dismissed H-1B Case: Data Analysis

U.S. Citizenship 
and Immigration 
Services 
In Re: 25234174 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 16, 2023 
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 Petitioner's 
proffered position was not a specialty occupation under section 214(i)( 1) of the Act and 8 C .F .R. 
§ 214.2(h)(4)(iii)(A)(l)-(4) and that the Beneficiary was unqualified to perform the duties of the 
proffered position under 8 C.F.R. § 214.2(h)(4)(iii)(C) . The matter is now before us on appeal. 
8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
The Petitioner filed its petition to seek to employ the Beneficiary as a Data Analyst and it submitted a 
labor condition application (LCA) certified for a position in the Business Intelligence Analyst 
occupational category. 1 The Director may request additional evidence when determining eligibility 
for the requested benefit. 8 C.F.R . § 103.2(b)(8) . In addition, a petitioner must establish eligibility at 
the time of filing the petition and must continue to be eligible through adjudication. 8 C.F.R. 
§ 103.2(b)(l). 
1 After the filing of the petition, the Department of Labor 's Bureau of Labor Statistics (BLS) advised that the Business 
Intelligence Analyst entry contained at Standard Occupational Code (SOC) 15-1199 .08 had been discontinued . BLS 
replaced the Business Intelligence Analyst entry with the Data Scientist entry described at SOC 15-2051.01. 
RE V 12/2022 www.uscis.gov 
Upon review of the record in its totality, we conclude that the Petitioner has not established that the 
proffered position qualifies as a specialty occupation. The record does not sufficiently establish the 
substantive nature of the proffered position, which precludes us from determining that the proffered 
position qualifies as a specialty occupation under sections 10l(a)(15)(H)(i)(b), 214(i)(l) of the Act, 8 
C.F.R. § 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). The record contains material 
inconsistencies in documents and materials submitted with the petition, RFE, and appeal that do not 
describe the position's duties with sufficient and consistent detail. Inconsistently stated degree 
requirements and supporting documentation likewise do not establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation. 2 
A. Legal Framework 
The Act at Section 214(i)(l), 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: (A) the 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) adds a non-exhaustive list of fields of endeavor to the 
statutory definition. And the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires that the proffered 
position must also meet one of the following criteria to qualify as a specialty occupation: 
1. 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. 
The statute and regulations must be read together to make sure the proffered position meets the 
definition of a specialty occupation. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) 
(holding that construction of language which takes into account the design of the statue as a whole is 
preferred); see also COIT Independence Joint Venture v. Fed. Sav. And Loan Ins. Corp., 489 U.S. 561 
(1989); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). Considering the statute and the regulations 
separately could lead to scenarios where a petitioner satisfies a regulatory factor but not the definition 
of specialty occupation contained in the statute. See Defensor v. Meissner, 201 F.3d 384, 387 (5th 
Cir. 2000). The regulatory criteria read together with the statute gives effect to the statutory intent. 
See Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 56 
Fed. Reg. 61111, 61112 (Dec. 2, 1991). 
So we construe the term "degree" in 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 
supporting the statutory definition of specialty occupation. See Royal Siam Corp. v. Chertoff, 
2 Although we may not discuss every document submitted, we have reviewed and considered each one. 
2 
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"). USCIS' application of 
this standard has resulted in the orderly approval of H-lB petitions for engineers, certified public 
accountants, information technology professionals, and other occupations commensurate with what 
Congress intended when it created the H-lB category. 
And job title or broad occupational category alone does not determine whether a particular job is a 
specialty occupation under the regulations and statute. The nature of a petitioner's business operations 
along with the specific duties of the proffered job are also considered. We must evaluate the 
employment of the individual and determine whether the position qualifies as a specialty occupation. 
See Defensor, 201 F.3d 384. So a petitioner's self-imposed requirements are not as critical as whether 
the nature of the position the petitioner offers requires the application of a theoretical and practical 
body of knowledge gained after earning the required baccalaureate or higher degree in the specific 
specialty required to accomplish the duties of the job. 
B. Analysis 
The vague and inconsistent manner in which the Petitioner has described the proffered position and 
its job duties, combined with the evolving nature of the position's minimum stated entry requirements, 
render us unable to ascertain the position's substantive nature. And if we cannot ascertain the 
position's actual, substantive nature, then we cannot determine whether it satisfies at least one of the 
specialty-occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4). We therefore agree 
with the Director that the Petitioner has not established that the position is a specialty occupation. 
1. Vague and Inconsistent Job Duties 
The Petitioner, founded in 2018, describes itself as a three-employee provider of services for client 
information technology (IT) organizations. This description does not shed any meaningful light on 
the Petitioner's business and whether it requires the services of an individual performing the duties of 
a specialty occupation. The Petitioner emphasizes evidence of its tax documents, invoices for services, 
state registration, and corporate governance documents. The Petitioner also submits six pictures of its 
principal place of business. The tax documents and invoices indicate a nominal level of income which 
tends to reflect that the Petitioner may be conducting some minimal business. However, it is not clear 
what the nature of the business operations is. The Petitioner's state registration and corporate 
governance documents are similarly unable to illuminate what specific business the Petitioner operates 
and the services it offers. We note that the Petitioner's principal place of business is a residential 
address in Northern Virginia. The submitted pictures appear to reflect a temporary workplace with 
easily removable signage and furniture. Whilst it can be inferred from the record and other materials 
that the Petitioner's business may have some connection to information technology and staff 
augmentation, it is wholly unclear what the nature of the service provided by the Petitioner to its clients 
is. When it is unclear as to what exactly the Petitioner does, it is equally unclear whether work of a 
specialty nature is required to accomplish the Petitioner's services for client IT organizations. 
If we are unable to assess, categorize, and comprehend the Petitioner's business, we cannot 
conclusively determine the type and complexity of the work described in the proffered job duties. And 
this is made especially more difficult when the job duties provided are vague, as is the case here. This 
3 
vagueness obscures whether the proffered job is a specialty occupation. The Director requested 
additional evidence because the Petitioner's duties were generalized and did not provide sufficient 
information to assess what the actual occupation is. In response to the RFE, the Petitioner provided 
substantially the same job description but removed three points and added the following: 
• Channels such as email, push message, direct mail communication for each treatment segment 
of the campaign. 
• Building data visualizations using SQL and Tableau for business KPis that can reduce manual 
reporting. 
• Receiving, cleaning and prepping data from clients using Python, SQL, Excel to help data 
scientists build marketing mix models that lifted ROI by 4 basis points. 
These additions do not add the specificity we require to evaluate whether the proffered job's duties 
describe the work of a specialty occupation nature. 
In an attempt to establish that the proffered position falls within the Data Scientist category of the 
Occupational Information Network (O*NET), the Petitioner submits a chart on appeal attempting to 
favorably compare an expanded version of the Petitioner's original duties with the Data Scientist 
O*NET category. 3 Simply completing a table and expanding the original job description with buzz 
words and technical jargon from the O*NET, which the Petitioner does liberally throughout the job 
description provided on appeal, does not explain how the job relates to or comprises duties that fall 
within the selected O*NET category. In one specific example, the Petitioner's original job description 
as listed in the initial petition and RFE described a duty wherein the Data Analyst would "[p]]erform 
segmentation analytics for each campaign using database technologies present both on premise (such 
as SQL, Teradata, Unix) and on Cloud platform using AWS (Amazon Web Services) technologies 
and Big Data Technologies, such as Spark, Cassandra, Python and Redshift." This duty morphed at 
appeal to require the Data Analyst to "[p ]rovide technical support and perform segmentation analytics 
for each campaign using database technologies present both on premise (such as SQL, Teradata, 
UNIX) and on Cloud Platform using AWS (Amazon Web Services) technologies and Big Data 
Technologies, such as Spark, Cassandra and Redshift" so that a correlation could be drawn between 
the expanded job duties and the O*NET job description. The O*NET job description states in 
pertinent part "[p]]rovide technical support for existing reports, dashboards or other tools." Adding 
"provide technical support" into the original job duty does not convincingly correlate the duty to the 
occupational classification contained in O*NET. The inconsistent characterization of the proffered 
job's duties raises questions about the substantive nature of the proffered job and therefore whether it 
is a specialty occupation that satisfies any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Our doubts about the accuracy of the job duties go directly to the heart of whether the proffered job is 
a specialty occupation. And any evidence rooted in the job duties is considerably weaker as a result. 
The Petitioner provided a position evaluation froml I concluding that the proffered Data 
Analyst position is a specialty occupation requiring the application of a body of theoretical knowledge 
in the computer field. On appeal, the Petitioner provides a position evaluation froml I 
Professor in the Department of Data Analytics and Information Systems at I !University's 
3 See O*NET Summary Report for "Data Scientist," SOC 15-2051.01 at https://www.onetonline.org/link/summary/15-
2051.00. 
4 
School of Business which also concludes that the Petitioner's proffered position is 
a specialty occupation. 4 Both writers' o inions are based on the nonspecific job duties provided by 
the Petitioner. In the case of o inion new job duties not mentioned or contained 
anywhere else in the record are introduced. o opinion is based on revised job duties first 
introduced to the record by the Petitioner in the appeal. the Petitioner's inconsistent job descriptions 
scattered throughout the record do not provide an accurate description of the proffered job. Opinion 
statements based on these various job descriptions are therefore unreliable. We may use opinion 
statements submitted by the Petitioner as advisory. Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 
(Comm'r 1988). But an opinion statement is afforded less weight by us where there is cause to 
question or doubt the opinion, or if it is not in accord with other information in the record as is the 
case here. 
The Petitioner also submits evidence of work product in the appeal to support their description of the 
proffered job and their claim it comprises a specialty occupation. The examples appear to be screen 
shots of "dashboards" and "scripts." The screenshots without more are not instructive to us. The 
Petitioner has not explained how specialized knowledge is used when working with "dashboards" and 
"scripts." And the screenshots raise questions about the true nature of the job. The term "scripts" for 
example can relate to other jobs that are in the computer and software sphere, not necessarily just Data 
Scientists as selected by the Petitioner. 5 
2. Inconsistent Degree Requirements and Supporting Documentation 
The Petitioner's inconsistent expression of the proffered position's minimum educational 
requirements raises yet more questions as to the position's substantive nature. In the initial petition, 
the sole indication of the educational requirements for the proffered position is a letter from a 
midvendor for the engagement the Petitioner seeks to fill with the proffered position. The midvendor 
states that the requirements of the position are a "Bachelor's degree, or higher, in Computer Science, 
Computer Engineering, Computer Information Systems, Computer Application, Data Science, or a 
related field of study in Engineering or Science." In its RFE response, the Petitioner supplements the 
midvendor letter with a notarized statement within which they describe the minimum educational 
requirements to be "a Bachelor's in Computer Science or Information Science or Civil Engineering or 
any related Engineering." Later in the same document the Petitioner omits the acceptability of the 
"Civil Engineering" field and the qualifier of a "related Engineering" field and states the minimum 
requirements are at least a "Bachelors in Computer Science or Information Science or Engineering." 
On appeal, the Petitioner asks us to ignore the record of proceedings that came before and states that 
they have "always required that applicants have at a minimum a Bachelor's degree in Computer 
Science or a related field." 
In lockstep with their evolving requirements, the Petitioner's supporting documents and their contents 
meld and change. The educational requirements for the position contained at the midvendor letter 
submitted initially and with the RFE change in the midvendor letter submitted at appeal without any 
explanation other than the vague reference to the mistakes of prior counsel contained in the Petitioner's 
4 also shared their opinion about the Beneficiary's qualification in their respective opinions, 
as discussed below. 
5 See, e.g., Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers 
(Sept. 8, 2022), https://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm. 
5 
and Beneficiary's statements. The Petitioner seeks to replace a brief letter submitted before the appeal 
from the end client describing the end client's use of contractors for services with a printout of an 
email from an individual purporting to be an employee of the end client to the Beneficiary describing 
duties and requirements at appeal. 
None of this is material, relevant, or probative evidence of the Petitioner's provision of a specialty 
occupation. Both the statutory and regulatory definitions of specialty occupation should be read in 
context to require attainment of a bachelor's degree or higher in a specific specialty. See Defensor v. 
Meissner, 201 F.3d 384 (5th Cir. 2000). A position is a "specialty occupation" under the statute and 
regulations if it involves a "body of highly specialized knowledge" attained after completing a 
bachelor's degree or higher in a "specific specialty." Sagarwala v. Cissna, 387 F.Supp.3d 56, 65 
(D.D.C. 2019). The everchanging degree requirements as expressed by the Petitioner in the record of 
proceedings before us cannot comprise a specialty because their fluid nature leads us to question what 
the true requirements are. The varied expressions of what fields of study the Petitioner would accept 
to comprise a body of specialized knowledge to perform the duties of the position introduce a doubt 
as to whether the Petitioner would accept a bachelor's degree in any generalized field of study to 
perform the duties of the position. And if we do not know what the specialty is, we cannot conclude 
that the educational requirements would provide an individual with the "body of highly specialized 
knowledge" required to perform the duties of a specialty occupation. So this excludes the Petitioner's 
proffered position from consideration as a specialty occupation. The Petitioner's exercise of flexibility 
in its minimum educational requirements and preparation of supporting documentation does not 
convincingly demonstrate that their proffered job is a specialty occupation. 
In summary, we are unable to ascertain the proffered position's substantive nature due to the 
deficiencies outlined above. And since we cannot determine its substantive nature, we cannot 
conclude whether the position qualifies as a specialty occupation under any of the criteria enumerated 
at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). The Petitioner has therefore not overcome this ground of the 
Director's decision. 
II. BENEFICIARY QUALIFICATIONS 
On appeal, the Petitioner asserts that the Beneficiary is qualified to perform the duties of the position. 
However, a beneficiary's credentials to perform a particular job are relevant only when the job is found 
to be a specialty occupation. Cf Matter of Michael Herts Assocs., 19 I&N Dec. 558, 56 (Comm'r 
1988). As discussed above, the Petitioner has not established that the proffered job's duties are of the 
substantive nature of a specialty occupation requiring the application of a theoretical and practical 
body of highly specialized knowledge attained after earning a bachelor's degree or higher or its 
equivalent in the specific specialty minimally mandated for entry into position. See section 291 of the 
Act, 8 U.S.C. § 1361. So, we do not have to address the Beneficiary's qualifications farther. 
But even if the Petitioner had established that its proffered job is a specialty occupation, we would 
nonetheless likely conclude it had not provided material, relevant, or probative evidence of the 
Beneficiary's qualifications to perform the duties of a specialty occupation. 
6 
A. Legal Framework 
Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an individual applying for classification 
as an H-1B nonimmigrant worker must possess a license if it is required for the occupation, have 
earned a bachelor's or higher degree in a specific specialty related to the job duties, or have earned the 
equivalent of a bachelor's or higher degree in a specific specialty related to the job duties based on 
having experiences in the specialty equivalent to the completion of the degree and recognition of 
expertise in the specialty through progressively responsible positions relating to the specialty. 
The supplementing regulations at 8 C.F.R. § 214.2(h)(4)(iii)(C) restate the statute and require meeting 
one of four criteria to qualify to perform services in a specialty occupation: 
(1) Hold a United States baccalaureate or higher degree required by the specialty occupation from 
an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher 
degree required by the specialty occupation from an accredited college or university; 
(3) Hold an unrestricted state license, registration or certificate which authorizes him or her to 
fully practice the specialty occupation and be immediately engaged in that specialty in the state 
of intended employment; or 
(4) have education, specialized training, and/or progressively responsible experience that is 
equivalent to completion of a United States baccalaureate or higher degree in the specialty 
occupation, and have recognition of expertise in the specialty through progressively 
responsible positions directly related to the specialty. 
The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D) provides five methods by which a petitioner can satisfy 
8 C.F.R. § 214.2(h)(4)(iii)(C)(4): 
(1) An evaluation from an official who has authority to grant college-level credit for training 
and/or experience in the specialty at an accredited college or university which has a program 
for granting such credit based on an individual's training and/or work experience; 
(2) The result of recognized college-level equivalency examinations or special credit programs 
such as the College Level Examination Program (CLEP), or Program on Noncollegiate 
Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service which specializes in 
evaluating foreign educational credentials; 
( 4) Evidence of certification or registration from a nationally-recognized professional association 
or society for the specialty that is known to grant certification or registration to persons in the 
occupational specialty who have achieved a certain level of competence in the specialty; 
( 5) A determination by the Service that the equivalent of the degree required by the specialty 
occupation has been acquired through a combination of education, specialized training and/or 
work experiences in areas related to the specialty and that the noncitizen has achieved 
recognition of expertise in the specialty occupation as a result of such training and experience. 
7 
B. Unqualified Beneficiary 
The Beneficiary earned a U.S. master of engineering degree in engineering management from 
Institute of Technology in in I I NJ. They also earned a bachelor of technology in civil 
engineering from University of Information Technology inl I India. We agree with the 
Director that the Petitioner has not established the Beneficiary's qualifications for the proffered 
specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(C)(])-(3). The Beneficiary does not hold a 
United States bachelor's or higher degree required by the specialty occupation from an accredited 
college or university. They likewise do not hold a foreign degree determined to be equivalent to a 
United States bachelor's or higher degree required for the specialty occupation from an accredited 
college or university. The Petitioner has also not demonstrated that the Beneficiary holds an 
unrestricted State license, registration, or certification which authorizes them to fully practice the 
specialty occupation and be immediately engaged in that specialty in the state of intended employment. 
When the occupation does not require a license and the Beneficiary does not have the required U.S. 
degree or its foreign degree equivalent in the field required for entry to the specialty occupation, our 
analysis revolves around whether the Petitioner established that the Beneficiary possesses the 
education, specialized training and/or progressively responsible experience in the specialty equivalent 
to the completion of the required U.S. degree or its foreign degree equivalent and has progressively 
responsible experience in job position in the specialty constituting a recognition of expertise as 
required by 8 C.F.R. § 214.2(h)(4)(iii)(C)(4). 
The Director based their decision on the insufficiency of the evaluations of the Beneficiary's education 
and work experience provided by the Petitioner. As we have stated before, we may exercise our 
discretion and consider opinion statements submitted by the Petitioner as advisory. Matter of Caron 
Int'l, 19 I&N Dec. at 795. Most relevantly, the record of proceeding contains: 
• A credential evaluation report submitted with the RFE response from I Professor 
at the Universidadl I concluding that the Beneficiary's education and 
work experience is equivalent to a U.S. bachelor of science with a concentration in data 
analysis; 
• AAn expert opinion and educational evaluation submitted with the RFE response from I I 
Professor at the Universidad _________ concluding that the 
Beneficiary's education and work experience is equivalent to a U.S. bachelor of science with 
a concentration in data analysis; 
• An evaluation submitted with the RFE response byl I a self-identified "consultant 
and subject matter expert." I ]justifies their capacity to render their opinion based 
on their "extensive and varied past positions," none of which is specified in their biography 
nor is evidenced in the record. They conclude that the Beneficiary has the qualifications to 
perform the duties of a specialty occupation, but do not identify what the field of specialty 
required is. 
• An evaluation submitted with the appeal by I a college professor at 
University, concluding that the Beneficiary's education, training and/or experience was 
equivalent to a United States baccalaureate degree in computer information systems; and 
• Letters from the Beneficiary's former employers. 
8 
The evaluations submitted by the Petitioner are also accompanied by either the writer's curriculum 
vitae; a self-authored statement of "expertise," letter( s) from their employing institutions attesting to 
their authorization to grant college-level credit or training and/or work experience in the specialty at 
an accredited college or university which has a program for granting such credit based on an 
individual's training/work experience, and/or documentation either from an internal policy document 
or printed from publicly available internet sources describing the institution's policy for granting 
academic credit. 
Each evaluation submitted by the Petitioner at each stage of this case introduces questions and doubts 
about the Beneficiary's qualifications and does not fit into the requirements of the regulations at 8 
C.F.R. § 214.2(h)(4)(iii)(D)(]). The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D)(]) requires that an 
evaluation to document eligibility under 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) be issued by an official who 
has authority to grant college-level credit for training and/or experience in the specialt at an 
accredited college or university which has a program for granting such credit. Both Professor 
and Professor are authorized to provide credit only at the Universida 
I I This is not an accredited U.S. institution of higher education. As the credits that Professor 
I land/or Professor I lare authorized to provide would be applied towards a degree from a 
non-U.S. institution of higher education unaccredited in the United States, it follows that they cannot 
evaluate the Beneficiary's education and work experience to equate to a bachelor's or higher degree 
from an accredited U.S. institution of higher education. 
Nor isl I evaluation probative to the question of the Beneficiary's qualifications. They 
refer to "extensive and varied past positions" to justify their opinion. However, there is no evidence 
in the record that they are currently an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited U.S. college or university which has a 
program for granting such credit based on an individual's training and/or work experience. 
opinion is accompanied by two letters from officials at the writer's employer,, I ___ 
University, attesting to I I authority to issue credit for relevant work experience where 
appropriate. The letters are identical in every way other than the date, letterhead, and signature block. 
Most specifically, the content of the submitted letters conflicts with public information from 
University which makes no provision for credit to be authorized based on work experience. Per 
their published policy I !University only awards credit for academic work completed at other 
academic institutions and not for work experience or training. Examples of sources listed in the policy 
from which I Jniversity may accept credit are accredited institutions, foreign universities, 
U.S. military credit for approved job and educational experience, and miscellaneous sources such as 
internships and nontraditional learning experiences. Work experience is not mentioned or provided 
for. Moreover, the policy states that the credit may or may not apply for the purposes of graduation 
from I !University, regardless of the number of credits transferred. This conflict raises doubt 
about whether the writer is authorized to grant credit based on training and/or work experience. The 
record of proceeding does not contain material, relevant, or probative evidence addressing this 
discrepancy. I I opinion, like those ofl I and Professors 
does not satisfy the requirements of 8 C.F.R. § 214.2(h)(4)(iii)(D)(]) to establish the Beneficiary's 
qualifications under 8 C.F.R. § 214.2(h)(4)(iii)(C)(4). Opinion statements have less weight where 
there is cause to question or doubt the opinion, or if it is not in accord with other information in the 
record as is the case here. 
9 
And there is insufficient evidence in the record to satisfy 8 C.F.R. § 214.2(h)( 4)(iii)(D)(2), (3), or ( 4). 
So we will turn to 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) which grants USCIS the authority to make our 
own determination on the Beneficiary's qualifications. Specifically, we can evaluate that an individual 
has earned the equivalent of the degree required by the specialty occupation through a combination of 
education, specialized training and/or work experiences in areas related to the specialty and that the 
noncitizen has achieved recognition of expertise in the specialty occupation as a result of such training 
and experience. We may determine equivalency by accepting three years of specialized training and 
or work experience demonstrated by the individual for each year of college level training the 
noncitizen lacks. Additionally, the noncitizen must demonstrate recognition of expertise by one of the 
following: 
(i) Recognition of expertise in the specialty occupation by at least two recognized 
authorities in the same specialty occupation; 
(ii) Membership in a recognized foreign or United States association or society in the 
specialty occupation; 
(iii) Published material by or about the alien in professional publications, trade journals, 
books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation in a foreign country; or 
(v) Achievements which a recognized authority has determined to be significant 
contributions to the field of the specialty occupation. 
The record is not sufficient to satisfy 8 C.F.R. § 214.2(h)(4))(iii)(D)(5) either. The record of 
proceedings provides insufficient work-experience evidence for us to reasonably conclude that the 
Petitioner has satisfied any one of the requirements of 8 C.F.R. § 214.2(h)(4)(iii)(D)(5)(i)-(v). 6 So 
we cannot conclude that the evidence of the Beneficiary's work experience qualifies for recognition 
of any years of college-level credit by correct application of the H-lB beneficiary-qualification 
regulations' "three-for-one" standard. Based upon the findings articulated above, we conclude that 
the totality of the evidence regarding the Beneficiary's foreign education and work experience does 
not satisfy any criterion at 8 C.F.R. §§ 214.2(h)(4)(iii)(C) and (h)(4)(iii)(D). 
6 Though acknowledged, the letters regarding the Beneficiary's work experience lack the detail necessary to meet these 
requirements. 
10 
III. INEFFECTIVE ASSISTANCE OF PRIOR COUNSEL 7 
The Petitioner claims that the prior proceedings in this matter were negatively influenced by the 
ineffective assistance of their previous counsel. In support of their claim of ineffective assistance, the 
Petitioner provides us with sworn statements from the Petitioner's managing partner and the 
Beneficiary. Both make nonspecific allegations regarding mistakes of inconsistency and accuracy by 
their previous counsel. 
We are not convinced by these claims of ineffective assistance of counsel. We examine claims of 
ineffective assistance of counsel under the three prong procedural requirements set out in Matter of 
Lozada, 19 I&N Dec. 63 7 (BIA 1988). To demonstrate a claim of ineffective assistance of counsel, a 
petitioner or applicant must typically demonstrate: 
• That the claim is supported by an affidavit of the allegedly aggrieved party setting forth in 
detail the agreement that was entered into with counsel with respect to the actions to be taken 
and what representations counsel did or did not make to the respondent in this regard; 
• That prior counsel was informed of the allegations against them and be given an opportunity 
to respond to the questions of their integrity and competence; and 
• That the appeal or motion reflects whether a complaint has been filed with appropriate 
disciplinary authorities with respect to any violation of counsel's ethical or legal 
responsibilities and, if not, why not. 
The above are simply minimum evidentiary requirements designed to provide a basis for us to evaluate 
whether the alleged ineffective assistance rendered the proceeding "fundamentally unfair" and 
whether the parties were "prejudiced by [the former] representative's performance." Id. at 638. 
The Petitioner does not demonstrate compliance with these minimal evidentiary requirements under 
the Lozada framework. The record does not contain evidence of notice and opportunity to respond to 
the prior counsel who allegedly provided ineffective assistance. The record does not reflect whether 
the Petitioner filed a complaint with appropriate disciplinary authorities with respect to the prior 
counsel's ineffective assistance. The sole allegations of ineffective assistance present in the record 
7 On appeal, the Petitioner provides new information, documentation, and explanation as part of an expanded set of the 
proffered job's duties. The Petitioner also provides new educational requirements minimally required for entry into the 
proffered job, revised supporting documents regarding the proffered job opportunity at the third-party worksite. and a new 
evaluation of the Beneficiary's education and work experience at appeal. The Petitioner attempts to justify the submission 
of new information and explanation by claiming that the prior proceedings in this matter were negatively influenced by 
the ineffective assistance of their previous counsel, discussed above. Multiple precedent decisions address whether newly 
submitted evidence on appeal will be considered. See Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988); Matter of 
Soriano, 19 I&N Dec. 764, 766 (BIA 1988); see also Matter of Jimenez, 21 I&N Dec. 567, 570 n.2 (BIA 1996). We note 
that the Director requested evidence to evaluate whether the nature of the proffered job was a specialty occupation and 
whether the Beneficiary had the qualifications to perform proffered job duties comprising a specialty occupation. But the 
Petitioner did not submit at that time what they provided with the appeal. A petitioner may not make material changes to 
a petition, to its claims, or to the evidence in an effort to make an apparently deficient petition conform to USCTS 
requirements. See Matter of Izummi, 2I&N Dec. 169, 175 (Assoc. Comm'r 1998). We have chosen to exercise our 
discretion in this matter and evaluate the new information, documentation, and explanation provided by the Petitioner for 
the first time on appeal. But we have concluded that it is not material, relevant, or probative to the threshold questions of 
whether the Petitioner's proffered job is a specialty occupation and whether the Beneficiary has the minimum qualifications 
to function in a specialty occupation for the reasons specified in this decision. 
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are contained in the Petitioner and Beneficiary's respective sworn statements. Neither statement 
provides any detail to support the claim of ineffective assistance of counsel other than an allegation of 
mistakes and inconsistencies without any specificity. 
As such, the Petitioner has not satisfied the procedural requirements of Matter of Lozada and the claim 
of ineffective assistance of counsel is insufficient. 
IV. CONCLUSION 
It is the Petitioner's burden to provide competent and credible evidence of the nature of its proffered 
specialty occupation and the Beneficiary's qualification for the proffered position. The Petitioner has 
not met their burden for the reasons set forth above. 
ORDER: The appeal is dismissed. 
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