dismissed H-1B Case: Computer Science

(b)(6)
DATE: JUN 0 8 2015 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service! 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
NO REPRESENTATIVE OF RECORD 
INSTRUCTIONS: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.P.R. § 103.5. 
Motions 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 latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
www. uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petitiotl: The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
I. INTRODUCTION 
On the Form 1-129 visa petition, the petitioner describes itself as a six-employee consulting 
company established in In order to employ the beneficiary in what it designates as a 
programmer analyst position at a salary of $68,000 per year/ the petitioner seeks to classify her 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, concluding that the evidence of record did not establish that (1) the 
petitioner would have an employer-employee relationship with the beneficiary and (2) the proffered 
position qualifies as a specialty occupation position. 
The record of proceeding before us contains the following: (1) the Form 1-129 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) Forms I-290B, Notice of Appeal or 
Motion, and supporting documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the director's bases for denying this petition. Accordingly, the appeal will be dismissed, and the 
petition will be denied. 
II. STANDARD OF REVIEW 
In the exercise of our administrative review in this matter, as in all matters that come within our 
purview, the AAO follows the preponderance of the evidence standard as specified in the 
controlling precedent decision, Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), unless the law 
specifically provides that a different standard applies. In pertinent part, that decision states the 
following: 
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. 
1 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was certified 
for use with a job prospect within the "Computer Systems Analysts" occupational classification, 
SOC (O*NET/OES) Code 15-1121, and a Level I (entry-level) prevailing wage rate, the lowest of the four 
assignable wage-levels. 
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NON-PRECEDENT DECISION 
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. 
!d. at 375-76. 
We conduct our review of service center decisions on a de novo basis. See Soltane v. DOl, 381 
F.3d at 145. In doing so, as noted above, we apply the preponderance of the evidence standard as 
outlined in Matter of Chawathe. Upon our review of the present matter pursuant to that standard, 
however, we find that the evidence in the record of proceeding does not support counsel's 
contentions that the evidence of record requires that the petition at issue be approved. Applying the 
preponderance of the evidence standard as stated in Matter of Chawathe, we find that the director's 
grounds for denial were correct. Upon our review of the entire record of proceeding, and with close 
attention and due regard to all of the evidence, separately and in the aggregate, submitted in support 
of this petition, we find that the petitioner has not established that its claims are "more likely than 
not" or "probably" true. As the evidentiary analysis of this decision will reflect, the petitioner has 
not submitted relevant, probative, and credible evidence that leads us to believe that its claims are 
"more likely than not" or "probably" true. 
III. PRELIMINARY OBSERVATIONS 
A. Basis for the Appeal 
The director provided a detailed analysis and specifically cited the deficiencies in the evidence in 
the course of the denial. Although we acknowledge that the petitioner asserts that the position is a 
specialty occupation and that it has an employer-employee relationship with the beneficiary, the 
petitioner's statement does not specifically identify any errors on the part of the director. The 
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petitioner fails to specify how the director made any erroneous conclusion of law or statement of 
fact in denying the petition? For this reason alone, the appeal must be dismissed. However, 
because the petitioner submitted a letter with the appeal from the end-client, we will 
nevertheless analyze the evidence of the record to determine whether it overcomes the director's 
bases for denying this petition. 
B. Inconsistent Information 
We further note that the petitioner has provided inconsistent information regarding the beneficiary's 
employment location. On the Form I-129, the petitioner stated that the beneficiary will not work off­
site3 and left the box for employment location blank, indicating the employment work address is the 
same as the petitioner's address stated in Part I of the petition, which was " 
" The petitioner subsequently contacted USCIS via telephone, and 
updated its address, and presumably the beneficiary's work location, to 
"4 In response to the director's RFE, the petitioner submitted a letter from 
president of 
_ 
, in which Mr. stated that the beneficiary 
will work off-site at office located at " The 
petitioner provided no explanation for these inconsistencies. When a petition includes numerous errors 
and discrepancies, those inconsistencies will raise serious concerns about the veracity of the 
petitioner's assertions. Doubt cast on any aspect of the petitioner's proof may undermine the reliability 
and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N 
Dec. 582, 591 (BIA 1988). 5 
IV. EMPLO YER- EMPL OYEE RELATIONSHIP 
Upon review of the record, we agree with the director that the evidence of record does not establish 
that the petitioner meets the regulatory definition of a United States employer. 8 C.P.R. 
§ 214.2(h)( 4)(ii). Specifically, the evidence of record does not establish that the petitioner will have 
"an employer-employee relationship with respect to employees under this part, as indicated by the 
fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee." Id. 
Section 10l(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant in pertinent part as an alien: 
2 An officer to whom an appeal is taken shall summarily dismiss any appeal when the party concerned fails 
to identify specifically any erroneous conclusion of law or statement of fact for the appeal. 8 C.F.R. 
§ 103.3(a)(l)(v). 
3 On the Form I-129, the petitioner checked the box "No" to the question of whether the beneficiary would 
work off-site. 
4 Public records indicate that this address is a single-family residence. 
5 In addition, the uncertainty regarding the beneficiary's actual employment location calls into question the 
validity of the LCA. 
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NON-PRECEDENT DECISION 
subject to section 212G)(2), who is coming temporarily to the United States to 
perform services .. . in a specialty occupation described in section 214(i)(1) .. 
. , who meets the requirements for the occupation specified in section 214(i)(2) .. 
. , and with respect to whom the Secretary of Labor determines and certifies to the 
[Secretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 212(n)(1) ... . 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
The record is not persuasive in establishing that the petitioner will have an employer-employee 
relationship with the beneficiary. 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the H­
lB visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an alien coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(l) of the 
Act, 8 U.S.C. § 1182(n)(l) (2012). The intending employer is described as offering full-time or part­
time "employment" to the H-1B "employee." Subsections 212(n)(1)(A)(i) and 212(n)(2)(C)(vii) of the 
Act, 8 U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that "United 
States employers" must file a Petition for a Nonimmigrant Worker (Form I-129) in order to classify 
aliens as H-1B temporary "employees." 8 C.F.R. § 214.2(h)(1), (2)(i)(A). Finally, the definition of 
"United States employer" indicates in its second prong that the petitioner must have an "employer­
employee relationship" with the "employees under this part," i.e., the H-1B beneficiary, and that this 
relationship be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control 
the work of any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States 
employer"). 
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Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (USCIS) defined the terms "employee" or "employer-employee relationship" by 
regulation for purposes of the H-1B visa classification, even though the regulation describes H-1B 
beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." /d. Therefore, for purposes of the H-1B visa classification, these terms are 
undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. 
Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for Creative Non­
Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common 
law of agency, we consider the hiring party's right to control the manner and means 
by which the product is accomplished. Among the other factors relevant to this 
inquiry are the skill required; the source of the instrumentalities and tools; the 
location of the work; the· duration of the relationship between the parties; whether 
the hiring party has the right to assign additional projects to the hired party; the 
extent of the hired party's discretion over when and how long to work; the method 
of payment; the hired party's role in hiring and paying assistants; whether the work 
is part of the regular business of the hiring party; whether the hiring party is in 
business; the provision of employee benefits; and the tax treatment of the hired 
party." 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, .. , all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. of America, 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.6 
6 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee,' clearly 
indicates legislative intent to extend the definition beyond the traditional common law definition." See, e.g., 
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Specifically, the regulatory definition of "United States employer" requires H-lB employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-lB "employee." 8 C.P.R.§ 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-lB employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.P.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at 318 -319? 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 10l(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.P.R.§ 214.2(h).8 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-lB nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 8 
Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), ajfd, 27 F.3d 800 (2nd Cir.), cert. 
denied, 513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, ''employment" in section 212(n)( 1)(A)(i) of the Act, or "employee" in 
section 212(n)(2)(C)(vE) of the Act beyond the traditional common law definitions. Instead, in the context 
of the H-1B visa classification, the term "United States employer" was defined in the regulations to be even 
more restrictive than the common law agency definition. A federal agency's interpretation of a statute whose 
administration is entrusted to it is to be accepted unless Congress has spoken directly on the issue. See 
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
7 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee 
relationship," the agency's interpretation of these terms should be found to be controlling unless '"plainly 
erroneous or inconsistent with the regulation. "' Auer v. Robbins, 519 U.S. 452, 461 (1997) (citing Robertson 
v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 12 15, 12 17, 89 LEd. 1700 
(1945)). 
8 That said, there are instances in the Act where Congress may have intended a broader application of the 
term "employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 
214(c)(2)(F) of the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and 
controlling L-1B intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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C.P.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency§ 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" of H-lB nurses under 8 C.F.R. § 214.2(h), 
even though a medical contract service agency is the actual petitioner, because the hospitals ultimately 
hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-449; New Compliance Manual at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. 
at 323-324. For example, while the assignment of additional projects is dependent on who has the 
right to assign them, it is the actual source of the instrumentalities and tools that must be examined, 
and not who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' Id. at 451 (quoting Darden, 503 U.S. at 324). 
Applying the Darden and Clackamas tests to this matter, the evidence of record does not establish 
that the petitioner will be a "United States employer" having an "employer-employee relationship" 
with the beneficiary as an H-lB temporary "employee." 
The petitioner states that the beneficiary will work at the end-client, pursuant to a contract 
between , the middle-client, and However, the record 
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does not contain any contracts between between the petitioner and , or 
between the petitioner and Although we 'acknowledge the letters submitted by _ and 
the record does not contain probative evidence such as master agreements and statements of 
work outlining in detail the nature and scope of the beneficiary's employment at the end-client's 
location.9 Therefore, the key element in this matter, which is who exercises control over the 
beneficiary, has not been substantiated. While the record contains muitiple assertions from the 
petitioner regarding its claimed right to control the work of the beneficiary, simply 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)). 
While social security contributions, worker's compensation contributions, unemployment insurance 
contributions, federal and state income tax withholdings, and other benefits are still relevant factors 
in determining who will control an alien beneficiary, other incidents of the relationship, e.g., who 
will oversee and direct the work of the beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who has the right or ability to affect the projects to which the 
alien beneficiary is assigned, must also be assessed and weighed in order to make a determination as 
to who will be the beneficiary's employer. Without full disclosure of all of the relevant factors, we 
are unable to find that the requisite employer-employee relationship will exist between the 
petitioner and the beneficiary. We also incorporate here by reference our previous discussion 
regarding the uncertainty over where the beneficiary would actually provide her services. The 
evidence, therefore, is insufficient to establish that the petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). 
Based on the tests outlined above, the evidence of record does not establish that the petitioner will 
be a "United States employer" having an "employer-employee relationship" with the beneficiary as 
an H-1B temporary "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
V. SPECIALTY OCCUPATION 
A. Law 
To meet the petitioner's burden of proof in establishing the proffered position as a specialty 
occupation, the evidence of record must establish that the employment the petitioner 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)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
9 We note further that these letters create no binding obligation on the part of either 
work for the beneficiary to perform. 
to provide 
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(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) 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.F.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. 
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 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 of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.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.F.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.F.R. § 214.2(h)(4)(iii)(A) must therefore be 
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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)(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.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 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 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 business 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 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. Analysis 
Based upon a complete review of the record of proceeding, we agree with the director and find that 
the evidence of the record does not establish that the position as described constitutes a specialty 
occupation. 
In its support letter dated March 31, 2014, the petitioner did not provide any information regarding 
the duties of the proffered position. However, in response to the directors RFE, the petitioner 
submitted a letter dated November 6, 2014, from the middle-client, in which Mr. 
client: 
President, stated that the beneficiary would perform the following duties for the end-
• Analysis of Network Management Systems product suite. 
• Design and Software Development using Java. 
• Debugging of object oriented software. 
• Configuration Management, problem reporting and tracking. 
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• Maintaining existing documentation and create end user documentation. 
On appeal, the petitioner submitted a letter from 
stating the exact same duties. 
the end-client, dated December 4, 2014, 
The proposed duties quoted above are described in terms of generalized and generic functions that 
do not convey sufficient substantive information to establish the relative complexity, uniqueness 
and/or specialization of the proffered position or its duties. The statements provide no insight into 
the beneficiary's actual duties, nor do they include any information regarding the specific tasks that 
the beneficiary will perform in relation to the project on which the beneficiary will work. The 
record does not contain sufficient information regarding the particular work, and associated 
educational requirements, into which the duties would manifest themselves in their day-to-day 
performance within the end client's business operations. 
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 will perform within the petitioner's business operations and, thus, cannot 
be relied upon by a petitioner when discussing the duties attached to specific employment. In 
establishing a position as a specialty occupation, the specific duties and responsibilities to be 
performed by a beneficiary must be described in the context of the petitioner's or the end-client's 
business operations to demonstrate that a legitimate need for an employee exists, and to substantiate 
that the petitioner has H-1B caliber work for the beneficiary for the period of employment requested 
in the petition. 
Furthermore, the record does not contain any information with regard to the order of importance 
and/or frequency of occurrence with which the beneficiary will perform these functions and tasks. 
As a result, the petitioner did not establish the primary and essential functions of the proffered 
position. 
Without a 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 communicate (1) the actual work 
that the beneficiary would 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. 
Nevertheless, assuming, arguendo, that the proffered duties as described by the petitioner's clients 
would in fact be the duties to be performed by the beneficiary, we will nevertheless analyze them 
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 will first address the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l), which is satisfied by establishing that a baccalaureate or higher degree, or 
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its equivalent, in a specific specialty is normally the m1mmum requirement for entry into the 
particular position that is the subject of the petition. 
We recognize the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook (the 
Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
of occupations it -addresses.10 As noted above, the LCA that the petitioner submitted in support of 
this petition was certified for a job offer falling within the "Computer Systems Analysts" 
occupational category. 
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 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. 
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. 
10 The Handbook, which is available in printed form, may also be accessed online at 
http://www.stats.bls.gov/oco/. Our references to the Handbook are from the 2014-15 edition available 
online. 
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U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Computer Systems Analysts," http:// www .bls.gov/ooh/computer-and-information-technology/ 
computer-systems-analysts.htm#tab-4 (last visited May 20, 2015). 
The Handbook does not state a normal minimum requirement of a U.S. bachelor's or higher degree 
in a specific specialty or its equivalent for entry into this occupational category, rather the 
Handbook 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. In fact, this 
chapter specifically states that many computer systems analysts, including programmer analysts, 
may only have liberal arts degrees combined with programming or technical experience, or an 
unspecified "technical degree," which may not even be a bachelor's degree. See id. 
When, as here, the Handbook does not support the proposition that the proffered position satisfies 
this first criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A), it is incumbent upon the petitioner to provide 
persuasive evidence that the proffered position otherwise satisfies the criterion, notwithstanding the 
absence of the Handbook's support on the issue. In such case, it is the petition er's responsibility to 
provide probative evidence (e.g., documentation from other authoritative sources) that supports a 
favorable finding with regard to this criterion. The regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides 
that "[a]n H-1B petition involving a specialty occupation shall be accompanied by [d]ocumentation 
... or any other required evidence sufficient to establish ... that the services the beneficiary is to 
perform are in a specialty occupation." Again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
ofSoffici at 165. 
As we discussed earlier, the evidence in the record of proceeding does not establish that the proffered 
position falls within an occupational category for which the Handbook, or other authoritative source, 
indicates that a requirement for at least a bachelor's degree in a specific specialty, or its equivalent, is 
normally required for entry into the occupation. Furthermore, the duties and requirements of the 
proffered position as described in the record of proceeding do not indicate that the particular position 
that is the subject of this petition is one for which a baccalaureate or higher degree in a specific 
specialty, 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)(l). 
Next, we will review the record of proceeding 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. 
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Here and as already discussed, the evidence of record does not establish that the petitioner's 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. Furthermore, in its support letter, as well as in its RFE 
response letter, the petitioner states the following: 
[T]here is no sense in printing thousands of job postings as it is well established that a 
computer systems analyst/programmer analyst requires a bachelor[']s degree and 
USCIS is well aware that the majority of 1-129 H-1[B] applications filed by information 
technology firms hire individuals with a bachelor[1s degree. 
The petitioner further states that according to the "OFLC 2012 annual report ... 237,267 positions 
certified by Department of [L]abor for the position of computer systems analyst." The petitioner 
states that the amount of labor condition applications certified "proves it is a specialty occupation." 
We disagree. 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL 
regulations note that the U.S. Department of Homeland Security (DHS) (i.e., its immigration 
benefits branch, USCIS) is the department responsible for determining whether the content of an 
LCA filed for a particular Form 1-129 actually supports that petition. See 20 C.F.R. § 655.705(b), 
which states, in pertinent part (emphasis added): 
For H-1B visas ... DHS accepts the employer's petition (DHS Form 1-129) with the 
DOL certified LCA attached. In doing so, the DHS determines whether the petition 
is supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements of H-1B visa classification. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-1B petition filed on behalf of the beneficiary. See also 56 Fed. Reg. 61111, 61112 
(Dec. 2, 1991) ("An approved labor condition application is not a factor in determining whether a 
position is a specialty occupation."). Therefore, the petitioner's reliance on the certified LCA to 
demonstrate that the position is a specialty occupation is misplaced. 
Thus, based upon a complete review of the record, we find that the evidence of record does not 
establish that a requirement for at least a bachelor's 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. 
Thus, for the reasons discussed above, the evidence of record does not satisfy the first alternative 
prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the petitioner shows that its particular position is so complex or unique that it can be 
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performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In the instant case, the evidence of record does not credibly demonstrate relative complexity or 
uniqueness as aspects of the proffered position. Specifically, it is unclear how the programmer analyst 
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. Rather, we find, that, as reflected in this 
decision's earlier quotation of duty descriptions from the record of proceeding, the evidence of 
record does not distinguish the proffered position from other positions falling within the "Computer 
Systems Analysts" occupational category, which, the Handbook indicates, do not necessarily 
require a person with at least a bachelor's degree in a specific specialty or its equivalent to enter 
those positions. 
More specifically, 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. 
For instance, 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. While related courses may be beneficial, or even essential, in performing 
certain duties of a programmer analyst position, the petitioner did not demonstrate how an 
established curriculum of such courses leading to a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is required to perform the duties of the petition er's proffered position. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
The LCA indicates that the position is a low-level (entry-level) position relative to others within the 
occupation. Based upon the wage rate, the beneficiary is only required to perform routine tasks that 
require limited, if any, exercise of judgment. Accordingly, given the Handbook's indication that 
typical positions located within the "Computer Systems Analysts" occupational category do not 
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 exercise of judgment would contain such a requirement. 
Without further evidence, it is simply not credible that the petitioner's proffered position is complex 
or unique compared to other positions within the occupation, as such a position would likely be 
classified at a higher-level, such as a Level IV (fully competent) position, requiring a significantly 
higher prevailing wage. For instance, a Level IV (fully competent) position is designated by DOL 
for employees who "use advanced skills and diversified knowledge to solve unusual and complex 
problems." Even a position involving a Level II wage, which would exceed the complexity of the 
one proposed by the petitioner, would involve only "moderately complex tasks that require limited 
judgment." 
For all of these reasons, it cannot be concluded that the evidence of record satisfies the second 
alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
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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. We 
normally review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position. 
To merit approval of the petition under this criterion, the record must establish that the imposition 
of a degree requirement by the petitioner is not merely a matter of preference for high-caliber 
candidates but is necessitated by performance requirements of the position. The petitioner states 
that it has "numerous (H-lB] approvals by USCIS for programmer analysts. This is in itself shows 
that USCrS agrees we hire programmer analysts with bachelor[']s degree." We disagree. The 
record contains no evidence that the petitioner employs or has employed .the other employees in the 
same or similar position as the proffered position and that the employees possess the qualifying 
degree. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici at 16 5. 
Furthermore, 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 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 r&N Dec. 593, 597 (Comm'r 
1988). It would be "absurd to suggest that [USCrS] or any agency must treat acknowledged errors 
as binding precedent." Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1988). 
A prior approval does not compel the approval of a subsequent petition or relieve the petitioner of 
its burden to provide sufficient documentation to establish current eligibility for the benefit sought. 
55 Fed. Reg. 2606, 2612 (Jan. 26, 1990). A prior approval also does not preclude USCrS from 
denying an extension of an original visa petition based on a reassessment of eligibility for the 
benefit sought. See Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 
2004). Furthermore, our 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 on behalf of the beneficiary, we would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (200 1). 
While a petitioner may believe or otherwise assert that a proffered position requires a degree in a 
specific specialty, that oginion alone without corroborating evidence cannot establish the position as 
a specialty occupation. 1 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 
11 
Any such assertion would be undermined in this particular case by the fact that the petitioner indicated on 
the LCA that the proffered position is a comparatively low, entry-level position relative to others within its 
occupation. 
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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"). The 
record does not contain documentary evidence demonstrating a hiring history of the petitioner. 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, it does not 
satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
Next, we find that 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. 
Again, relative specialization and complexity have not been sufficiently developed by the petitioner 
as an aspect of the proffered position's duties. In other words, the proposed duties have not been 
described with sufficient specificity to show that their nature is more specialized and complex than 
programmer analyst positions whose duties are not of a nature so specialized and complex that their 
performance requires knowledge usually associated with a degree in a specific specialty. In 
reviewing the record of proceeding under this criterion, we reiterate our earlier discussion regarding 
the Handbook's entries for positions falling within the "Computer Systems Analysts" occupational 
category. Again, the Handbook does not indicate that a bachelor's degree in a specific specialty, or 
the equivalent, is a standard, minimum requirement to perform the duties of such positions, and the 
record indicates no factors that would elevate the duties proposed for the beneficiary above those 
discussed for similar positions in the Handbook. With regard to the specific duties of the position 
proffered here, we find that the record of proceeding lacks sufficient, credible evidence establishing 
that they are so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a bachelor's degree in a specific specialty, or the equivalent. 
Moreover, we incorporate our earlier discussion regarding the wage-level designation on the LCA, 
which is appropriate for duties whose nature is less complex and specialized than required to satisfy 
this criterion. We find that both on its own terms and also in comparison with the two higher wage­
levels that can be designated in an LCA, by the submission of an LCA certified for a wage-level I 
(entry-level), 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. 
As earlier noted, the Prevailing Wage Determination Policy Guidance issued by DOL states the 
following with regard to Level I wage rates: 
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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 [emphasis in original]. 12 
The pertinent guidance from DOL, at page 7 of its Prevailing Wage Determination Policy Guidance 
describes the next higher wage-level as follows: 
!d. 
Level II (qualified) wage rates are assigned to job offers for qualified employees 
who have attained, either through education or experience, a good understanding of 
the occupation. They perform moderately complex tasks that require limited 
judgment. An indicator that the job request warrants a wage determination at Level 
II would be a requirement for years of education and/or experience that are generally 
required as described in the O*N ET Job Zones. 
The above descriptive summary indicates that even this higher-than-designated wage level is 
appropriate for only "moderately complex tasks that require limited judgment." The fact that this 
higher-than-here-assigned, Level II wage-rate itself indicates performance of only "moderately 
complex tasks that require limited judgment," is very telling with regard to the relatively low level 
of complexity imputed to the proffered position by virtue of its Level I wage-rate designation. 
Further, we note the relatively low level of complexity that even this Level II wage-level reflects 
when compared with the two still-higher LCA wage levels, neither of which was designated on the 
LCA submitted to support this petition. 
The aforementioned Prevailing Wage Determination Policy Guidance describes the Level III wage 
designation as follows: 
Level III (experienced) wage rates are assigned to job offers for experienced 
employees who have a sound understanding of the occupation and have attained, 
either through education or experience, special skills or knowledge. They perform 
tasks that require exercising judgment and may coordinate the activities of other 
12 
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 (last visited May 20, 2015). 
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!d. 
staff. They may have supervisory authority over those staff. A requirement for years 
of experience or educational degrees that are at the higher ranges indicated in the 
O*N ET Job Zones would be indicators that a Level III wage should be considered. 
Frequently, key words in the job title can be used as indicators that an employer's job 
offer is for an experienced worker. ... 
The Prevailing Wage Determination Policy Guidance describes the Level IV wage designation as 
follows: 
!d. 
Level IV (fully competent) wage rates are assigned to job offers for competent 
employees who have sufficient experience in the occupation to plan and conduct 
work requiring judgment and the independent evaluation, selection, modification, 
and application of standard procedures and techniques. Such employees use 
advanced skills and diversified knowledge to solve unusual and complex problems. 
These employees receive only technical guidance and their work is reviewed only for 
application of sound judgment and effectiveness in meeting the establishment's 
procedures and expectations. They generally have management and/or supervisory 
responsibilities. 
As already noted, by virtue of this submission, the petitioner effectively attested that the proffered 
position is a low-level (entry-level) position relative to others within the occupation, and that, as 
clear by comparison with DOL's instructive comments about the next higher level (Level II), the 
proffered position did not even involve "moderately complex tasks that require limited judgment" 
(the level of complexity noted for the next higher wage-level, Level II). 
For all of these reasons, the evidence in the record of proceeding fails to establish that the proposed 
duties meet the specialization and complexity threshold at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
As the evidence of record does not satisfy at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position is a specialty occupation. 
Accordingly, the appeal will be dismissed and the petition will be denied on this basis. 
We do not need to examine the issue of the beneficiary's qualifications, because the petitioner has 
not provided sufficient evidence to demonstrate that the proffered position is a specialty occupation. 
In other words, the beneficiary's credentials to perform a particular job are relevant only when the 
job is found to be a specialty occupation. 
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NON-PRECEDENT DECISION 
VI. CONCLUSION AND ORDER 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision.13 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. The petition is denied. 
13 As the issues discussed above are dispositive of the petitioner's eligibility for the ben efit sought in this matter, we will 
not address and will instead reserve our determination on the numerous additional issues and deficiencies we observe in 
the record of proceeding with regard to approval of the H-lB petition.