dismissed H-1B Case: Construction

U.S. Citizenship 
and Immigration 
Services 
In Re: 7745492 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 27, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-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 California Service Center denied the petition, concluding that the proffered 
position does not qualify as a specialty occupation. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 1 
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: 
1 We follow the preponderance of the evidence standard. Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010) . 
(]) 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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted 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 proposed 
position. See Royal Siam Corp. v. Chertojf, 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
The Petitioner, a commercial subcontractor for window treatments, stated that the Beneficiary will 
serve as a "cost estimator." The Petitioner initially provided the position's description, and expanded 
on those duties in response to the Director's request for evidence (RFE). For the sake of brevity, we 
will not quote the descriptions; however, we note that we have closely reviewed and considered the 
duties. According to the Petitioner, the proffered position requires a bachelor's degree in civil 
engineering, construction management, or a related field. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 2 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
2 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
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entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses. 3 
On the labor condition application (LCA)4 submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Cost Estimators" corresponding to 
the Standard Occupational Classification code 13-1051. 
The Handbook states, in pertinent part, about these occupations: "Most cost estimators need a 
bachelor's degree, although some workers with several years of experience in construction may 
qualify without a bachelor's degree." 5 The Handbook also states: "Some employers prefer that 
construction cost estimators, particularly those without a bachelor's degree, have previous work 
experience in the construction industry. Some construction cost estimators become qualified solely 
through extensive work experience." 6 Since the Handbook states that a worker without a bachelor's 
degree may qualify for the position based on an unquantified amount of work experience, 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 entry into the cost estimator occupational group. 
Instead, this language supports the conclusion that this occupation allows for several ways to enter the 
occupation. 
The Petitioner refers to our non-precedent decision from 2005 where we determined that the position of 
cost engineer was a specialty occupation. The Petitioner has furnished no evidence to establish that the 
facts of the instant petition are analogous to those in the unpublished decision. Moreover, this decision 
was not published as a precedent and therefore does not bind USCIS officers in future adjudications. See 
8 C.F.R. § 103.3(c). Non-precedent decisions apply existing law and policy to the specific facts of the 
individual case, and may be distinguishable based on the evidence in the record of proceedings, the issues 
considered, and applicable law and policy. While 8 C.F.R. § 103.3(c) provides that our precedent 
decisions are binding on all USCIS employees in the administration of the Act, unpublished decisions 
are not similarly binding. 
We conclude that the Petitioner has not established that the proffered position is located within an 
occupational category for which the Handbook, or any other relevant, authoritative source, indicates 
that the normal minimum entry requirement is at least a bachelor's degree in a specific specialty, or 
the equivalent. Moreover, the Petitioner has not provided documentation from another probative 
3 We do not maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category 
designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered 
position, and we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. To satisfy the first criterion, however, the burden ofproofremains on the Petitioner to submit 
sufficient evidence to support a finding that its particular position would normally have a minimum, specialty degree 
requirement, or its equivalent, for entry. 
4 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services (USCTS) to demonstrate 
that it will pay the Beneficiary 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 experience and qualifications who 
are performing the same services. Section 212(n)(l) of the Act; 20 C.F.R. § 655.73 l(a). 
5 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Cost Estimators, on the Internet at 
https://www.bls.gov/ooh/business-and-financial/cost-estimators.htm#tab-4 (last visited Feb. 26, 2020). 
6 Id. 
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source to substantiate its assertion regarding the minimum requirement for entry into this particular 
position. The Petitioner therefore has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong casts its gaze upon 
the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 
The Petitioner did not assert eligibility under either prong of this criterion, nor did it provide evidence 
to support this criterion on appeal. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
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. 
The Petitioner did not assert eligibility under this criterion, nor did it provide evidence to support this 
criterion on appeal. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.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. 
In support of the petition, the Petitioner provided information regarding the proffered position and its 
business operations. The generalized description of the Petitioner's overall business operations does 
not give sufficient insight into the particular duties of the proffered position. The Petitioner's 
description does not convey the substantive nature of the work that the Beneficiary would actually 
perform, or any particular body of highly specialized knowledge that would have to be theoretically 
and practically applied to perform it. 
The Petitioner states that the duties associated with its cost estimator position are specialized and 
complex. In support of this assertion, the Petitioner provided a detailed overview of the duties of the 
Beneficiary, along with the percentage of time devoted to each duty and the relevant coursework 
associated with each duty. For example, the Petitioner indicated that the Beneficiary will prepare 
estimates using the Blue Beam Estimator software, analyze blueprints, consult with clients, vendors, 
and other personnel to discuss estimates and resolve issues, prepare contracts, confer with various 
personnel regarding changes and adjustments to estimates, set up cost monitoring and reporting 
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systems, conduct studies to establish and develop cost data and cost reduction opportunities, and 
prepare cost and expenditure statements. 
When discussing H-lB employment, the Petitioner's description must be comprehensive enough to 
properly ascertain the minimum educational requirements necessary to perform those duties. The 
Petitioner's job description does not sufficiently and consistently detail the complexity or uniqueness 
of the job duties, supervisory duties (if any), independent judgment required, or the amount of 
supervision received. Although the Petitioner identified various courses, such as "construction cost 
estimating" and "topics in civil engineering construction management" as relevant to each of the stated 
duties, 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 specialized and complex. 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 establish 
that the nature of the duties is so specialized or complex 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 specialized and complex as to be distinguishable from those of similar but non-degreed 
or non-specialty degreed employment. 
On appeal, we farther note the Petitioner's submission of an overview of the Beneficiary's workday 
as a cost estimator, along with project descriptions, bids, and proposals which appear to constitute 
sample work products of the Beneficiary. While noted, these documents alone do not establish that 
the duties of the proffered position are specialized or complex as contemplated by this criterion. While 
the Petitioner claims that the Beneficiary's educational background is an essential prerequisite to 
performing the duties of the position, the record as constituted is insufficient to satisfy this criterion. 
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 established 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. 
On appeal, the Petitioner asserted that the Director did not afford significant weight to a position 
evaluation froml I Assistant Professor of Civil and Environmental Engineering at 
I I University. I I concluded that the position of cost estimator with the 
Petitioner qualifies as a specialty occupation and requires at least a bachelor's degree in civil 
engineering or related field. 
In his letter,I I (1) describes the credentials that he asserts qualify him to opine upon the 
nature of the proffered position; (2) references the duties proposed for the Beneficiary; and (3) states 
that those duties require at least a bachelor's degree in civil engineering. We carefully evaluated □ 
I Is assertions in support of the instant petition but, for the following reasons, determined his 
letter is not persuasive. 
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~---~I did not discuss the duties of the proffered position in any substantive detail. To the 
contrary, it simply listed the tasks provided by the Petitioner in bullet-point fashion.I I asserts 
a general industry educational standard for cost engineer positions without referencing any supporting 
authority or any empirical basis for the pronouncement. 7 His opinion does not relate his conclusion 
to specific, concrete aspects of the Petitioner's business operations to demonstrate a sound factual basis 
for the conclusion about the educational requirements for the particular position here at issue. In 
addition, while he claims to be a recognized authority in the field,I ldoes 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 such positions ( 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. 
In summary, and for each and all of the reasons discussed above, we conclude that the opinion letter 
rendered byl lis not probative evidence to establish the proffered position as a specialty 
occupation. The conclusion reached byl llacks the requisite specificity and detail and is not 
supported by independent, objective evidence demonstrating the manner in which he reached such 
conclusion. There is an inadequate factual foundation established to support the opinion and the 
opinion is not in accord with other information in the record. Therefore, the letter froml I 
does not establish that the proffered position is a specialty occupation. 
We may, in our discretion, use 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 International, I 9 I&N 
Dec. 791 (Comm'r 1988). 
As the Petitioner did not sufficiently develop relative specialization and complexity as an aspect of 
the duties of the position, it has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
7 Althougtt I asserts that he has consulted the Handbook, O*NET OnLine, and various course catalogs from his 
university, we do not find his reliance on these sources to be sufficient, specifically since the Handbook, as previously 
discussed in this decision, does not support his conclusion regarding a degree in a specific specialty. 
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