dismissed H-1B Case: Computer Science

(b)(6)
DATE: JUL 0 1 2015 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Jmmigration Services 
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 I 0 I (a)( IS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § IIOI(a)(IS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
NO REPRESENTATIVE OF RECORD 
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. § I03.5. 
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. 
on Rosenberg 
hief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the petition. The matter is now 
before the 
Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURAL BACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the Vermont Service 
Center. In the supporting documents, the petitioner describes itself a software services firm, with 
eight employees, that was established in 1 In order to employ the beneficiary in what it 
designates as a programmer analyst position, 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 reviewed the record of proceeding and determined that the petitioner did not establish 
eligibility for the benefit sought. Specifically, the Director stated that the petitioner had not 
established that the proffered position qualifies as a specialty occupation in accordance with the 
applicable statutory and regulatory. The Director denied the petition. 
The record of proceeding contains: (1) the petitioner's Form I-129 and supporting documentation; 
(2) the Director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the 
Director's decision; and (5) the Notice of Appeal or Motion (Form I-290B) and supporting 
documentation. We reviewed the record in its entirety before issuing our decision? 
For the reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. SPECIALTY OCCUPATION 
The primary 
issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. 
A. Legal Framework 
For an H-1B petition to be granted, the petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
1 The petitioner stated that its gross annual income is $1.2 million and its net annual income is $50,000. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). In 
conducting our review, we apply the "preponderance of evidence" standard of review as articulated in the 
controlling precedent decision, Matter ofChawathe, 25 I&N Dec. 369, 375-376 (AAO 2010). Accordingly, 
we have examined each piece of evidence for relevance, probative value, and credibility, both individually 
and within the context of the totality of the evidence. 
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regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(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 meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) 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 ofW-
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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 387. To avoid this result, 8 C .F.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)(l) of the Act and the regulation at 8 C .F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir ~ 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-lB petitions for qualified 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. users 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. Proffered Position 
In the Form I-129, the petitioner stated that it wishes to employ the beneficiary as a programmer 
analyst on a full-time basis. In the support letter, the petitioner provided information regarding the 
duties and requirements of the proffered position. The petitioner stated that the position would entail 
the following duties: 
• Design and develop .NET -based applications that meet data integrity, 
performance , business, and Security objectives for complex application features 
using tools like Visual Studio and interaction with SQL Server databases 
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NON-PRECEDENT DECISION 
• Provide high-level technical options that may span multiple systems 
• Identify high-level system impacts 
• Translate high-level 
requirements into detailed designs 
• Develop and maintain thorough technical documentation 
• Provide 
technical estimates 
• Perform thorough unit testing and some functional testing as needed 
• Support our architecture efforts by following and adhering to the standards set 
forth by the architecture group and devising consistent solutions to maintain the 
integrity of the application 
• Provide innovative ideas and solutions in an ever-changing environment 
• Possess solid communication skills and strong customer focus 
• Maintain knowledge of emerging technologies 
The petitioner continued by stating that "the position requires at least a bachelors degree." The 
petitioner did not state that the degree must be in a specific specialty. 
In response to the RFE, the petitioner submitted a Statement of Work (SOW) for the proposed 
position with duties similar to those provided in the initial petition. The SOW further 
states that the 
position requires a bachelor's degree in computer science, engineering, business or the equivalent. 
C. Analysis 
As a preliminary matter, we note that according to the SOW a degree in computer science, 
engineering, business or the equivalent is acceptable for the proffered position. In general, provided 
the specialties are closely related, e.g., chemistry and biochemistry, a minimum of a bachelor's or 
higher degree in more than one specialty is recognized as satisfying the "degree in the specific 
specialty (or its equivalent)" requirement of section 214(i)(l)(B) of the Act. In such a case, the 
required "body of highly specialized knowledge" would essentially be the same. Since there must be 
a close correlation between the required "body of highly specialized knowledge" and the position, 
however, a minimum entry requirement of a degree in disparate fields, such as philosophy and 
engineering, for example, would not meet the statutory requirement that the degree be "in the 
specific specialty (or its equivalent)," unless the petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required "body of 
highly specialized knowledge" is essentially an amalgamation of these different specialties. Section 
214(i)(l)(B) ofthe Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," we 
do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
occupations if they permit, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 214(i)(l)(B) ofthe Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
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Here, the SOW states that its minimum educational requirement for the proffered position · is a 
bachelor's degree in computer science, engineering, business. The issue is that these fields cover 
numerous and various specialties.3 The petitioner, who bears the burden of proof in this proceeding, 
does not establish either that these various degrees are all closely related fields or that a general 
degree in one of these fields is directly related to the duties and responsibilities of the particular 
position proffered in this matter. Accordingly, as the evidence of record does not establish a 
standard, minimum requirement of at least a bachelor's degree in a specific specialty, or its 
equivalent, for entry into the particular position, it does not support the proffered position as 
qualifying as a specialty occupation. 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will now discuss the proffered position in relation to the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(J), which requires that a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into the particular position. 
USCIS recognizes the Handbook as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses.4 The petitioner asserted in the 
Labor Condition Application (LCA) that the proffered position falls under the occupational category 
3 Further, although a general-purpose bachelor's degree, such as a degree in business, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a finding that a 
particular position qualifies for classification as a specialty occupation. See Royal Siam Corp. v. Chertoff, 
484 F.3d 147 (1st Cir. 2007). Specifically, the United States Court of Appeals for the First Circuit explained 
in Royal Siam that: 
I d. 
[t]he courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate prerequisite 
for a particular position, requiring such a degree, without more, will not justify the granting 
of a petition for an H-lB specialty occupation visa. See, e.g., Tapis Int'l v. INS, 94 F.Supp.2d 
172, 175-76 (D.Mass.2000); Shanti, 36 F. Supp.2d at 1164-66; cf Matter of Michael Hertz 
Assocs., 19 I & N Dec. 558, 560 ([Comm'r] 1988) (providing frequently cited analysis in 
connection with a conceptually similar provision). This is as it should be: elsewise, an 
employer could ensure the granting of a specialty occupation visa petition by the simple 
expedient of creating a generic (and essentially artificial) degree requirement. 
4 The petitioner repeatedly references the 20 I 0-2011 edition of the Handbook; however, the petition was 
submitted to USCIS in 2014. All of our references are to the 2014-2015 edition of the Handbook, which may 
be accessed at the Internet site http://www.bls.gov/OCO/. The current excerpts of the Handbook regarding 
the duties and requirements of the referenced occupational category are hereby incorporated into the record of 
proceeding. 
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"Computer Systems Analysts." 5 We reviewed the section of the Handbook regarding this 
occupational category, including the section entitled "How to Become a Computer Systems 
Analyst," which states the following: 
A bachelor's degree in a computer or information science field is common, although 
not always a requirement. Some firms hire analysts with business or liberal arts 
degrees who have 
skills in information technology or computer programming. 
Education 
Most computer systems analysts have a bachelor's degree in a computer-related field. 
Because these analysts also are heavily involved in the business side of a company, it 
may be helpful to take business courses or major in management information 
systems. 
Some employers prefer applicants who have a master of 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. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Computer Systems Analysts, available on the Internet at http://www.bls.gov/ooh/computer-and­
information-technology/computer-systems-analysts.htm#tab-4 (last viewed June 30, 2015). 
5 The occupational category designated by a petitioner is considered as an aspect in establishing the general 
tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. However, to satisfy the first 
criterion, the burden of proof remains on the petitioner to submit sufficient evidence to support a finding that its 
particular position would normally have a minimum, specialty degree requirement or its equivalent for entry. 
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When reviewing the Handbook, we note that the petitioner designated the proffered position as a 
Level I (entry level) position on the LCA.6 This designation is indicative of a comparatively low, 
entry-level position relative to others within the occupation. 
The Handbook begins by stating that a bachelor's degree in a related field is not a requirement. This 
section of the narrative continues by stating that there are a wide-range of degrees that are acceptable 
for positions in this occupation, including general-purpose degrees such as business and liberal 
arts. While the Handbook indicates that a bachelor's degree in a computer or information science 
field is common, it does not report that such a degree is normally a minimum requirement for entry. 
According to the Handbook, many systems analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. It further reports that many analysts have technical 
degrees. The Handbook does not specify a degree level (e.g., associate's degree, baccalaureate) for 
these technical degrees. Moreover, it specifically states that such a degree is not always a 
requirement. 
The Handbook does not support the claim that the occupational category of computer systems 
analyst is one for which normally the minimum requirement for entry is a baccalaureate degree (or 
higher) in a specific specialty, or its equivalent. Even if it did, the record lacks sufficient evidence to 
support a finding that the particular position proffered here, an entry-level computer systems analyst 
6 
The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Levell wage 
rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have 
only a basic understanding of the occupation. These employees perform routine tasks that 
require limited, if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. The employees may 
perform higher level work for training and developmental purposes. These employees work 
under close supervision and receive specific instructions on required tasks and results 
expected. Their work is closely monitored and reviewed for accuracy. Statements that the 
job offer is for a research fellow, a worker in training, or an internship are indicators that a 
Level I wage should be considered. 
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 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 she would be 
closely supervised; that her work would be closely monitored and reviewed for accuracy; and that she would 
receive specific instructions on required tasks and expected results. DOL guidance indicates that a Level I 
designation should be considered for positions in which the employee will serve as a research fellow, worker 
in training, or an intern. 
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position (as indicated on the LCA), would normally have such a minimum, specialty degree 
requirement or its equivalent. 7 
In the instant case, the duties and requirements of the position as described in the record of 
proceeding do not indicate that this particular position proffered by the petitioner is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions that 
are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered position, and also 
(3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d I I 51, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the petitioner has not established that its proffered position is one for which 
the Handbook (or other independent, authoritative source) reports a standard industry-wide 
requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. Also, there are no submissions from 
the industry's professional association indicating that it has made a degree a mmtmum entry 
requirement. In addition, the petitioner has not submitted letters, affidavits or other materials 
7 The petitioner's designation of this position as a Level I, entry-level position does not support its claim that 
the position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a 
proffered position from classification as a specialty occupation. In certain occupations (doctors or lawyers, 
for example), an entry-level position would still require a minimum of a bachelor's degree in a specific 
specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that 
an occupation qualifies as a specialty occupation if that higher-level position does not have an entry 
requirement of at least a bachelor's degree in a specific specialty or its equivalent. That is, a position's wage 
level designation may be a consideration but is not a substitute for a determination of whether a proffered 
position meets the requirements of section 214(i)(l) ofthe Act. 
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establishing the industry requirements in organizations similar to the petitioners for parallel 
positions. 
The petitioner has not established that a requirement of a bachelor's or higher degree in a specific 
specialty, or its equivalent, is common to the petitioner's industry in positions that are (1) in the 
petitioner's industry, (2) parallel to the proffered position, and also (3) located in organizations that 
are similar to the petitioner. For the reasons discussed above, the petitioner has not satisfied the first 
alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered pos1t10n qualifies as a specialty occupation, the 
petitioner described the proffered position and its business operations. Upon review, we find that the 
petitioner has not sufficiently developed relative complexity or uniqueness as an aspect of the 
proffered position. 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 it may believe are so complex and unique. While a few related 
courses may be beneficial in performing certain duties of the position, the petitioner has not 
demonstrated 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 proffered 
position. The description of the duties does not specifically identify any tasks that are so complex or 
unique that only a specifically degreed individual could perform them. The record does not establish 
which of the duties, if any, of the proffered position would be so complex or unique as to be 
distinguishable from those of similar but non-degreed or non-specialty degreed employment. . 
The evidence of record does not establish that this position is significantly different from other 
positions in the occupational category such that it refutes the Handbook's information that a 
bachelor's degree in a specific specialty, or its equivalent is not required for the proffered position. 
The petitioner claims that the beneficiary is well qualified for the position, and references her 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The petitioner has not satisfied the second 
alternative prong of 8 C.F .R. § 214.2(h)( 4 )(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
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The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, 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 performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a 
petitioner's claimed 
self-imposed requirements, then any individual with a bachelor's degree could be 
brought to the United States to perform any occupation as long as the petitioner artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor v. Meissner, 
201 F.3d at 388. In other words, if a petitioner's stated degree requirement is only designed to 
artificially meet the standards for an H-1B visa and/or to underemploy an individual in a position for 
which he or she is overqualified and if 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 § 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) 
(defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show 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 Defensor 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 as the minimum for entry into the occupation as required by the Act. To interpret 
the regulations any other way would lead to absurd results: 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 a 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. at 388. 
The petitioner stated in the Form I -129 petition that it has eight employees and that it was 
established in 2012 (approximately two years prior to the filing of the H-18 petition). The petitioner 
states generally that it has had "numerous h-1 b approvals by US CIS for programmer analysts" and 
provided a list of individuals in support of its assertion. The petitioner did not provide evidence of 
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the approvals or that they approvals were in the same position as the proffered position for the 
beneficiary. 8 Importantly, USCIS records show that many of the petitions referenced by the 
petitioner were denied. 
Further, the petitioner did not provide the total number of people it has employed to serve in the 
proffered position . Consequently, it cannot be determined how representative the petitioner's claim 
regarding three individuals is of the petitioner's normal recruiting and hiring practices. Without 
further information, the submission is not persuasive in establishing that the petitioner normally 
requires at least a bachelor's degree in a specific specialty, or its equivalent, for the position. 
The petitioner did not provide sufficient documentary evidence to support the assertion that it 
normally requires at least a bachelor's degree in a specific specialty, or its equivalent, directly related 
to the duties of the position. The petitioner has not satisfied the third criterion of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
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 in a specific specialty, or its equivalent 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The petitioner claims that the nature of the specific duties of the position in the context of its 
business operations is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. We reviewed the petitioner's statements regarding the proffered position and its 
business operations. However, relative specialization and complexity have not been sufficiently 
developed by the petitioner as an aspect of the proffered position. That is, the proposed duties have 
not been described with sufficient specificity to establish that they are more specialized and complex 
than positions that are not usually associated with at least a bachelor's degree in a specific specialty, 
or its equivalent. 
Although the petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the petitioner has submitted inadequate 
probative evidence to satisfy the criterion ofthe regulations at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
8 The petitioner did not provide the job duties and day-to-day responsibilities for these individuals. The 
petitioner also did not submit any information regarding the complexity of the job duties, supervisory duties 
(if any), independent judgment required or the amount of supervision received. Accordingly, it is unclear 
whether the duties and responsibilities of these individuals are the same or similar to the proffered position. 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
For the reasons related in the preceding discussion, the petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed and the 
petition denied. 9 
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
9 As the identified ground for denial is dispositive of the petitioner's continued eligibility, we need not address 
the additional issues in the record of proceeding that we observe.