dismissed H-1B Case: Computer Systems Analyst

(b)(6)
DATE: �1f\Y 0 4 2015 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Imm igration 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 101 (a)( 15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)( l 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
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.F.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, a� other requirements. Please do not mail any motions directly to the AAO. 
���-moerg 
Chief, 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 (AAO) on appeal. The appeal will be dismissed. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-1 29) to the California 
Service Center. In the supporting documents, the petitioner describes itself as a travel and hotel 
online agency, with four employees, that was established in . 1 In order to employ the 
beneficiary in what it designates as a computer systems analyst position, the petitioner seeks to 
classify him as a nonimmigrant worker m a specialty occupation pursuant to section 
10 1 (a)(1 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 11 01( a)(1 5)(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-1 29 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-290Bj 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 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
1 The petitioner stated that its gross annual income is $7,729. Although required on the Form 1-129, the 
petitioner did not provide its net annual income. 
2 We conduct appellate review on a de novo basis. See So/tane v. DOJ, 381 F. 3d 143, 145 (3d Cir. 2004). 
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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 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 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. Se e K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (198 8) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); se e also COlT 
In dependence Jo int Venture v. Fe deral Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW­
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 
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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 Def ensor v. Meissner, 201 F.3d 38 7. 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)(1) 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 Si am 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-1B 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-1B 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. Se e generally Def ensor v. Meissner, 201 F. 3d 38 4. 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 indicated that it wishes to employ the beneficiary as a computer 
systems analyst on a part-time basis (25 hours per week). In the support letter, the petitioner stated 
that the beneficiary will perform the following job duties in the proffered position: 
• Lead mobile-oriented projects using Agile, Serum, and Lean development 
methodologies; 
• Analyze user requirements, procedures, and problems to automate or improve 
existing systems and review computer system capabilities, work-flow, and 
scheduling limitations; 
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• Proactively design/re-evaluate software procedures and processes to eliminate 
obstacles for mobile users; 
• Proactively research and locate necessary tools and processes to identify 
troublesome trends as they develop; 
• Develop technical documentation in a clear and concise manner; 
• Ensure success of customer evaluations and proof-of-concepts (POCs); 
• Participate in UI layout design and usability improvement processes for the 
company products based on mockups and designs provided; 
• Document system features and client requests and issues; [and] 
• Research and evaluate competing technologies. 
* * * 
[The petitioner] regards this particular position to be a specialty occupation and, 
therefore, professional in nature requiring the attainment of at [a] minimum a 
Bachelor's degree in Information Systems, Computer Science, or a related field, or its 
academic and experiential equivalent. 
Thereafter, in response to the RFE, the petitioner provided a new job description. More specifically, 
the petitioner stated that the position encompasses the following duties: 
• Study the user experience (UX) analytics and modify the initial stages of [the 
petitioner's] mobile application to conform to the change usage circumstances and 
changes to individual systems. Analysis of the wider context in which the application 
can be found - 40% 
• Analysis, optimization and reformatting of the user interface (UI) m order to 
maximize the interface accessibility and efficiency - 20% 
• Analysis and gathering of the functionality requirements - assembling a list of the 
functionality required by the system to accomplish the goals of the project and the 
potential needs of the users - 1 0% 
• Consulting management on development of [the petitioner's] new mobile application 
-15% 
• Liaise with management on pending organizational and development Issues as 
pertinent to the technology platform- 15% 
In the RFE response, the petitioner stated that the beneficiary would be employed on a full-time 
basis. Further, it claimed that the position requires a bachelor's or higher degree in computer science 
or a related field. 
C. Material Findings 
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As previously noted, the issue before us is whether the petitioner has provided sufficient evidence to 
establish that it would employ the beneficiary in a specialty occupation position. We will first make 
preliminary findings that are material to this decision's application of the H-1B statutory and 
regulatory framework to the proffered position as described in the record of proceeding. 
When determining whether a position is a specialty occupation, it is important to consider the nature 
of the business offering the employment and the description of the specific duties of the position as it 
relates to the particular employer. To ascertain the intent of a petitioner, USCIS looks to the Form 
I -129 and the documents filed in support of the petition. It is only in this manner that the agency can 
determine the exact position offered, the location of employment, the proffered wage, et cetera. 
Pursuant to 8 C.F.R. § 214,2(h)(9)(i), the Director has the responsibility to consider all of the 
evidence submitted by a petitioner and such other evidence that he or she may independently require 
to assist his or her adjudication. Further, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that 
"[a]n H-lB 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." 
For H- lB approval, the petitioner must demonstrate a legitimate need for an employee exists and to 
substantiate that it has H- lB caliber work for the beneficiary for the period of employment requested 
in the petition. It is incumbent upon the petitioner to demonstrate it has sufficient work to require 
the services of a person with at least a bachelor's degree in a specific specialty, or its equivalent, to 
perform duties at a level that requires the theoretical and practical application of at least a bachelor's 
degree level of a body of highly specialized knowledge in a specific specialty for the period 
specified in the petition. 
We note that there are inconsistencies in the record with record to the proffered position. For 
instance, in the Form I-129 petition the petitioner states that the beneficiary will serve as computer 
systems analyst. The petitioner also asserts in the Labor Condition Application (LCA) that the 
proffered position falls under the occupational category "Computer Systems Analysts" SOC 
(O*NET/OES) code- 15-1121. Thereafter, in response to the RFE, the petitioner (through counsel) 
repeatedly references the proffered position as a "software developer" and appears to indicate that 
the position falls under the occupational category "Software Developers" in the U.S. Department of 
Labor's (DOL) Occupatipnal Outlook Handbo ok (Handbo ok).5 No explanation for the discrepancy 
was provided. 6 
5 For instance, the response to the RFE states the following: 
Contrary to the Service's statement in the instant request, the position of Software Developer 
is clearly designated as a specialty occupation within the Occupational Outlook 
Handbook. ... As can be seen, this entry provides a narrow range of highly related potential 
fields of study that may provide adequate preparation for software developers .. .. [The] 
OOH does not provide this level of academic preparation for entry into the occupation of 
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Furthermore, in the Form 1-129 and LCA, the petitioner claimed the beneficiary would be employed 
on a part-time basis. Thereafter, the petitioner claimed that the position was full-time. The 
petitioner did not provide an explanation for the variance. 
Moreover, when reviewing the record, we note that it is reasonable to assume that the size of an 
employer's business has or could have an impact on the duties of a particular position. See EG 
Enterpris es, Inc. d/b/a/ Mexican Wholesale Grocery v. Departme nt of Homeland Securi ty, 467 F. 
Supp. 2d 728 (E.D. Mich. 2006). Thus, the size of a petitioner may be considered as a component of 
the nature of the petitioner's business, as the size impacts upon the duties of a particular position. In 
matters where a petitioner's business is relatively small, we review the record for evidence that its 
operations, are, nevertheless, of sufficient complexity to indicate that it would employ the 
beneficiary in position requiring the theoretical and practical application of a body of highly 
specialized knowledge that may be obtained only through a baccalaureate or higher degree in a 
specific specialty, or its equivalent. Additionally, when a petitioner employs relatively few people, it 
may be necessary for the petitioner to establish how the beneficiary will be relieved from performing 
non-qualifying duties. 
software developer. . . . [T]he position of a Software Developer is one that is professional in 
nature. 
6 When the duties of a proffered position involve more than one occupational category, DOL provides 
guidance for selecting the most relevant O*NET code classification. The "Prevailing Wage Determination 
Policy Guidance" states the following: 
In determining the nature of the job offer, the first order is to review the requirements of the 
employer's job offer and determine the appropriate occupational classification. The O*NET 
description that corresponds to the employer's job offer shall be used to identify the 
appropriate occupational classification . . . . If the employer's job opportunity has worker 
requirements described in a combination of O*NET occupations, [the determiner] should 
default directly to the relevant O*NET -SOC occupational code for the highest paying 
occupation. For example, if the employer's job offer is for an engineer-pilot, [the determiner] 
shall use the education, skill and experience levels for the higher paying occupation when 
making the wage level determination. 
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, if the petitioner believed its position was described as a combination of occupations, then according to 
DOL guidance the petitioner should have chosen the relevant occupational code for the highest paying 
occupation. The prevailing wage for "Computer Systems Analysts" is significantly lower than the prevailing 
wage for "Software Developers, Application." 
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In the instant case, the petitioner stated that it currently has four employees. The petitioner did not 
provide information regarding the duties and responsibilities of these four employees, nor did it 
address how the beneficiary would be relieved from performing non-qualifying duties. Without 
additional information, it cannot be ascertained how the beneficiary would be relieved from 
performing non-qualifying duties such that the performance of non-qualifying duties would not 
affect the primary duties of the occupational classification of the position. 7 
Although the petitioner claims that it has plans to expand its business operations, it did not provide 
probative documentation to support the claim (e.g., a business plan; documentation substantiating 
the expansion of physical facilities; plans to hire staff; evidence substantiating that the petitioner 
intends to establish branch, subsidiary or affiliate offices; probative evidence substantiating 
investments or new revenue sources; or other documentation regarding development/expansion 
plans). 8 Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffic i, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter of Treasure Craft of Calif ornia, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Further, a petition cannot be approved to meet potential business expansions or the expectation of 
new customers or contracts. 9 
In establishing a position as a specialty occupation, a petitioner must describe the specific duties and 
responsibilities to be performed by a beneficiary in the context of the petitioner's business 
operations, demonstrate a legitimate need for an employee exists, and substantiate that it has H-1B 
caliber work for the beneficiary for the period of employment requested in the petition. In the 
instant case, it is not evident that the proposed duties as described in this record of proceeding, and 
the position that they comprise, merit recognition of the proffered position as a specialty occupation. 
To the extent that they are described, we find the proposed duties do not provide a sufficient factual 
basis for conveying the substantive matters that would engage the beneficiary in the actual 
performance of the proffered position for the entire period requested, so as to persuasively support 
the claim that the position's actual work would require the theoretical and practical application of 
any particular educational level of highly specialized knowledge in a specific specialty directly 
related to the duties and responsibilities of the proffered position. Moreover, the job description 
8 The petitioner's claim that it intends to expand its business operations in the future is insufficient to 
demonstrate that the proffered position qualifies as a specialty occupation. A petitioner must establish 
eligibility at the time of filing the nonimmigrant visa petition. See 8 C.F.R. § 103.2(b)(1). A visa petition 
may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of 
facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). The H-1B classification is not 
intended as a vehicle for employers to bring in temporary foreign workers to meet possible workforce needs 
arising from potential business expansions or the expectation of potential new customers or contracts. 
63 Fed. Reg. 30419 , 30419 - 30420 (June 4, 1998). 
9 The agency made clear long ago that speculative employment is not permitted in the H-1B program. See, 
e.g., 63 Fed. Reg. 30419 , 30419 - 30420 (June 4, 1998). 
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does not communicate (1) the actual work that the beneficiary would perform on a day-to-day basis 
within the petitioner's business operations; (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. The petitioner's assertion with regard to the 
educational requirement is conclusory and unpersuasive, as it is not supported by the job description 
or other substantive evidence. 
D. Analysis 
We now turn to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). As explained above, the petitioner has 
not established the nature of the proffered position and in what capacity the beneficiary will actually 
be employed within the petitioner's business operations. As the petitioner has not established the 
substantive nature of the work to be performed by the beneficiary, this precludes a finding that the 
proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the 
substantive nature of that work that determines (1) the normal minimum educational requirement for 
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. 
The material deficiencies in the record as set out above preclude the approval of the petition. 
Nevertheless, assuming for the sake of argument, that the petitioner had adequately and accurately 
described the duties of the proffered position, we will now discuss the proffered position in relation 
to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), 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 Handbo ok as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses. 10 The petitioner asserted in the 
LCA that the proffered position falls under the occupational category "Computer Systems Analysts." 
We reviewed the section of the Handbook regarding the occupational category "Computer Systems 
Analysts," including the section entitled "How to Become a Computer Systems Analyst," which 
describes the following preparation for the occupation: 
10 All of the references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet 
site http://www.bls.gov/OCO/. The 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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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 programm ing. 
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 Handbo ok, 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 April 30, 2015). 
When reviewing the Handbo ok, we must note that the petitioner designated the proffered position as 
a Level I (entry level) position on the LCA. This designation is indicative of a comparatively low, 
entry-level position relative to others within the occupation. 11 That is, in accordance with the 
11 
The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I 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 
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relevant DOL explanatory information on wage levels, this wage rate indicates that the beneficiary is 
only required to have a basic understanding of the occupation and carries expectations that the 
beneficiary perform routine tasks that require limited, if any, exercise of judgment; that he would be 
closely supervised; that his work would be closely monitored and reviewed for accuracy; and that he 
would receive specific instructions on required tasks and expected results. 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 intem.12 
The Handbook does not support the assertion that at least a bachelor's degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for these positions. This section of the 
narrative begins by stating that a bachelor's degree in a related field is not a requirement. The 
Handbo ok 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 Handbo ok 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 
programm ing or technical expertise elsewhere. It further reports that many analysts have technical 
degrees. We observe that 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. Thus, 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 position (as indicated on the LCA), would normally have such 
a minimum, specialty degree requirement or its equivalent. 
In response to the Director's RFE, the petitioner submitted a copy of the O*NET OnLine Summ ary 
Report for the occupational category "Computer Systems Analysts" to support the assertion that the 
proffered position qualifies as . a specialty occupation. We reviewed the Summary Report in its 
entirety. However, upon review of the Summary Report, we find that it is insufficient to establish 
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 
Levell 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. 
12 For additional information on wage levels, see U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www .foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 2009.pdf. 
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that the position qualifies as a specialty occupation normally requiring at least a bachelor's degree in 
a specific specialty, or its equivalent. The Summary Report for computer systems analysts has a 
designation of Job Zone 4. This indicates that a position requires considerable preparation. It does 
not, however, demonstrate that a bachelor's degree in any specific speci alty is required, and does not, 
therefore, demonstrate that a position so designated is in a specialty occupation as defined in section 
214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). The O*NET OnLine Help Center provides a 
discussion of the Job Zone 4 designation and explains that this zone signifies only that most, but not 
all of the occupations within it, require a bachelor's degree. See O*NET OnLine Help Center at 
http://www .onetonline.org/help/online/zones. Further, the Help Center discussion confirms that a 
designation of Job Zone 4 does not indicate any requirements for particular majors or academic 
concentrations. Therefore, despite the petitioner's assertion to the contrary, the O*NET Summary 
Report is not probative evidence that the proffered position qualifies as a specialty occupation. 
In addition, we note that in response to the RFE, the petitioner claims that the law "refers not to a 
specific academic major or field of study, but rather to the specialized nature of the body of 
knowledge that has been attained by the individual." The petitioner cites to Residential Fi n. Corp. v. 
US. Citize nshi p & Imm igration Servic es, 839 F. Supp. 2d 997 (S.D. Ohio 2012), for the proposition 
that "[t]here is no apparent requirement that the specialized study needed to be in a single academic 
discipline. " We observe that in the Residential Fi n. Corp. matter, the U.S. district court found that 
"[t]he knowledge and not the title of the degree is what is important. Diplomas rarely come bearing 
occupation-specific majors. What is required is an occupation that requires highly specialized 
knowledge and a prospective employee who has attained the credentialing indicating possession of 
that knowledge." 
We agree with the aforementioned proposition that "[t]he knowledge and not the title of the degree is 
what is important." 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 two 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) of the Act (emphasis added). For 
the reasons discussed in this decision, however, the petitioner has not met its burden and established 
that the particular position offered in this matter requires a bachelor's or higher degree in a specific 
specialty, or its equivalent, that is directly related to the position's duties in order to perform those 
duties. 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
Further, the petitioner has furnished no evidence to establish that the facts of the instant f:etition are 
analogous to those in Resi denti al Fi n. Corp. v. US. Citizen ship & Immigr atio n Servic es . 3 We also 
note that, in contrast to the broad precedential authority of the case law of a United States circuit 
court, we are not bound to follow the published decision of a United States district court in matters 
arising even within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although 
the reasoning underlying a district judge's decision will be given due consideration when it is 
properly before us, the analysis does not have to be followed as a matter of law. !d. at 719. 
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)(J). 
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 Handbo ok reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hi rd/Blake r 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 minimum entry 
requirement. 
13 It is noted that the district judge's decision in that case appears to have been based largely on the many 
factual errors made by the service center in its decision denying the petition. We further note that the Service 
Center Director's decision was not appealed to us. Based on the district court's findings and description of the 
record, if that matter had first been appealed through the available administrative process, we may very well 
have remanded the matter to the service center for a new decision for many of the same reasons articulated by 
the district court if these errors could not have been remedied by us in our de novo review of the matter. 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
The petitioner submitted copies of job advertisements in support of the assertion that the degree 
requirement is common to the petitioner's industry in parallel positions among similar organizations. 
However, upon review of the documents, we find that the petitioner's reliance on the job 
announcements is misplaced. 
In the Form I-129, the petitioner stated that it is a travel and hotel online agency with four 
employees. The petitioner also reported its gross annual income as $7,729, but did not provide its 
net annual income. The petitioner designated its business operations under the North American 
Industry Classification System (NAICS) code 561599. 14 This NAICS code is designated for "All 
Other Travel Arrangement and Reservation Services." The U.S. Department of Commerce, Census 
Bureau website describes this NAICS code by stating the following: 
This U.S. industry comprises establishments (except travel agencies, tour operators, 
and convention and visitors bureaus) primarily engaged in providing travel 
arrangement and reservation services. 
Se e U.S. Dep't of Commerce, U.S. Census Bureau, 2012 NAICS Definition, 561599 - All Other 
Travel Arrangement and Reservation Services, on the Internet at http://www .census.gov/cgi­
bin/sssd/naics/naicsrch (last viewed April30, 2015). 
For the petitioner to establish that an organization is similar under this criterion of the regulations, it 
must demonstrate that the petitioner and the organization share the same general characteristics. 
Without such information, evidence submitted by a petitioner is generally outside the scope of 
consideration for this criterion, which encompasses only organizations that are similar to the 
petitioner. 
We will briefly note that, without more, the job postings do not appear to be from organizations 
similar to the petitioner. 15 When determining whether the petitioner and the organization share the 
same general characteristics, such factors may include information regarding the nature or type of 
organization, and, when pertinent, the particular scope of operations, as well as the level of revenue 
and staffing (to list just a few elements that may be considered). It is not sufficient for the petitioner 
14 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used 
to classify business establishments according to type of economic activity and, each establishment is 
classified to an industry according to the primary business activity taking place there. See 
http://www .census. gov/eos/www/naics/ (last viewed April 30, 20 15). 
15 The postings include the following: (1) a supplier of products, services and support to the military forces, 
intelligence agencies, and prime contractors; (2) a provider of technology services to the U.S. government; (3) 
several providers of computer software and/or internet services; ( 4) a provider of tactical training, education, 
security, and technical services to government agencies; (5) a professional services, technology and business 
change management consulting firm; ( 6) a staffing company; and (7) an insurance claims management 
company. It does not appear that the advertisements are from companies primarily engaged in providing 
travel arrangement and reservation services. 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
to claim that an organization is similar and in the same industry without providing a legitimate basis 
for such an assertion. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffic i , 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter of Treasure Craf t of Calif ornia, 14 I&N Dec. 190 (Reg. 
Comm'r 1972) ). 
We further observe that some of the advertisements do not appear to be for parallel positions. For 
example, the posting from states that the position is for a senior computer system 
analyst and requires a degree, at least 4 years of experience in the information technology field, and 
a minimum of five years of experience in Linux. The advertisement for also requires a 
degree and five years of experience. In addition, the announcement from 
Inc. states that the position is for a computer systems analyst II that requires a degree and "7 Years 
Experience." Similarly, an advertisement for requires a degree and 7+ to 1 0 years of 
experience. As previously discussed, the petitioner designated its proffered position as a wage level 
I (entry level) on the LCA. The advertised positions appear to be for more senior positions than the 
proffered position. More importantly, the petitioner has not sufficiently established that the primary 
duties and responsibilities of the advertised positions are parallel to the proffered position. 
Further, some postings do not indicate that at least a bachelor's degree in a directly related specific 
specialty (or its equivalent) is required. 16 For instance, the following postings state that a degree is 
necessary, but they do not state that a specific specialty is required: 
• 
16 As discussed, the degree requirement set by the statutory and regulatory framework of the H-1B program is 
not just a bachelor's or higher degree, but a degree in a specific specialty that is directly related to the duties of 
the position. See 214(i)(l )(b) ofthe Act and 8 C.F.R. § 214.2(h)(4)(ii). 
In addition, 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. Chertojf, 
484 F.3d at 147. Specifically, the United States Court of Appeals for the First Circuit explained in Royal 
Siam that: 
[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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
• 
• 
• 
• 
The job postings suggest, at best, that a bachelor's degree is sometimes required for computer 
systems analyst positions, but not at least a bachelor's degree in a specific speci alty (or its 
equivalent). 17 
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. 18 That is, not every deficit of every job posting has been addressed. 
On appeal, the petitioner submitted an opinion letter from from 
. The letter is dated October 22, 2014. With regard to the documentation submitted on 
appeal that was encompassed by the Director's RFE, we note that this evidence is outside the scope 
of the appeal. The regulations indicate that the petitioner shall submit additional evidence as the 
Director, in his or her discretion, may deem necessary in the adjudication of the petition. See 8 
C.F.R. §§ 103.2(b) (8) ; 214.2(h)(9 )(i). The purpose of the request for evidence is to elicit further 
information that clarifies whether eligibility for the benefit sought has been established, as of the 
time the petition is filed. See 8 C.F.R. § 103.2(b)(1), (8), and (12). The failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F .R. 
§ 103.2(b)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been 
given an opportunity to respond to that deficiency, we will not accept evidence offered for the first 
time on appeal. Se e Matter of Soria no, 19 I&N Dec. 764 (BIA 1988); se e al so Matter of Obaig bena, 
17 It must be noted that even if all of the job postings indicated that a bachelor's degree in a specific specialty, 
or its equivalent, is common to the industry in parallel positions among similar organizations (which they do 
not), the petitioner does not demonstrate what inferences, if any, can be drawn from these advertisements with 
regard to determining the common educational requirements for entry into parallel positions in similar 
organizations. See generally Earl Babbie, The Practice of Social Research 186-228 ( 19 95). 
As such, even if the job announcements supported the finding that the position required a bachelor's or higher 
degree in a specific specialty, or its equivalent (for organizations in the same industry that are similar to the 
petitioner), it cannot be found that such a limited number of postings that appear to have been consciously 
selected outweigh the findings of the Handbook published by the Bureau of Labor Statistics that such a 
position does not normally require at least a baccalaureate degree in a specific specialty, or its equivalent, for 
entry into the occupation in the United States. 
18 
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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, 
it should have submitted it with the initial petition or in response to the Director's request for 
evidence. ld. The petitioner has not provided a valid reason for not previously submitting the 
evidence. Under the circumstances, we need not and do not consider the sufficiency of such 
evidence submitted for the first time on appeal. Nevertheless, we have reviewed the documentation 
and find that it would not be probative in this matter. 
Specifically, Mr. has not adequately established his expertise to render the opinion made in this 
matter. In his opinion letter and curriculum vitae, Mr. describes his educational background 
and professional credentials. He states that he is an emeritus professor of computer science and 
computer engineering at In addition, he states that has 4 years of 
experience as a partner in a consulting business (which appears to have been from 1985 to 1988 
based upon his curriculum vitae), and 5 years of experience in research engineer positions 
(apparently from 1991 to 1992, also based upon his curriculum vitae). Thus, his experience as a 
partner in a consulting business and his experience in research engineering positions occurred 
approximately over 20 years prior to the submission of the H-1B petition. His curriculum vitae also 
indicates that his current experience includes working as a consultant, specializing in educational 
evaluations and international education (which does not appear to be relevant to the issue here of 
whether the proffered position qualifies as a specialty occupation). In addition, Mr. most 
recently published an article in 2000 (more than a decade prior to the H-1 B filing). Mr. claims 
that he is considered to be a "r ecognized authority according CIS regulations." It appears that Mr. 
is referrin� to the term "r ecognized authority" as that term is defined at 8 C.F .R. 
§ 214. 2(h)(4)(ii). 1 As will be discussed, Mr. has not established that he is a recognized 
authority or that he has any particular expertise or specialized knowledge of the instant matter. 
Mr. opinion letter and curriculum vitae do not cite specific instances in which his past 
opinions have been accepted or recognized as authoritative on this particular issue. There is no 
indication that he has published any work or conducted any research or studies pertinent to the 
educational requirements for computer systems analysts (or parallel positions) in the petitioner's 
industry for similar organizations, and no indication of recognition by professional organizations that 
he is an authority on those specific requirements. The opinion letter contains no evidence that it was 
based on scholarly research conducted by Mr. in the specific area upon which he is opining. 
For instance, in reaching his determination, Mr. provides no documentary support for his 
ultimate conclusion regarding the education required for the position (e.g., statistical surveys, 
authoritative industry or government publications, or professional studies). Mr. asserts a 
19 Recognized authority means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. 8 C.F .R. § 214.2(h)( 4)(ii). 
A recognized authority's opinion must state: ( 1) the writer's qualifications as an expert; (2) the writer's 
experience giving such opinions, citing specific instances where past opinions have been accepted as 
authoritative and by whom; (3) how the conclusions were reached; and (4) the basis for the conclusions 
supported by copies or citations of any research material used. Id . 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
general industry educational standard for organizations similar to the petitioner, without referencing 
any supporting authority or any empirical basis for the pronouncement. 
Upon review of the opinion letter, there is no indication that Mr. possesses any knowledge of 
the petitioner's proffered position beyond the job description. The fact that he attributes a degree 
requirement to such a generalized treatment of the proffered position undermines the credibility of 
the opinion letter. Mr. does not demonstrate or assert in-depth knowledge of the petitioner's 
specific business operations or how the duties of the position would actually be performed in the 
context of the petitioner's business enterprise. His opinion does not relate his conclusion to specific, 
concrete aspects of this petitioner's business operations to demonstrate a sound factual basis for the 
conclusion about the educational requirements for the particular position here at issue. For example, 
there is no evidence that Mr. has visited the petitioner's business, observed the petitioner's 
employees, interviewed them about the nature of their work, or documented the knowledge that they 
apply on the job. Mr. provides general conclusory statements regarding the proffered position, 
but he does not provide a substantive, analytical basis for his opinion and ultimate conclusions. 
Further, there is no indication that the petitioner advised Mr. that it characterized the proffered 
position as a low; entry-level position relative to other positions falling under the occupational 
category "Computer Systems Analysts" (as indicated by the wage-level on the LCA). It appears that 
Mr. would have found this information relevant for his opinion letter. Moreover, without this 
information, the petitioner has not demonstrated that Mr. possessed the requisite information 
necessary to adequately assess the nature of the petitioner's position and appropriately determine 
similar positions based upon job duties and responsibilities. 
In summary, and for each and all of the reasons discussed above, we conclude that the advisory 
opinion rendered by Mr. is not probative evidence to establish the proffered position qualifies 
as a specialty occupation. The conclusions reached by Mr. lack the requisite specificity and 
detail and are not supported by independent, objective evidence demonstrating the manner in which 
he reached such conclusions. There is an inadequate factual foundation established to support the 
opinion and we find that the opinion is not in accord with other information in the record. 
We may, in our discretion, use as advisory opinion statements submitted as expert testimony. 
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. Matter of Caron In ternatio nal, 
19 I&N Dec. 791 (Comm'r 19 88) . As a reasonable exercise of its discretion we discount the 
advisory opinion letter as not probative of any criterion of 8 C.F.R. § 21 4.2(h)(4)(iii)(A). For 
efficiency's sake, we hereby incorporate the above discussion and analysis regarding the opinion 
letter into each of the bases in this decision for dismissing the appeal. 
Thus, based upon a complete review of the record, 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 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
reasons discussed above, the petitioner has not satisfied 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 
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 position 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 de greed employment. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four assignable 
wage levels. As previously mentioned, the wage-level of the proffered position indicates that 
(relative to other positions falling under this occupational category) the beneficiary is only required 
to have a basic understanding of the occupation; that he will be expected to perform routine tasks 
that require limited, if any, exercise of judgment; that he will be closely supervised and his work 
closely monitored and reviewed for accuracy; and that he will receive specific instructions on 
required tasks and expected results. 
Without further evidence, it is not credible that the petitioner's proffered position is complex or 
unique as such a position falling under this occupational category would likely be classified at a 
higher-level, such as a Level III (experienced) or Level IV (fully competent) position, requiring a 
significantly higher prevailing wage. For example, 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." 18 The evidence of record does not establish that this position is 
18 For additional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & 
Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. 
Nov. 2009), available at http://www .foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _I I_ 
2009.pdf 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
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 his 
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. § 21 4.2(h)( 4 )(iii)(A)( 2). 
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. Se e Def ensor 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. Se e § 21 4(i)(1) of the Act; 8 C.F.R. § 214. 2(h)(4)(ii) 
(defining the term "s pecialty 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. Se e 
generally Def ensor v. Meissner, 201 F. 3d 384 . In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the 
specific specialty 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 US CIS were constrained to recognize 
a specialty occupation merely because the petitioner has an established practice of demanding 
(b)(6)
NON-PRECEDENT DECISION 
Page 21 
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. Se e id. at 388. 
The petitioner stated in the Form I -12 9 petition that it has four employees and that it was established 
m. (approximately three years prior to the filing of the H-IB petition). The petitioner submitted 
information about several individuals - all of whom appear to be employed abroad by the parent 
company. The documentation does not indicate that the individuals serve as computer systems 
analysts and the petitioner has not established the relevancy of the documentation to this matter.21 
The educational level of individuals who hold positions that are not the proffered position is not 
relevant to the issue of whether the proffered position qualifies as a specialty occupation. 
Upon review of the record, 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 fourth criterion at 8 C.F.R. § 21 4.2 (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. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (of the lowest 
of four assignable wage-levels) relative to others within the occupational category. Without more, 
the position is one not likely distinguishable by relatively specialized and complex duties. That is, 
21 
Further, the petitioner did not provide the job duties and day-to-day responsibilities of these positions. 
That, is the petitioner did not provide any information regarding the complexity of the job duties, supervisory 
duties (if any), independent judgment required or the amount of supervision received. Therefore, it is unclear 
whether the duties and responsibilities of these individuals are similar or related to the proffered position. 
(b)(6)
NON-PRECEDENT DECISION 
Page 22 
without further evidence, the petitioner's has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position would likely be classified at a higher-level, such as 
a Level III (experienced) or Level IV (fully competent) position, requiring a substantially higher 
"1" 22 
preva1 mg wage. 
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 of the regulations at 8 C.F .R. § 21 4.2(h)( 4)(iii)(A)( 4). 
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. § 21 4.2(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. 
· 
III. CONCLUSION AND ORDER 
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. 
22 As previously discussed, a Level lY (fully competent) position is designated by DOL for employees who 
"use advanced skills and diversified knowledge to solve unusual and complex problems" and requires a 
significantly higher wage.