dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 7649197 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 27, 2020 
The Petitioner, a city government law enforcement and regulatory agency, seeks to temporarily employ 
the Beneficiary as a "programmer" under the H-lB nonimmigrant classification for specialty occupations. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific 
specialty ( or its equivalent) as a minimum prerequisite for entry into the position. 
The Vermont Service Center Director denied the petition, concluding that the Petitioner had not 
established that the proffered position is a specialty occupation . 
On appeal, the Petitioner asserts that the Director erred and that the proffered position is a specialty 
occupation. 
Upon de nova review, we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
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. 
1 A petitioner must establish that it meets each eligibility requirement of the benefit sought by a preponderance of the 
evidence. Matter of Chawathe, 25 I& N Dec. 369, 375-76 (AAO 2010). 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertojf, 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. THE PROFFERED POSITION 
The Petitioner stated in its H-1B petition that it seeks to employ the Beneficiary as a "programmer." 2 
On the LCA submitted in support of the H-1 B petition, the Petitioner designated the proffered position 
under the occupational category of "Computer Programmers" corresponding to the Standard 
Occupational Classification code 15-1131. 3 We will not describe the duties of the position here, but 
have carefully considered each one. The Petitioner states that a bachelor's degree in computer science or 
a closely related field is the minimum educational requirement for entry into the position. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
2 The Petitioner refers to the proffered position as a "Programmer" on the Form 1-129, a "Developer" on the labor condition 
application (LCA). a "Computer Programmer" and ·'Salesforce Developer" in its response to the Director's request for 
evidence (RFE), as well as a "programmer/developer" and "Developer" in documents submitted on appeal. The Petitioner 
does not articulate whether these differently titled positions encompass the same or similar duties or whether the Petitioner 
uses the titles interchangeably and if so. why. At minimum, this raises questions as to whether the record of proceedings 
contains accurate information regarding the proffered position and undermines the overall credibility of the petition. 
3 The Petitioner classified the proffered position as one in which the prevailing wage determination has been established 
pursuant to a collective bargaining agreement. 
2 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 4 
A. First Criterion 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]) 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. 
We often look to the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) 
as an authoritative source on the duties and educational requirements of the wide variety of 
occupations that it addresses. 5 The subchapter of the Handbook entitled "How to Become a Computer 
Programmer" 6 states, in relevant part, "[m]ost computer programmers have a bachelor's degree in 
computer science or a related subject; however, some employers hire workers with an associate's 
degree .... " The Handbook also states "[m]ost computer programmers have a bachelor's degree; 
however, some employers hire workers who have other degrees or experience in specific programming 
languages." As such, the Handbook does not state that positions located within the computer 
programmer occupational category normally require a bachelor's degree in a specific field, or the 
equivalent, for entry. Instead, it states that the degree requirements for jobs in this occupation vary by 
employer, and that some employers will hire workers with an associate's degree. 
In its RFE response and on appeal, the Petitioner states that the proffered position more closely aligns 
with the duties of a software developer, despite the LCA being certified for a position falling within the 
"computer programmer" occupational classification. This information, however, came after the Director 
issued her RFE. It is well established that a petitioner may not make material changes to a petition in 
an effort to make a deficient petition conform to U.S. Citizenship and Immigration Services (USCIS) 
requirements. 7 Because a petitioner must establish that all eligibility requirements for the immigration 
benefit have been satisfied from the time of the filing and continuing through adjudication, 8 a visa 
petition may not be approved at a future date after a petitioner or beneficiary becomes eligible under 
a new set of facts. 9 As such, eligibility for the benefit sought must be assessed and weighed based on 
the facts as they existed at the time the instant petition was filed. In order for a petitioner to comply 
with 8 C.F.R. § 103.2(b)(l) and USCIS to perform its regulatory duties under 20 C.F.R. § 655.705(b), 
a petitioner must file an amended or new petition, along with a new LCA certified by DOL, in order 
to capture any material changes in terms or conditions of employment or the beneficiary's eligibility. 
4 The Petitioner submitted documentation to support the H- lB petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
5 The Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, may be accessed at 
https://www.bls.gov. We do not, however, maintain that the Handbook is the exclusive source ofrelevant information. 
6 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers, 
http://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm (last visited Feb. 26, 2020). 
7 See Matter of Izummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1998). 
8 8 C.F.R. § 103.2(b)(l). 
9 See Matter of Michelin Tire COip., 17 l&N Dec. 248 (Reg'l Comm'r 1978). 
3 
The Petitioner also cites (via an opinion letter) to DOL's Occupational Information Network (O*NET) 
summary report for "Computer Programmers" (SOC code 15-1131.00). The O*NET Summary Report 
does not establish that a bachelor's degree in a spec[fic specialty, or the equivalent, is normally 
required. It provides general information regarding the occupation, but it does not support a 
conclusion that the proffered position requires a bachelor's degree in a specific specialty, or the 
equivalent. Instead, O*NET assigns these positions a "Job Zone Four" rating, which states "most of 
these occupations require a four-year bachelor's degree, but some do not." Moreover, the Job Zone 
Four designation does not indicate that any academic credentials for Job Zone Four occupations must 
be directly related to the duties performed. In addition, the specialized vocational preparation (SVP) 
rating designates this occupation as 7 < 8. An SVP rating of 7 to less than("<") 8 indicates that the 
occupation requires "over 2 years up to and including 4 years" of training. While the SVP rating 
indicates the total number of years of vocational preparation required for a particular position, it is 
important to note that it does not describe how those years are to be divided among training, 
experience, and formal education. The SVP rating also does not specify the particular type of degree, 
if any, that a position would require. 1° Further, although the summary reports provide the educational 
requirements of "respondents," it does not account for 100% of the "respondents." Moreover, the 
respondents' positions within the occupation are not distinguished by career level ( e.g., entry-level, 
mid-level, senior-level). Furthermore, the graph in the summary report does not indicate that the 
"education level" for the respondents must be in a specific specialty. For all of these reasons, O*NET 
does not establish the proffered position as a specialty occupation. 
The Petitioner has not provided sufficient documentation from a probative source to substantiate its 
assertion regarding the minimum requirement for entry into this particular position. Thus, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two, alternative prongs: '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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong concentrates upon 
the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
We generally consider the following sources of evidence to determine if there is such a common degree 
requirement: whether the Handbook reports that the industry requires a degree; whether the industry's 
1° For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/ 
help/online/svp. 
4 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry establish that such firms "routinely employ and 
recruit only degreed individuals." 11 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook ( or other independent, authoritative sources) reports an 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 minimum entry 
requirement. 
The Petitioner submitted job vacancy announcements for our consideration under this prong. To be 
relevant for consideration, the job vacancy announcements must advertise "parallel positions," and the 
announcements must have been placed by organizations that (1) conduct business in the Petitioner's 
industry and (2) are also "similar" to the Petitioner. These job vacancy announcements do not satisfy that 
threshold. Upon review of the documents, we conclude that the Petitioner's reliance on the job 
announcements is misplaced. 
We first consider whether the advertised job opportunities could be considered "parallel positions." Most 
of the advertised positions require a bachelor's degree plus three to seven years of additional experience. 
Some of the positions are labeled "entry level" while others are "senior level" and feature significantly 
higher salaries than that which is offered to the Beneficiary. Moreover, the position descriptions feature 
a variety of duties that appear dissimilar to the duties of the proffered position. For example, some of the 
descriptions do not mention Salesforce as being a part of the position, whereas the Petitioner has indicated 
use of this technology is a prominent aspect of the proffered position. 
Nor does the record contain documentary evidence sufficient to establish that these job vacancy 
announcements were placed by companies that (1) conduct business in the Petitioner's industry and (2) 
are also "similar" to the Petitioner. Here, the Petitioner is a city government regulatory agency, whereas 
many of the advertisements are from private sector information technology or financial services 
companies. We acknowledge the job advertisements from various city and local governments as being 
more closely related in industry, however we have insufficient information as to the size, scope, budgets, 
missions, or other relevant information about those governmental organizations to permit us to make 
determinations as to similarity. Overall, the Petitioner provided insufficient evidence to determine 
whether the employers featured in any of the postings are similar to the Petitioner. 
For all of these reasons, the Petitioner has not established that these job vacancy announcements are 
relevant. Even if that threshold had been met, we would still conclude that these job announcements do 
not assist the Petitioner in satisfying this prong of the second criterion, as they do not indicate that a 
bachelor's degree in a specific specialty, or the equivalent, is common to the industry in parallel positions 
among similar organizations. The job advertisements indicate that employers accept a variety of degrees 
11 See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 
1095, 1102 (S.D.N.Y. 1989) (considering these "factors" to inform the commonality ofa degree requirement)). 
5 
including a bachelor's of business administration 12 and bachelor's degrees with no particular specialty 
mentioned. As the documentation does not establish that the Petitioner has met this prong of the 
regulations, further analysis regarding the specific information contained in each of the job postings is 
not necessary. 13 That is, not every deficit of every piece of evidence has been addressed. 14 
In support of its assertion that the degree requirement is common to the industry, the Petitioner also 
submits a letter from I I director of information technology a~ L who contends that 
he is qualified to opine upon the nature of the position and anY. applicable industry standards due to his 
more than twenty years' experience in software development. I ~ provides an overview of the 
Petitioner, outlines the relevant statutory and regulatory framework concerning specialty occupations, 
and lists the information contained in O*NET concerning computer programmers. He also provides 
a numbered list of duties with percentages of time the Beneficiary will spend on each duty and a 
separate list of duties in paragraph form. For the reasons set out below, we conclude that I I 
opinion holds little weight in this matter. 15 
First, in reviewing the duties provided inl letter, we question where he obtained his 
information, as the Petitioner itself has not articulated the duties that I I identifies. I I 
states that he is located in Oklahoma, whereas the Petitioner and Beneficiary are inl I 
Despite his physical distance and apparent lack of experience in public sector industries, I I 
makes assertions on the Petitioner's behalf with regard to the duties of the proffered position. While 
I I asserts that he electronically interviewed the Beneficiary concerning her current role, 
explored the Petitioner's website, and conducted a study of the Petitioner itself: we nevertheless 
question the accuracy of information when the Petitioner has not articulated for itself such duties in 
other parts of the record of proceedings. As we do not have a copy of an[ e)ectronjf correspondence 
or interview notes shared between the Petitioner, the Beneficiary, and ~----~- nor do we have 
access to the studies he refers to, we cannot accept his secondhand interpretation of the duties. 
In addition to the above, I I confuses the ability of a degreed computer science person to 
perform the duties of the proffered position with a degree requirement in order to perform the duties. 
We read that based on his review of the petition and supporting documents that he finds the Beneficiary 
12 Although a general-purpose bachelor's degree, such as a degree in business administration, may be a legitimate 
prerequisite for a particular position. requiring such a degree, without more, will not justify a conclusion that a particular 
position qualifies for classification as a specialty occupation. See Royal Siam Corp., 484 F.3d at 147. 
13 The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
14 Even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty is common to 
the industry in parallel positions among similar organizations (which they do not), the Petitioner does not demonstrate 
what statistically valid inferences, if any. can be drawn from the job postings with regard to the common educational 
requirements for entry into parallel positions in similar organizations. See generally Earl Babbie. The Practice of Social 
Research 186-228 (7th ed. 1995). 
15 We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int'/, Inc., 
19 l&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in accord with other information or is in any 
way questionable, we are not required to accept or may give less weight to that evidence. Id. Here, the opinion presented 
does not offer a cogent analysis of the duties and why the duties require a bachelor's degree in a specific specialty. We 
hereby incorporate our discussion ofl Is opinion into our discussion of the other 8 C.F.R. § 214.2(h)(4)(iii)(A) 
criteria. 
6 
to possess the qualifications required. 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.16 Put simply, stating that a person with 
a bachelor's degree in computer science could perform the duties of the proffered position is not the 
same as stating that such a degree is required to perform those duties. As such,I I misconstrues 
the statutory and regulatory requirements of a specialty occupation. 
Finally, we note that whenl !discusses the proffered position, he concludes that the position 
is specialized and requires a bachelor's degree in computer science or a related field without providing 
analysis or an explanation as to why. In place of analysis, we note the frequency with whichl I 
labels the duties and the educational requirements as "specialty-level," "complex," or "sophisticated" 
but he does not explain why such duties require highly specialized knowledge and attainment of at 
least a bachelor's degree in a specific specialty. In fact, the majority of the technologies listed inD 
I I letter as applicable to the proffered position also appear in O*NET as typical technologies used 
by computer programmers. As described, the duties of the proffered position do not appear to be 
complex or unique. For instance,! lwrites that the Beneficiary "communicates with business 
owners for requirements, issue resolution, and task/projects status works with users, internal and 
external to clarify and approve requirements and business rules." HoweverJ I does not explain 
why the duty is complex or unique and requires specialized knowledge to perform. Similarly, the duty 
"identifies solutions and recommends and implements solutions" provides only a general idea as to 
what it might involve, but we have no insight as to why the duty is complex or unique. 
As the foregoing demonstrates, we conclude that this evidence does not credibly refute the conclusions 
of the Handbook. The record does not establish that similar organizations in the Petitioner's industry 
have a common degree requirement of a bachelor's or higher degree, or its equivalent, in a specific 
specialty, for positions falling within this occupational category. Thus the Petitioner has not satisfied 
the first prong of the regulation 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) 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 its initial filing, the Petitioner provided only three typed lines of information to describe the duties 
of the position. In response to the Director's RFE, the Petitioner provided a tasks and standards 
printout, which appears to be a performance appraisal of the Beneficiary in her current role. This 
document contains one page of information concerning the duties of the Beneficiary's current position 
and does not substantially add to our understanding or adequately respond to the Director's request. 
As previously noted, other position duties contained within the record of proceedings arise from 
assertions made byl ~ven assumin~ I interpretation of the duties is accurate, 
16 We are required to follow long-standing legal standards and determine first, whether the proffered position qualifies as 
a specialty occupation, and second, whether the beneficiary was qualified for the position at the time the nonimmigrant 
visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988) ("The facts of a 
beneficiary's background only come at issue after it is found that the position in which the petitioner intends to employ 
him falls within [a specialty occupation]."). 
7 
neither the duties articulated by him, nor those provided by the Petitioner, reflect uniqueness or 
complexity commensurate with a specialty occupation. 
For instance, several duties contained within the Petitioner's tasks and standards sheet appear to be 
administrative or clerical in nature and we question whether they require any specialized knowledge 
or skill. We read that the Beneficiary will scan documents, "conduct research on computer equipment 
and software licenses," and"[ a ]ssist ... with purchasing supplies." The Petitioner has failed to explain 
why such administrative duties require any education at all, let alone specialized knowledge. As 
described, these duties indicate that the Beneficiary will not be relieved of performing non-qualifying 
work. 
Not only does the Petitioner fail to explain how these duties require specialized knowledge, many of 
the duties themselves are described in vague and general terms, not allowing us to understand what 
the Beneficiary will actually be doing when carrying out the undefined tasks. For instance, we have 
no information on what the Beneficiary will do to "take the lead on some projects," "field[] questions," 
or "work[] with staff on various projects to build and enhance the database platform." We do not 
know what projects the Beneficiary will lead, what she will do to lead them, what types of questions 
and responses she might field, or what "working with staff' entails. The Petitioner states that the 
Beneficiary will liaise "with DOITT on network requirements and policies" but has provided no 
information about the kinds of requirements or policies that might be involved or how the Beneficiary 
will complete this task. Overall, the Petitioner has provided very little information on what these 
duties actually mean in the context of its business or what the duty actually requires the Beneficiary 
to do on a day-to-day basis. 
As previously discussed, the duties provided byl I also lack a detailed explanation of how the 
t k · ht require the theoretical and practical application of a body of highly specialized knowledge. 
tates that a full 40% of the Beneficiary's time will be spent on the duty of "Implementing 
ty" but he provides no explanation or detail as to what that means or involves. He writes 
that the Beneficiary will spend 10% of her time "[m]eeting with staffs to collect the requirements for 
the project," but as noted, we have no information regarding the project and whether gathering 
requirements for such projects necessitates a bachelor's degree in computer science. Finally, the list 
of duties that I I provides in paragraph form on page seven of his letter appears to be a generic 
position description of a computer programmer job. I I does not explain how these duties fit 
within the context of the Petitioner's business nor does he provide specific examples or background 
as to how the Beneficiary will complete these tasks. As such, we have no information on why the 
tasks require specialized knowledge acquired through a minimum of a bachelor's degree in computer 
science. 
We also acknowledge the Petitioner's letter from its Commissioner and Chair,.__ ______ _. 
However, his letter adds little value to the matter at hand in that it discusses how the Beneficiary has 
performed well in her various roles, rather than explaining why the position is complex, unique, or 
specialized. Without this critical analysis, the letter reads more like a letter of recommendation and 
in no way supports a conclusion that the proffered position is complex or unique. As previously 
mentioned, the qualifications of the Beneficiary do not come in to play until after the position has been 
determined to be specialized. 
8 
We conclude that the Petitioner has not shown that the duties of the position are 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. The Petitioner claims that the Beneficiary is well-qualified for the position, and 
references her qualifications. However, as previously noted, 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 did not sufficiently develop relative complexity or uniqueness as an aspect of the duties of 
the position, and it did not identify any tasks that are so complex or unique that only a specifically 
degreed individual could perform them. Thus, it cannot be concluded that the Petitioner has satisfied 
the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
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. 
Though the Petitioner states on appeal that it "always requires a bachelor's degree for candidates for 
these positions," the record must establish that a petitioner's stated degree requirement is not a matter 
of preference for high-caliber candidates but is necessitated instead by performance requirements of 
the position. 17 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 created a token degree requirement. 18 
As evidence for our consideration under this criterion, the Petitioner submitted a task and standards 
printout as well as a copy of a foreign diploma for one additional individual occupying a different role 
than the proffered position. Though the information contained in the task and standard sheet appears to 
be similar to one submitted for the Beneficiary, the employee has a differently titled position, suggesting 
that the position may not be the same as the proffered position. Further, this employee possesses a foreign 
degree unaccompanied by a degree evaluation to substantiate that it is the equivalent of a U.S. bachelor's 
degree or higher. Moreover, the record does not include the job advertisement for this position and we 
have no information on what the minimum qualifications for hiring this employee were. Even if this were 
established, the Petitioner did not submit information such as paystubs or tax documents to support a 
conclusion that this person is actually employed by the Petitioner. Finally, the Petitioner did not provide 
the total number of people it has employed in the past to serve in the proffered position. Though it has 
been in business since 2001, the Petitioner has provided no information about its past hiring history for 
the proffered position. Consequently, no determination can be made about the Petitioner's normal 
recruiting and hiring practices for the proffered position when the submitted employment evidence covers 
only one individual who occupies a position different than the proffered one. 
The Petitioner has not persuasively established that it normally requires at least a bachelor's degree in a 
specific specialty, or its equivalent, for the proffered position. Thus, the Petitioner has not satisfied the 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
17 See Defensor, 201 F.3d at 387-88. 
IS Id. 
9 
D. Fourth Criterion 
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. 
For the same reasons we discussed under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), we 
conclude that the Petitioner has not established that its proffered position is one with duties sufiiciently 
specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). We incorporate our earlier 
discussion and analysis on this matter. 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
10