dismissed H-1B Case: Construction

U.S. Department of Elurneland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 10 l(a)(l S)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
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Page 2 
DISCUSSION: The director of the service center denied the, nonimmigrant visa petition and the matter is 
now before the Administrative Appeals Office (AAO) on appeaJ: The appeal will be dismissed. The petition 
will be denied. 
The petitioner is a federal contractor. It seeks to hire the beneficiary as a construction and building materials 
bidding analyst. The director denied the petition based on his determination that the petitioner had failed to 
establish that its proffered position was a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence; (3) counsel's responseto the director's request for evidence; (3) the director's 
denial letter; and (4) Form I-290B, with counsel's brief and new and previously submitted documentation. 
The AAO reviewed the record in its entirety before reaching its decision. 
The issue before the AAO is whether the petitioner's proffered position qualifies as a specialty occupation. 
To meet its burden of proof in this regard, a .petitioner must establish that the job it is offering to the 
beneficiary meets the following statutory and regulatory requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 11 84(i)(l) defines the tenn 
"specialty occupation" as one that requGes: 
(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 term "specialty occupation" is further defined at 8 C.F.R. $214.2(h)(4)(ii) as: 
An occupation which requires theoretical and practical application of a body of highly 
specialized knowledge in fields of human endeavorjncluding, 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 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, the position must meet one of 
the following criteria: 
(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 comnibn 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 rqduires 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. 
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Citizenship and Immigration Services (CIS) interprets the term "degree" in the abdve criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
To determine whether a particular job qualifies as a specialty occupati~n, CIS 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. CIS must examine the ultimate employment of the 
alien, and determine whether the position qualifies as a specialty occupation. CJ: Defensor v. Meissner, 201 
F. 3d 384 (5" Cir. 2000). 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. 
The petitioner states that it is seeking the beneficiary's services as a construction and building materials 
bidding analyst. Evidence of the beneficiary's duties includes: the Form 1-129; and an April 2, 2004 letter 
from the petitioner. 
At the time of filing, the petitioner stated that the beneficiary's duties entail: (1) determining the orders for 
computer engineering peripherals and components from the weekly bublications of CB Disk which publish all 
orders from the Federal Agencies during the week; participation in the formulation, development and 
recommendation to management of a system or program by which purchase requests, including requests for 
quotes, bids and proposals are coordinated and reviewed; receiving and evaluating proposals, quotations and 
components from manufacturers, suppliers and wholesalers (15% of time); (2) researching, analyzing, 
studying and being familiar with construction and building matFals to be procured by the petitioner through 
reading books, the Thomas register, journals, brochures, publications and attendance at trade fairs and 
seminars sponsored by the suppliers and wholesalers (10% of time); (3) conducting test product analysis of 
equipment and spare parts according to prescribed standards such as Military specifications; evaluating and 
reporting results of tests on samples submitted for quality assurance testing (20% of time); (4) researching, 
studying and assisting in the development and recommendation of the implementation of a program or policy 
involving the selection of cost effective shipping sources and identifying the most efficient modes of 
transportation (15% of the time); (5) ensuring that the petitioner is purchasing and buying construction and 
building materials at the most competitive levels available; maintaining competitive bid or purchasing process 
to ensure most competitive pricing levels (10% of time); (6) participating in drafting, execution of contracts 
or agreements with respect to procurement and purchase of construction and building materials; maintaining 
and reviewing contracts and agreements (20% of time); (7) performing final quality assurance tests on 
construction and building materials purchased by petitioner by checking against invoice to verify conformity 
(5% of time); (8) and participating in the development of strategic plans in purchasing, budget, and forecast 
and anticipating price and quality changes in components and related products to be procured or purchased 
(5% of time). The petitioner indicated that a bac?elor7s degree or equivalent and relevant work experience is 
required for the proffered position. 
The director requested additional evidence that the proffered position meets one of the above listed criteria. 
The director requested a more detailed description of the petitioner's business including copies of company 
brochures or any other printed work published by the petitioner which outlines, in detail, the products or 
services provided by its company. The director requested copies of the petitioner's signed income tax returns 
that have been certified by the JRS with all required schedules. The director requested copies of the Form 
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941, quarterly wage reports for the last two quarter~~and the petitioner's organizational chart that includes the 
current names of all executives, managers, supervisors, and employees within each department or job title. 
The director requested specifically that the beneficiary's position be listed in the chart. The director requested 
a list of all employees by name and job title including a brief description of duties, educational level, annual 
salaries and immigration status for all employees. 
Counsel responded to the director's request and the pqtitioner added to the job description. The petitioner 
stated that it has been its practice to hire persons with professional credentials in the same positions. The 
petitioner submitted list of employees and stated that they were in the same or related position and listed the 
degrees which included a BS in civil engineering, computer engineering, business administration, commerce, 
pharmacy, electronics and mechanical engineering. The petitioner referred to the Department of Labor's 
Occupational Outlook Handbook   handbook)'^ section on purchasing managers as supporting its contention 
that the proffered position is a specialty occupation. The petitioner submitted Form 941 quarterly federal tax 
returns for two quarters indicating approximately 68 employees. The petitioner submitted an organizational 
chart with fourteen job titles. The petitioner submitted job descriptions for the following positions: human 
resource manager, auditor, accountant, financial analyst, market research analyst, sales representative, and 
materials engineer, and contract specialisthidding analyst. The petitioner submitted a Form 1065 U.S. Return 
of Partnership Income which indicated gross receipts or sales of $29,963,480 for tax year 2003. The Form 
1065 also indicated salaries and wages of $3,360,264. In response to the director's request for additional 
information about the petitioner such as printed materials and brochures, the petitioner submitted a statement 
indicating that it is licensed to sell goods and services to federal agencies of the United States government and 
provided an item code list of the go ds and services. The petitioner provided a list of clients and contact r" information at different federal agencies. 
The director referred to the petitioner's claims that it had been hiring persons who majored in civil 
engineering, computer engineering, business administration, electronics & communications engineering, and 
mechanical engineering in the same positions. Thus, the director determined according to the evidence 
submitted, a bachelor's degree in a specific specialty is not required for entry into the proffered position. The 
director noted that a degree in any number of disciplines would suffice and concluded that the proffered 
position was not a specialty occupation. 
On appeal, counsel notes that the petitioner ne~ds to expand its work force in order to work with more 
government agencies. Counsel explains that the petitioner is a government contractor and "diversifying [its] 
business operations by including construction and building materials, supplies, and services required in their 
various contracts." Counsel contends that th& proffered position is a specialty occupation because the 
Handbook indicates that a purchasing manager is an occupation that requires a college degree. 
The AAO noted that the petitioner indicated that it is a federal contractor. The petitioner submitted no 
evidence that it has contracts with the federal government. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Mader of Treasure Crafi of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
Upon review of the record, the petitioner has esyblished none of the four criteria outlined in 8 C.F.R. 
9 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
WAC 04 132 50300 
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The AAO considers the criteria at 8 C.F .R. 5 5 2 14.2(h)(4fiii)(~)(l) and (2): a baccalaureate or higher degree 
or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. Factors often 
considered by CIS when determining these criteria 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 letters or affidavits fkom fms 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 115 1, 1165 
@.Minn. 1999)(quotingHird/Blaker Corp. v. Sava, 812s. Supp. 872,1102 (S.DN.Y. 1989)). 
In determining whether a position qualifies as arspeqialty 9~ccupation, CIS looks beyond the title of the 
position and determines, from a review of the duties of the position and any supporting evidence, whether the 
position actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate degreedin a sp$cif7c specialty as the minimum for entry into the 
occupation as required by the Act. 
Upon review of the record, the petitioner has'failed,to establish that the proffered position qualifies as a 
specialty occupation. The AAO routinely consults th6 Handbook for information about the duties and 
educational requirements of particular occupations. The duties of the proffered position resemble those of a 
purchasing agent as described in the Handbook. The  aidb book indicates the following duties: 
Purchasing managers, buyers, and purchasing agents evaluate suppliers on the basis of price, 
quality, service support, availability, reliability, and selection. To assist them in their search 
for the right suppliers, they review catalogs, industry and company kblications, directories, 
and trade journals. Much of this information is now available on the Internet. They research 
the reputation and history of the suppliers and may advertise anticipated purchase actions in 
order to solicit bids. At meetings, trade shows, conferences, and suppliers' plants and 
distribution centers, they examine products and services, assess a supplier's production and 
distribution capabilities, and discuss other technical and business considerations that 
influence the purchasing decision. Once all of the necessary information on suppliers is 
gathered, orders are placed and contracts are awarded to those suppliers who meet the 
purchaser's needs. Contracts often are for several years and may stipulate the price or a 
narrow range of prices, allowing purchasers to reorder as necessary. Other specific job duties 
and responsibilities of purchasing managers, buyers, and purchasing agents vary by employer 
and by the type of commodities or services to be purchased. 
Purchasing specialists employed by government agencies or manufacturing firms usually are 
called purchasing directors, managers, or agents; buyers or industrial buyers; or contract 
specialists. These workers acquire materials, parts, machines, supplies, services, and other 
inputs to the production of a final product. Some purchasing managers specialize in 
negotiating and supervising supply contracts, and are called contract or supply managers. 
Purchasing agents and managers obtain items ranging fkom raw materials, fabricated parts, 
machinery, and office supplies to construction services and airline tickets. The flow of 
work--or even the entire production process--can be slowed or halted if the right materials, 
supplies, or equipment are not on hand when needed. To be effective, purchasing specialists 
must have a working technical knowledge of the goods or services to be purchased. 
According to the Handbook: 
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Purchasers and buyers determine which commodities or services are best, choose the 
suppliers of the product or service, negotiate the lowest price, and award contracts that ensure 
that the correct amount of the product or service is received at the appropriate time. 
Similarly, the beneficiary will participate in ensuring that the petitioner is purchasing and buying construction 
and building materials at the most competitive letikls available; maintaining a competitive bid or purchasing 
process to ensure the most competitive pricing levels. 
The Handbook reports: 
Qualified persons may begm as trainees, purchasing clerks, expediters, junior buyers, or 
6 
assistant buyers. Retail and wholesale firms prefer to hire applicants who have a college 
degree and who are familiar with the merchandise they sell and with wholesaIing and 
retailing practices. Some retail firms promote qualified employees to assistant buyer 
positions; others recruit and train college graduates as assistant buyers. Most employers use a 
combination of methods. 
Educational requirements tend to vary with the size of the organization. Large stores and 
distributors, especially those in wholesale and retail trade, prefer applicants who have 
completed a bachelor's degree program with a business emphasis. 
The petitioner fails to establish the first criterion because the Handbook states that large stores and 
distributors prefer, but do not require, applicants with bachelor's degrees with a business emphasis and that 
retail and wholesale firms prefer, but do not require, applicants who have a college degree, though not 
necessarily in a specific specialty. The Handbook explains that a bachelor's degree is not required for a 
purchasing manager position. Although counsel contends that the proffered position is a specialty occupation 
because the Handbook indicates that a purchasing manager is an occupation that requires a college degree, 
CIS interprets the term "degree" in the above criteria to mean not just any baccalaureate or higher degree, but 
one in a specific specialty that is directly related to the proffered position. Accordingly, the petitioner cannot 
establish that a baccalaureate or higher degree or its equivalent in a specific specialty is the normal minimum 
requirement for entry into the proffered position. 
The petitioner has not provided evidence to established the second criterion - that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. 
No evidence is in the record that would show the proffered position is so complex or unique that it can be 
performed only by an individual with a degree. Again, the Handbook reveals that the duties of the proffered 
position are performed by a purchasing manager, a position that does not require a bachelor's degree in a 
specific specialty. 
Nor is there evidence in the record to establish the third criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A): that the 
petitioner normally requires a degree or its equivalent for the position. 
The fourth criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the howledge required to perform the duties is usually 
associated with the attainment of a baccalaureate or higher degree. The petitioner has not described the 
specific duties and responsibilities to be performed by the beneficiary in relation to its particular business 
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interests. It has not provided evidence of government contracts or the complexity of the contracts with 
reference to purchasing building materials. It cannot be concluded that the nature of the specific duties is so 
specialized and complex that the knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree in a specialty. Once again, the Handbook reveals that the 
duties of the proffered position are performed by purchasing managers, an occupation not requiring a 
bachelor's degree in a specific specialty. 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. Cj 1361. 
The petitioner has not sustained that burden. 
ORDER. The appeal is dismissed. The petition is denied.