dismissed H-1B Case: Computer Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 15776852 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 24, 2021 
The Petitioner, a computer and solutions services company, seeks to temporarily employ the Beneficiary 
as a " data analyst" under the H-1B nonimmigrant classification for specialty occupations. 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-1B 
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 Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence.1 
We review the questions in this matter de novo.2 Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I) , defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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) largely restates section 214(i)(I) of the Act but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
1 Section 291 of the Act ; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 3 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " (emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (1) the normal 
minimum educational requirement for entry into the particular position, which is the focus of criterion 
1; (2) industry positions which are parallel to the proffered position and thus appropriate for review 
for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; (4) the factual justification for a petitioner normally requiring a degree or its equivalent, 
when that is an issue under criterion 3; and (5) the degree of specialization and complexity of the 
specific duties, which is the focus of criterion 4. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
II. ANALYSIS 
The Petitioner stated that the Beneficiary will be employed as a "data analyst" and that the position 
requires a minimum of a bachelor's degree, or the foreign equivalent, in industrial engineering or a 
closely related field. The Petitioner initially provided a list of duties, which was expanded and updated 
with their response to the Director's request for evidence (RFE). While we will not list each duty here, 
we have reviewed and considered each one. 
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. 
Specifically, we conclude that the record (1) does not describe the position's duties and requirements 
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 In particular, we find that the Petitioner 
3 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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. 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"). 
4 The Petitioner submitted documentation to support the H-lB petition, including evidence regarding the proffered 
position. While we may not discuss every document submitted, we have reviewed and considered each one. 
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has not established the substantive nature of the position, which precludes a determination that the 
proffered position qualifies as a specialty occupation under at least one of the four regulatory 
specialty-occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)-(4). 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the duties of the 
proffered position such that we may discern the nature of the position and whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a baccalaureate degree in a specific discipline. When determining whether a position 
is a specialty occupation, we look at the nature of the business offering the employment and the 
description of the specific duties of the position as it relates to the performance of those duties within 
the context of that particular employer's business operations. 
On the labor condition application (LCA)5 submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Operations Research Analysts" 
(ORA) corresponding to the standard occupational classification code (SOC) 15-2031 from the 
Occupational Information Network (O*NET), at a wage level II rate. According to O*NET's 
description, positions located within the ORA occupation "[t]ormulate and apply mathematical 
modeling and other optimizing methods to develop and interpret information that assists management 
with decision making, policy formulation, or other managerial functions."6 Several other components 
of O*NET's description describes this occupation's focus as improving a company's operations.7 
The Petitioner's description of the proffered position lacks the detail necessary to determine whether 
the proffered position actually falls within the occupational category designated on the LCA. As 
mentioned, O*NET indicates that individuals employed in positions located within the ORA 
occupation will fmmulate and apply mathematical modeling to improve a company's operations and 
managerial functions. However, a majority of the job duties proposed here appear atypical for the 
ORA occupation. Rather, the job duties includes conducting data and analytics market intelligence 
within industries, assessing market competitors, and developing algorithms to help the Petitioner 
understand industry performance. For example, the Petitioner's job duties and supporting details 
which appear to relate to data analytics and market intelligence include "[c]onduct research & analysis 
of the trends with the industries [the Petitioner] operates in ... specifically focused on data & 
analytics";"[ d]rawing insights and projects based on deep analysis of the industry data";"[ u ]nderstand 
the business challenges of our customers and help define/document them"; "[a]ssess market 
competitors by comparing [the Petitioner's] products with theirs across business functionality, 
technology capabilities & commercial models"; "[ o ]ppmtunity sizing - understand how the current 
market dynamics will change if [the Petitioner] will decide to invest in product/technology"; "[h]elp 
design & build predictive & prescriptive machine learning algorithms, using statistical & mathematical 
models, that provide real-time analytics for specific business problems within Retail & Restaurant 
industry segments"; and "[d]evelop statistical and mathematical algorithms to help [the Petitioner 
5 A petitioner submits the LCA to the U.S. Department of Labor (DOL) to demonstrate that it will pay an H-1B worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 
C.F.R. § 655.731(a). 
6 O*NET Summary Report for "Operations Research Analysts," https://www.onetonline.org/link/summary/15-2031.00 
(last visited May 24, 2021). 
7 Id. 
3 
understand] and predict the hospitality industry performance." We conclude that these duties appear 
more likely to fall under the SOC code 15-1199.08 8, "Business Intelligence Analysts," occupational 
description and tasks, which includes, for example, the duties to "[p]roduce financial and market 
intelligence by querying data repositories and generating periodic reports"; "[d]evise methods for 
identifying data patterns and trends in available information sources"; "[g]enerate standard or custom 
reports summarizing business, financial, or economic data for review by executives, managers, clients, 
and other stakeholders"; "[s]ynthesize current business intelligence or trend data to support 
recommendations for action"; and "[a]nalyze competitive market strategies through analysis ofrelated 
product, market, or share trends." Most of the position's duties appear to be more closely aligned to 
the duties of the "Business Intelligence Analysts" SOC code, with some functions relating to the 
"ORA" occupation. 
In addition, the PetitionJr provided an opinion authored byl 11 I of 
Engineering at Universit I to support their petition. I states the Beneficiary's 
tasks include "analyzing business needs and conducting market research to determine functional 
requirements"; "conduct research and analysis of trends within the retail, hospitality, and banking 
industries"; and "assess market competitors by reading industry-specific reports; building financial 
models to assess investment opportunities; and comparing [the Petitioner's] products with competitor 
products." These duties appear to be more focused on market research instead of internal operations 
analysis, and their inclusion casts yet more doubt on the claim that the proffered position is actually 
located within the ORA occupation. 
In general, if the duties of a proffered position involve aspects of more than one occupational category 
(i.e., "ORA" and "Business Intelligence Analysts"), DOL's "Prevailing Wage Determination Policy 
Guidance" states that the employer "should default directly to the relevant O*NET-SOC occupational 
code for the highest paying occupation." 9 A Level 11 position located within the "Business Intelligence 
Analysts" (SOC code 15-1199.08) occupational category would necessitate a higher wage of $73,798 
rather than the offered wage of $67,000 per year. 10 Notably such a wage disparity highlights the 
difference between the "ORA" and the "Business Intelligence Analysts" occupational categories 
generally, and more specific to this case, the significance of the Petitioner's choice of the lower-paying 
occupational category. In sum, since the position's broad description lacks any specificity, we cannot 
determine the substantive nature of the position, conclude that the duties of the proffered position 
require a bachelor's degree in a specific specialty, or its equivalent, nor determine that that the duties 
correspond to the certified LCA. 
8 On November 2020, O*NET Online updated the occupation SOC 15-1199.08, Business Intelligence Analysts to SOC 
15-2051.01, Business Intelligence Analysts. For the purposes of this decision, we will refer to the occupation to the code 
available at the time of the Director's decision, SOC 15-1199.08, Business Intelligence Analysts. See 
https://www.onetonline.org/link/summary/15-2051.01 ?redir=15-1199.08 (last visited on May 24, 2021). 
9 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf. 
10 The Petitioner provided an LCA certified on February 28, 2020 for a position located inl I Georgia. The 
wages for SOC 15-1199 and its subcategories, including 15-1999.08, at the time of the LCA's certification can be found 
on the Foreign Labor Certification Data C~ Online Wage Library: 
https://www.flcdatacenter.com/OesQuickResu1ts.aspx?code=15-1199&area=L.__J&year=20&source=1. 
4 
Also, some of the Petitioner's tasks and requirements lack sufficient detail to determine the actual, 
substantive nature of the position. For example, the expanded duties provided in the RFE response 
state the Beneficiary would manage projects. I l's letter provides more detail on the 
position's project management and states the candidates for the position "would be responsible for 
planning and designing projects, managing personnel, and directing projects." However, the record 
does not clearly describe who the position will be supervising and the scope of project direction. In 
their support letter, the Petitioner "require[s] individuals in this position to have experience with data 
analytics," but does not indicate how much experience is required for this position. In addition, the 
supervision and experience statements do not provide enough detail to determine if the wage level on 
the submitted LCA is appropriate.11 Specifically, experience and supervision duties may increase the 
wage level in certain instances.12 
Moreover, and upon review of the proposed duties and details, we conclude that they do not provide 
sufficient and consistent detail to ascertain whether those duties require at least a baccalaureate degree 
in a specific specialty, or its equivalent, as required for classification as a specialty occupation. The 
Petitioner states that a bachelor's degree in industrial engineering is necessary to perform the position, 
and in their RFE response, the Petitioner provides which courses taken by the Beneficiary it claims 
are essential to the performance of the duties of the proffered position. Besides the few underlying 
math and data courses, the Petitioner does not clearly demonstrate how an industrial engineering 
degree would be necessary to perform the position's data analysis and market research tasks. While 
a few such related courses may be beneficial in the performance of 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. Also, while the Petitioner includes specific tools and technologies 
used to perform each duty; however, a degree in industrial engineering is not required to perform tasks 
using tools such as, Microsoft (MS) Excel, MS PowerPoint, MS Visio, MS Word, and Jira. Likewise, 
the duties appear to require knowledge and use of programming languages, such as Python and 
JavaScript, but the Petitioner does not sufficiently demonstrate that an industrial enf ineering degree 
curriculum requires courses in these programming languages. We acknowledge l's 
statement that the position "could not possibly be performed without the prior attainment of at least a 
bachelor's degree in [i]ndustrial [e]ngineering or a related specialized field." However, he does not 
discuss other methods that could also lead to a sufficiently similar knowledge set. For example, the 
amount of required training or experience to gain this knowledge, alternate unrelated degrees, or 
11 While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL regulations note that 
the 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-lB visas ... DHS accepts the employer's petition (DHS Form I-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 for 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. 
12 Prevailing Wage Determination Policy Guidance, supra. 
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certificates that would be acceptable. Upon review, we conclude that the record lacks sufficiently 
detailed information to establish that the job duties require an educational background, or its 
equivalent, in a specific specialty. 
Absent more specific and persuasive evidence regarding the nature of the proffered position's duties, 
the Petitioner has failed to demonstrate the substantive nature of the work to be performed by the 
Beneficiary. This, therefore, precludes analysis of whether the proffered position satisfies any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). The record also does not demonstrate that performing the 
general duties described would require the theoretical and practical application of highly specialized 
knowledge and attainment of at least a bachelor's degree in a specific specialty or its equivalent. See 
section 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation). 
Ill. CONCLUSION 
As the Petitioner has not satisfied at least 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. Moreover, the record 
does not establish that the Petitioner satisfied the statutory and regulatory definitions of specialty 
occupation. 
ORDER: The appeal is dismissed. 
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