dismissed H-1B Case: Computer Science

MATTER OF MSI-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 14,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a distributor and importer of natural stone, seeks to temporarily employ the 
Beneficiary as a "Programmer Analyst" under the H-1B nonimmigrant classification. See 
Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The Director, California Service Center, denied the petition. The matter is now before us on appeal. 
The appeal will be dismissed. 
I. ISSUE 
The issue before us is whether the proffered position qualifies as a specialty occupation m 
accordance with the applicable statutory and regulatory provisions. 1 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
For an H-1B petition to be granted, the Petitioner must provide sufficient evidence to establish that it 
will employ the Beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the Petitioner must establish that the employment it is offering to the Beneficiary meets the 
applicable statutory and regulatory requirements. 
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 
1 We conduct appellate review on a de novo basis. Matter ofSimeio Solutions, LLC, 26 l&N Dec. 542 (AAO 2015); see 
also 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); Dar v. INS, 891 F.2d 997, 
1002 n.9 (2d Cir. 1989). 
Matter of MSI-, Inc. 
(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.P.R. § 214.2(h)( 4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] 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 [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.P.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(1) 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 a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)( 4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. And Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.P.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 P.3d 387. To avoid this result, 8 C.P.R. 
§ 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that must be met in 
accordance with, and not as alternatives to, the statutory and regulatory definitions of specialty 
occupation. 
2 
Matter of MSI-, Inc. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered 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"). Applying this standard, USCIS regularly approves H-lB petitions for qualified foreign 
nationals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS 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. users must examine the 
ultimate employment of the foreign national, and determine whether the position qualifies as a 
specialty occupation. See generally Defensor v. Meissner, 201 F. 3d 384. 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. 
B. The Proffered Position 
The Petitioner seeks to employ the Beneficiary as a full-time "Programmer Analyst" at an annual 
salary of $63,000. In a letter of support, dated April 1, 2015, submitted with the petition, the 
Petitioner stated that the proffered position requires "an individual who has achieved the educational 
level of at least a Bachelor's degree in Computer Science, Management Information Systems, 
Electrical Engineer[ing], or in a related field." 
The labor condition application (LCA) submitted to support the visa petition states that the proffered 
position corresponds to Standard Occupational Classification (SOC) code and occupation title 
15-1121, "Computer Systems Analysts," from the Occupational Information Network (O*NET). 
The LCA further states that the proffered position is a Level I, entry-level, position. 
In a letter, dated June 8, 2015, submitted in response to the Director's request for evidence (RFE), 
the Petitioner listed the duties of the proffered position, along with the percentages of time spent on 
each duty, as follows: 
• Gathers business requirements and develops conceptual design and technical design 
for [the Petitioner]. Analyze, design, develop, test, implement, modify, and maintain 
client and web-based software applications, reports, interfaces, and databases; 15% 
3 
Matter of MSI-, Inc. 
• Design, implement, and support software solutions; 7% 
• Write software, support existing software, domain and network issues, help 
employees with their computer issues (hands on code development) to meet key 
business objectives; 8% 
• Analyze user needs to determine software that will best serve those needs and 
develop/design computer system using that software while working with IT Director 
to understand the business process and problem statements for operational 
improvements; 10% 
• Streamline database in MS SQL Server 7.0 & Oracle 8i; 6% 
• Create SQL queries and update client information and products in the database by 
reviewing computer system capabilities, work flow and scheduling limitations to 
determine if requested program or program change is possible within existing 
system[;] 10% 
• Implement procedures/functions to ensure database consistency, integrity & security 
as well as provide alternative solutions and recommends solution that best meets the 
need of the business; 7% 
• Develop data entry forms using VB.net and front-end and recommends, schedules 
and performs software improvements and updates and Crystal Reports 4.5 to generate 
reports of schedule and stock status; 7% 
• Design & update web pages with ASP.net and recognizes, identifies and documents 
potential areas where existing business processes require change, or where new 
processes need to be developed, and makes recommendations in these areas; 1 0% 
• Develop and maintain complex systems including: control of the inventory and 
financial/cost analysis in which transactions are automatically processed through the 
full system of records; 8% 
• Review proposals, gather facts, analyze data, and prepare a project synopsis which 
compares alternatives in terms of cost, time, availability of equipment and personnel 
while translating user requirements into overall solution architecture for complex 
technical solutions. 12% 
The Petitioner summarized the above duties of the Beneficiary as "to maintain our existing IT 
systems, assist our employees and clients in navigating the systems, and create new systems and 
software as needed." The Petitioner provided a list and description of its existing in-house IT 
systems. Further, the Petitioner stated that the Beneficiary "will be employed full-time performing 
specialized and complex job duties which require at least a bachelor's degree in the specific 
specialty of Business Administration to be successfully performed." 
C. Analysis 
As a preliminary matter, we find that the Petitioner has provided inconsistent information regarding the 
requirements for the proffered position. For instance, the Petitioner stated in its response to the RFE 
that the proffered position requires "at least a bachelor's degree in the specific specialty of Business 
4 
(b)(6)
Matter of MSI-, Inc. 
Administration to be successfully performed." 2 However, the Petitioner has also stated that the 
proffered position requires "an individual who has achieved the educational level of at least a 
Bachelor's degree in Computer Science, Management Information Systems, Electrical 
Engineer[ing], or in a related field." The Petitioner has not provided an explanation for its varying 
requirements. "[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent 
objective evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the Petitioner submits competent objective 
evidence pointing to where the truth lies. Id. at 591-92. · 
If it is the Petitioner's claim that a bachelor's degree in Business Administration is a sufficient 
minimum requirement for entry into the proffered position, this claim is insufficient to establish that the 
proposed position qualifies as a specialty occupation. A petitioner must demonstrate that the proffered 
position requires a precise and specific course of study that relates directly and closely to the 
position in question. Since there must be a close correlation between the required specialized studies 
and the position, the requirement of a degree with a generalized title, such as Business 
Administration, without further specification, does not establish the position as a specialty 
occupation. 3 . Cf Matter of Michael Hertz Assocs ., 19 I&N Dec. 558, 560 (Comm'r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed supra, USCIS interprets the degree requirement at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
position. Although a general-purpose bachelor's degree, such as a degree in Business 
Administration, may be a legitimate prerequisite for a particular position, requiring such a degree, 
without more, will not justify a finding that a particular position qualifies for classification as a 
2 The Petitioner's statement that it requires at least a bachelor's degree in Business Administration is consistent with the 
vacancy announcement by submitted in support of the petition, in which the minimum entry requirement 
was a "BS in Computer Science or Business Administration." ln addition, as will be discussed in more detail infra , two 
of the Petitioner's IT employees have master's degrees in Business Administration. 
3 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example , an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific . field, or a bachelor 's or higher degree in business administration combined with relevant 
education, training , and/or experience may, in certain instances, qualify the proffered position as a specialty 
occupation. In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher 
degree in a specific specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 484 F.3d 
at 147. 
It is also important to note that a position may not qualify as a specialty occupation based solely on either a preference 
for certain qualifications for the position or the claimed requirements of a petitioner. See Defensor v. Meissner, 201 F.3d 
384, 387 (5th Cir. 2000) . Instead, the record must establish that the performance of the duties of the proffered position 
requires both 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 entry 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 "). 
5 
(b)(6)
Matter of MSI-, Inc. 
specialty occupation. Royal Siam Corp. v. Chertoff, 484 F.3d at 147.4 
Second, we find that the proffered position, as described, do not adequately establish the depth, 
complexity, level of specialization, or substantive aspects of the duties for which the Beneficiary would 
be responsible. Rather, the duties of the proffered position are described in relatively generalized and 
abstract terms that do not relate substantial details. For example, the Petitioner has not provided 
additional details regarding the Beneficiary's specific role in the duties to "[a]nalyze, design, 
develop, test, implement, modify, and maintain client and web-based software applications, reports, 
interfaces, and databases." Similarly, the Petitioner has not adequately described the specific tasks 
to be performed in the duty of "[r]eview proposals, gather facts, analyze data, and prepare a project 
synopsis," or even the nature of the proposals and projects involved. This type of generalized 
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 operations. 
Notably, the Petitioner listed several duties involving the design and development of new software 
applications and systems. The Petitioner specifically stated that the Beneficiary would "create new 
systems and software as needed." However, the Petitioner has not explained what new systems and 
software, if any, the Beneficiary would be creating. 
Moreover, while the Petitioner has described the ex1stmg IT systems currently utilized by the 
company in general, the Petitioner has not described in sufficient detail the actual work the 
Beneficiary would perform with respect to each of these existing systems. We acknowledge the 
Petitioner's statements that a programmer analyst on its IT team must have a "complete 
understanding" and "thorough working knowledge" of Security Portal, MAS500 
and ERP Related Software, Data Interchange, and other internal systems. 5 However, merely 
asserting that the Beneficiary is required to understand these internal systems, without more, is 
insufficient to establish the nature of her work with respect to these systems. 
4 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
I d. 
The courts and the agency consistently have stated that, although a general-purpose bachelor's degree, 
such as a business administration degree, may be a legitimate prerequisite for a particular position, 
requiring such a degree, without more, will not justify the granting of a petition for an H-lB specialty 
occupation visa. See, e.g., Tapis fnt'lv. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. 
Supp. 2d at 1164-66; cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 ([Comm'r) 1988) 
(providing frequently cited analysis in connection with a conceptually similar provision). This is as it 
should be: elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
5 With respect to the Petitioner stated that "[ e ]very developer needs to familiarize themselves 
with the architecture and design of this system in order to make secured applications for [the Petitioner]." The position 
here, however, is not a developer position, but a programmer analyst position. 
Matter of MSI-, Inc. 
Without a more meaningful job description, the record lacks evidence sufficiently concrete and 
informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. The tasks as described do not sufficiently communicate (1) the 
actual work that the Beneficiary will perform, (2) the complexity, uniqueness and/or specialization 
of the tasks, and/or (3) the correlation between that work and a need for a particular level education 
of highly specialized knowledge in a specific specialty. For this reason alone, we find the evidence 
of record insufficient to establish that the proffered position qualifies as a specialty occupation. 
Nevertheless, we will analyze the duties and the evidence of record to determine whether the 
proffered position as described would qualify as a specialty occupation. To that end and to make our 
determination as to whether the employment described above qualifies as a specialty occupation, we 
tum first to the criterion at 8 C.P.R.§ 214.2(h)(4)(iii)(A)(l). 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We recognize the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook 
(Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
of occupations that it addresses. 6 The LCA corresponds to the SOC(ONET/OES) code and title 
15-1121, Computer Systems Analysts, at a Level I (entry) wage. 
The Handbook subchapter "How to Become a Computer Systems Analyst" states the following: 
A bachelor's degree in a computer or information science field is common, although 
not always a requirement. Some firms hire analysts with business or liberal arts 
degrees who have skills in information technology or computer programming 
Education 
Most computer systems analysts have a bachelor's degree in a computer-related field. 
Because these analysts also are heavily involved in the business side of a company, it 
may be helpful to take business courses or major in management information 
systems. 
Some employers prefer applicants who have a master's degree in business 
administration (MBA) with a concentration in information systems. For more 
technically complex jobs, a master's degree in computer science may be more 
appropriate. 
6 All of the references are to the 2016-17 edition of the Handbook; which is available at http://www.bls.gov/OCO/. The 
excerpts of the Handbook regarding the duties and requirements of the referenced occupational category are hereby 
incorporated into the record of proceeding. 
Matter of MSI-, Inc. 
Although many computer systems analysts have technical degrees, such a degree is 
not always a requirement. Many analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. 
Many systems analysts continue to take classes throughout their careers so that they 
can learn about new and innovative technologies and keep their skills competitive. 
Technological advances come so rapidly in the computer field that continual study is 
necessary to remain competitive. 
Systems analysts must understand the business field they are working in. For 
example, a hospital may want an analyst with a background or coursework in health 
management, and an analyst working for a bank may need to understand finance. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Computer Systems Analysts," http://www. bls. gov I oohl computer-and-information­
technology/computer-systems-analysts.htm#tab-4 (last visited Jan. 13, 20 16). 
A review of the Handbook does not indicate that, simply by virtue of its occupational classification, 
a computer systems analyst position qualifies as a specialty occupation. More specifically, the 
information on the educational requirements in the subchapter cited above indicates, at most, that a 
bachelor's or higher degree in a computer or information science field may be a common preference, 
but not a standard occupational, entry requirement. See id. In fact, this chapter states that a 
bachelor's degree in a computer or information science field is "not always a requirement," and that 
some computer systems analysts may only have liberal arts degrees and programming or technical 
experience. See id. 
In response to the RFE and again on appeal, the Petitioner cited to a Memorandum from Terry Way, 
Director of Nebraska Service Center, Guidance Memorandum on HI B Computer Related Positions 
(Dec. 22, 2000). 7 
We find that the Petitioner's reliance on this memorandum is misplaced as the memorandum is not 
relevant to this proceeding. By its very terms, the memorandum was issued by the then Director of 
the Nebraska Service Center (NSC) as an attempt to "clarify" an aspect of NSC adjudications; and, 
framed as it was, as a memorandum to NSC adjudication officers, it was addressed exclusively to 
NSC personnel within that Director's chain of command. As such, it has no force and effect upon 
the present matter before us on appeal. 
It is also noted that the legacy memorandum cited by the Petitioner does not bear a "P" designation. 
According to the Adjudicator's Field Manual (AFM) § 3.4, "correspondence is advisory in nature, 
intended only to convey the author's point of view .... " AFM § 3.4 goes on to note that examples 
of correspondence include letters, memoranda not bearing the "P" designation, unpublished AAO 
7 A copy of the memorandum was not provided for the record. 
Matter of MSI-, Inc. 
decisions, USCIS and DHS General Counsel Opinions, etc. 8 Regardless, the NSC no longer 
adjudicates H-lB petitions and, therefore, the memorandum is not followed by any USCIS officers 
even as a matter of internal, service center guidance. 
Even if we were bound by this memorandum either as a management directive or as a matter of law, 
it was issued more than a decade ago, during what the NSC Director perceived as a period of 
"transition" for certain-computer related occupations. In addition, this memorandum referred to now 
outdated versions of the Handbook (the latest of those being the 2000-01 edition), and also relied 
partly on a perceived line of relatively early unpublished (and unspecified) decisions in the area of 
computer-related occupations, which did not address the computer-related occupations as they have 
evolved since those decisions were issued more than a decade ago. In any event, the memorandum 
reminds adjudicators that a specialty occupation eligibility determination is not based on the 
proffered position's job title but instead on the actual duties to be performed. For all of the reasons 
articulated above, the memorandum is not helpful to this discussion regarding the job duties of the 
Petitioner's proffered position and whether the Petitioner has satisfied its burden of establishing that this 
particular position qualifies as a specialty occupation. 
In the instant case, the Petitioner has not established that the proffered position falls under an 
occupational category for which the Handbook, or another reliable and authoritative source, 
indicates that there is a standard, minimum entry requirement of at least a bachelor's degree in a 
specific specialty, or its equivalent. Furthermore, the duties and requirements of the proffered 
position as described in the record of proceeding do not indicate that the position is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the record does not satisfy the first criterion of 8 C.P.R. 
§ 214.2(h)( 4 )(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions 
that are identifiable as being (1) in the Petitioner's industry, (2) parallel to the proffered position, and 
also (3) located in organizations that are similar to the Petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS 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 
8 While 8 C.F.R. § 103.3(c) provides that our precedent decisions are binding on all USCIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
9 
(b)(6)
Matter of MSI-, Inc. 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As discussed, the Petitioner has not established that its proffered position is one for which the 
Handbook, or another independent, authoritative source, reports a standard industry-wide 
requirement for at least a bachelor's degree in a specific specialty, or its equivalent. We incorporate 
by reference the previous discussion on the matter. Also, there are no submissions from the 
industry's professional association(s) indicating that it has made a degree a minimum entry 
requirement. 
We will next address the job advertisements submitted by the Petitioner. Upon review of the 
documents, we find that the Petitioner's reliance on the job advertisements is misplaced. 
First, with the exception of the job advertisement from none of the submitted advertisements 
involve positions parallel to the proffered position. The position being offered here is designated as 
a Level T wage level, which indicates that the proffered position is a comparatively low, entry-level 
position relative to others within the occupation.9 In contrast, the advertisements from 
(requiring 4-6 years of related experience), (requiring 5+ years of 
related experience), an unidentified company in the automobile industry (requiring 7+ years of 
related experience), and (requiring 8-10 years of related 
experience) all require several years of related experience, and thus, are not for beginning-level 
positions. 
Furthermore, the evidence of record is insufficient to demonstrate that the advertising employers are 
in the same industry as the Petitioner. On appeal, the Petitioner "concedes this fact," stating that it is 
"one of the only firms in the distribution and import of natural stone that employs the use of 
sophisticated IT systems to run their operation." The Petitioner thus requests us to consider its 
industry as not in the natural stone industry, but in the distribution and logistics industry. However, 
the Petitioner has not cited to any legal authority to support such a broad interpretation of the term 
9 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage rate is 
described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have 
only a basic understanding of the occupation . These employees perform routine tasks that require 
limited, if any, exercise of judgment. The tasks provide experience and familiarization with the 
employer's methods, practices, and programs. The employees may perform higher level work for 
training and developmental purposes. These employees work under close supervision and receive 
specific instructions on required tasks and results expected. Their work is closely monitored and 
reviewed for accuracy. Statements that the job offer is for a research fellow, a worker in training, or an 
internship are indicators that a Level I wage should be considered. 
See 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 _11_ 2009 .pdf 
10 
Matter of MSI-, Inc. 
"the industry" found in the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). While we acknowledge 
that distribution and logistics are aspects of the Petitioner's operations, we cannot find that the 
Petitioner can reasonably be classified as in distribution and logistics industry. 10 As such, these 
postings are outside the scope of consideration for this criterion, which encompasses only 
organizations that are similar to and in the Petitioner's industry. 11 
For the reasons discussed above, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
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 evidence of record shows that the Petitioner's 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. 
Here, the evidence of record does not sufficiently demonstrate relative complexity or uniqueness as 
aspects of the proffered position. As we previously discussed, the Petitioner has not adequately 
established the depth, complexity, level of specialization, or other substantive aspects of the duties for 
which the Beneficiary would be responsible. That is, the duties of the proffered position are too 
broadly described that they do not sufficiently communicate (1) the actual work that the Beneficiary 
will perform, (2) the complexity, uniqueness and/or specialization of the tasks, and/or (3) the 
correlation between that work and a need for a particular level education of highly specialized 
knowledge in a specific specialty. 
The Petitioner highlights the complexity and uniqueness of its business operations, stating that its 
"complex and sophisticated global organization ... in tum justifies the Petitioner's need for a 
degreed, professional Programmer Analyst." In support, the Petitioner submits news articles 
praising its "most sophisticated" and "advanced" IT system and capabilities. However, the focus of 
the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) is on the particular position being 
proffered here, which was not specifically addressed in these articles. The Petitioner has not 
described in sufficient detail the nature of the work the Beneficiary would perform with respect to 
the Petitioner's IT system. Without knowing her specific tasks and role, we cannot find, based upon 
the nature of the Petitioner's IT system alone, that the particular position is so complex or unique that 
10 The Petitioner provided a North American Industry Classification System (NAICS) Code of "423320, Brick, Stone, 
and Related Construction Material Merchant Wholesalers." U.S. Dep't of Commerce, U.S. Census Bureau, North 
American Industry Classification System, 2012 NAICS Definition, "423320, Brick, Stone, and Related Construction 
Material Merchant Wholesalers," http://www.census.gov/cgi-bin/ssscl/naics/naicsrch (last visited Jan. 13, 20 16). 
11 As these vacancy announcements are outside the scope of consideration for this criterion, further analysis regarding 
the specific information contained in each of the job postings is not necessary. That is, not every deficit of every job 
posting has been addressed. 
11 
Matter of MSI-, Inc. 
it can be performed only by an individual with a baccalaureate or higher degree in a specific specialty, 
or its equivalent. 
It is unclear how the proffered position, as described, necessitates the theoretical and practical 
application of a body of highly specialized knowledge such that a person who has attained a bachelor's 
or higher degree in a specific specialty or its equivalent is required to perform them. The evidence of 
record does not demonstrate how the duties described require the theoretical and practical 
application of a body of highly specialized knowledge such that a bachelor's or higher degree in a 
specific specialty, or its equivalent, is required to perform them. The Petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform the duties of the proffered position. For instance, 
while the Petitioner stated that a programmer analyst must have a "complete understanding" and 
"thorough working knowledge" of its internal systems, the Petitioner has not explained what specific 
course(s) of study would provide the necessary knowledge and understanding of these systems. As 
another illustration, the Petitioner stated that a programmer analyst "must be able to quickly adapt to 
[its] Inventory & Warehouse Automation procedures as well as [its] RFID infrastructure." Again, it 
is not clear what course(s) of study would provide the necessary knowledge of the Petitioner's 
·"Inventory & Warehouse Automation procedures" and "RFID infrastructure." 
It is also important to consider that the Petitioner has designated the proffered position as a Level I 
position on the LCA. The position's Level I designation indicates that it is an entry-level position 
for an employee who has only a basic understanding of the occupation, and performs routine tasks 
that require limited (if any) exercise of judgment and are closely supervised and monitored. See 
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 _11_ 2009 .pdf. The 
position's Level I, entry-level, wage rate is contrary to a position that requires the performance of 
1 . d . 12 comp ex or umque utws. 
The evidence of record therefore does not satisfy the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(2). 
12 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex or unique compared to other positions within the same occupation. Nevertheless, a Level I wage­
designation does not preclude a proffered position from classification as a specialty occupation, just as a Level IV wage­
designation does not definitively establish such a classification. In certain occupations (e.g.,doctors or lawyers), a Level 
I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for 
entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty 
occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific 
specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not itself 
conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
12 
Matter of MSI-, Inc. 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
The third criterion of 8 C.P.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. To 
this end, we review the Petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
The record of proceeding does not contain sufficient evidence demonstrating the Petitioner's 
employment history for the proffered position. First, the Petitioner has not indicated whether it has 
previously recruited and hired for the same "Programmer Analyst" position being offered here. 
According to the Petitioner's organizational chart, the Petitioner currently does not have a 
"Programmer Analyst" position, and there is no evidence in the record regarding any other 
individuals the Petitioner may have employed in the same position. If this is the Petitioner's first 
time hiring for the position, it is unclear how an employer that has never recruited and hired for the 
position would be able to satisfy the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(3), which requires a 
demonstration that it normally requires at least a bachelor's degree in a specific specialty or its 
equivalent for the position. 
With respect to the educational credentials of the Petitioner's other IT employees, the Petitioner has 
not demonstrated the relevance or significance of this information to the criterion at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A). The criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A) involves an employer's normal 
employment practices for the particular position being proffered here. The Petitioner has not 
established that the other IT positions depicted on the chart, such as the IT Manager, Hardware 
Technician, and Software Programmer III, are the same or sufficiently similar to the proffered 
position such that they could be considered under the criterion at 8 C.P.R.§ 214.2(h)(4)(iii)(A). 13 
Even if we could consider the educational credentials of the Petitioner's other IT employees, the 
Petitioner has not established the statistical significance of this information. In particular, the 
Petitioner stated in its RFE response that its IT team is "comprised of over 35 individuals," and the 
organizational chart depicts 25 different IT employees. 14 Out of these 25-35 employees, the 
Petitioner has only listed and documented the educational credentials of seven of them. The 
Petitioner has not demonstrated what statistically valid inferences, if any, regarding the Petitioner's 
normal employment practices can be drawn from the educational credentials of seven employees -
13 While we do not simply rely on a position's title, the Petitioner has not provided any information regarding the 
specific duties of these other IT positions in order for us to compare them with the proffered position based on anything 
but the job titles. 
14 The Petitioner has not submitted an explanation, corroborated by objective evidence, resolving this inconsistency. 
"[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 
19 J&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. /d. at 591-92. 
13 
Matter of MSI-, Inc. 
two of whom have not been shown to have U.S. bachelor's degrees in a specific specialty, or its 
equivalent.15 See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 1995). 
While the Petitioner explained that "[ c ]ertain employees refused to provide their confidential 
information," the Petitioner has not explained why it could not have provided such evidence about 
its own employees and the company's educational requirements for these positions. Moreover, we 
note that a claim that information is "confidential" does not provide a blanket excuse for a petitioner 
not providing documentation if that documentation is material to the requested benefit. 16 Although a 
petitioner may always refuse to submit confidential commercial information if it is deemed too 
sensitive, the Petitioner must also satisfy the burden of proof and runs the risk of a denial. Cf 
Matter of Marques, 16 I&N Dec. 314 (BIA 1977) (holding the "respondent had every right to assert 
his claim under the Fifth Amendment[; however], in so doing he runs the risk that he may fail to 
carry his burden of persuasion with respect to his application."). 
Thus, despite the Petitioner's statement that "all of its programmer analysts and professional IT staff 
have Master's or baccalaureate degrees in Computer Science, Electronics Engineering, Information 
Technology, or MIS," the Petitioner has not submitted sufficient evidence to corroborate this 
statement. "[G]oing on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings." In re So.ffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter o[Treasure Craft ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
As the record of proceeding does not demonstrate that the Petitioner normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the proffered position, the Petitioner has 
not satisfied the criterion at 8 C.P.R.§ 214.2(h)(4)(iii)(A)(3). 17 
15 
Two of these seven individuals possessed master's degrees in Business Administration and foreign bachelor's degrees 
in a computer-related field. However, the Petitioner did not submit evidence establishing that their foreign bachelor's 
degrees are equivalent to U.S. bachelor's degrees in a specific field. As such, we cannot consider these individuals to 
possess at least a U.S. bachelor's degree in a specific specialty, or its equivalent. As we stated earlier, the Petitioner's 
acceptance of a degree with a generalized title, such as Business Administration, without further specification, does not 
establish the position as a specialty occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d at 147; cf Matter of Michael 
Hertz Assocs., 19 I&N Dec. at 560. 
16 Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's 
confidential business information when it is submitted to USCIS. See 5 U.S.C. § 552(b)(4), 18 U.S.C. 
§ 1905. Additionally, the petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600, 
"Predisclosure Notification Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. 
Reg. 23,781 (June 23, 1987). 
17 We also note that while a petitioner may believe or otherwise assert that a proffered position requires a degree in a 
specific specialty, that opinion alone without corroborating evidence cannot establish the position as a specialty 
occupation. Were USCIS limited solely to reviewing a petitioner's claimed self-imposed requirements, then any 
individual with a bachelor's degree could be brought to the United States to perform any occupation as long as the 
employer artificially created a token degree requirement, whereby all individuals employed in a particular position 
possessed a baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor v. Meissner, 201 F. 
3d at 387. In other words, if a petitioner's degree requirement is only symbolic and the proffered position does not in 
fact require such a specialty degree, or its equivalent, to perform its duties, the occupation would not meet the statutory 
or regulatory definition of a specialty occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining 
the term "specialty occupation"). 
14 
Matter of MSI-, Inc. 
The nature of the spectfic 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 in a specific specialty, or its equivalent 
Finally, the Petitioner has not satisfied the fourth criterion of 8 C.F .R. § 214.2(h)( 4 )(iii)(A), which is 
reserved for positions with specific duties so specialized and complex that their performance 
requires knowledge that is usually associated with the attainment of a baccalaureate or higher degree 
in a specific specialty, or its equivalent. Again, relative specialization and complexity have not been 
sufficiently developed by the Petitioner as an aspect of the proffered position. In other words, the 
proposed duties have not been described with sufficient specificity to show that they are more 
specialized and complex than other computer systems analyst positions that do not require at least a 
bachelor's degree in a specific specialty, or its equivalent. We hereby incorporate our earlier 
discussions about the Petitioner's overly broad job descriptions, and the position's Level I (entry­
level) designation, which are contrary to any claim that the proffered position is particularly complex 
or specialized. 
Although the Petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the Petitioner has submitted inadequate 
probative evidence to satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
III. CONCLUSION 
The evidence of record is insufficient to establish that the proffered position qualifies as a specialty 
occupation in accordance with the applicable statutory and regulatory provisions. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of MSI-, Inc., ID# 15475 (AAO Jan. 14, 2016) 
15