dismissed H-1B Case: Electrical Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF JKCT-. INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 1. 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner. a freight trucking company, seeks to temporarily employ the Beneficiary as an 
.. electrical maintenance engineer'' under the H-1 8 nonimmigrant classification. ,)'ec Immigration 
and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b). 8 U.S.C. § 110l(a)(15)(H)(i)(b). 
The H-18 program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor" s or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director. California Service Center, denied the petition. The Director concluded that the 
Petitioner did not sufficiently establish that the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal. the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the proffered position does not qualify as a specialty 
occupation. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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: 
Matter (?l.IKCT-. Inc. 
(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 
(..f) 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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted 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 proposed 
position. See Royal Siam Corp. v. Cherto.ff; 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"); Defi.msor v. Meissner. 20 I F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as an .. electrical maintenance 
engineer." In its support letter, the Petitioner provided the following profTered job duties for the 
position (verbatim): 
• Design and test electrical and electronic components, equipment and systems to 
diagnose and resolve electrical downtime issues ( 1 0% ): 
• Design and develop electro-mechanical components and systems to improve and 
update motors, refrigeration components and air suspension systems (I 0% ): 
• Support day to day operations with knowledge of test specifictions, environmental 
test equipment and test methods (40%): 
• Actively seek out and identify safety improvement opportunities (5%): 
• Correct or repair electrical issues with or without maintenance support: ability to 
instruct maintenance support on corrections or repairs (20% ): 
• If necessary, train maintenance personnel in troubleshooting methods (5%): 
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Matter (?f JKCT-, Inc. 
• Present and implement process improvement where applicable (5%): 
• Collect, analyze and summarize all information into daily reports (5%). 
According to the Petitioner, the position requires a bachelor of science degree in electrical engineering 
or the equivalent. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we detem1ine that the 
Petitioner has not demonstrated that the profTered position qualifies as a specialty occupation. 
Specifically, the record (1) does not describe the position's duties with sutlicicnt detail: and (2) docs 
not establish that the job duties require an educational background. or its equivalent. commensurate 
with a specialty occupation. 
When determining whether a position is a specialty occupation. we must look at the nature of the 
business offering the employment and the description of the specific duties of the position as it 
relates to the particular employer. To ascertain the intent of a petitioner, we look to the Form I-129 
and the documents filed in support of the petition. It is only in this manner that we 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 ··fa]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 perfom1 arc in a specialty 
occupation." 
Here. we find that the record of proceedings lacks sufficient, consistent documentation regarding the 
Petitioner's claimed business activities and the actual work that the Beneficiary will perf(mn to 
credibly substantiate the claim that the Petitioner has H-1B caliber work for the Beneficiary for the 
period of employment requested in the petition. 
Specifically, the Petitioner did not sufficiently document its business operations and its need f()r an 
electrical maintenance engineer. In the Form 1-129, Petition for a Nonimmigrant Worker. the 
Petitioner described itself as a freight trucking company established in 1986.
1 
In a letter filed with 
the Fonn 1-129. the Petitioner stated that it .. own[ s] 254 refrigerated trucks that all have air 
suspension" and a .. 175,000 square-foot multi-temperature freezer/cooler." The Petitioner further 
stated that .. [a ]s temperature controlled trucking becomes increasingly sophisticated and complex. 
including the potential use of environmentally friendly fuel cells in truck refrigeration units, the 
1 However, in a letter submitted in response to evidence, the Petitioner indicated that it was established in 2003. On 
appeal, the Petitioner asserted that it was "established almost thirty years ago." The Petitioner did not explain the 
discrepancies. 
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Matter of JKCT-. Inc. 
presence of an electrical maintenance engineer ... will be of great benefit." 
However, the Petitioner did not submit sufficient evidence to document its business operations. 
Notably. the proffered position includes duties such as .. design and test electrical and electronic 
components, equipment, and systems to diagnose and resolve electric downtime issues" and .. design 
and develop electro-mechanical components and systems to improve and update motors. 
refrigeration components and air suspension systems." Without documentary evidence to 
substantiate its electro-mechanical components and systems that require design. testing. and 
development of such systems, we are unable to determine the nature and scope of the proffered 
position. ''[G]oing on record without supporting documentary evidence is not suflicient for purposes 
of meeting the burden of proof in these proceedings." Matter l?( Sl?fllci, 22 I&N Dec. 158. 165 
(Comm'r 1998) (citing Matter l?f'Treasure Crqfi l?(Cal.. 14 I&N Dec. 190 (Reg'! Comm'r 1972)). 
We further note that, on appeal. the Petitioner indicates that the Petitioner .. is staffed with 29 repair 
mechanics." The Petitioner had previously indicated that the Beneficiary's duties include ··correct[ing] 
or repair[ing] electrical issues with or without maintenance support ...... It therefore appears that a part 
of the Beneficiary duties include handling repairs and maintenance. However. the record of 
proceedings does not contain documentary evidence regarding its repair mechanic positions such as 
duties. educational requirements or salary for these positions. Without such information, it is not clear 
if the proffered position differs from its repair mechanic positions. For H-1 B approval. the Petitioner 
must demonstrate a legitimate need for an employee to exist and to substantiate that it has H-1 B 
caliber work for the Beneficiary for the period of employment requested in the petition. It is 
incumbent upon the Petitioner to demonstrate it has suflicient \Vork to require the services of a 
person with at least a bachelor's degree in a specific specialty, or its equivalent to perform duties at 
a level that requires the theoretical and practical application of at least a bachelor's degree level of a 
body of highly specialized knowledge in a specific specialty for the period specified in the petition. 
Additionally. the Petitioner described the duties comprising the proffered position in generalized and 
generic terms that do not convey sufficient substantive information to establish the relative 
complexity. uniqueness and/or specialization of the proffered position or its duties. For example. the 
Petitioner indicated that the Beneficiary will spend 40 percent of his time .. support! ing] day to day 
operations with knowledge of test specifications, environmental test equipment and test methods." 
However, the Petitioner does not sufficiently define how this translates to specific duties and 
responsibilities as the term .. support[ing] day to day operations" does not delineate the actual work the 
Beneficiary will perform. The Petitioner does not explain the Beneficiary's specific role in 
.. suppm1[ing]" and how such work \vill be conducted within the Petitioner's business operations and the 
proffered position. On appeal. the Petitioner stated that the Beneficiary will have to understand the 
.. various safety regulations and mandatory maintenance systems put in place by the U.S. Department or 
Transportation agencies." However. the Petitioner did not further elaborate on the specific tasks. 
methodologies. and applications of knowledge that would be required in furtherance of suppm1ing the 
day-to-day operations. Although the Petitioner provided a little insight into the safety regulations to 
which the Beneficiary would have to adhere, it did not provide a more detailed description. Without 
additional information substantiated by documentary evidence. we arc unable to discern the nature of 
the position and whether the position indeed qualifies as a specialty occupation. 
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Matter (?f JKCT-, Inc. 
Moreover. on appeaL the Petitioner makes claims that contradict evidence it provided in suppm1 of 
the petition. First as part of its assertion that the proffered position primarily performs specialty 
occupation duties, the Petitioner states that it needs an .. expert on hand... The Petitioner further 
asserts that the .. primary focus of the proffered position" is to take on a .. leadership role'' and to 
··lead the fleet maintenance group." However. the characterization of the proffered position as an 
expert who will lead or oversee the maintenance group is at direct odds with the Petitioner's 
submitted labor condition application (LCA). which indicates that the Petitioner has designated the 
position in the LCA as Level I (the lowest of four assignable wage-levels). 2 ·'p]t is incumbent upon 
the petitioner to resolve the inconsistencies by independent objective evidence." Alatter <?l Ho. 19 
I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
!d. at 591-92. 
Based on all of the above reasons. including the lack of reliable, detailed information and 
documentation. we find the evidence of record insufficient to establish that the Beneficiary v>ill be 
employed to work as an electrical maintenance engineer. Further, because of the discrepancies 
discussed above, we cannot determine the nature and scope of the Beneficiary's employment. The 
record lacks evidence sufficiently concrete and informative to demonstrate: (I) the actual work that 
the Beneficiary would perform: (2) the complexity, uniqueness and/or specialization of the tasks: 
and/or (3) the correlation between that work and a need for a particular level education of highly 
specialized knowledge in a specific specialty. ..[I]t is incumbent upon the petitioner to resolve the 
inconsistencies by independent objective evidence.'' Matter <?l Ho. 19 I&N Dec. 582. 591 (BIA 
1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the Petitioner 
2 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). The 
"'Prevailing Wage Determination Policy Guidance" issued by the DOL provides a description of the wage levels. A 
Level I wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic 
understanding of the occupation. This wage rate indicates: (I) that the Beneficiary will be expected to perform routine 
tasks that require limited, if any. exercise of judgment: (2) that he will be closely supervised and his work closely 
monitored and reviewed for accuracy: and (3) that he will receive specific instructions on required tasks and expected 
results. U.S. Dep't of Labor, Emp't & Training Admin .. Prevailing Wage Determination Polic\' Guidance. Nonagric. 
Immigration Programs (rev. Nov. 2009). available at 
http://tlcdatacenter.com/download/NPWHC _ Guidance __ Revised_ll_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner· s job opportunity. !d. 
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. a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation. just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g .. doctors or 
lawyers). a Level I. 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 qualities 
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 relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214( i)( I) of the Act. 
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(b)(6)
Matter of JKCT-. Inc. 
submits competent objective evidence pointing to where the truth lies. !d. at 591-92. Thus. we find 
that the evidence of record is insutlicient to establish the substantive nature of the work to be 
performed by the Beneficiary. 
The inability to establish the substantive nature of the work to be performed by the Beneliciary 
consequently precludes a finding that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A) , because it is the substantive nature of that work that determines: (I) the normal 
minimum educational requirement for the particular position, which is the focus of criterion I: 
(2) industry positions which are parallel to the proffered position and thus appropriate for review t()r 
a common degree requirement. under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position. which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion 3: and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. Accordingly, as the Petitioner 
has not established that it has satisfied any of the criteria at 8 C.F.R . § 214.2(h)(4)(iii)(A). it cannot 
be found that the proffered position qualifies as a specialty occupation. 
IV. OPINION LETTER 
We will now address why we accord little probative weight to opinion regarding 
the protTered position. a Professor of Electrical Engineering at 
stated that the letter will "demonstrate that the position of Electrical Maintenance Engineer requires 
that the candidate possess at least a Bachelor's Degree in Electrical Engineering from an accredited 
institution of higher education in the United States." 
We note that provided a list of the job duties. which is virtually verbatim from the 
Petitioner's job duties. Upon review of the opinion letter, there is no indication that 
possesses any knowledge of the Petitioner's proffered position and its business operations beyond 
the information provided by the Petitioner. did not demonstrate or assert in-depth 
knowledge of the Petitioner's specific business operations or how the duties of the position would 
actually be performed in the context of the Petitioner's business enterprise. There is no evidence 
that has visited the Petitioner's business, observed the Petitioner's employees. 
interviewed them about the nature of their work, or documented the knowledge that they apply on 
the job. 
asserted a general industry educational standard for electrical maintenance engineer 
positions without referencing any supporting authority or any empirical basis tor the pronouncement. 
His opinion did not relate his conclusion to specific. concrete aspects of the Petitioner's business 
operations to demonstrate a sound factual basis tor the conclusion about the educational 
requirements for the particular position here at issue. In addition. did not cite specific 
instances in which his past opinions have been accepted or recognized as authoritative on this 
particular issue. There is no indication that he has published any work or conducted any research or 
studies pertinent to the educational requirements for such positions (or parallel positions) in the 
(b)(6)
Matter of JKCT- . Inc. 
Petitioner's industry for similar organizations, and no indication of recognition by professional 
organizations that he is an authority on those speci tic requirements. 
In addition, there is no indication that the Petitioner advised that the proffered position is 
characterized as a low, entry-level electrical maintenance engineer, who has only a basic 
understanding of the occupation (as indicated by the wage-level on the LCA). The wage-rate 
indicates that the Beneficiary will be expected to perfom1 routine tasks that require limited exercise 
of judgment. It appears that may have found this information relevant for his opinion 
letter. 
In summary, and for each and all of the reasons discussed above, we conclude that the opinion letter 
rendered by is not probative evidence to establish the proffered position as a specialty 
occupation. The conclusion reached by lacks the requisite specificity and detail and is 
not supported by independent, objective evidence demonstrating the manner in which he reached 
such conclusion. There is an inadequate factual foundation established to support the opinion and 
the opinion is not in accord with other information in the record. Therefore, the letter from 
does not establish that the proffered position is a specialty occupation. 
We may, in our discretion, use advisory opinion statements submitted as expert testimony . 
However, where an opinion is not in accord with other information or is in any way questionable, \Ve 
are not required to accept or may give less weight to that evidence. Matter qf' Caron Internal ional, 
19 I&N Dec. 791 (Comm 'r 1988). 
V. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; lvfatter (~j'Otiende , 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of.JKCT- . Inc., ID# 16584 (AAO June 1, 2016)