dismissed H-1B Case: Electronics Distribution

U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 03 192 50521 Office: CALIFORNIA SERVICE CENTER Date: SEF 2 2 2005 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 10 l(a)( lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 192 50521 
Page 2 
DISCUSSION: The service center director denied the nonirnmigrant visa petition and the matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is a retail and wholesale electronics distributor that seeks to employ the beneficiary as a 
systems analyst. The petitioner endeavors to classify the beneficiary as a nonirnrnigrant worker in a specialty 
occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration. and Nationality Act (the Act), 8 U.S.C. 
§ 1 lol(a)(15)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, the 
petitioner submits a brief. 
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. 
Pursuant to 8 C.F.R. $ 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(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. 
Citizenship and Immigration Services (CIS) 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. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
WAC 03 192 50521 
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The petitioner is seeking the beneficiary's services as a systems analyst. Evidence of the beneficiary's duties 
includes: the 1-129 petition; the petitioner's June 3, 2003 letter in support of the petition; and the petitioner's 
response to the director's request for evidence. According to this evidence, the beneficiary would perform 
duties that entail: analyzing users' requirements, procedures and problems to improve the existing computer 
systems; ascertaining the difficulties encountered in the existing system by conferring with users to determine 
the system's flaws; defining the goals of the system and dividing the solutions into modules and procedures 
using techniques such as structured analysis, data modeling, information engineering, mathematical model 
building, sampling and cost accounting to plan the system; composing detailed descriptions of user needs, 
including specific input and output requirements, program functions and steps required to develop or modify 
computer programs; reviewing the present computer system capabilities, workflow and scheduling limitations 
to determine if the requested program or program change is possible within the existing system; studying the 
current system to evaluate how to best apply technologies and procedures to improve customer service and 
workflow; formulating designs, making technical decisions, implementing application systems, and 
developing new data structures andlor specific programs for users; preparing charts and diagrams to identify 
the specific procedures to be executed by the equipment, programs and personnel in the system; writing 
technical reports, memoranda and instructional manuals as documentation of the development of any new 
project for expansion of the computer systems; conducting training modules to educate the users in the system 
functions; and implementing system security measures, maintaining data integrity and conducting regular 
backup. The petitioner stated that a qualified candidate for the position would possess a bachelor's degree. 
The director found that the proffered position was not a specialty occupation and that the petitioner failed to 
establish any of the criteria found at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal, the petitioner states that it is one of the fastest growing companies in its field and, because of this 
growth, has need for a systems analyst. The petitioner also states that it needs a systems analyst to support its 
expansion plans and programs and to increase the efficiency of its distribution systems. The petitioner states 
that the director erred in finding that the proffered position is a computer operator, rather than a systems 
analyst. The petitioner asserts that it is a standard requirement in the electronics and merchandise distribution 
industry to hire a systems analyst with a bachelor's degree, and that the director disregarded the evidence it 
submitted on this issue. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO concurs that the position is not a computer operator, and that the listed duties are more like a systems 
analyst. 
The AAO turns first to the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. 
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Factors often considered by CIS when determining these criteria include: whether the Department of Labor's 
Occupational Outlook Handbook (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 fms "routinely employ and recruit only 
degreed individuals." See Shanti, Znc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting 
HiraYBlaker COT. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. CIS looks beyond the title of the position and determines, from a review of the duties 
of the position and any supporting evidence, whether the position actually requires the theoretical and 
practical application of a body of highly specialized knowledge, and the attainment of a baccalaureate degree 
in a specific specialty as the minimum for entry into the occupation as required by the Act. 
The Handbook states: 
While there is no universally accepted way to prepare for a job as a systems analyst, 
computer scientist, or database administrator, most employers place a premium on some 
formal college education. A bachelor's degree is a prerequisite for many jobs; however, some 
jobs may require only a 2-year degree. . . . [Plersons with degrees in a variety of majors find 
employment in these computer occupations. 
As noted above, CIS interprets the term "degree" in the criteria at 8 C.F.R. 3 214.2(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. The Handbook clearly indicates that one can enter this field with less than a baccalaureate degree, 
and there is no requirement for a degree in a specific specialty. 
The petitioner submitted four Internet job listings with the initial petition. One of the listings stated that a 
degree in computer science was preferred, and one required a degree in computer science or five years of 
experience. One of the listings required a degree in computer science or business information systems. The 
remaining listing required a degree in computer science, math, English, MIS or CIS. This range of 
requirements does not establish that a degree in a specific specialty is an industry standard. In addition, there 
is no evidence to show that the employers issuing those postings are similar to the petitioner, or that the 
advertised positions are parallel to the instant position. Thus, the advertisements have little relevance. 
In addition, the petitioner submitted letters from three companies in its industry. One states that its minimum 
requirement is for individuals to have bachelor's degrees, but does not specify a particular specialty. The two 
remaining letters indicate that a bachelor's degree in computer science, computer engineering or computer 
information systems is required for their employees. The attention of CIS is drawn to the remarkable 
similarity of these two letters submitted to show that a degree requirement is common to the industry. It is 
noted that portions of the letters are essentially identical. As the letters appear to have been drafted by the 
same individual, CIS questions whether they represent the true testimony of the avowed authors. CIS may, in 
its discretion, accept letters and advisory opinion statements as expert testimony. However, where an opinion 
WAC 03 192 50521 
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is not in accord with other information or is in any way questionable, CIS is not required to accept or may 
give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comrn., 1988). 
The record does not include any evidence from professional associations regarding an industry standard, or 
documentation to support the complexity or uniqueness of the proffered position. The petitioner has, thus, not 
established the criteria set forth at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. It appears that the position is newly created, and the petitioner is not able 
to meet this criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. 3 214.2(h)(iii)(A)(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. 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. While the Handbook indicates that some employers require the minimum of a 
bachelor's degree in a specific specialty to perform the duties of a systems analyst, the petitioner has not 
shown that the complexity of the duties in relation to its business require a baccalaureate degree in a specialty. 
The petitioner indicated on the Form 1-129 that it employs seven people and earned $592,733.97 in gross 
annual income as of the filing date of June 2003. The 2002 federal tax return of record reflects that the 
business earned $142,752 gross income in 2002. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Therefore, the evidence does not 
establish that the proffered position is a specialty occupation under 8 C.F.R. 214.2(h)(4)(iii)(A)(4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.