dismissed H-1B Case: Data Analysis

MATTER OF N-Y-IJ.._ _ ___, 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 24, 2019 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , ~ I seeks to temporarily employ the Beneficiary as a "data analyst" under the 
H-1B 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-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 of the Vermont Service Center denied the petition , concluding that the Petitioner did not 
establish that the proffered position qualifies as a specialty occupation . 
On appeal , the Petitioner submits a brief contending that the proffered position qualifies as a specialty 
occupation. 
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 . 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter ofN-Y-I-1 .... _ ____, 
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: 
(]) 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. 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 "data analyst." 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. 
III. ANALYSIS 
The Director concluded the evidence was insufficient to establish that the position qualified as a 
specialty occupation under at least one of the criteria in 8 C.F.R. § 214.2(h)(4)(iii)(A). On appeal, the 
Petitioner discusses the position's qualification as a specialty occupation solely under the criterion in 
8 C.F.R. § 214.2(h)(4)(iii)(A)(]) and (4). It does not provide new documentary evidence, or otherwise 
challenge the Director's determination of ineligibility, under the criteria in subsections (2) or (3) of 
8 C.F.R. § 214.2(h)(4)(iii)(A). Therefore, we will focus our discussion on whether the position 
qualifies as a specialty occupation under the criterion in 8 C.F.R. § 214.2(h)(4)(iii)(A)(]) and (4). 
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Matter C?fN-Y-I- □ 
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. 2 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 
A. Minimum Position Requirements 
Preliminarily, the Petitioner stated that the pos1t10n of data analyst requires, at a mm1mum, a 
Bachelor's degree. The Petitioner also stated that operations research analysts typically need a 
bachelor's degree in operations research, economics, engineering, computer science, analytics, or 
mathematics. 
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. Cf Matter of Michael Hertz Assocs., 
19 I&N Dec. 558, 560 (Comm'r 1988). In this matter, the Petitioner's claim seems to demonstrate 
that the knowledge required to perform the proffered position does not require a precise and specific 
course of study, but rather requires concepts that are taught in various quantitative disciplines. There 
are many disparate disciplines within the social and physical sciences that have quantitative 
underpinnings. Acceptance of degrees that appear related only through basic quantitative principles 
conflicts with the statutory definition of a specialty occupation, which requires a bachelor's degree in 
"the specific specialty." 3 Section 2 l 4(i)(l) of the Act ( emphasis added). 
In this matter, the Petitioner has not established that a degree in statistics, a degree in engineering, and 
a degree in economics are all closely related fields, such that the "body of highly specialized 
knowledge" would essentially be the same. Absent this evidence, we cannot conclude that the 
particular position proffered in this matter requires 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 in the United States. The 
Petitioner has not satisfied the definition of specialty occupation as set out in the Act. 
However, for thoroughness, we will now address the Petitioner's more specific assertions on appeal. 
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. 
3 Whether read with the statutory "the" or the regulatory "a," both readings denote a singular "specialty." Section 
214(i)(l )(B) of the Act; 8 C.F.R. § 214.2(h)( 4 )(ii). Still, we do not so narrowly interpret these provisions to exclude 
positions from qualifying as specialty occupations if they permit, as a minimum entry requirement, degrees in more than 
one closely related specialty. This also includes even seemingly disparate specialties provided the evidence of record 
establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. The Petitioner has not provided this information here. 
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Matter C?fN-Y-I~~-~ 
B. First Criterion 
We tum next to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
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. 4 
On the labor condition application (LCA) submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Operations Research Analysts" 
( corresponding to the Standard Occupational Category code 15-2031 ). 5 The subchapter of the 
Handbook titled "How to Become an Operations Research Analyst" states, in relevant part, "although 
some employers prefer to hire applicants with a master's degree, many entry-level positions are 
available for those with a bachelor's degree." 6 The Handbook farther states, that while "some schools 
offer bachelor's and advanced degree programs in operations research, some analysts have degrees in 
other technical or quantitative fields, such as engineering, computer science, analytics, or 
mathematics." 7 The Handbook indicates farther that courses in various fields such as engineering, 
mathematics, computer science, economics, and political science are useful because "operations 
research is a multidisciplinary field with a wide variety of applications." 8 Because the Handbook 
recognizes this occupation as multidisciplinary, and does not identify a specific discipline to perform 
the duties of the occupation, the Handbook does not support a conclusion that these positions comprise 
an occupational group for which normally the minimum requirement for entry is at least a bachelor's 
degree in a specific specialty, or its equivalent. 
On appeal, in support of its assertion that the proffered position is a specialty occupation, the Petitioner 
submittep......a....tlQion evaluation froml I University of I I at 
I I L___J concluded that the position of data analyst with the Petitioner qualifies as a specialty 
occupation and requires at least a bachelor's degree in mathematics, statistics, or a related field. We 
carefully evaluated the assertion ofl ~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 
4 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. 
5 A petitioner submits the LCA to DOL 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. § 655.73l(a). 
6 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Operations Research Analysts, 
https://www.bls.gov/ooh/math/operations-research-analysts.htm#tab-4 (last visited Sept. 23, 2019). 
7 Id. 
8 Id. 
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Matter C?fN-Y-Il._ _ ____. 
Petitioner's specific business operations or how the duties of the position woull actuallfi be performed 
in the context of the Petitioner's business enterprise. There is no evidence that 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. In fact, I I referenced the 
Petitioner as a "start-up company" even though the Petitioner was established in 2013 and has 24 
employees. 
FurtherJ ldid not discuss the duties of the proffered position in anr. substantive detail. To the 
contrary, it simply listed the tasks in bullet-point fashion. I asserts 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 I does 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 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 from I 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). As a reasonable exercise of our discretion we discount the advisory opinion 
letter as not probative of any criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Moreover, on appeal, the Petitioner cites to Tapis Int'l v. INS, 94 F. Supp. 2d 172 (D. Mass. 2000) and 
Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012), among other cases, 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. Rather, the 
Tapis court 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. 
The record lacks sufficient evidence to support a finding that the proffered position is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. For the aforementioned reasons, the Petitioner has not met its burden to 
establish that the particular position offered in this matter requires a bachelor's or higher degree in a 
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Matter C?fN-Y-I~~-~ 
specific specialty, or its equivalent, directly related to its duties in order to perform those tasks. Thus, 
the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]). 
C. 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. 
The Petitioner provided information regarding the proffered position and its business operations, 
including the documentation previously outlined. We note the Petitioner's submission of a detailed 
overview of the proffered position. However, while the evidence submitted demonstrates that 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. The responsibilities for the proffered position contain generalized functions without 
providing sufficient information regarding the particular work, and associated educational 
requirements, into which the duties would manifest themselves in their day-to-day performance. 
The Petitioner has not demonstrated that its proffered position is one with duties sufficiently 
specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. 
Cite as Matter ofN-Y-I-._I _ ____.I ID# 4781713 (AAO Sept. 24, 2019) 
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