dismissed H-1B Case: Construction

U.S. Citizenship 
and Immigration 
Services 
In Re : 8908821 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 24. 2020 
The Petitioner, a construction company, seeks to temporarily employ the Beneficiary as a "project 
manager (construction)" under the H-lB nonimmigrant classification for specialty occupations . See 
Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C . 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the evidence of record 
does not establish that the proffered position qualifies as a specialty occupation. The matter is now 
before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires : 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
( I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. 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"). 
II. PROFFERED POSITION 
The Petitioner is a construction company that provides "design/build services" and renovations 
including "[ d]rywall removal and installation, carpentry, carpeting, supply and install furniture, 
painting, electrical, duct and gutter cleaning, roofing and demolition." The Petitioner seeks to employ 
the Beneficiary as a "project manager (construction)." On the labor condition application (LCA) 
submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the 
occupational category "Construction Managers" corresponding to the Standard Occupational 
Classification (SOC) code 11-9021, at a Level I wage. 1 The Petitioner initially provided the following 
job duties (verbatim): 
• Participate in the conceptual development of a construction project and oversee its 
organization, scheduling, budgeting, and implementation. 
• Plan, direct, or coordinate through supervisory personnel, activities concerned with 
the construction and maintenance of facilities, and systems. 
• Plan, schedule, or coordinate project activities to meet deadlines. 
• Prepare and submit budget estimates, progress reports, or cost tracking reports. 
• Inspect or review projects to monitor compliance with regulations. 
• Study job specifications to determine appropriate software for Project 
Management. 
• Review contracts to ensure that the projects are within budget and on schedule. 
1 A petitioner submits the LCA to the U.S. Department of Labor to demonstrate that it will pay an H-1 B worker the higher 
of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid by the 
employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655.731(a). 
2 
• Shall serve as Construction Project Manager to oversee projects by using Project 
Management principles and industry software ( Calendar & Scheduling Software's, 
Sage Timberline and other Project Management related softwares). (Emphasis in 
the original). 
In response to the Director's request for evidence (RFE), the Petitioner provided a revised version of 
the duties and added the following duties to the ones it initially provided: 
• Collaborate with engineers, architects etc. to determine the specifications of the 
project[.] 
• Determine needed resources (manpower, equipment and materials) from start to 
finish with attention to budgetary limitations[.] 
• Hire contractors and other staff and allocate responsibilities[.] 
• Interpret and explain plans and contract terms to representatives of the owner or 
developer, including administrative staff: workers, or clients. 
• Evaluate construction methods and determine cost-effectiveness of plans, using 
computer models. 
The Petitioner requires a "Bachelor's Degree in Engineering with necessary academic background in 
Project Management" for the proffered position. 
III. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record contains insufficient 
information regarding the services that the Beneficiary will perform. 2 
A crucial aspect of this matter is whether the duties of the proffered position are described in such a 
way that we may discern the actual, substantive nature of the position. When determining whether a 
position is a specialty occupation, we look at the nature of the business offering the employment and 
the description of the specific duties of the position as it relates to the performance of those duties 
within the context of that particular employer's business operations. 
On a fundamental level, we conclude that the Petitioner has not sufficiently delineated the substantive 
nature of the Beneficiary's proposed duties within its operations. The Petitioner initially summarized 
the nature of its operations as a business "with contracting capabilities that support general contracting, 
2 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. We note that the Petitioner also discussed the Beneficiary's previous coursework for the purpose of correlating 
the need for the Beneficiary's education with the associated job duties of the position. However, we are required to follow 
long-standing legal standards and determine first, whether the proffered position qualifies for classification as a specialty 
occupation, and second, whether the Beneficiary was qualified for the position at the time the nonimmigrant visa petition 
was filed. C( Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988) ("The facts of a beneficiaiy's 
background only come at issue after it is found that the position in which the petitioner intends to employ him falls within 
[ a specialty occupation]."). 
3 
construction management, wrecking and demolition." The Petitioner farther stated that it provides 
services in two key areas: 
1. Design/Build Services: Design-Build, tenant fit outs, and major modifications. 
2. Renovations: Tenant fit outs, Drywall removal & installation, carpentry, carpeting, 
supply and install furniture, painting, electrical, duct and gutter cleaning, roofing 
and demolition. 
In the RFE, the Director requested an explanation of how the Beneficiary's specific job duties relate 
to the Petitioner's products and services. In response to the RFE, the Petitioner revised the 
Beneficiary's duties and submitted photographs depicting various construction sites - some with 
workers wearing safety gear such as reflective vests and hard hats. However, these photographs do 
not sufficiently identify a specific project, demonstrate the stage of the projects, the remaining work, 
if any, to be performed to complete the projects, and the type of construction project management 
resources, if any, necessary for the projects. The photographs, without more, do not sufficiently 
establish the scope and nature of the Beneficiary's proposed position. 
For example, the Petitioner stated that the Beneficiary will "[c]ollaborate with engineers, architects 
etc. to determine the specifications of the project" and "[p ]Ian, direct, or coordinate through 
supervisory personnel, activities concerned with the construction and maintenance of facilities, and 
systems." While the Director in the RFE requested organizational charts that would delineate the 
Petitioner's organization, and staffing hierarchy (including the job titles of the positions that the 
Beneficiary will manage in the proffered position, and the job title of the individual he will report to), 
the Petitioner did not submit an organizational chart. Therefore, the organizational set-up, the 
Beneficiary's position within the Petitioner's overall organizational hierarchy, and the extent of his 
duties cannot be determined. The evidence does not show the operational structure within the 
Petitioner's projects in a manner that would establish the Beneficiary's relative role therein. The 
Petitioner has not adequately evidenced the scope of the Beneficiary's responsibilities within the 
context of the Petitioner's stated collaborative efforts with engineers, architects, and supervisory 
personnel. 
On appeal, the Petitioner makes similar claims regarding its need for a project manager to "coordinate 
the construction with various other professionals and crew members such as Construction Managers, 
Civil Engineers, Architects, Government Officials/Inspectors, Foremen, Superintendent, Purchasing 
Agent etc." However, the record lacks sufficient information that would identify the substantive 
nature of the Beneficiary's position within any work group or other hierarchal structure. 
Furthermore, the record does not contain a sufficiently detailed description of the Beneficiary's duties 
to establish that the 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. The duties such as "[p ]articipate in the conceptual development of a construction 
project and oversee its organization, scheduling, budgeting, and implementation," "[ d]etermine 
needed resources (manpower, equipment and materials) from start to finish with attention to budgetary 
limitations," "[p ]Ian, schedule, or coordinate project activities to meet deadlines," "[i]nspect or review 
projects to monitor compliance with regulations," "[s]tudy job specifications to determine appropriate 
software for Project Management," "[r]eview contracts to ensure that the projects are within budget 
4 
and on schedule" and "[s]hall serve as Construction Project Manager to oversee projects by using 
Project Management principles and industry software ... " do not illuminate the substantive application 
of knowledge involved or any particular educational requirement associated with such duties. 
Notably, the Petitioner does not describe the proffered duties in relation to a specific project. Such a 
generalized description does not establish a necessary correlation between the proffered position and 
a need for a particular level of education, or its equivalency, in a body of highly specialized knowledge 
in a specific specialty. 
The Petitioner also states that the Beneficiary's duties include "hir[ing] contractors and other staff and 
allocate[ing] responsibilities." The Petitioner did not establish how these duties require an individual 
with a bachelor's or higher degree in a specific specialty, or its equivalent. While the position may 
require that the Beneficiary possess some skills and technical knowledge in order to perform these duties, 
the Petitioner has not sufficiently explained how these tasks require the theoretical and practical 
application of a body of highly specialized knowledge, and the attainment of a bachelor's or higher degree 
in the specific specialty ( or its equivalent) as a minimum for entry into the occupation. 
We also note that the Petitioner did not provide sufficient information with regard to the order of 
importance or frequency of occurrence ( e.g., regularly, periodically, or at irregular intervals) with 
which the Beneficiary will perform the generally described duties. That is, the Petitioner submitted 
no information to establish the percentage of time the Beneficiary will perform any of the duties 
described. Thus, the record does not specify which tasks are major functions of the proffered position. 
This further limits an analysis of the complexity or specialization of the proffered position. 
With the broadly described duties, and the lack of evidence regarding work specific to a particular 
project, the record lacks sufficient information to understand the nature of the actual proffered position 
and to determine that the duties require the theoretical and practical application of a body of highly 
specialized knowledge attained by a bachelor's degree, or higher, in a specific discipline. 
We note that the Petitioner requires a bachelor's degree in engineering "with necessary academic 
background in Project Management," and claims that the Beneficiary is well qualified for the position 
and references his qualifications. First, the Petitioner did not elaborate on what it means by "necessary 
academic background" - whether such "necessary academic background in Project Management" 
should be gained through formal education; whether it can be gained through experience, training, 
seminars, or a few college-level courses; or whether it should be equivalent to a bachelor's degree. 
Nonetheless, the test to establish a position as a specialty occupation is not the credentials of a 
proposed beneficiary, but whether the position itself requires at least a bachelor's degree in a specific 
specialty, or its equivalent. Here, the Petitioner has not established the substantive nature of the 
Beneficiary's work. 
The Petitioner submitted an opinion letter authored by ~-----------' a professor at the 
I I University. In his letter, the professor (1) described the credentials that he asserts 
qualify him to opine upon the nature of the proffered position; (2) described aspects of the previously 
discussed job duties proposed for the Beneficiary; and (3) stated that these duties require at least a 
bachelor's degree in engineering and project management or a closely related field. We carefully 
evaluated the professor's assertions in support of the instant petition but find them insufficient. 
5 
The professor stated that he reviewed the letter of support submitted by the Petitioner in support of the 
H-lB petition and the job description. He quoted the duties provided in the Petitioner's RFE response 
but did not provide sufficient analysis of the requirements of the proffered position within the context 
of the Petitioner's on-going projects. For example, the professor asserted that "[a]s infrastructure 
systems become more complex, a Project Manager in Construction Industry must add innovative 
management thinking to a solid foundation in design and construction" and that "[t]he superior 
background of a Bachelor's Degree or higher in Engineering and Project Management or a related 
area qualifies the Project Manager (Construction) to serve in this highly skilled leadership role as 
opposed to the non-specialty occupation workers .... " However, the professor's analysis falls short 
of providing a meaningful discussion of what the Beneficiary will actually do in the proffered position 
and how those duties require the theoretical and practical application of a body of highly specialized 
knowledge. While we appreciate the professor's discussion of the proffered position, his conclusory 
statements do not sufficiently articulate how he was able to adequately assess the nature of the position 
and appropriately determine the educational requirements of the position based upon the general duties 
provided by the Petitioner. 
The professor also stated that "after reviewing the duties generally performed by Construction 
Managers according to O*NET, 3 it is apparent the Project Manager (Construction) for [the Petitioner] 
shares many of the same duties and falls under this occupational category." While the professor 
acknowledged that information contained in O*NET indicated that some positions "require less than 
a Bachelor's Degree," he asserted that the Petitioner's proffered position was "among the majority of 
Construction Managers positions which would absolutely require Bachelor's-level preparation at a 
minimum." 4 However, as noted, the professor did not provide a meaningful discussion and analysis 
of the position to appropriately determine the educational requirements of the position. The 
professor's conclusory statements are insufficient to demonstrate that proffered position qualifies as a 
specialty occupation. 
The professor also concluded that "it is standard for a company such as [ the Petitioner] to hire a Project 
Manager (Construction) and require that individual to have attained at least a Bachelor's degree or 
higher in Engineering and Project Management or a related area." He went on to state that the success 
of the Petitioner or "similarly situated companies" is "largely dependent on the ability and expertise 
of [a] Project Manager (Construction) or someone in a similar professional position" and concluded 
that "the industry standard for a position such as Project Manager (Construction) ... [is] a Bachelor's 
3 The Department of Labor's Occupational Information Network (O*NET) can be accessed at http://www.onetonline.org. 
4 The O*NET Summary Report provides general information regarding the occupation, but it does not support a conclusion 
that the proffered position requires a bachelor's degree in a specific specialty, or the equivalent. Instead, O*NET assigns 
these positions a "Job Zone Four" rating. which states "most of these occupations require a four-year bachelor's degree, 
but some do not." Moreover. the Job Zone Four designation does not indicate that any academic credentials for Job Zone 
Four occupations must be directly related to the duties performed. In addition, the specialized vocational preparation 
(SVP) rating designates this occupation as 7 < 8. An SVP rating of 7 to less than ("<") 8 indicates that the occupation 
requires "over 2 years up to and including 4 years" of training. While the SVP rating indicates the total number of years 
of vocational preparation required for a particular position, it is important to note that it does not describe how those years 
are to be divided among training, experience, and formal education. The SVP rating also does not specify the particular 
type of degree, if any, that a position would require. (For additional information, see the O*NET Online Help webpage 
available at http://www.onetonline.org/ help/online/svp.) For all of these reasons, O*NET does not establish the proffered 
position as a specialty occupation. See https://www.onetonline.org/link/summary/1 l-9021.00 (last visited Apr. 22, 2020). 
6 
Degree or higher in Engineering and Project Management, a related area, or the equivalent." However, 
there is no indication that he has conducted any research or studies pertinent to the educational 
requirements for such positions ( or parallel positions) and no indication of recognition by professional 
organizations that he is an authority on those specific requirements. The professor did not reference, 
cite, or discuss studies, surveys, industry publications, authoritative publications, or other sources of 
empirical information, which he may have consulted in arriving at his conclusion regarding the 
industry standard for the educational requirements of the proffered position. 
In summary, we conclude that the Petitioner has not demonstrated through the professor's letter how 
an established curriculum of courses leading to a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is required to successfully serve in the proffered position. For the reasons discussed, 
we find that the professor's opinion letter lends little probative value to the matter here. Matter of 
Caron Int'!, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not required to accept or may give 
less weight to an advisory opinion when it is "not in accord with other information or is in any way 
questionable."). For the sake of brevity, we will not address other deficiencies within his analysis of 
the proffered position. 
On appeal, the Petitioner also submits an opinion letter authored by .__ _____ ___.a professor at 
.__ ____ ----.-____ ___,University. In his letter, the professor (1) describes the credentials that 
he asserts qualify him to opine upon the nature of the proffered position; (2) describes aspects of the 
previously discussed job duties proposed for the Beneficiary; and (3) states that these duties require at 
least a "Bachelor's degree or progressively responsible experience in the field of Construction 
Management, Project Management, Engineering Management, or related fields. We carefully 
evaluated the professor's assertions in support of the instant petition but find them insufficient. 
The professor states that his assessment is based upon the Director's RFE, the Director's decision for 
the instant petition, employment offer by the Petitioner, O*NET, and U.S. Bureau of Labor Statistics 
Occupational Outlook Handbook (Handbook). 5 However, the professor does not provide an analysis 
of the requirements of the proffered position within the context of the Petitioner's on-going 
construction projects or its organizational hierarchy. The professor's analysis falls short of providing 
a meaningful discussion of what the Beneficiary will actually do in the proffered position and how 
those duties require the theoretical and practical application of a body of highly specialized knowledge. 
As a result, we conclude that the Petitioner has not demonstrated that the professor possessed the 
requisite information to adequately assess the nature of the position and appropriately determine the 
educational requirements of the position, based upon the job duties and level ofresponsibilities. 
The professor also states that "[ d]ue to [his] experience as a consultant and professor, [he is] very 
familiar with the nature and depth of knowledge required for Construction Management, Project 
Management, Engineering Management, or related fields." However, there is no indication that he 
5 The professor also noted that his evaluation "relies upon copies of the original documents provided by [the Beneficiary] 
and represented by [the Beneficiary] to be authentic and true copies of those documents." The Petitioner did not explain 
why it utilized the foreign worker as an intermediary with the opinion letter's author. There is no indication that the 
professor had any contact with the Petitioner or had first-hand knowledge of the Petitioner's operations beyond the 
documents provided by the Beneficiary, which further raises questions regarding the professor's in-depth knowledge of 
the Petitioner's operations or how the duties of the position would actually be performed in the context of its business 
enterprise. 
7 
has conducted any research or studies pertinent to the educational requirements for such positions ( or 
parallel positions) and no indication of recognition by professional organizations that he is an authority 
on those specific requirements. He does not reference, cite, or discuss studies, surveys, industry 
publications, authoritative publications, or other sources of empirical information, which he may have 
consulted in arriving at his conclusion regarding the industry standard of the educational requirements 
for the proffered position. While he briefly mentions that he reviewed O*NET and the Handbook, he 
does not provide a detailed discussion of what he may reviewed or upon what specific information 
contained in these resources he based his opinion. As we noted, O*NET does not support the assertion 
that the proffered position is a specialty occupation. 6 With respect to the "Construction Managers" 
occupational category (SOC 11-9021 ), The Handbook states that "there are various ways to enter this 
occupation" and "some individuals with a high school diploma and many years of experience in a 
construction trade may be hired as construction managers .... "7 The Handbook therefore 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. 
Notably, the professor states that an individual may also qualify for the proffered position based on 
"progressively responsible experience in the field of Construction Management, Project Management, 
Engineering Management, or related field." However, he does not elaborate on what qualifies as 
"progressively responsible experience," the length of experience, or whether the knowledge gained 
through this experience should be equivalent to knowledge gained through a bachelor's level 
education. His generalized statement regarding "progressively responsible experience" does not 
support a conclusion that the proffered position requires a bachelor's degree in a specific specialty, or 
the equivalent. 
We conclude that the letter from the professor is insufficient to support the Petitioner's assertion that 
the proffered position qualifies as a specialty occupation. 8 Again, as a matter of discretion, we may 
use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int 'l, Inc., 19 I&N Dec. 
at 795. However, we will reject an opinion or give it less weight if it is not in accord with other 
information in the record or if it is in any way questionable. Id. We are ultimately responsible for 
making the final determination regarding an individual's eligibility for the benefit sought; the 
submission of expert opinion letters is not presumptive evidence of eligibility. Id.; see also Matter of 
V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while undoubtedly a form 
of evidence, does not purport to be evidence as to 'fact' but rather is admissible only if 'it will assist 
the trier of fact to understand the evidence or to determine a fact in issue."'). 
The Petitioner has not established the substantive nature of the Beneficiary's work. Consequently, this 
precludes a conclusion 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 entry into the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for a 
common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity or 
6 See Footnote 4. 
7 See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Construction Managers, 
https://www.bls.gov/ooh/management/construction-managers.htm#tab-4 (last visited Apr. 22, 2020). 
8 For the sake of brevity, we will not address other deficiencies within his analysis of the proffered position. 
8 
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. 9 
The Petitioner has not established that the proffered position is a specialty occupation. 
ORDER: The appeal is dismissed. 
9 As the lack of probative evidence in the record precludes a conclusion that the proffered position is a specialty occupation 
and is dispositive of the appeal, we will not further discuss the Petitioner's asse1tions on appeal regarding the criteria under 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
9