the actual day-to-day work that the Beneficiary will 
perform; (2) the complexity, uniqueness, or specialization of the tasks; and (3) the correlation between 
that work and a need for a particular level of education and knowledge. 
Finally, the Petitioner claims that the Beneficiary is well qualified for the position, and references his 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
13 Similarly, the expanded duties in the RFE response are also described in broad terms, and therefore, do not establish a 
necessary correlation between the proffered position and a need for a particular level of education, or its equivalency, in a 
body of highly specialized knowledge in a specific specialty. 
6 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. 
As the Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, it has not demonstrated that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). It is the substantive nature of that work that determines (1) the normal minimum 
educational requirement for the particular position, which is the focus of criterion 1; (2) industry 
positions which are parallel to the proffered position and thus appropriate for review for a common 
degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity or 
uniqueness of the proffered position, which is the focus of the second alternate prong of criterion 2; 
( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is 
an issue under criterion 3; and ( 5) the degree of specialization and complexity of the specific duties, 
which is the focus of criterion 4. 14 
ORDER: The appeal is dismissed. 
14 Because the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary, it has 
not demonstrated that the proffered position meets the statutory definition of a specialty occupation. See Section 2 l 4(i)(l) 
of the Act. Therefore. further discussion of the assertions made on appeal regarding whether the Petitioner satisfies any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) is not necessary. 
7