dismissed H-1B Case: Construction

(b)(6)
DATE: FEB 2 4 2015 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: VERMONT SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave .. N.W .. MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110l(a)(l 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-2908) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
Se!!.-gj_sa.8_ .F.R. § 103.5. Do not file a motion directly with the AAO. 
0hank y , 
www.uscis.gov 
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DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is 
now on appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. 
The petition will be denied. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
The petitioner submitted a Form I-129 (Petition for a Nonimmigrant Worker) to the Vermont 
Service Center. In the Form I-129 visa petition, the etitioner describes itself as a construction 
business, with six employees, that was established in In order to employ the beneficiary in 
what it designates as a project manager position, the petitioner seeks to classify him as a 
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The director reviewed the record of proceeding and determined that the petitioner did not establish 
that the proffered position qualifies as a specialty occupation in accordance with the applicable 
statutory and regulatory provisions. On appeal, the petitioner asserts that the director's basis for 
denial of the petition was erroneous and contends that it satisfied all evidentiary requirements. 
The record of proceeding before us contains: (1) the petitioner's Form I-129 and supporting 
documentation; (2) the director's RFE; (3) the petitioner's response to the RFE; ( 4) the director's 
denial letter; and (5) the Form I-290B (Notice of Appeal or Motion) and supporting documentation. 
We reviewed the record in its entirety before issuing our decision. 1 
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, and the petition will be denied. 
II. SPECIALTY OCCUPA TION 
For an H -1 B 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. 
Section 214(i)(l) of the Act, 8 U.S.C. § ll 84(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 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions 
among similar organizations or, in the alternative, an employer may show 
that its particular position is so complex or unique that it can be performed 
only by an individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)( l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Afart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language "which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 50 3 (BIA 1996). As such, the criteria stated in 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be 
read as providing supplemental criteria that must be met in accordance with, and not as alternatives 
to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)( l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
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term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Cherto.IJ, 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-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
In ascertaining 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-1B petition 
involving a specialty occupation shall be accompanied by [ d]ocumentation ... or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." 
In the H Classification Supplement to Form I-129, the petitioner described the duties of the 
proffered position as follows: 
Plan, direct or coordinate activities in engineering construction projects, manage 
project execution to ensure adherence to budget, schedule, scope and other related 
matters. 
The petitioner did not state that the proffered position has any particular academic requirements (or 
any other requirements)? 
2 The petitioner did not claim that the proffered position 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, or its equivalent, as a minimum for entry into the occupation, as required by the Act. See section 
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Thereafter, on appeal, the petitioner claimed that the position requires at least a "Bachelor's Degree or 
higher in Engineering or in Computer Science, or closely related field." In addition, the petitioner 
provided additional duties for the proffered position on appeal.3 Specifically, in a letter dated June 
24, 2014, the petitioner provided the following job duties: 
• Plan direct coordinate activities in Engineering construction projects; 
• Education to ensure adherence to budget, schedule, scope and other related 
matters; 
• Manage project execution to ensure adherence to budget, schedule, scope; 
• Develop or update project plans for our projects including information such as 
project objectives, technologies, systems, information specifications, schedules, 
funding•and staffing; 
• Monitor or track project milestones and deliverables; 
• Confer with project personnel to identify and resolve problems; 
• Develop and manage work breakdown structure (W BS) of [the] projects; 
• Submit project deliverables, ensuring adherence to quality standards; 
• Prepare project status reports by collecting, analyzing, and summarizing 
information and trends; 
• Direc t or coordinate activities of project personnel; 
• Establish and execute a project communication plan; 
• Assign duties, responsibilities, and spans of authority to project personnel. 
No explanation was provided for failing to previously state any requirements or provide a detailed job 
description for the proffered position. USCIS regulations affirmatively require a petitioner to 
establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. § 
103 .2(b )(1 ). Here, the record did not establish that the proffered position qualified as a specialty 
occupation when the petition was filed and thus, the director properly denied the petition. 
Nevertheless, turning to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), we will first discuss the record 
of proceeding 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 U.S. Department of Labor's (DOL) Occupational Outlook Handbook 
214(i)(l) of the Act. 
3 On appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position, its 
level of authority within the organizational hierarchy, or the associated job responsibilities. The petitioner 
must establish that the position offered to the beneficiary when the petition was filed merits classification for 
the benefit sought. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm'r 1978). A petitioner 
may not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter�� Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
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(Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
of occupations that it addresses.4 In the Labor Condition Application (LCA), the petitioner asserted 
that the proffered position corresponds to the occupational classification "Computer Occupations, 
All Other" - SOC (ONET/OE S) code 15-1799, at a Level II (qualified) wage.5 
We reviewed the Handbook regarding the occupational category "Computer Occupations, All 
Other." However, the Handbook does not provide a detailed narrative account nor does it provide 
summary data for this occupational category. More specifically, the Handbook does not provide the 
typical duties and responsibilities for "Computer Occupations, All Other." It also does not provide 
any information regarding the academic and/or professional requirements for these positions. Thus, 
the Handbook does not support the claim that the occupational category here is one for which 
normally the minimum requirement for entry is a baccalaureate degree (or higher) in a specific 
specialty, or its equivalent. 
We note that there are occupational categories which are not covered in detail by the Handbook, as 
well as occupations for which the Handbook does not provide any information. The Handbook 
states the following about these occupations: 
Although employment for hundreds of occupations are covered in detail in the 
Occupational Outlook Handbook, this page presents summary data on additional 
occupations for which employment projections are prepared but detailed 
occupational information is not developed. For each occupation, the Occupational 
Information Network (O*NET) code, the occupational definition, 2012 employment, 
the May 2012 median annual wage, the projected employment change and growth 
rate from 2012 to 2022, and education and training categories are presented. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-1 5 ed., 
"Data for Occupations Not Covered in Detail," http://www .bls.gov/ooh/About/Data-for­
Occupations-Not-Covered-in-Detail.htm (last visited February 23, 2015). 
4 All references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/OCO/. 
5 The "Prevailing Wage Determination Policy Guidance" issued by DOL provides a description of the wage 
levels. A Level II wage rate is described by DOL as follows: 
Level II (qualified) wage rates are assigned to job offers for qualified employees who have 
attained, either through education or experience, a good understanding of the occupation. They 
perform moderately complex tasks that require limited judgment. An indicator that the job request 
warrants a wage determination at Level rr would be a requirement for years of education and/or 
experience that are generally required as described in the O*NET Job Zones. 
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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Thus, the narrative of the Handbook indicates that there are many occupations for which only brief 
summaries are presented and that detailed occupational profiles for these occupations are not 
developed.6 The Handbook suggests that for at least some of the occupations, little meaningful 
information could be developed. 
Accordingly, in certain instances, the Handbook is not determinative. When the Handbook does not 
support the proposition that a proffered position is one that meets the statutory and regulatory 
provisions of a specialty occupation, it is incumbent upon the petitioner to provide persuasive 
evidence that the proffered position more likely than not satisfies the statutory and regulatory 
provisions, including this or one of the other three criteria, notwithstanding the absence of the 
Handbook's support on the issue. In such case, it is the petitioner's responsibility to provide 
probative evidence (e.g., documentation from other objection, authoritative sources) that supports a 
finding that the particular position in question qualifies as a specialty occupation. Whenever more 
than one authoritative source exists, an adjudicator will consider and weigh all of the evidence 
presented to determine whether the particular position qualifies as a specialty occupation. 
Upon review of the record, the petitioner has not done so in the instant case. That is, the petitioner 
has not submitted probative evidence that normally the minimum requirement for positions falling 
under the occupational category "Computer Occupations, All Other" is at least a bachelor's degree 
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 would normally have such a minimum, 
specialty degree requirement or its equivalent. 
In the instant case, the duties and requirements of the position as described in the record of 
proceeding do not indicate that this particular position proffered by the petitioner is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(l). 
. 
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 ( l) in the petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
6 We note that occupational categories for which the Handbook only includes summary data includes a range 
of occupations, including for example, postmasters and mail superintendents; agents and business managers 
of artists, performers, and athletes; farm and home management advisors; audio visual and multimedia 
collections specialists; clergy; merchandise displayers and window trimmers; radio operators; first-line 
supervisors of police and detectives; crossing guards; travel guides; agricultural inspectors, as well as others. 
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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 Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the petitioner has not established that its proffered position is one for which 
the Handbook (or other independent, authoritative source) reports a standard industry-wide 
requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. Also, there are no submissions from 
the industry's professional association indicating that it has made a degree a minimum entry 
requirement. Furthermore, the petitioner did not submit any letters or affidavits from similar firms 
or individuals in the petitioner's industry attesting that such firms "routinely employ and recruit only 
de greed individuals." Thus, based upon a complete review of the record of proceeding, we find that 
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 submitted a brief description of the proffered position on the H Classification 
Supplement, a copy of the first page of its income tax return for 2011, and a statement on appeal. 7 
No additional probative evidence regarding the proffered position and the petitioner's business 
operations was provided. 
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.8 
7 We observe that the petitioner did not submit all of the pages of the income tax return. No explanation was 
provided. 
8 Again, we note that the petitioner designated the proffered position on the LCA at a Level II wage level. 
This designation indicates that the proffered position is a position for an employee who has a good 
understanding of the occupation but who will only perform moderately complex tasks that require limited 
judgment relative to others within the occupation. Such a designation is inconsistent with a claim that the 
duties of the position are complex and unique as such a position would likely be classified at a higher-level, 
such as a Level Ill (experienced) or Level IV (fully competent) position, requiring a significantly higher 
prevailing wage. 
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The petltwner has indicated that the beneficiary's educational background and prior work 
experience will assist him in carrying out the duties of the proffered position. However, the test to 
establish a position as a specialty occupation is not the skill set or education of a proposed 
beneficiary, but whether the position itself qualifies as a specialty occupation. In the instant case, 
the petitioner has not established which of the duties, if any, of the proffered position would be so 
complex or unique as to be distinguishable from those of similar but non-degreed or non-specialty 
degreed employment. The petitioner has not satisfied the second alternative prong of 8 e.F.R. 
§ 214.2(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 users limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the petitioner artificially 
created a token degree requirement, whereby all individuals employed in a particular position 
possessed a baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor 
v. Meissner, 201 F.3d at 388. In other words, if a petitioner's stated degree requirement is only 
designed to artificially meet the standards for an H-lB visa and/or to underemploy an individual in 
a position for which he or she is overqualified and if the proffered position does not in fact require 
such a specialty degree or its equivalent, to perform its duties, the occupation would not meet the 
statutory or regulatory definition of a specialty occupation. See section 214(i)( l) of the Act; 
8 e.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. users must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the 
specific specialty as the minimum for entry into the occupation as required by the Act. To interpret 
the regulations any other way would lead to absurd results: if users were constrained to recognize 
a specialty occupation merely because the petitioner has an established practice of demanding 
certain educational requirements for the proffered position - and without consideration of how a 
beneficiary is to be specifically employed - then any alien with a bachelor's degree in a specific 
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specialty could be brought into the United States to perform non-specialty occupations, so long as 
the employer req�ired all such employees to have baccalaureate or higher degrees. See id. at 388. 
The petitioner stated in the Form I-129 petition that it has six employees and was established in 
2001 (approximately 12 years prior to the filing of the H-lB petition). However, upon review of the 
record, the petitioner did not provide documentary evidence regarding current or past recruitment 
efforts for this position. Furthermore, the petitioner did not submit any information regarding 
employees who currently or previously held the position. The record does not establish a prior 
history of recruiting and hiring for the proffered position only persons with at least a bachelor's 
degree in a specific specialty, or its equivalent. 
Upon review of the record, the petitioner has not provided probative evidence to establish 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 third criterion of 8 C.P.R. 
§ 214.2(h)(4)(iii)(A). 
The fourth criterion at 8 C.P.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. 
Upon review of the record of the proceeding, we note that the petitioner has not provided probative 
evidence to satisfy this criterion of the regulations. In the instant case, 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. 
Furthermore, we reiterate our earlier comments and findings with regard to the implication of the 
petitioner's designation of the proffered position in the LCA as a Level II (the second lowest of four 
assignable levels). Without further evidence, it is not credible that the petitioner's 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 
significantly higher prevailing wage. For instance, a Level IV (fully competent) position is 
designated by DOL for employees who "use advanced skills and diversified knowledge to solve 
unusual and complex problems." The petitioner has submitted inadequate probative evidence to 
satisfy the criterion of the regulations at 8 C.F.R. § 214.2(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.P.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed and the 
petition denied. 
III. BENEFICIARY'S QUALIFICATIONS 
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We do need to examine the issue of the beneficiary's qualifications, because the petitioner has not 
provided sufficient evidence to demonstrate that the proffered position is a specialty occupation. In 
other words, the beneficiary's credentials to perform a particular job are relevant only when the job 
is found to be a specialty occupation. 
IV. 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 ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.