dismissed H-1B Case: Construction Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 5440692 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 24, 2020 
The Petitioner, a company engaged in project and construction management, seeks to employ the 
Beneficiary as a "cost engineer" 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 evidence of 
record does not establish that the proffered position qualifies as a specialty occupation . On appeal , 
the Petitioner asserts that the Director erred in the decision. 
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: 
1 We follow the preponderance of the evidence standard. Matter ofCha wathe, 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 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as a "cost engineer." 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 most recent 
version; 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 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. 
2 
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 asserts that the Director has mischaracterized the Handbook to conclude that a 
bachelor's degree in a specific specialty is not normally the minimum requirement for the proffered 
position. The Petitioner cites to Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252, 267 
(S.D.N.Y. 2017) to state that "most" means that the degree is "normally" required for the position and 
thus, the position qualifies as a specialty occupation. 
We first note that we are not bound to follow the published decision of a United States district 
court. SeeMatterofK-S-,20l&NDec. 715, 719-20(BIA 1993). Nevertheless,evenifweconsidered 
the logic underlying the matter, we conclude that the Petitioner has not demonstrated that the proffered 
position qualifies as a specialty occupation. 
3 We do not maintain that the Handbook is the exclusive source ofrelevant 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 (USCIS) 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. § 655.73l(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 Jan. 22, 2020). 
6 Id. 
3 
As recognized by another court, while the Handbook may establish the first regulatory criterion for 
certain professions, many occupations are not described in such a categorical manner. 7 See Innova 
Sols., Inc. v. Baran, 2019 WL 3753334, at *8 (N.D. Cal. Aug. 8, 2019) (declining to follow Next 
Generation Tech., Inc.). For example, "[the Handbook's] description for the Computer Programmer 
occupation does not describe the normal minimum educational requirements of the occupation in a 
categorical fashion." Id.; see also Xiaotong Liu v. Baran, 2018 WL 7348851 (C.D. Cal. Dec. 21, 
2018). "Accordingly, [the Petitioner] could not simply rely on [the Handbook] profile, and instead 
had the burden to show that the particular position offered to [the Beneficiary] was among the 
Computer Programmer positions for which a bachelor's degree was normally required." See Innova 
Sols., Inc. 2019 WL 3753334, at *8. 
Moreover, the court in Next Generation Tech., Inc. relied in part on a USCIS policy memorandum 
regarding "Computer Programmers" indicating generally preferential treatment toward computer 
programmers, and "especially" toward companies in that particular petitioner's industry. However, 
USCIS rescinded the policy memorandum cited by the court in Next Generation Tech. Inc. 8 
In addition, on appeal, the Petitioner cites to Tapis Int'l v. INS, 94 F. Supp. 2d 172 (D. Mass. 2000) to 
support its claim that the first regulatory criterion does not preclude the finding of a specialty 
occupation position when multiple disciplines may be permitted. We are not persuaded. The Tapis 
court similarly confirmed that the agency is "not unreasonable in interpreting the guidelines to demand 
that an employer require a degree in a specific field. Otherwise a position would qualify if any 
bachelor's degree were required." Tapis, 94 F. Supp. 2d at 175. 
We agree with the general proposition that "[ t ]he knowledge and not the title of the degree is what is 
important." Residential Finance, 839 F. Supp. 2d at 997 ( citing Tapis, 94 F. Supp. 2d at 175-76). 
Moreover, we generally agree that, if the requirements to perform the duties and job responsibilities 
of a proffered position are a combination of a general bachelor's degree and specialized experience 
such that the standards at both section 214(i)(l )(A) and (B) of the Act have been satisfied, then the 
proffered position may qualify as a specialty occupation. However, these general propositions are not 
applicable here. 
In any event, the Petitioner has famished no evidence to establish that the facts of the instant petition 
are sufficiently analogous to those in Tapis which concerned a marketing-related position. And in 
contrast to the broad precedential authority of the case law of a United States circuit court, we are not 
bound to follow the published decision of a United States district court in matters arising even within 
the same district. See K-S-, 20 I&N Dec. at 719-20. Although the reasoning underlying a district 
judge's decision will be given due consideration when it is properly before us, the analysis does not 
have to be followed as a matter oflaw. Id. 
7 Such professions would include surgeons or attorneys, which indisputably require at least a bachelor's degree for entry 
into the occupation. 
8 See USCTS Policy Memorandum PM-602-0142, Rescission of the December 22, 2000 "Guidance memo on HlB 
computer related positions" (Mar. 31, 2017), https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-
0142-H-1 BComputerRelatedPositionsRecission.pdf. 
4 
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 
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. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
We generally consider the following sources of evidence to determine if there is such a common degree 
requirement: 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 from firms or individuals in the industry establish 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. at 1102 (considering these "factors" to inform the 
commonality of a degree requirement). 
The Petitioner provided 28 job vacancy announcements placed by other companies that we reviewed. 
Notably, the Petitioner did not provide any independent evidence of how representative these job 
advertisements are of the particular advertising employer's recruiting history for the type of job 
advertised. Further, as they are only solicitations for hire, they are not evidence of what qualifications 
were ultimately required for the positions. 
In addition, the Petitioner did not provide sufficient information regarding the hiring employer such 
that we can determine whether they are "similar organizations," as required by the regulation. For 
example, the Petitioner employs 43 individuals but only 9 out of the 28 postings were for companies 
with 11-50 employees. Several of the postings were for companies that employed thousands. When 
determining whether the Petitioner and another organization share the same general characteristics, 
such factors may include information regarding the nature or type of organization, and, when pertinent, 
the particular scope of operations, as well as the level of revenue and staffing ( to list just a few elements 
that may be considered). It is not sufficient for the Petitioner to claim that an organization is similar 
and in the same industry without providing a basis for the assertion. 
5 
Moreover, some positions do not appear to be for parallel positions. The proffered position is for a 
cost engineer, however, 12 advertisements were for senior-level positions. Thus, it is not clear if these 
job advertisements are for parallel positions. 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. That is, as the evidence does not establish that similar organizations in the same industry 
routinely require at least a bachelor's degree in a specific specialty, or its equivalent, for parallel 
positions, not every deficit of every job posting has been addressed. 9 
Accordingly, the Petitioner has not satisfied the first alternative prong of the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
On appeal, the Petitioner did not provide evidence to support this criterion and thus, has not satisfied 
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. 
On appeal, the Petitioner stated that it recently hired three additional cost engineers who all possess a 
Bachelor's degree in Quantity Surveying or Construction Management. Even if these individuals were 
employed in the same or similar positions, we observe that the Petitioner was established in 2002 and 
currently has 43 employees. Consequently, it cannot be determined how representative the Petitioner's 
claim regarding three individuals ( over a 17 year period of time) is of the Petitioner's normal recruiting 
and hiring practices. 
In addition, in response to the RFE, the Petitioner provided its own job posting for a cost engineer. It 
is not clear when this advertisement was posted and for how long. The Petitioner did not provide 
further information or evidence regarding its recruiting history for the position. Without more, the 
submission of one posting is not persuasive in establishing that the Petitioner normally requires at least 
a bachelor's degree in a specific specialty, or its equivalent, for the position. 
As the Petitioner does not submit sufficient probative evidence that demonstrates the academic 
qualifications of individuals previously or currently employed in a cost estimator position, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 10 
9 It must be noted that even if all of the job postings indicated that a bachelor's degree in a specific specialty, or its 
equivalent, is common to the industry in parallel positions among similar organizations (which they do not), the petitioner 
has not demonstrated what inferences, if any, can be drawn from these advertisements with regard to determining the 
common educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, 
The Practice of Social Research 186-228 (1995). 
10 While a petitioner may believe or otherwise assert that a proffered position requires a degree in a specific specialty, that 
6 
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. 
On appeal, the Petitioner states that the cost engineer position is "specialized and complex because the 
position requires the employee to perform precise cost estimates of$10 million construction projects." 
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. 
On appeal, the Petitioner discussed the letter it submitted previously. In support of its assertion that 
the roff ered osition is a specialty occupation, the Petitioner submitted a position evaluation from 
Assistant Professor, Construction Management, at the College of Engineering, 
,....._ _____ .,..U_n-iv_e_r_.sity. I I concluded that the position of cost engineer with the Petitioner 
qualifies as a specialty occupation and requires at least a bachelor's degree in construction 
management, or related field. We carefully evaluated the assertion ot1.__ ___ ..... ~ut for the following 
reasons, determined the opinion lent little probative value. 
~---~I does not reference, cite, or discusses any studies, surveys, industry publications, 
authoritative publications, or other sources of empirical information which they may have consulted 
to complete the evaluation. In addition, I I does not demonstrate or assert in-depth knowledge 
of the Petitioner's specific business operations or how the duties of the position would actually be 
performed in the context of the Petitioner's business enterprise. There is no evidence that I I 
has visited the Petitioner's business, observed the Petitioner's employees, interviewed them about the 
nature of their work, or documented the knowledge that they apply on the job. 
Further, I Uid not discuss the duties of the proffered position in any substantive detail. To 
the contrary, it simply listed the tasks in bullet-point fashion. [ lasserts a general industry 
educational standard for operations research analyst positions without referencing any supporting 
authority or any empirical basis for the pronouncement. 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 
additionJ ldoes not cite specific instances in which his past opinions have been accepted or 
opinion alone without corroborating evidence cannot establish the position as a specialty occupation. Were USCTS 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 employer 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, 20 I F. 3d at 387. In other words, if a petitioner's degree requirement 
is only symbolic and the proffered position does not in fact require such a specialty degree, or its equivalent. to perf01m 
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 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"). 
7 
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 by I I is not probative evidence to establish the proffered position as a specialty 
occupation. The conclusion reached byl I lacks 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, 19 I&N 
Dec. 791 (Comm'r 1988). 
Here, the Petitioner has not sufficiently established that a bachelor's degree in a specific specialty, or 
its equivalent, is normally the minimum requirement for entry into the particular position. 
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. 
8