dismissed H-1B Case: Data Science

U.S. Citizenship 
and Immigration 
Services 
In Re : 9094400 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 26, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "data scientist" 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 record did not 
establish that the Beneficiary was qualified to perform the services of the specialty occupation under 
INA section 214(i)(2). The matter is now before us on appeal. On appeal, the Petitioner asserts that 
the Director's decision was in error. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec . 369, 375 (AAO 2010). We review this 
matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
In accordance with long-standing legal standards, we must first determine whether the proffered 
position qualifies for classification as a specialty occupation, and second, whether the Beneficiary was 
qualified for the position at the time the nonimmigrant visa petition was filed. Matter of Michael Hertz 
Assocs ., 19 I&N Dec. 558,560 (Comm'r 1988) ("The facts ofa beneficiary's background only come 
at issue after it is found that the position in which the petitioner intends to employ him falls within [ a 
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) 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: 
( 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. 
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. 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"). 
B. Analysis 
The Petitioner stated that the proffered position requires a bachelor's degree, or its equivalent, in 
applied mathematics, statistics, or a related field. In response to the Director's request for evidence, 
the Petitioner submitted the following list of duties and the percentage of time spent on each duty. 
• Developing statistical models and applying them to solve real-time problems through the 
application of statistical analysis, including descriptive statistics, correlation, regression, and 
confidence intervals ( 40%) 
• Creating actionable data insights and solutions from [the Petitioner's] large datasets and 
building internal infrastructure and programs (20%) 
• Building internal infrastructure and programs at a large scale for [the Petitioner's] complex 
ecosystem ( 10%) 
2 
• Employing a mastery of statistical analysis, including descriptive statistics, correlation, 
regression, and confidence intervals (10%) 
• Designing metrics and developing SQL queries to generate reports (10%) 
• Utilizing probability and statistics skills to develop new scalable time senes and outlier 
detection models (10%) 
In addition to these bullet point duties, the Petitioner added a narrative describing the tasks involved 
in each duty and explained how the tasks relate to its business operations. The totality of the evidence 
establishes that the position falls within the standard occupational classification code 15-2041 
"Statisticians" occupation. The Petitioner claims that the proffered position requires a bachelor's 
degree in applied mathematics, statistics, or a related field in order to perform the duties described. 
Although the proposed position may be a statistician occupation on its face, the Petitioner has not 
established how the Beneficiary is qualified to perform the duties of a specialty occupation statistician 
by its own standards or the standards set out at section 214(i)(2) of the Act and the regulations set out 
below. 
II. BENEFICIARY'S QUALIFICATIONS 
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-IB nonimmigrant worker must possess: 
(A) foll state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (1 )(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
In implementing section 214(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C) states that 
a beneficiary must also meet one of the following criteria in order to qualify to perform services in a 
specialty occupation: 
(]) 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 
(3) Hold an unrestricted State license, registration or certification which authorizes 
him or her to folly 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. 
If a petitioner is relying on a combination of the beneficiary's education, specialized training, and/ or 
progressively responsible experience to meet the requirements of 8 C.F .R. § 2 l 4.2(h )( 4 )(iii)( C)( 4), the 
record must contain evidence that the education, specialized training and/or progressively responsible 
experience is equivalent to completion of a college degree in the specific specialty required by the 
specialty occupation. For purposes of paragraph 8 C.F.R. § 214.2(h)(4)(iii)(C)(4), equivalence to a 
United States baccalaureate or higher degree shall mean achievement of a level of knowledge, 
competence, and practice in the specialty occupation that has been determined to be equal to that of 
an individual who has a baccalaureate or higher degree in the specialty. 
In order to establish the equivalency discussed in 8 C.F.R. § 214.2(h)(4)(iii)(C)(4), the regulation at 
8 C.F.R. § 214.2(h)(4)(D) requires one or more of the following: 
(]) 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 results of recognized college-level equivalency examinations or special 
credit programs, such as the College Level Examination Program (CLEP), or 
Program on Noncollegiate Sponsored Instruction (PONS!); 
(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; or 
(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 experience in areas related to the specialty and 
that the alien has achieved recognition of expertise in the specialty occupation as 
a result of such training and experience. For purposes of determining equivalency 
to a baccalaureate degree in the specialty, three years of specialized training 
and/or work experience must be demonstrated for each year of college-level 
training the alien lacks. 
4 
In accordance with 8 C.F.R. § 214.2(h)(4)(iii)(D)(5): 
For purposes of determining equivalency to a baccalaureate degree in the specialty, 
three years of specialized training and/or work experience must be demonstrated for 
each year of college-level training the alien lacks .... It must be clearly demonstrated 
that the alien's training and/or work experience included the theoretical and practical 
application of specialized knowledge required by the specialty occupation; that the 
alien's experience was gained while working with peers, supervisors, or subordinates 
who have a degree or its equivalent in the specialty occupation; and that the alien has 
recognition of expertise in the specialty evidenced by at least one type of 
documentation such as: 
(i) Recognition of expertise in the specialty occupation by at least two recognized 
authorities in the same specialty occupation; 1 
(ii) Membership in a recognized foreign or United States association or society in the 
specialty occupation; 
(iii) Published material by or about the alien m 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. 
It is always worth noting that, by its very terms, 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) is a matter strictly 
for U.S. Citizenship and Immigration Services (USCIS) to determine, and that, also by the clear terms 
of the rule, experience will merit a positive determination only to the extent that the record of 
proceedings establishes all of the qualifying elements at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), including, 
but not limited to, a type of recognition of expertise in the specialty occupation. 
B. Analysis 
The Petitioner submitted the Beneficiary's bachelor's degree and transcript for her coursework in 
dental surgery from the.__ ________ _, University inl I India. As part of her pursuit 
of a dental surgery degree, the Beneficiary took seventeen courses covering general medical and dental 
surgery subjects and completed a one-year compulsory internship in dentistry. The Petitioner provided 
an academic equivalency evaluation issued by The Trustforte Corporation, which equated the 
1 Recognized authority means a person or organization with expertise in a particular field, special skills or knowledge in 
that field, and the expertise to render the type of opinion requested. 8 C.F.R. § 214.2(h)(4)(ii). A recognized authority's 
opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such opinions, citing 
specific instances where past opinions have been accepted as authoritative and by whom; (3) how the conclusions were 
reached; and (4) the basis for the conclusions supported by copies or citations of any research material used. Id. 
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Beneficiary's foreign degree to a doctor of dental surgery degree . The Beneficiary 's coursework did 
not include linear algebra, calculus, experimental design, survey methodology, probability, and 
statistical theory. Nor did it include any other mathematical or statistical coursework. The Petitioner 
also submitted the Beneficiary 's certificate of completion relating to a "data analytics bootcamp" at 
I !University. The certificate does not include a delineation of coursework, the length of 
time of study, or other information as to the standards required to obtain the certificate. The record 
also includes an unofficial transcript for three courses (financial accounting, macroeconomics and 
microeconomics) the Beneficiary took at thel !college an~ !College . In addition , 
the Petitioner submitted a letter verifying that the Beneficiary has worked for them since Sept. 2016, 
first as a consultant performing the duties of a data analyst and then in Dec. 2017, performing in the 
role of "program manager, data scientist." 
The Petitioner argues that the Beneficiary is qualified to perform the services of the proffered position 
because her degree, work experience and/or specialized training is equivalent to a bachelor's degree 
in the specific specialty. The Petitioner, therefore, is not asserting that Beneficiary satisfies 8 C.F.R. 
§ 214 .2(h)(4)(iii)(C)(l), (2), or (3), and instead moves straight to 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) .2 
As noted, 8 C.F.R . § 214.2(h)(4)(iii)(D) provides five methods by which to satisfy 8 C.F.R. 
§ 214.2(h)(4)(iii)(C)(4). However, on appeal the Petitioner addresses only 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(D)(l) and makes no argument with regard to the four subsequent subsections. 3 
In accordance with 8 C.F.R. § 214.2(h)(4)(iii D I the Petitioner submitted an evaluation provided 
byl I from the College of Technology from the9, 
University ofl Ito establish the Bene 1ciary s egree equivalence . I 3 
evaluation concludes that the Beneficiary's combination of work experience and education equate to 
a bachelor's degree with a dual major in data analytics and dental science. 
The Director found that whilel lhas the authority to grant college-level credit, his 
evaluation lacked details such as how the Beneficiary met the university's program requirements and 
how many college credits the Beneficiary could be granted for her training and experience. We agree 
with the Director's assessment of the evidence. 
_______ -ts evaluation is insufficient to establish the Beneficiary's qualifications because 
the evaluation is not supported by a sound factual basis. .__ _______ _. relied on the 
Beneficiary's foreign degree to find that her education "fulfilled the general education requirements 
of bachelor's programs in the United States and, thus, only would require the equivalent of one 
additional year of concentrated university-level training in Data Analytics, gained through 
professional work experience, in order to attain an additional major concentration in the field of Data 
Analytics." I !indicated that he based his conclusions on "her bachelor's-level 
academic studies in Dental Surgery and her verified, letter-supported professional experience in the 
field of Data Analytics" to find that the combination of her education and work experience is 
equivalent to a four-year Bachelor of Science degree with a dual major in data analytics and dental 
science. I I concluded that "[the Beneficiary] completed both the general studies 
and specialized studies that lead to a bachelor's degree" and her "course of studies includes entry-level 
2 We agree that the Beneficiary does not satisfy 8 C.F.R. § 214 .2(h)(4)(iii)(C)(l) , (2), or (3). 
3 We agree that the Beneficiary does not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(D)(2) , (3), (4), or (5). 
6 
general academic courses, which are a requisite component of a bachelor's degree from an institution 
of higher education in the United States." 
Notwithstanding.__ ______ __.s qualifications to provide college-level credit, there appears to 
be no factual basis for his conclusions. The Beneficiary's foreign degree transcript shows no general 
academic studies coursework, and we question! Is conclusion that she fulfilled the 
general education requirements of a bachelor's program in the United States. Indeed, the Beneficiary's 
transcript shows that she took seventeen courses exclusively in subjects related to medicine and 
dentistry and that she completed a one-year internship in dentistry towards fulfillment of her degree. 
I ts evaluation never explains how medical and dental coursework or an internship 
in dentistry could be considered education fulfilling general education studies and the omission renders 
his evaluation unpersuasive and unreliable. 
On this erroneous foundation, .__ ______ ___,s evaluation next concludes that because the 
Beneficiary fulfilled the general education requirements of a bachelor's degree program in the United 
States, the Beneficiary would have to possess "the equivalent of one additional year of concentrated 
university-level training in Data Analytics, gained through professional work experience, in order to 
attain an additional major concentration in the field of Data Analytics." To find that the Beneficiary 
fulfilled this requirement,.__ ______ _.'s evaluation relies solely on the Petitioner's verification 
of employment letter and does not mention or consider her certificate of completion for "data analytics 
bootcamp" froml I University or the three courses (financial accounting, macroeconomics 
and microeconomics) she took at thd I College and I I College. 
The Petitioner's verification of employment letter describes three areas where the Beneficiary gained 
progressively responsible experience to include "development of reports," "integration of multiple 
data sources," and "programming and scripting experience" using various technologies such as 
Tableau, Hadoop v2, MapReduce, HDFS, Pig, Hive, Impala, Cloudera, and R. However, the 
Petitioner's letter of verification of employment does not provide any details as to how the 
Beneficiary's experience was progressively more responsible. Additionally, the Petitioner does not 
submit copies of personnel records, performance evaluations, pay records, or other documents that 
reflect promotion or achievement of progressively responsible positions. The verification letter states 
that the Beneficiary's performance on one client account led them to seek her full-time employment, 
however in the letter's first paragraph it explains that the Beneficiary has always worked full-time (40 
hours) for them. The Petitioner's letter lacks persuasive details, supporting evidence and is internally 
inconsistent, thus it fails to persuasively provide a foundation to conclude the Beneficiary gained 
"recognition of expertise in the specialty through progressively responsible positions directly related 
to the specialty" as required by the regulations. 
On the basis of this letter,.__ _______ ~'s evaluation extrapolates facts such as "[the 
Beneficiary] has advanced through progressively responsible duties characterized by increasing 
complexity" without providing details or an explanation about how the Petitioner's three broadly 
worded areas ("development of reports," "integration of multiple data sources," and "programming 
and scripting experience") meet this standard . .__ ______ __.' s evaluation also concludes that 
"[ t ]hrough the exemplary execution of her responsibility in that first role, [ the Beneficiary] developed 
her skills and consistently showcased her advancing ability. In recognition of this, she was promoted 
to hold the higher-level designation of Program Manager, Data Scientist .... " However, the 
7 
Petitioner's verification of employment letter does not state or suggest that the Beneficiary's change 
in role was related to her "exemplary execution" of her first role or that the Beneficiary's change in 
roles was even a promotion. In sum, the record lacks sufficient evidence to find a factual basis for 
.__ ______ __. s conclusions. We may, in our discretion, use an evaluation of a person's foreign 
education as an advisory opinion. Matter of Sea, Inc., 19 I&N Dec. 817, 820 (Comm'r 1988). 
However, where an opinion is not in accord with other information or is in any way questionable, we 
may discount or give less weight to that evaluation. Id. In accordance with Matter of Sea, we decline 
to assign any significant weight to.__ ______ ___, s evaluation. 
For the foregoing reasons, the Petitioner has failed to meet their burden under 8 C.F.R. 
§ 214.2(h)( 4)(iii)(D)(l). 
Though not raised directly on appeal, we will nonetheless briefly address 8 C.F.R. 
§ 214.2(h)(4)(iii)(D)(5). In summary, while the record contains some information regarding the 
Beneficiary's work history, it does not establish that this work experience included the theoretical and 
practical application of specialized knowledge required by the proffered position; that it was 
progressively responsible; that it was gained while working with peers, supervisors, or subordinates 
who held a bachelor's degree or its equivalent in the field; and that the Beneficiary achieved 
recognition of expertise in the field as evidenced by at least one of the five types of documentation 
delineated in 8 C.F.R. §§ 214.2(h)(4)(iii)(D)(5)(i)-(v). 4 Without more, the evidence of record is not 
sufficiently reliable to conclude, through a Service evaluation, that the Beneficiary is qualified to 
perform the duties of the proffered position. 
An independent review of the evidence does not satisfy the standard set out m 8 C.F.R. 
§ 214.2(h)(4)(iii)(D)(5). 
III. CONCLUSION 
The Petitioner has not met their burden to demonstrate that the Beneficiary's qualifications meet any 
of the four criteria set out in at 8 C.F.R. § 214.2(h)(4)(iii)(C). 
ORDER: The appeal is dismissed. 
4 As previously stated, the Petitioner's letter of verification of employment is unpersuasive and insufficient to determine 
if her work for them meets the regulatory definition of "recognition of expertise in the specialty through progressively 
responsible positions directly related to the specialty." Combining her foreign degree credentials with her data analytics 
bootcamp certificate and the three courses she took is also insufficient for the Service to find equivalency to completion 
of a United States bachelor's ( or higher) degree in the specific specialty. 
8