dismissed H-1B Case: Computer Science

(b)(6)
DATE: JUN 0 5 2015 
INRE: Peti tioner: 
Ben eficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Im.migration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuan t to Section 101( a)(15)(H)(i)(b) of the 
Immi gration and Nationality Act , 8 U.S.C. § 11 01( a)(15)(H)(i)(b) 
ON BE HALF OF PETITIO NE R: 
NO REPRESENTATIVE OF RECORD 
Enc losed is the non-precedent decision of the Ad min istrative Appea ls Office (A AO) for your case. 
lf you believe we incorrectly decided your case, you may file a motion requesting us to reconsider ou r 
decision an d/or reopen the proceeding. The requirements for motions are located at '8 C.F.R. § 10 3.5. 
Mo tions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www. uscis.gov/i-290b) contains the la test information on fee, fil ing 
location, an d other requirements. Please do not mail any motions directly to the AAO. 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as an "IT 
Services Provider" with 21 employees established in In order to employ the beneficiary in 
what it identifies as a full-time position in the "Computer Systems Analysts" occupational category, 
with "Programmer Analyst" as its job title, the petitioner seeks to classify the beneficiary as a 
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The director denied the petition, finding that the petitioner had not established that it would employ 
the beneficiary in a specialty occupation position and that there was sufficient work for the 
beneficiary for the requested period of intended employment as of the date of filing. On appeal, the 
petitioner asserts that the director's basis for denial was erroneous and contends that it has satisfied 
all evidentiary requirements. 
The record of proceeding before this office contains the following: (1) the Form I -129 and 
supporting documentation; (2) the director's request for additional evidence (RFE); (3) the 
petitioner's response to the RFE; (4) the director's letter denying the petition; and (5) the Notice of 
Appeal or Motion (Form I-290B) and supporting documentation. 
We find that, upon review of the entire record of proceeding, the evidence of record does not 
overcome the director's grounds for denying this petition. Accordingly, the appeal will be dismissed, 
and the petition will be denied. 
I. FACTUAL AND PROCEDURALHISTORY 
As indicated above, the petitioner seeks to employ the beneficiary in a position that it describes as a 
"Programmer Analyst" on a full-time basis. The Labor Condition Application (LCA) that the 
petitioner submitted in support of the petition was certified for use with a job prospect located 
within the "Computer Systems Analysts" occupational classification, SOC (O*NET/OES) Code 
15-1121, and a Level I prevailing wage rate. The LCA also reflects that, as mentioned above, the 
petitioner assigned "Programmer Analyst" as the position's job title. 
In a letter dated March 31, 2014, the petitioner's Operations Manager stated that the beneficiary's 
specific duties were as follows: 
• Must analyze user requirements and also researching, designing and writing new 
software programs 
• Performance tuning, improvement, balancing, usability, automation 
• Support, maintain and document software functionality 
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NON-PRECEDENT DECISION 
• Required to design, implement and modify software and they have to assure the 
quality, lower the cost, ease maintainability and build software quickly 
• Developing existing programs by analyzing and identifying areas for 
modification 
• Integrating existing software products and getting incompatible platforms to work 
together. 
• Integrate software with existing systems 
• Write program documentation 
• Monitor and report to management on the computer systems and programs on an 
as-needed basis to ensure the systems and programs are functioning at the 
required level of efficiency and speed 
The petitioner's Operations Manager also stated that the proffered position requires a "at least a 
Bachelor's degree or equivalent in computer science, computer information systems, information 
technology, engineering or related technical field." 
The director found the initial evidence insufficient to establish eligibility for the benefit sought, and 
issued an RFE on May 19, 2014. The director requested, inter alia, evidence that, if the visa petition 
were approved, the petitioner would have an employer-employee relationship with the beneficiary 
and that there would be specialty occupation work for the entire requested H-1B validity period. 
The petitioner was also asked to submit additional information about the business. 
In response, the petitioner submitted, inter alia, (1) a letter, dated August 13 , 2014, from the 
petitioner's counsel at the time; (2) documentation pertaining to the petitioner's business operations, 
including but not limited to, a signed Commercial Lease Agreement and incorporation 
documentation; (3) tax documentation pertaining to the petitioner; (4) an August 5, 2014 letter from 
the petitioner's Administrative Officer; (5) a document entitled "Performance Management{falent 
Appreciation Process at '; (6) the petitioner's organizational chart; 
(7) the "Marketing Analysis for the Petitioner's Business Integration Software Product"; and (8) the 
petitioner's product brochure for its Business Integration Software Product. 
The director denied the petition on September 18, 2014, finding, as was noted above, that the 
petitioner had not established that it would employ the beneficiary in a specialty occupation position 
and that there was sufficient work for the beneficiary for the requested period of intended 
employment as of the date of filing. On appeal, the petitioner's Administrative Officer submitted a 
letter. In said letter, the petitioner provided, inter alia, the percentage-based allotment of the duties 
of the position as follows: 
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NON-PRECE DENT DECISION 
% of Time Allocated to Each Duty 
40% 
• Must analyze user requirements and also researching, designing and writing new 
software programs 
• Required to design, implement and modify software and they have to assure the 
quality, lower the cost, ease maintainability and build software quickly 
25% 
• Performance tuning, improvement, balancing, usability, automation 
• Support, maintain and document software functionality 
20% 
• Developing existing programs by analyzing and identifying areas for 
modification 
• Integrating existing software products and getting incompatible platforms to work 
together. 
• Integrate software with existing systems 
• Write program documentation 
15% 
We note that the following duty was not listed in this letter: 
Monitor and report to management on the computer systems and programs on an as­
needed basis to ensure the systems and programs are functioning at the required 
level of efficiency and speed 
We find that, upon review of the entire record of proceeding, the evidence of record does not overcome 
the director's grounds for denying this petition. Accordingly, the appeal will be dismissed, and the 
petition will be denied. 
II. EVIDENTIARY STANDARD ON APPEAL 
As a preliminary matter, we affirm that, in the exercise of our appellate review in this matter, as in 
all matters that come within our purview, we follow the preponderance of the evidence standard as 
specified in the controlling precedent decision, Matter of Chawathe, 25 I&N Dec. 369, 375-376 
(AAO 2010). In pertinent part, that decision states the following: 
(b)(6)
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!d. 
NON-PR ECEDENT DECISION 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of evidence 
that he or she is eligible for the benefit sought. 
* * * 
The "preponderance of the evidence" of "truth" is made based on the factual 
circumstances of each individual case. 
* * * 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof. See INS v. Cardoza-Foncesca, 480 U.S. 421, 431 (1987) 
(discussing "more likely than not" as a greater than 50% chance of an occurrence 
taking place). If the director can articulate a material doubt, it is appropriate for the 
director to either request additional evidence or, if that doubt leads the director to 
believe that the claim is probably not true, deny the application or petition. 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 
(3d Cir. 2004). Applying the preponderance of the evidence standard as stated in Matter of 
Chawathe, we find that upon review of the entire record of proceeding, and with close attention and 
due regard to all of the evidence submitted in support of this petition, the record does not contain 
sufficient relevant, probative, and credible evidence to lead us to believe that it is "more likely than 
not" or "probably" true that the proffered position qualifies for classification as a specialty 
occupation and that there is sufficient work for the beneficiary for the requested period of intended 
employment. 
III. REVIEW OF THE DIRECTOR'S DECISION 
We will now address whether the proffered position qualifies for classification as a specialty 
occupation. Based upon a complete review of the record of proceeding, we agree with the director 
and find that the evidence does not establish that the position as described constitutes a specialty 
occupation. 
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NON-PR ECEDENT DECISION 
Page 6 
A. Law 
To meet its burden of proof with regard to the proffered position's classification as an H-lB 
specialty occupation, the petitioner must establish that the employment it is offering to the 
beneficiary meets the following statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(I), 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.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 also 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 knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
(b)(6)
NON -PRECEDENT DECISION 
Page 7 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.F.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 Cmp. 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 of W-F-, 21 I&N Dec. 503 (BJA 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 F.3d 384, 387 (5th Cir. 2000). 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. 
As such and consonant with section 214(i)(1) of the Act and the regulation at 8 C.P.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.P.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 Cmp. 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 aliens 
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 bu� iness operations, are factors to be considered. USCIS must examine the 
ultimate employment of the 'alien, and determine whether the position qualifies as a speCialty 
occupation. See generallyDefensor 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)(6)
Page 8 
B. Preliminary Findings 
NON-PRECEDENT DECISION 
1. Regarding the Speculative Nature of the Employment 
The evidence of record does not establish how a continuously employed, full-time Programmer 
Analyst would be utilized by the petitioner. In that regard, we have reviewed the information in the 
record regarding the petitioner's information technology services provider business. Upon review of 
this information, we find that the record of proceeding lacks documentation regarding the 
petitioner's business activities and the actual work that the beneficiary will perform to sufficiently 
substantiate the claim that the petitioner has H-1B caliber work for the beneficiary for the period of 
employment requested in the petition. That is, the record does not include sufficient work product 
or other documentary evidence to confirm that the petitioner has ongoing in-house projects to which 
the beneficiary will be assigned. Thus, the petitioner has not provided the underlying 
documentation necessary to corroborate that the beneficiary would perform the claimed duties set 
out in the petitioner's letters of support. Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm'r 1972)). 
As observed above, USCIS in this matter must review the actual duties the beneficiary will be 
expected to perform to ascertain whether those duties require at least a baccalaureate degree in a 
specific specialty, or its equivalent, as required for classification as a specialty occupation. To 
accomplish that task in this matter, users must analyze the actual duties in conjunction with the 
specific project(s) to which the beneficiary will be assigned. To allow otherwise, results in generic 
descriptions of duties that, while they may appear (in some instances) to comprise the duties of a 
specialty occupation, are not related to any actual services the beneficiary is expected to provide. 
Of critical importance to the outcome of this appeal, and directly bearing on each of the bases that 
the director specified for deniaJ, we find as follows with regard to the submissions related to the 
asserted "Business Integration Software Product" project upon which the beneficiary purportedly 
would work. 
The documentation submitted is a general and relatively abstract discussion of the type of work that 
the petitioner appears to attribute to the project to which it claims the beneficiary would be 
assigned. We further find that the petitioner does not provide any substantive information with 
regard to particular work, and associated educational requirements, that the petitioner's particular 
business. operations would generate for the beneficiary if this petition were approved. None of the 
submissions in the record convey exactly what the end-product of the project would be, the 
particular scope of the ·project, any persuasive indications of actual milestones that would be 
involved, persuasive indications that project staging and planning has taken place to any serious 
extent, or assignments of labor and divisions of responsibility consonant with what the petitioner 
claims to be a serious project under development. Further, we find no persuasive evidence in the 
record of proceeding of any particular role that that the beneficiary would play, let alone any 
(b)(6)
NON-P RECEDENT DECISION 
Page 9 
persuasive evidence of particular work that he would perform, the period of such work, and the 
nature and educational level of any highly specialized knowledg� that the beneficiary would apply 
in any specific specialty for the period of employment specified in the petition. Strictly on the basis 
of the extent and quality of the totality of the evidence in the record of proceeding, we find that, in 
context with the nature of the petitioner's business, the weakness and unpersuasive weight of the 
overall evidence both regarding the claimed in-house project to which it is asserted that the 
beneficiary would be assigned, its duration and also regarding the substantive nature and duration 
of any work that the beneficiary would actually perform with regard to that project, renders it 
impossible for us to reasonably conclude what work, if any, the beneficiary would actually perform 
at any particular location or for any particular duration if this petition were approved. Accordingly, 
without further information, the evidence regarding the project for which the beneficiary would be 
assigned is of limited probative value. 
In addition, the documentation provided does not establish that, at the time of the instant H-1B 
filing, there was sufficient specialty occupation work to be done by the beneficiary were the H-1B 
approved. In response to the RFE, the petitioner's counsel at the time maintained that the 
petitioner's Business Integration Software Product was "currently in the development stage," had 
"not been deployed to any future customers," and the petitioner had "not signed any contracts with 
future customers to utilize the product as all of its features and applications are not fully developed 
or tested." The record of proceeding in this matter provides an inadequate factual basis to determine 
that, at the time of the petition's filing, the petitioner had secured for the beneficiary definite, non­
speculative work conforming to the petition's description of the proffered position. 
users regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.P.R. § 103.2(b)(1). A visa petition may not be 
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg. Comm'r 1978). Moreover, the burden of proving eligibility for the benefit sought remains 
entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has thus not 
established that, at the time the petition was submitted, it had secured work for the beneficiary that 
would entail performing the duties as described in the petition and that was reserved for the beneficiary 
for the duration of the period requested. 
The petitioner must establish eligibility at the time of filing the nonimmigrant visa petitiOn. 
8 C.P.R. § 103.2(b )(1). The agency made clear long ago that speculative employment is not 
permitted in the H-lB program. For example, a 1998 proposed rule documented this position as 
follows: 
Historically, the Service has not granted H-1B classification on the basis of 
speculative, or undetermined , prospective employment. The H-1B classification is 
not intended as a vehicle for an alien to engage in a job search within the United 
States, or for employers to bring in temporary foreign workers to meet possible 
workforce needs arising from potential business expansions or the expectation of 
potential new customers or contracts. To determine whether an alien is properly 
(b)(6)
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NON-P RECEDENT DECISION 
classifiable as an H -1B nonimmigrant under the statute, the Service must first 
examine the duties of the position to be occupied to ascertain whether the duties of 
the position require the attainment of a specific bachelor's degree. See section 214(i) 
of the Immigration and Nationality Act (the "Act"). The Service must then 
determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this 
two-prong analysis and, therefore, is unable to adjudicate properly a request for H-
1B classification. Moreover, there is no assurance that the alien will engage in a 
specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419- 30420 (June 4, 1998). 
Without additional information describing the specific duties the petitioner requires the beneficiary 
to perform, as those duties relate to specific projects, users is unable to discern the nature of the 
position and whether the position indeed qualifies as a specialty occupation. Without a meaningful 
job description within the context of non-speculative employment, the petitioner may not establish 
any of the alternate criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). The duties as described by the 
petitioner do not establish that the work proposed for the beneficiary actually exists. USCIS 
regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the 
time the petition is filed. See 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based on 
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new 
set of facts. See Matter of Michelin Tire Corp. 17 I&N Dec. at 248. 
n. Regarding the Position and its Duties, as Described in the Record of 
Proceeding 
We also find that the record does not establish relative complexity, specialization and/or uniqueness 
as distinguishing aspects of either the proposed duties or the position that they are said to comprise. As 
evident in the job description quoted above, the record of proceeding presents the duties comprising the 
proffered position in terms of relatively abstract and generalized functions. More specifically, they 
lack sufficient detail and concrete explanation to establish the substantive nature of the work and 
associated applications of specialized knowledge that their actual performance would require within 
the context of the petitioner's particular business operations. Take for example the following duty 
description: 
Must analyze user requirements and also researching, designing and writing new 
software programs 
The evidence of record contains neither substantive explanation nor documentation showing the range 
and volume of the user requirements and software programs for which the beneficiary must analyze, 
research, design, and write. Likewise, the petitioner does not provide substantive information with 
regard to the particular work, methodologie s, and applications of knowledge that would be requited for 
the above-referenced duty. 
(b)(6)
NON-PR ECEDENT DECISION 
Page 11 
Overall, we find that the description of the duties of the proffered position does not adequately 
convey the substantive work that the beneficiary will perform within the petitioner's business 
operations. The description of the beneficiary's duties lacks the specificity and detail necessary to 
support the petitioner's assertion that the proffered position qualifies as a specialty occupation. 
Thus, we conclude that, as generally described as all of the elements of the constituent duties ar.e, 
they do not - even in the aggregate - establish the nature of the position or the nature of the 
position's duties as more complex, specialized, and/or unique than those of Programmer Analyst 
positions that do not require the services of a person with at least a bachelor's degree in a specific 
specialty, or the equivalent. 
The material deficiencies in the evidentiary record are decisive in this matter and they conclusively 
require that the appeal be dismissed. However, we will continue our analysis in order to apprise the 
petitioner of additional deficiencies in the record that would also require dismissal of this appeal. 
Assuming for the sake of argument that the proffered duties as generally described by the petitioner 
in its initial letter and in response to the RFE would in fact be the duties of a programmer analyst, 
we will analyze this occupation and the evidence of record to determine whether the position of a 
programmer analyst as generally described would qualify as a specialty occupation. 
C. Application of the Criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 
Having made the above preliminary findings, we turn now to the application of each supplemental, 
alternative criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A) to the evidence in this record of proceeding. 
We will first discuss the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(l), which is satisfied by 
establishing that a baccalaureate or higher degree, or its equivalent, in a specific specialty is 
normally the minimum requirement for entry into the particular position that is the subject of the 
petition. 
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 it addresses.1 As noted above, the petitioner submitted an LCA in support of this 
position certified for a job offer located within the "Computer System Analysts" occupational 
category. 
The Handbook's discussion of the duties and educational requirements of the Computer System 
Analysts occupational group states, in pertinent part, the following: 
Computer System Analysts typically do the following: 
1 The Handbook, which is available in printed form, may also be accessed online at 
http://www.bls.g ov/ooh. Our references to the Handbook are from the 2014-15 edition available on line. 
(b)(6)
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NON-PRECEDENT DECISION 
• Consult with managers to determine the role of the IT system in an 
organization 
• Research emerging technologies to decide if installing them can increase the 
organization's efficiency and effectiveness 
• Prepare an analysis of costs and benefits so that management can decide if 
information systems and computing infrastructure upgrades are financially 
worthwhile 
• Devise ways to add new functionality to existing computer systems 
• Design and develop new systems by choosing and configuring hardware and 
software 
• Oversee the installation and configuration of new systems to customize them 
for the organization 
• Conduct testing to ensure that the systems work as expected 
• Train the systems end users and write instruction manuals 
*** 
Many computer systems analysts are general-purpose analysts who develop new 
systems or fine-tune existing ones; however, there are some specialized systems 
analysts. The following are examples of types of computer systems analysts: 
Systems designers or systems architects specialize in helping organizations choose a 
specific type of hardware and software system. They translate the long-term 
business goals of an organization into technical solutions. Analysts develop a plan 
for the computer systems that will be able to reach those goals. They work with 
management to ensure that systems and the IT infrastructure are set up to best serve 
the organization's mission. 
Software quality assurance (QA) analysts do in-depth testing of the systems they 
design. They run tests and diagnose problems in order to make sure that critical 
requirements are met. QA analysts write reports to management recommending 
ways to improve the system. 
Programmer analysts design and update their system's software and create 
applications tailored to their organization's needs. They do more coding and 
debugging than other types of analysts, although they still work extensively with 
management and business analysts to determine what business needs the applications 
are meant to address. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Computer System Analysts," http://www .bls.gov/ooh/computer-and-information-technology/ 
computer-systems-analysts.htm#tab-2 (last visited May 13, 2015). 
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Page 13 
The Handbook states the following with regard to the educational requirements necessary for 
entrance into this field: 
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 
programmmg. 
Most computer system 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. 
* * * 
Although many computer system 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. 
/d. at http://www.bls.gov/ooh/computer-and-information-technology/computer-systems-analysts. 
htm#tab-4 (last visited May 13, 2015). 
These statements from the Handbook do not indicate that at least a bachelor's degree in a specific 
specialty or its equivalent is normally required for entry into this occupational category. First, the 
Handbook's statement that "most" computer systems analysts have a bachelor's degree in a 
computer-related field is not the same as stating that such a degree is a minimum entry requirement. 
Second, even if most computer systems analyst positions required such a degree, the first definition 
of "most" in Webster's New College Dictionary 731 (Third Edition, Hough Mifflin Harcourt 2008) 
is "[g]reatest in number, quantity, size, or degree." As such, if merely 51% of systems analyst 
positions require at least a bachelor's degree or a closely related field, it could be said that "most" 
system analyst positions require such a degree. It cannot be found, therefore, that a particular 
degree requirement for "most" positions in a given occupation equates to a normal minimum entry 
requirement for that occupation, much less for the particular position proffered by the petitioner. 
Instead, a normal minimum entry requirement is one that denotes a standard entry requirement but 
recognizes that certain, limited exceptions to that standard may exist. To interpret this provision 
otherwise would run directly contrary to the plain language of the Act, which requires in part 
"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." Section 214(i)(l) of the Act. 
Additionally, while the Handbook indicates that a bachelor's degree in a computer or information 
science field is common, the Handbook does not report that such a degree is normally a minimum 
requirement for entry. In fact, the Handbook continues by stating that some firms hire analysts with 
business or liberal arts degrees who know how to write computer programs. According to the 
Handbook, many systems analysts have liberal arts degrees and have gained programming or 
(b)(6)
NON-PR ECEDENT DECISION 
Page 14 
technical expertise elsewhere. The Handbook reports that many analysts have technical degrees but 
does not specify a degree level (e.g., associate's degree, baccalaureate) for these technical degrees. 
When reviewing the Handbook, it also must be noted that the petitioner designated the proffered 
position as a Level I (entry level) position on the LCA. 2 The wage levels are defined in DOL's 
"Prevailing Wage Determination Policy Guidance."3 A Level I wage rate is described as follows: 
Level l (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. 
Thus, in designating the proffered position at a Level I wage, the petitioner has indicated that the 
proffered position is a comparatively low, entry-level position relative to others within the 
occupation. That is, in accordance with the relevant DOL explanatory information on wage levels, 
this wage rate indicates that the beneficiary is only required to have a basic understanding of the 
occupation and carries expectations that the beneficiary perform routine tasks that require limited, if 
any, exercise of judgment; that he would be closely supervised; that his work would be closely 
monitored and reviewed for accuracy; and that he would receive specific instructions on required 
tasks and expected results. Based upon the petitioner's designation of the proffered position as a 
2 Wage levels should be determined only after selecting the most relevant O*NET code classification. Then, 
a prevailing wage determination is made by selecting one of four wage levels for an occupation based on a 
comparison of the employer's job requ irements to the occupational requirements, including tasks, knowle dge, 
skills , and specific vocational preparation (education, training and experience) generall y required for 
acceptable performance in that occupa tion. 
3 Prevailing wa ge determinations start with a Level I (entry) and progress to a wage that is commensurate 
with that of a Level II (qua lified), Level III (experienced), or Level IV (fully competent) after considering the 
job requirements, experience, education, special skill s/other requ irements and supervisory duties. Factors to 
be considered when determining the prevailing wage level for a position include the complexity of the job 
duties, the level of ju dgment, the amount and level of supervision, and the level of understanding required to 
perform the job du ties. DOL emphasizes that these guidelines should not be implemented in a mechanical 
fashion and that the wage level should be commensurate with the complexity of the tasks, independent 
ju dgment required, and amou nt of close supervision received. 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
Level I (entry) position, it does not appear that the beneficiary will be expected to serve in a senior 
or leadership role. As noted above, according to DOL guidance, a statement that the job offer is for 
a research fellow, worker in training or an internship is indicative that a Level I wage should be 
considered. 
Additionally, given the Handbook's indication that computer systems analysts positions do not 
normally require at least a bachelor's degree in a specific specialty, or the equivalent, for entry, it is 
not credible that a position involving limited, if any, exercise of independent judgment, close 
supervision and monitoring, receipt of specific instructions on required tasks and expected results, 
and close review would contain such a requirement. 
On appeal, the petitioner cites the Dictionary of Occupational Titles (hereinafter the DOT). 
However, the DOT does not support the assertion that assignment of an SVP rating of 7 is indicative 
of a specialty occupation. This conclusion is apparent upon reading Section II of the DOT's 
Appendix C, Components of the Definition Trailer, which addresses the Specific Vocational 
Preparation (SVP) rating system.4 The section reads: 
II. SPECIFIC VOCATIONAL PREPARATION (SVP) 
Specific Vocational Preparation is defined as the amount of lapsed time required by a 
typical worker to learn the techniques, acquire the information, and develop the 
facility needed for average performance in a specific job-worker situation. 
This training may be acquired in a school, work, military, institutional, or vocational 
environment. It does not include the orientation time required of a fully qualified 
worker to become accustomed to the special conditions of any new job. Specific 
vocational training includes: vocational education, apprenticeship training, in-plant 
training, on-the-job training, and essential experience in other jobs. 
Specific vocational training includes training given in any of the following 
circumstances: 
a. Vocational education (high school; commercial or shop training; technical school; 
art school; and that part of college training which is organized around a specific 
vocational objective); 
b. Apprenticeship training (for apprenticeable jobs only); 
c. In-plant training (organized classroom study provided by an employer); 
d. On-the-job training (serving as learner or trainee on the job under the instruction 
4 The Ap pendix can be found at the following Internet website: http://www.oalj.dol .gov/PUBqC /DOT/ 
REFERENCES/DOT AP PC.HTM. 
(b)(6)
Page 16 
NON-.P REC�JJENT DECISION 
of a qualified worker); 
e. Essential experience in other jobs (serving in less responsible jobs which lead to 
the higher grade job or serving in other jobs which qualify). 
The following is an explanation of the various levels of specific vocational 
preparation: 
Level Time 
1 Short demonstration only 
2 Anything beyond short demonstration up to and including 1 month 
3 Over 1 month up to and including 3 months 
4 Over 3 months up to and including 6 months 
5 Over 6 months up to and including 1 year 
6 Over 1 year up to and including 2 years 
7 Over 2 years up to and including 4 years 
8 Over 4 years up to and including 10 years 
9 Over 10 years 
Note: The levels of this scale are mutually exclusive and do not overlap. 
Thus, an SVP rating of 7 does not indicate that at least a four�year bachelor's degree is required, or 
more importantly, that such a degree must be in a specific specialty closely related to the occupation 
to which this rating is assigned. Therefore, the DOT information is not probative of the proffered 
position being a specialty occupation. 
Nor does the record of proceeding contain persuasive evidence from any other relevant authoritative 
source establishing that the proffered position's inclusion within the computer system analyst 
occupational group is sufficient in and of itself to establish the proffered position as, in the words of 
this criterion, a "particular position" for which "[ a] baccalaureate or higher degree or its equivalent 
is normally the minimum requirement for entry." 
As the evidence in the record of proceeding does not establish that at least a baccalaureate degree in 
a specific specialty, or its equivalent, is normally the minimum requirement for entry into the 
particular position that is the subject of this petition, the petitioner has not satisfied the criterion 
described at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1). 
Next, the evidence of record does not satisfy 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 sharing all three characteristics of being (1) within the petitioner's industry, (2) parallel to 
the proffered position, and also (3) located in organizations that are similar to the petitioner. 
(b)(6)
NON-PRECEDENT DECISIO N 
Page 17 
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 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.Minn. 
1999) (quoting Hir d/Blaker Cmp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
Here and as already discussed, the petitioner has not established that its proffered position is one for 
which the Handbook reports an industry-wide requirement for at least a bachelor's degree in a specific 
specialty or its equivalent. Nor are there any submissions from a professional association in the 
petitioner's industry stating that individuals employed in positions parallel to the proffered position are 
routinely required to have a minimum of a bachelor's degree in a specific specialty or its equivalent for 
entry into those positions. Nor has the petitioner submitted any letters or affidavits from firms or 
individuals in the industry attesting that such firms "routinely employ and recruit only degreed 
individuals. 
Nor do the job-v acancy announcements referenced by the petitioner on appeal satisfy this 
alternative prong of 8 C.P.R. § 214.2(h)( 4)(iii)(A)(2). While the petitioner has provided hyperlinks 
to three job openings, we note that hyperlinks do not suffice to satisfy this criterion. Copies of the 
referenced job postings have not been provided and the hyperlinks provided no longer reference any 
open job positions. In making a determination of statutory eligibility, users is limited to the 
information contained in the record of proceeding. See 8 C.P.R. § 103.2(b)( 16)(ii). Furthermore, 
going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. 
Irrespective of the fact that the job-vacancy announcements referenced by the petitioner on appeal 
were not provided, we make several specific findings. First, we note that pursuant to 8 C.P.R. 
§ 214:2(h)(4)(iii)(A)(2), the petitioner must establish that "the degree requirement is common to the 
industry in parallel positions among similar organizations (emphasis added)." As we noted above, for 
the petitioner to establish that an organization is similar, it must demonstrate that the petitioner and 
the organization share the same general characteristics. The petitioner, however, did not submit 
evidence that the organizations advertising were similar to the petitioner. Notably, the petitioner did 
not provide any independent evidence of how representative these job advertisements are of the 
particular advertising employers' recruiting history for the type of jobs advertised. Again, the 
language of this prong limits the range of relevant evidence to the petition-pertinent industry's 
practices (stating "[t]he degree requirement" as one that would be "common to the industry" as well 
as "in parallel positions among similar organizations.") 
Furthermore while the · advertisements referenced by the petitiOner ostensibly bear the title 
"Programmer Analyst," the job title of the position, it is the nature of the duties comprising the 
advertised. positions that would determine whether those positions are in fact parallel to the 
proffered position. However, without submitting the advertisements into the record, the petitioner 
has not established thatth e advertised positions are substantially similar to the proffered position's 
duties as stated in the petitioner's letters. 
(b)(6)
NON-PRE CEDENT DECISION 
Page 18 
As the hyperlinks provided by the petitioner are not probative evidence towards satisfying this 
criterion, further analysis is not necessary. 
Thus, the petitioner has not satisfied the first of the two alternative prongs of 8 C.F .R. 
§ 214.2(h)(4)(iii)(A)(2), as the evidence of record does not establish that a requirement of a 
bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions sharing 
all three characteristics of being (1) within the petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the petitioner. 
Next, the evidence of record does not satisfy the second alternative prong of 
8 C.P.R. § 214.2(h)(4)(iii)(A)(2), which provides that "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." 
As discussed in detail above, we find that the evidence in the record of proceeding does not develop 
relative complexity or uniqueness as aspects of the proffered position, let alone as aspects that 
would distinguish the proffered position from positions located within the Computer Systems 
Analysts occupational group that can be performed by persons without at least a bachelor's degree, 
or the equivalent, in a specific specialty. In this regard, we refer the petitioner to our earlier 
discussion and findings about the record's descriptions of the proffered position and its proposed 
duties - which we incorporate by reference into our analysis here. 
Aside from such evidentiary deficiencies, reliance upon assertions of job complexity or uniqueness 
is further undermined by the fact that the petitioner submitted an LCA certified for a job prospect 
with a wage-level that is only appropriate for a comparatively low, entry-level position relative to 
others within its occupation. We incorporate here by reference and reiterate our earlier discussion 
regarding the LCA and its indication that the petitioner would be paying a wage-rate that is only 
appropriate for a low-level, entry position relative to others within the occupation: this factor is 
inconsistent with the level of relative complexity or uniqueness required to satisfy this criterion. 
Based upon the wage rate selected by the petitioner, the beneficiary is only required to have a basic 
understanding of the occupation. Moreover, that wage rate indicates that the beneficiary will 
perform routine tasks requiring limited, if any, exercise of independent judgment; that the 
beneficiary's work will be closely supervised and monitored; that he will receive specific 
instructions on required tasks and expected results; and that his work will be reviewed for accuracy. 
As the evidence of record therefore does not establish how the beneficiary's responsibilities and 
day-to-day duties comprise a position so complex or unique that the position can be performed only 
by an individual with at least a bachelor's degree in a specific specialty or its equivalent, the 
petitioner has not satisfied the second alternative prong at 8 C.P.R. § 214.2(h)(4)(iii)(A)(2). 
We turn next to the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(3 ), which entails an employer 
demonstrating that it normally requires a bachelor's degree in a specific specialty or its equivalent 
for the position. 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
To satisfy this criterion, the record must contain documentary evidence demonstrating that the 
petitioner has a history of requiring the degree or degree equivalency, in a specific specialty, in its prior 
recruiting and hiring for the position. Additionally, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates but 
is necessitated by the performance requirements of the proffered position.5 
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 Def ensor 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"). Here, the petitioner has not 
established the referenced criterion at 8 C.P.R. § 214.2(h)(4)(iii){A){3) based on its normal hiring 
practices. 
To satisfy this criterion, the record must establish that the specific performance requirements of the 
position generated the recruiting and hiring history. A petitioner's perfunctory declaration of a 
particular educational requirement will not mask the fact that the position is not a specialty 
occupation. USCIS must examine the actual employment requirements and, on the basis of that 
examination, determine whether the position qualifies as a specialty occupation. See generally 
Def ensor v. Meissner, 201 F.3d 384. In this pursuit, the critical element is not the title of the 
position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of 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 or its equivalent as the minimum for entry into the occupation as required by 
section 214(i)(l) of the Act. According to the court in Defensor, "To interpret the regulations any 
other way would lead to an absurd result." I d. at 388. If USCIS were constrained to recognize a 
specialty occupation merely because the petitioner has an established practice of demanding certain 
educational requirements for the proffered position - and without consideration of how a 
beneficiary is to be specifically employed - then any alien with a bachelor's degree in specific 
specialty could be brought into the United States to perform non-specialty occupations, so long as 
the employer required all such employees to have baccalaureate or higher degrees. See id. 
With respect to this criterion, the petitioner states on appeal that it has previously employed 
personnel in the same position as the proffered position and in support, the petitioner provides two 
receipt numbers corresponding to H-lB petitions for said employees. The petitioner did not, 
however, submit copies of the prior H -lB petitions and the respective supporting documents, 
5 Any such assertion would be undermined in this particular case by the fact that the petitioner indicated in 
the LCA that its proffered position is a comparatively low, entry-level position relative to others within the 
same occupation. 
(b)(6)
NON-PR ECEDENT DECISION 
Page 20 
including the approval notices.6 Moreover, the petitiOner does not provide documentation to 
demonstrate the day-to-day responsibilities of the two individuals that it claims work in the same 
position as the proffered position. The petitioner did not provide any information regarding the 
complexity of the job duties, supervisory duties (if any), independent judgment required or the 
amount of supervision received for the approved petitions. Accordingly, it is unclear whether the 
duties and responsibilities of the positions referenced by the petitioner would be the same or similar 
to the proffered position. Nor does the record contain paystubs or other evidence to demonstrate 
that these individuals actually worked for the petitioner. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. at 165. As the record of proceeding does not contain 
sufficient evidence of the prior petitions to determine whether they are the same position, including 
job description, there are no underlying facts to be analyzed and, therefore, no substantive reasons 
to explain why deference to the approval of the prior H-lB petitions is warranted. 
We reviewed the record of proceeding but find that the petitioner has not provided sufficient 
corroborating probative evidence to establish that it normally requires at least a bachelor's degree in 
a specific specialty, or its equivalent, for the proffered position. Moreover, we reiterate that the 
critical element is not the title of the position, or the fact that an employer has routinely insisted on 
certain educational standards, but whether performance of 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 or its equivalent as the minimum for 
entry into the occupation as required by section 214(i)(l) of the Act. The petitioner has not 
provided this evidence. Thus, the petitioner has not satisfied the third criterion of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
6 Nevertheless, even if this evidence had been submitted and even if it had been determined that the facts in 
those cases were analogous to those in this proceeding, those decisions would not be binding on USCIS. 
While 8 C.F.R. § 103.3( c) provides that this office 's precedent decisions are binding on all USCIS employees 
in the administration of the Act, unpub lished decisions are not similarly binding. Moreover, if the previous 
nonimmigrant petitions were approved based on the same unsupported and contradictory assertions that are 
contained in the current record, the approvals would constitute material and gross error on the part of the 
director. We are not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm'r 19 88). It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 
825 F.2d 1084, 1090 (6th Cir. 19 87), cert. denied, 485 U.S. 1008 (1 988). 
Furthermore, this office's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions, we 
would not be bound to follow the contradictory decision of a service center. Louisiana Phi lharmonic 
Orchestra v. INS, 2000 WL 282785 (E .D. La.), aff'd, 248 F.3d 11 39 (5th Cir. 2001), cert. denied, 12 2 S.Ct. 
51 (200 1). 
(b)(6)
NON-PRECEDENT DECISION 
Page 21 
Next, the evidence of record does not satisfy the criterion at 8 C.F .R. § 214.2(h)(4)(iii)(A)(4), which 
requires the petitioner to establish that the nature of the proffered position's 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 the specific specialty or its equivalent. 
As reflected in this decision's earlier discussion, the proposed duties as described in the record of 
proceeding contain no indication of specialization and complexity such· that the knowledge they 
would require is usually associated with any particular level of education in a specific specialty or 
its equivalent. As generically and generally as they were described, the duties of the proposed 
position are not presented with sufficient detail and explanation to establish the substantive nature 
of the duties as they would be performed in the specific context of the petitioner's particular 
business operations. Also as a result of the generalized and relatively abstract level at which the 
duties are described, the record of proceeding does not establish their nature .as so specialized and 
complex relative to other positions within the same occupation as to require knowledge usually 
associated with at least a bachelor's degree in a specific specialty, or the equivalen t. We 
incorporate into the analysis of this criterion this decision's earlier comments and findings with 
regard to the generalized level at which the duties are described in the record. The evidence of 
record does not develop the duties in sufficient detail to establish their nature as so specialized and 
complex that their performance would require knowledge usually associated with the attainment of 
at least a bachelor's degree in a specific specialty. 
Additionally, we find that both on its own terms and also in comparison with the three higher 
wage-Jevels that can be designated in an LCA, by the submission of an LCA certified for a 
wage.:.tevel I, the petitioner effectively attests that the proposed duties are of relatively low 
complexity as compared to others within the same occupational category. This fact is materially 
inconsistent with the level of complexity required by this criterion. 
For all of these reasons, the evidence in the record of proceeding does not establish that the 
proposed duties meet the specialization and complexity threshold at 8 C.F.R. 
§ 21 4.2(h)(4)(iii)(A)( 4). 
Finally, we note that the petitioner cites to Young China Daily v Chappell, 742 F. Supp. 552 
(N.D. Cal. 19 89) on appeal� and states that the director erroneously focused on the size of the 
petitioner in reviewing the petition and reaching her decision. However, the director did not 
mention the size of the petitioner's business in her decision denying the petition. 
Nevertheless, while we concur that USCIS should not limit its review to the size of a petitioner and 
must consider the actual responsibilities of the proffered position, we also note that it is reasonable 
to assume that the size .of an employer's business has or could have an impact on the claimed duties 
of a particular position. Se� EG Enterprise::,� in c. d/b/a! Mexican Wholesale Grocery v. Department 
of Homeland Security, 467 F. Supp. 2d 728 (E. D. Mich. 2006). Thus, the size of a petit ioner may 
be considered as a component of the nature of the petitioner 's business, as the size impacts upon the 
actual duties of a particular position. 
(b)(6)
NON-PRECEDENT DECISION 
Page 22 
The petitioner's reliance on Young China Daily is therefore not persuasive. Regardless, in contrast 
to the broad precedential authority of the case law of a United States circuit court, we are not bound 
to follow the published decision of a. United States district court in matters arising within the same 
district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the reasoning underlying a 
district judge's decision will be given due consideration when it is properly before us, the analysis 
does not have to be followed as a matter of law. !d. at 719. 
As the petitioner has not satisfied at least one of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A), it 
cannot be found that the proffered position is a specialty occupation. 
IV. CONCLUSION AND ORDER 
For the reasons discussed above, we conclude that the evidence of record does not establish that the 
proffered position qualifies for classification as a specialty occupation and that there is sufficient 
work for the beneficiary for the requested period of intended employment. We therefore agree with 
the director's decision denying this petition.7 
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 of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
7 As the grounds discussed above are dispositive of the petitioner's eligibility for the benefit sought in this 
matter, we will not address and will instead reserve our determination on the additional issues and 
deficiencies that we observe in the record of proceeding with regard to the approval of the H-lB petition.