dismissed H-1B Case: Education

(b)(6)
DATE: 
INRE : 
PETITION: 
JUL 0 9 2015 
PETITION RECEIPT#: 
Petitioner : 
Beneficiary : 
U.S. Department of Homeland Security 
U.S. Citizensh ip and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., 
N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § llOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form l-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO . 
www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURALBACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the Vermont Service 
Center. In the Form I-129 visa petition, the petitioner describes itself as a daycare that was 
established in .1 In order to employ the beneficiary in what it designates as a teacher position, 
the petitioner seeks to classify her as a nonimmigrant worker in a specialty occupation pursuant to 
section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(l5)(H)(i)(b). 
The Director reviewed the record of proceeding and determined that the petitioner did not establish 
eligibility for the benefit sought. Specifically, the Director stated that the petitioner had not 
established that the proffered position qualifies as a specialty occupation in accordance with the 
applicable statutory and regulatory. The Director denied the petition. 
The record of proceeding contains: (1) the petitioner's Form I-129 and supporting documentation; 
(2) the Director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the 
Director's decision; and (5) the Notice of Appeal or Motion (Form I-290B) and supporting 
documentation. We reviewed the record in its entirety before issuing our decision.2 
For the reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. SPECIALTY OCCUPATION 
The primary issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. 
A. Legal Framework 
For an H-IB petition to be granted, the petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
1 In response to the Director's RFE, the petitioner asserts that it is not a daycare and states that it is an after­
school educational facility. No explanation was provided by the petitioner for stating that it is a daycare on 
the Fonn I-129 rather than indicating that it was an after-school educational facility. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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Page3 
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.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.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 
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. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of 
W-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 
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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 387. 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. Cherto.IJ, 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-1B petitions for qualified aliens 
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, the critical element is not 
the title of the position nor 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. 
In ascertaining the intent of a petitioner, USCIS looks to the Form I-129 and the documents filed in 
support of the petition. It is only in this manner that the agency can determine the exact position 
offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 C.F .R. 
§ 214.2(h)(9)(i), the Director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or she may independently require to assist his or her 
adjudication. Further, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-IB petition 
involving a specialty occupation shall be accompanied by [d]ocumentation ... or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." 
B. Proffered Position 
In the Form I-129, the petitioner indicates that it wishes to employ the beneficiary as a teacher on a 
part-time basis (25 hours per week). In the support letter, the petitioner states that the beneficiary 
will perform the following job duties in the proffered position: 
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NON-PRECEDENT DECISION 
English as Second Language Classes 
Plan, prepare and deliver lessons in English as Second Language (ESL) classes to 
student age groups (elementary to middle school students). Prepare and set teaching 
materials, tests, examination papers, and excercises. Help students improve their 
listening, speaking, reading and writing skills. Mark and provide appropriate 
feedback on oral 
and written work. Devise, write and produce new materials, 
including audio and visual resources. Organize and get involved in social and 
cultural activities such as school parties, dinners and excursions. Provide basic 
administration, such as keeping student registers and attendance records. 
Chinese Language Classes 
Design lessons plans to teach Chinese language and literature to 2nd generation 
Chinese children. Instruct children in activities designed to promote the interest and 
learning of the Chinese language. Plan individual and group activities to stimulate 
growth in Chinese language. Teach young children (elementary school students) 
Chinese language and traditional Chinese language and history. Administer tests to 
evaluate pupil progress, records results, and issues reports to inform parents of 
progress. 
The petitioner also states that "the position requires the individual to have at minimum a degree in 
education with related experience in the field." 
C. Analysis 
In the instant case, the petitioner claims that the position requires "a degree in education with related 
experience in the field." Notably, the petitioner does not indicate the degree level (e.g., associate's 
degree, vocational degree, baccalaureate, master's degree) for the position. Thereafter, on appeal, 
the petitioner submitted a letter from on behalf of the petitioner, which states that 
"[t]his is a teaching position that requires the individual to have at least a bachelor's degree in Arts, 
Science, or Education ." No explanation for the variance was provided . 
If the requirements to perform the duties and job responsibilities of a proffered position are a 
combination of a general bachelor's degree and experience such that the standards at both section 
214(i)(l)(A) and (B) of the Act have been satisfied, then the proffered position may qualify as a 
specialty occupation. See Tapis Int'l v. INS, 94 F. Supp. 2d 172 (D. Mass. 2000). This does not 
mean, however, that any position can qualify as a specialty occupation based solely on the claimed 
requirements of a petitioner. Instead, USCIS must examine the actual employment requirements 
and, on the basis of that examination, determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. Furthermore, we do not find (1) 
that a specialty occupation is determined by the qualifications of the beneficiary being petitioned to 
perform it; or (2) that a position may qualify as a specialty occupation even when there is no 
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specialty degree requirement, or its equivalent, for entry into a particular position m a given 
occupational category. 
First, USCIS cannot determine if a particular job is a specialty occupation based on the qualifications 
of the beneficiary. A beneficiary's credentials to perform a particular job are relevant only when the 
job is first found to qualify as a specialty occupation. USCIS is required instead to follow long­
standing legal standards and determine first, whether the proffered position qualifies as a specialty 
occupation, and second, whether an alien beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assoc., 19 I&N Dec. at 560 ("The 
facts of a 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]."). 
Second, in promulgating the H-1B regulations, the former Immigration and Naturalization Service 
(INS) made clear that the definition of the term "specialty occupation" could not be expanded "to 
include those occupations which did not require a bachelor's degree in the specific specialty." 56 
Fed. Reg. 61111, 61112 (Dec. 2, 1991). More specifically, in responding to comments that "the 
definition of specialty occupation was too severe and would exclude certain occupations from 
classification as specialty occupations," the former INS stated that "[t]he definition of specialty 
occupation contained in the statute contains this requirement [for a bachelor's degree in the specific 
specialty or its equivalent]" and, therefore, "may not be amended in the final rule." !d. 
Aside from the significant variance in the petitioner's statements with regard to its requirements, we 
note that, in general, provided the specialties are closely related, e.g., chemistry and biochemistry, a 
minimum of a bachelor's or higher degree in more than one specialty is recognized as satisfying the 
"degree in the specific specialty (or its equivalent)" requirement of section 214(i)(1)(B) of the 
Act. In such a case, the required "body of highly specialized knowledge" would essentially be the 
same. Since there must be a close correlation between the required "body of highly specialized 
knowledge" and the position, however, a minimum entry requirement of a degree in disparate fields, 
such as philosophy and engineering, for example, would not meet the statutory requirement that the 
degree be "in the specific specialty (or its equivalent)," unless the petitioner establishes how each 
field is directly related to the duties and responsibilities of the particular position such that the 
required "body of highly specialized knowledge" is essentially an amalgamation of these different 
specialties. Section 214(i)(1)(B) ofthe Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," 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. See section 214(i)(l)(B) ofthe Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
Here, the petitioner states that its minimum educational requirement for the proffered position is a 
bachelor's degree in arts, science and/or education. The issue is that these fields cover numerous and 
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various specialties. 3 The petitioner, who bears the burden of proof in this proceeding, does not 
establish either that these various degrees are all closely related fields or that a general degree in one 
of these fields is directly related to the duties and responsibilities of the particular position proffered 
in this matter. Accordingly, as the evidence of record does not establish a standard, minimum 
requirement of at least a bachelor's degree in a specific specialty, or its equivalent, for entry into the 
particular position, it does not support the proffered position as being a specialty occupation. 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
Nevertheless, we will continue our evaluation and analysis of the evidence provided by the 
petitioner. To that end we will first discuss the record of proceeding in relation to the criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(l), 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. 
USCIS recognizes the Handbook as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses.4 The petitioner asserted in the 
Labor Condition Application (LCA) that the proffered position falls under the occupational category 
"Self-Enrichment Education Teachers." We reviewed the section of the Handbook regarding the 
occupational category "Self-Enrichment Education Teachers" and note that this occupation is one for 
3 For example, the term "science" is defined as "la. The observation, identification, description, experimental 
investigation, and theoretical explanation of natural phenomena .... 2. Methodological activity, disciplines, or 
study <culinary science> 3. An activity that appears to require study and method." Webster's II New College 
Dictionary 1012 (2008). U.S. News and World Report's guide for colleges 
designates science programs into 
various subcategories, including biological sciences, chemistry, earth sciences, math, physics, statistics, as 
well as social science programs such as criminology, economics, English, history, political science, 
psychology, and sociology. See U.S. News and World Report available at http://grad­
schools.usnews.rankingsandreviews.com/best-graduate-schools/top-science-schools (last visited June 26, 
2015). 
4 
All of the references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet 
site http://www.bls.gov/OCO/. The occupational category designated by a petitioner is considered as an 
aspect in establishing the general tasks and responsibilities of a proffered position, and users regularly 
reviews the Handbook on the duties and educational requirements of the wide variety of occupations that it 
addresses. However, to satisfy the first criterion, the burden of proof remains 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. That is, to determine whether a particular job qualifies as a 
specialty occupation, USCIS does not simply rely on a position's title or designated occupational category. 
The specific duties of the proffered position, combined with the nature of the petitioning entity's business 
operations, are factors to be considered. USCIS must examine the ultimate employment of the beneficiary, 
and determine whether the position qualifies as a specialty occupation. See generally Defensor v. Meissner, 
201 F.3d 384. 
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which the Handbook does not provided detailed data. The Handbook states the following about 
these occupations: 
Data for Occupations Not Covered in Detail 
Although employment for hundreds of occupations are covered in detail in the 
Occupational Outlook Handbook, this page presents summary data on additional 
occupations for which employment projections are prepared but detailed occupational 
information is not developed. For each occupation, the Occupational Information 
Network (O*NET) code, the occupational definition, 2012 employment, the May 
2012 median annual wage, the projected employment change and growth rate from 
2012 to 2022, and education and training categories are presented. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Data for Occupations Not Covered in Detail," available at http://www.bls.gov/ooh/About/Data-for­
Occupations-Not-Covered-in-Detail.htm (last visited June 26, 2015). 
Thus, the narrative of the Handbook indicates that there are many occupations for which only brief 
summaries are presented. That is, detailed occupational profiles for these occupations are not 
developed. 5 The text of the Handbook regarding the occupational category "Self-Enrichment 
Education Teachers" is as follows: 
Self-Enrichment Education Teachers 
(O*NET 25-3021.00) 
Teach or instruct courses other than those which normally lead to an 
occupational 
objective or degree. Courses may include self-improvement, nonvocational, and 
nonacademic subjects. Teaching may or may not take place in a traditional 
educational institution. Excludes "Fitness Trainers and Aerobics Instructors" (39-
9031 ). Flight instructors are included with "Aircraft Pilots and Flight Engineers" (53-
2010). 
• 2012 employment: 316,200 
• May 2012 median annual wage: $35,320 
• Projected employment change, 2012-22: 
• Number of new jobs: 43,900 
• Growth rate: 14 percent (about as fast as average) 
5 The occupational categories for which the Handbook only includes. summary data includes a range of 
occupations, including for example, postmasters and mail superintendents; agents and business managers of 
artists, performers, and athletes; farm and home management advisors; audio visual and multimedia 
collections specialists; clergy; merchandise displayers and window trimmers; radio operators; first-line 
supervisors of police and detectives; crossing guards; travel guides; agricultural inspectors, as well as others. 
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• Education and training: 
• Typical entry-level education: High school diploma or equivalent 
• Work experience in a related occupation: Less than 5 years 
• Typical on-the-job-training: None 
Handbook, 2014-15 ed., Data for Occupations Not Covered in Detail, available at 
http://www.bls.gov/ooh/About/Data-for-Occupations-Not-Covered-in-Detail.htm (last visited June 
26, 2015). 
The Handbook summary data provides "education and training categories" for occupations. The 
occupational category "Self-Emichment Education Teachers" falls into the group of occupations for 
which a high school diploma is the typical entry-level education. Thus, the Handbook does not 
support the petitioner's assertion that a bachelor's degree in a specific specialty is normally the 
minimum requirement for entry into the occupation .. 
Moreover, when reviewing the Handbook, we must note that the petitioner designated the proffered 
position as a Level I (entry level) position on the LCA. This designation is indicative of a 
comparatively low, entry-level position relative to others within the occupation. 6 That is, in 
accordance with the relevant DOL explanatory information on wage levels, this wage rate indicates 
that the beneficiary is only required to have. a basic understanding of the occupation and carries 
expectations that the beneficiary perform routine tasks that require limited, if any, exercise of 
judgment; that she would be closely supervised; that her work would be closely monitored and 
reviewed for accuracy; and that she would receive specific instructions on required tasks and 
6 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage 
rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have 
only a basic understanding of the occupation. These employees perform routine tasks that 
require limited, if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. The employees may 
perform higher level work for training and developmental purposes. These employees work 
under close supervision and receive specific instructions on required tasks and results 
expected. Their work is closely monitored and reviewed for accuracy. Statements that the 
job offer is for a research fellow, a worker in training, or an internship are indicators that a 
Level I wage should be considered. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf. 
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expected results. DOL guidance indicates that a Level I designation should be considered for 
positions in which the employee will serve as a research fellow, worker in training, or 
an intern.7 
When the Handbook does not support the proposition that a proffered position is one that meets the 
statutory and regulatory provisions of a specialty occupation, it is incumbent upon the petitioner to 
provide persuasive evidence that the proffered position otherwise qualifies as a specialty occupation 
under this criterion, notwithstanding the absence of the Handbook's support on the issue. In such 
case, it is the petitioner's responsibility to provide probative evidence (e.g., documentation from 
other authoritative sources) that indicates whether the position in question qualifies as a specialty 
occupation. Whenever more than one authoritative source exists, an adjudicator will consider all of 
the evidence presented to determine whether a beneficiary qualifies to perform in a specialty 
occupation. Upon review of the record, we conclude that the petitioner does not do so in the instant 
case. 
In the instant case, the duties and requirements of the position as described in the record of 
proceeding do not indicate that this particular position proffered by the petitioner is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the petitioner has not satisfied the criterion at 8 C.F .R. 
§ 214.2(h)(4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions that 
are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered position, and also 
(3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the petitioner has not established that its proffered position is one for which 
the Handbook (or other independent, authoritative source) reports a standard industry-wide 
7 
For additional information on wage levels, see U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreign1aborcert.doleta.gov/pd£'NPWHC _Guidance_ Revised _11_ 2009.pdf. 
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requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. Also, there are no submissions from 
the industry's professional association indicating that it has made a degree a minimum entry 
requirement. 
In the Form 1-129, the petitioner stated that it is a daycare with 18 employees. The petitioner also 
reported its gross annual income as $700,000. Although required by the Form 1-129, the petitioner 
did not provide its net annual income, claiming that the information is confidential. While a 
petitioner should always disclose when a submission contains confidential commercial information, 
the claim does not provide a blanket excuse for the petitioner not to provide 
such information. 8 Cf 
Matter of Marques, 16 I&N Dec. 314 (BIA 1977). 
Further, the petitioner designated its business operations under the North American Industry 
Classification System (NAICS) code 541511 on the Form I-129.9 This NAICS code is designated 
for "Custom Computer Programming Services." Thus, within the record the petitioner has identified 
itself as a daycare, as an after school educational facility, and a business providing custom computer 
programming services. No explanation for the variances was provided. 
For the petitioner to establish that an organization is similar under this criterion of the regulations, it 
must demonstrate that the petitioner and the organization share the same general characteristics. 
Without such information, evidence submitted by a petitioner is generally outside the scope of 
consideration for this criterion, which encompasses only organizations that are similar to the 
petitioner. When determining whether the petitioner and the organization share the same general 
characteristics , such factors may include information regarding the nature or type of organization, 
and, when pertinent, the particular scope of operations, as well as the level of revenue and staffing 
(to list just a few elements that may be considered). It is not sufficient for the petitioner to claim that 
an organization is similar and in the same industry without providing a legitimate basis for such an 
assertion. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter of Treasure Craft of California, 14 l&N Dec. 190 (Reg. Comm'r 
1972)). 
8 Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's 
confidential business information when it is submitted to USCIS. See 5 U.S.C. § 552(b)(4), 18 U.S.C. 
§ 1905. Additionally, the petitioner may request pre-disclosure notification pursuant to Executive Order No. 
12,600, "Predisclosure Notification Procedures for Confidential Commercial Information." Exec. Order No. 
12,600, 1987 WL 181359 (June 23, 1987). 
9 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used 
to classify business establishments according to type of economic activity and, each establishment is 
classified to an industry according to the primary business activity taking place there. See 
http://www.census.gov/eos/www/naics/ (last visited June 26, 2015). On the LCA, the petitioner designated its 
operations under the NAICS code 6116, which is for "Other Schools and Education." 
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In support of the assertion that the proffered position satisfies this criterion of the regulations, the 
petitioner submitted a letter from of . We reviewed the letter in its 
entirety. However, contrary to the purpose for which the letter was submitted, it is not persuasive in 
establishing the proffered position as a specialty occupation position under any of the criteria at 8 
C.F.R. § 214.2(h)(4)(iii)(A). 
Specifically, although the writer claims that the company is an after school educational facility 
similar to the petitioner, the document lacks sufficient information regarding the organization to 
conduct a meaningfully substantive comparison of the business operations to the petitioner. The 
petitioner did not provide any supplemental information to establish that the organization is similar 
to the petitioner. 
In addition, the writer claims that the teacher position "requires at least a Bachelor's degree in Arts, 
Science, or Education." As previously noted, since there must be a close correlation between the 
required "body ofhighly specialized knowledge" and the position, a minimum entry requirement of a 
degree in disparate fields would not meet the statutory requirement that the degree be "in the specific 
specialty," unless the petitioner establishes how each field is directly related to the duties and 
responsibilities of the particular position such that the required "body of highly specialized 
knowledge" is essentially an amalgamation ofthese different specialties. Section 214(i)(l)(B) ofthe 
Act (emphasis added). Thus, the letter does not establish that at least a bachelor's degree in a 
specific specialty, or its equivalent, is required for the position. 
Furthermore, the writer did not provide any specific job duties and day-to-day responsibilities for the 
position. There is no information regarding the complexity of the job duties, supervisory duties (if 
any), independent judgment required or the amount of supervision received. Accordingly, there is 
insufficient information regarding the duties and responsibilities of the position to determine whether 
it is the same or parallel to the proffered position. Moreover, the writer did not provide documentary 
evidence to corroborate that she currently or in the past employed individuals in parallel positions to 
the proffered position, nor did she provide any documentation to substantiate the claimed academic 
requirements. Further, the writer did not submit any probative evidence of her recruitment and/or 
hiring practices. 
The petitioner also submitted a letter from in support of the H -1 B petition. 
Mr. states that as a professor in the field, he believes that a degree in education is the 
minimum requirement for the position. The letter from Mr. however, does not discuss the 
duties of the proffered position in any substantive detail. Mr. _ description of the position 
lacks sufficient detail and concrete explanation to establish the substantive nature of the work and 
associated applications of specialized knowledge that their actual performance would require within the 
context of the petitioner's particular business operations. 
Moreover, the letter is not accompanied by, and it does not expressly state the full content of, 
whatever documentation and/or oral transmissions upon which it may have been based for him to 
come to his conclusion. For instance, Mr. does not indicate how he communicated with the 
petitioner as to what the performance of the general list of duties cited by them would actually 
(b)(6)
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require, or whether he visited the petitioner's business premises. He also does not articulate whatever 
familiarity he may have obtained regarding the particular content of the work products and services that 
the petitioner would require of the beneficiary. 
Further, the letter focuses on the beneficiary's qualifications and concludes with a recommendation for 
her based upon her training and skills. We note that the beneficiary's qualifications are not relevant to a 
determination of whether or not the proffered position qualifies as a specialty occupation. Cf Matter of 
Michael Hertz Assoc., 19 I&N Dec. 558, 560 (Comm'r 1988). 
Thus, based upon a complete review of the record, we conclude that the petitioner has not 
established that a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent, is common to the petitioner's industry in positions that are (1) in the petitioner's industry, 
(2) parallel to the proffered position, and also (3) located in organizations that are similar to the 
petitioner. For the reasons discussed above, the petitioner has not satisfied the first alternative prong 
of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
petitioner described and provided documentation regarding the proffered position and its business 
operations, including printouts from its website, photos of the beneficiary teaching students, and a 
copy of its curriculum and related materials. 
Upon review, we find that the petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. For instance, the petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform the duties it may assert are so complex and unique. 
While a few related courses may be beneficial in performing certain duties of the position, the 
petitioner has not demonstrated how an established curriculum of such courses leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the 
duties of the proffered position. The description of the duties does not specifically identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. The 
record does not establish which of the duties, if any, of the proffered position would be so complex 
or unique as to be distinguishable from those of similar but non-degreed or non-specialty degreed 
employment. 
(b)(6)
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This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four assignable 
wage levels. As previously mentioned, the wage-level of the proffered position indicates that 
(relative to other positions falling under this occupational category) the beneficiary is only required 
to have a basic understanding of the occupation; that she will be expected to perform routine tasks 
that require limited, if any, exercise of judgment; that she will be closely supervised and her work 
closely monitored and reviewed for accuracy; and that she will receive specific instructions on 
required tasks and expected results. 
Without further evidence, it is not credible that the petitioner's proffered position is complex or 
unique as such a position falling under this occupational category would likely be classified at a 
higher-level, such as a Level III (experienced) or Level IV (fully competent) position, requiring a 
significantly higher prevailing wage. For example, a Level IV (fully competent) position is 
designated by DOL for employees who "use advanced skills and diversified knowledge to solve 
unusual and complex problems." 10 
The petitioner claims that the beneficiary is well qualified for the position, and references her 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The petitioner has not satisfied the second 
alternative prong of 8 C.F .R. § 214.2(h)( 4 )(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could be 
1° For additional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & 
Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. 
Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 
2009.pdf 
(b)(6)
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brought to the United States to perform any occupation as long as the petitioner artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor v. Meissner, 
201 F.3d at 388. In other words, if a petitioner's stated degree requirement is only designed to 
artificially meet the standards for an H-lB visa and/or to underemploy an individual in a position for 
which he or she is overqualified and if the proffered position does not in fact require such a specialty 
degree or its equivalent, to perform its duties, the occupation would not meet the statutory or 
regulatory definition of a specialty occupation. See § 214(i)(l) of the Act; 8 C.F .R. § 214.2(h)( 4 )(ii) 
(defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. USCIS must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of 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. To interpret 
the regulations any other way would lead to absurd results: if USCIS were constrained to recognize 
a specialty occupation merely because the petitioner has an established practice of demanding 
certain educational requirements for the proffered position - and without consideration of how a 
beneficiary is to be specifically employed - then any alien with a bachelor's degree in a specific 
specialty could be brought into the United States to perform non-specialty occupations, so long as 
the employer required all such employees to have baccalaureate or higher degrees. See id. atJ88. 
The petitioner claims that all of its teachers possess a bachelor's degree. In response to the RFE, the 
petitioner submitted the resumes, academic credentials, and Wage and Tax Statements (Form W-2s) 
for 2013 for three individuals. Upon review, we note that the Form W-2s indicate that the 
individuals were compensated $6,993, 
$9,673, and $2,490 in 2013. The documentation indicates 
that the individuals are paid significantly less than the offered salary to the beneficiary. Thus, this 
strongly suggests that they are employed in different positions. The petitioner did provide the job 
duties and day-to-day responsibilities for these individuals. The petitioner also did not submit any 
information regarding the complexity of the job duties, supervisory duties (if any), independent 
judgment required or the amount of supervision received. Accordingly, it is unclear whether the 
duties and responsibilities of these individuals were the same or similar to the proffered position. 
Moreover, the individuals possess degree in a range of disciplines, specifically biology, computer 
science, and management and administrative science. The documentation does not establish that the 
petitioner normally requires a degree in education as asserted in the initial petition. 
Further, the petitioner did not provide the total number of people it has employed to serve in the 
proffered position. Consequently, it cannot be determined how representative the petitioner's claim 
(b)(6)
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regarding three individuals is of the petitioner's normal recruiting and hiring practices. Without 
further information, the submission of the educational credentials of three individuals is not 
persuasive in establishing that the petitioner normally requires at least a bachelor's degree m a 
specific specialty, or its equivalent, for the position. 
Upon review of the record, we conclude that the petitioner did not provide sufficient documentary 
evidence to support the assertion that it normally requires at least a bachelor's degree in a specific 
specialty, or its equivalent, directly related to the duties of the position. The petitioner has not 
satisfied the third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). 
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 in a specific specialty, or its equivalent 
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 claims that the nature of the specific duties of the position in the context of its 
business operations 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. We reviewed the petitioner's statements regarding the proffered position and its 
business operations. However, relative specialization and complexity have not been sufficiently 
developed by the petitioner as an aspect of the proffered position. That is, the proposed duties have 
not been described with sufficient specificity to establish that they are more specialized and complex 
than positions that are not usually associated with at least a bachelor's degree in a specific specialty, 
or its equivalent. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (of the lowest 
of four assignable wage-levels) relative to others within the occupational category. 11 Without more, 
the position is one not likely distinguishable by relatively specialized and complex duties. That is, 
11 
The petitioner's designation of this position as a Level I, entry-level position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a 
proffered position from classification as a specialty occupation. In certain occupations (doctors or lawyers, 
for example), an entry-level position would still require a minimum of a bachelor's degree in a specific 
specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that 
an occupation qualifies as a specialty occupation if that higher-level position does not have an entry 
requirement of at least a bachelor's degree in a specific specialty or its equivalent. That is, a position's wage 
level designation may be a consideration but is not a substitute for a determination of whether a proffered 
position meets the requirements of section 214(i)(l) of the Act. 
(b)(6)
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without further evidence, the petitioner has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position would likely be classified at a higher-level, such as 
a Level III (experienced) or Level IV (fully competent) position, requiring a substantially higher .1. 12 
prevm mg wage. 
Although the petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the petitioner has submitted inadequate 
probative evidence to satisfy the criterion of the regulations at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed and the 
petition denied. 
III. CONCLUSION AND ORDER 
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; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
12 As previously discussed, a Level IV (fully competent) position is designated by DOL for employees who 
"use advanced skills and diversified knowledge to solve unusual and complex problems" and requires a 
significantly higher wage.