dismissed H-1B Case: Consumer Lending

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 2233P-R-, LLC 
Non- Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 26, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a company providing consumer lending, Internet deferred deposit, and credit 
services, seeks to employ the Beneficiary as a "chief operating officer" under the H-1B nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) § 
101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 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, California Service Center, denied the pet1t10n. The Director concluded that the 
Petitioner had not established that the job offered here qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the proffered position 
is a specialty occupation. 1 Upon de novo review, we will dismiss the appeal. 
1 
The Petitioner checked box "b" in Part 3, item 1 of the Form I-290B, Notice of Appeal or Motion, indicating that it 
would provide a brief and/or additional evidence to us within 30 calendar days of filing the appeal. The Petitioner 
submitted a brief statement with the Form I-290B, which states: 
As allowed for, we will file our brief and/or additional evidence to the AAO within 30 
calendar days of filing this appeal. As will be discussed further in our brief, it is our contention that 
USCIS erroneously concluded that the position offered to the beneficiary does not qualify as a 
specialty occupation. We will show in the brief and supporting documentation that the specific duties 
to the Chief Operating Officer at our Company and in our industry, are so specialized and complex that 
the knowledge required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
However, as of the date of this decision, the Petitioner did not submit a brief and/or additional evidence; therefore, the 
record is deemed complete as currently constituted. 
Matter oj2233P-R-, LLC 
I. SPECIALTY OCCUPATION 
A. 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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.P.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed 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 common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
2 
Matter of2233P-R-, LLC 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. 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"). Applying this standard, USCIS regularly approves H -1 B petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or 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. 
3 
Matter of2233P-R-, LLC 
B. The Proffered Position 
In its support letter dated January 20, 2015, the Petitioner indicated that the Beneficiary will perform 
the following duties, in pertinent part, as a chief operating officer (COO) (with percentages added): 
Manage secured and unsecured personal loan portfolios and develop other consumer 
line credit product and new personal loan product business [50 percent] 
Train, coach, and manage employees in all Company's policies and procedures with 
connection of all categories of loan business operation [20 percent] 
Develop the strategic partner relationship with third party service providers and 
enhance Company's business market value [30 percent] 
The Petitioner did not state its own minimum requirements for the position in its support letter. 
However, the Petitioner cited to the U.S. Department of Labor's Occupational Outlook Handbook 
to state that "[t]op [ e ]xecutive is a position that requires an entry level of education of Bachelor's 
degree or higher" and "[m]any top executives have a bachelor's or master's degree in business 
administration or in an area related to their field of work." 
In response to the Director's request for additional evidence (RFE), the Petitioner elaborated on its 
duties as follows, in pertinent part, in a letter dated May 20, 2015 (with percentages added): 
a. Review, implement and coordinate all of the Company's short-term lending activities 
including: improving sales department efficiency, loan processing accuracy, customer 
service and collections activities. [30 percent of the time] 
b. Conduct statistical analytics to help achieve profitability in the loan portfolio, on 
topics including consumer lead purchasing, loan conversions and loan performance. 
[30 percent of the time] 
c. Implement marketing projects in various channels such as email, direct mail, SEO, 
PPC, etc. [10 percent] 
d. Continually monitor, improve and fine tune key operating metrics and financial 
performance. [1 0 percent] 
e. Advise and develop company strategy for future growth and profitability. [10 percent] 
f. Participate in funding raising for additional funds for the lending portfolio. [ 10 
percent] 
4 
Matter of2233P-R-, LLC 
Regarding the minimum requirements, the Petitioner stated that the proffered duties are so: 
[ c ]omplex and specialized in the loan and finance industry that knowledge required to 
perform those specific executive direction, supervision and strategy policy making 
duties is usually associated with the attainment of an advanced degree in the MBA 
degree. We also confirmed the above requirements with our executive recruiter (who 
specializes in the short-term lending field) and he indicated that it was common and 
that we would and should hire someone with an MBA or similar experience to 
oversee the intricate tasks of this position. 
However, the Petitioner also stated that "most of our executive officers possess a minimum Bachelor 
or higher degree" and that "various similar loan processing companies with comparable size to our 
Company requires that their COO and other executive officers possess [a] Bachelor or higher 
degree." 
C. Analysis 
On appeal, the Petitioner asserts that the Director erred in concluding that the proffered did not 
qualify as a specialty occupation. We reviewed the record in its totality and determined that the 
record contains inconsistencies that undermine the Petitioner's claims regarding the proffered 
position.2 We do not simply rely on a position's title to determine whether a particular job qualifies 
as a specialty occupation. We consider the specific duties of the proffered position, combined with 
the nature of the petitioning entity's business operations. See generally Defensor v. Meissner, 201 
F. 3d 384. Accordingly, the Petitioner did not satisfy its burden to establish by a preponderance of 
the evidence that the proffered position qualifies as a specialty occupation. 
1. Inconsistencies Regarding the Petitioner's Business 
In the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner indicated that it was 
established in 2011, and has 55 employees. In response to the RFE, the Petitioner asserted that 
"[u]nder [the Beneficiary]'s direction, the [Petitioner] has the following five Departments to 
coordinate the daily business [with] each other: Accounting, Operations, Product 
Management/Compliance, Analytics, Marketing and Information Technology." 
However, the evidence in the record does not support its claims. For example, the Petitioner 
submitted an organization chart, but it lists only 11 employees. Further, the chart does not include 
the five departments that the Petitioner claimed that the Beneficiary would direct. Notably, the 
organization chart is titled "Executive Staff," and lists positions such as chief executive officer/ chief 
legal officer, senior vice president of operations, chief financial officer. .. etc., implying that the 
2 
The Petitioner submitted documentation to support the H-1 8 petition, including evidence regarding the proffered 
position and the Petitioner's business operations. While we may not discuss every document submitted, we have 
reviewed and considered each one. 
5 
(b)(6)
Matter of2233P-R- , LLC 
organization chart only lists executive positions . However, it also lists accounting clerk and junior 
web applications developer position, which are not executive positions. Further, the Petitioner did 
not submit additional organization chart or explain why the organization chart lists only 11 
employees when it indicated that it has 55 employees. 
The Petitioner provided the Form 1065, U.S. Return of Partnership Income, from 2013. The return 
indicates that the Petitioner paid only $288,945 for salaries and wages, which does not appear to be 
sufficient to pay the wages for 55 employees or even 11 employees , most of whom are listed as 
executives. 
The Petitioner also submitted Form W-2, Wage and Tax Statements, from 2013. While there are 32 
wage and tax statements, most ofthe employees appear to have been either temporary or part-time as 
majority ofthe statements report wages ofless than $10,000, some less than $1,000. 
We find that it is reasonable to assume that the size of an employer's business has or could have an 
impact on the claimed duties of a particular position . See EG Enters., Inc. v. Dep 't of Homeland 
Sec., 467 F. Supp. 2d 728 (E.D. Mich. 2006). The size of a petitioner may be considered as a 
component of the nature of the petitioner 's business, as the size impacts upon the actual duties of a 
particular position. In this matter, the job description provided identifies typical management duties, 
yet the record lacks sufficient evidence to demonstrate that the duties as described will actually be 
performed by the Beneficiary or that the Petitioner's organization actually has the need for an 
individual to perform such duties. 
Further, the Petitioner's 2013 partnership income return indicated a loss of $366,093. We also note 
that in the Form I-129, which was submitted on January 30, 2015, the Petitioner indicated that its net 
annual income is "($3,213,477)" suggesting that it had a loss of approximatel y $3.2 million in 2014. 
It therefore appears that the Petitioner 's revenues are decreasing , which contradicts its statement in 
its support letter, that "[w]e have experienced healthy financial growth since our inception." 
Further, the Petitioner's financial losses also call into question the Petitioner's ability to pay the 
Beneficiary the proffered wage of $180,000 per year plus annual bonus, which according to the 
employment contract is $50,000 per year. "[I]t is incumbent upon the petitioner to resolve the 
inconsistencies by independent objective evidence ." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. !d. at 591-92. Here, the 
Petitioner did not provide sufficient evidence to address its inconsistencies. 
2. Inconsistencies Regarding the Proffered Position 
We also note that the record of proceedings in this case contains conflicting information regarding 
the proffered position. For example, the Petitioner stated in its May 20, 2015, letter that "[t]he 
[proffered] position was vacant prior to [the Beneficiary] joining the company. . . 
. The closest 
equivalent in the company is who is the CEO and CLO of the Company and who 
has a Bachelor 's Degree in Finance, a Juris Doctorate and an LL.M. in Banking and Financial Law." 
(b)(6)
Matter of2233P-R-, LLC 
However, the record contains a contract effective November 26, 2014, to May 25, 2015, signed by 
on the Petitioner's behalf with the position title of "Chief Operating Officer." 3 
Since the Petitioner already appears to have employed another COO at the time the petition was filed 
on January 30, 2015, it is not clear whether the Beneficiary actually would work as a COO. 
Based on the conflicting evidence as described above, we find the evidence of record insufficient to 
establish that the Beneficiary will be employed to exclusively perform work as a COO, as claimed. 
Thus, we find that the evidence of record is insufficient to establish the substantive nature of the 
work to be performed by the Beneficiary. 
3. Inconsistencies Preclude a Finding that the Proffered Position is a Specialty Occupation 
Because of the discrepancies discussed above, we cannot determine the nature and scope of the 
Beneficiary's employment. The record lacks evidence sufficiently concrete and informative to 
demonstrate that the proffered position qualifies as a specialty occupation. Therefore, we cannot 
determine that description of the proffered position communicates: (1) the actual work that the 
Beneficiary would perform; (2) the complexity, uniqueness and/or specialization of the tasks; and/or 
(3) the correlation between that work and a need for a particular level education of highly specialized 
knowledge in a specific specialty. 
The inability to establish the substantive nature of the work to be performed by the Beneficiary 
consequently precludes a finding that the proffered position satisfies any criterion at 8 C.P.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 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 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. Accordingly, as the Petitioner 
has not established that it has satisfied any of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A), it cannot 
be found that the proffered position qualifies as a specialty occupation. 
4. The Petitioner's Educational Requirement 
The Petitioner also provided inconsistent information regarding the degree required for the proffered 
position. The Petitioner indicated that the proffered position requires at least a bachelor's degree 
without stating a specific specialty but also stated that a bachelor or higher degree in business 
administration is required. 
3 In the Petitioner's letter dated May 20, 2015, submitted in response to the RFE, the Petitioner refers to 
the Senior Vice President of Operations. 
as 
Matter of2233P-R-, LLC 
We note that the Petitioner's educational requirement for the proffered position is inadequate to 
establish that the proposed position qualifies as a specialty occupation. A petitioner must 
demonstrate that the proffered position requires a precise and specific course of study that relates 
directly and closely to the position in question. Since there must be a close correlation between the 
required specialized studies and the position, the requirement of a degree with a generalized title, 
such as business administration, without further specification, does not establish the position as a 
specialty occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. USCIS interprets the degree requirement at 8 C.P.R. § 214.2(h)(4)(iii)(A) to require a 
degree in a specific specialty that is directly related to the proposed position. Although a general­
purpose bachelor's degree, such as a degree in business administration, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a finding 
that a particular position qualifies for classification as a specialty occupation. Royal Siam Corp. v. 
Chertoff, 484 F.3d 139, 147 (1st Cir. 2007).4 
Again, the Petitioner in this matter claims that the duties of the proffered position can be performed 
by an individual with only a general-purpose bachelor's degree, i.e., a bachelor's or higher degree in 
business administration. Without more, this assertion alone indicates that the proffered position is 
not in fact a specialty occupation. The Director's decision must therefore be affirmed and the appeal 
dismissed on this basis alone. 5 
4 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
!d. 
The courts and the agency consistently have stated that, although a general-purpose bachelor's 
degree, such as a business administration degree, may be a legitimate prerequisite for a particular 
position, requiring such a degree, without more, will not justify the granting of a petition for an H-1 B 
specialty occupation visa. See, e.g., Tapis lnt'l v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); 
Shanti, 36 F. Supp. 2d at 1164-66; cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 
([Comm'r] 1988) (providing frequently cited analysis in connection with a conceptually similar 
provision). This is as it should be: elsewise, an employer could ensure the granting of a specialty 
occupation visa petition by the simple expedient of creating a generic (and essentially artificial) degree 
requirement. 
5 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation. 
In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a 
specific specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertof!, 484 F.3d at 147. 
It is also important to note that a position may not qualify as a specialty occupation based solely on either a preference 
for certain qualifications for the position or the claimed requirements of a petitioner. See Defensor v. Meissner, 20 I F.3d 
Matter of 2233P-R-, LLC 
II. CONCLUSION 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of2233P-R-, LLC, ID# 15630 (AAO Feb. 26, 2016) 
384, 387 (5th Cir. 2000). Instead, the record must establish that the performance of the duties ofthe proffered position 
requires both the theoretical and practical application of a body of highly specialized knowledge and the attainment of a 
baccalaureate or higher degree in a specific specialty, or its equivalent, as the minimum for entry into the 
occupation. See section 214(i)(l) ofthe Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"). 
9