dismissed H-1B Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 15842006 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 24, 2021 
The Petitioner seeks to temporarily employ the Beneficiary as a "test engineer" under the H-1B 
nonimmigrant classification for specialty occupations. 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-1B 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 proffered position qualifies as a specialty occupation. The Petitioner filed an appeal, 
which we dismissed concluding that the record did not establish the substantive nature of the proffered 
position, which precluded a conclusion that the proffered position qualifies as a specialty occupation 
under at least one of the four regulatory criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A). The 
matter is now before us on a motion to reopen. 1 
Upon review, we will dismiss the motion to reopen and any implied motion to reconsider. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such as, 
for instance, submission of a properly completed Form 1-290B, Notice of Appeal or Motion, with the 
correct fee), and show proper cause for granting the motion. 8 C.F.R. § 103.5(a)(l). 
A motion to reopen is based on factual grounds and must ( 1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider is based on legal grounds and must (1) state the reasons for 
1 The Petitioner does not indicate on the Form I-290B , Notice of Appeal or Motion, that it is filing a motion to reconsider. 
However , in the motion brief, the Petitioner asserts that the opinion submitted in response to the Director 's request for 
evidence satisfied the requirements for "expert testimony" and should not be discounted or rejected by the Director or this 
office. The Petitioner appears to imply from this assertion that neither the Director nor this office properly considered the 
opinion. For thoroughness we will briefly address this implication as a motion to reconsider the opinion. 
reconsideration; (2) establish that the decision was based on an incorrect application of law or policy; 
and (3) establish that the decision was incorrect based on the evidence of record at the time of the 
initial decision. 8 C.F.R. § 103.5(a)(3). 
II. ANALYSIS 
A. Motion to Reopen 
As noted above, the Petitioner files a motion to reopen. The Petitioner submits a letter from the 
end-client which copies the Petitioner's description of duties the Beneficiary will perform at the 
end-client verbatim. As the letter copies a previously provided description of the position, it does not 
include new evidence regarding the proffered position. 2 Even if considering the submission of the 
end-client's letter, it does not assist in establishing the position as a specialty occupation. Although 
the description is lengthy it is generic and jargon-laden. Rather than providing a detailed description 
of the proposed duties, the description refers to various technology tools the Beneficiary will use in 
performing the duties. The record does not include sufficient probative evidence that knowledge of 
these technology tools, is knowledge that can only be learned through a bachelor's degree program in 
a specific specialty, or its equivalent. 
Moreover, even the duties that do not refer to specific technology tools are insufficient to provide an 
understanding of the substantive nature of the position. For example, the Beneficiary will "[d]iscuss 
with business users, product managers, Vendor partners to understand and analyze problems for 
Camera issues and requirements for fixing those issues;" "[p ]repare documents, Test case development 
to demonstrate that proposed solutions address the problems with the order flow and PO creation;" 
and "[ o ]nboard all [end-client's] Home Security Cameras to Broadband devices to check all camera 
models are paired properly or not." These duties are vague and without sufficient context to ascertain 
the Beneficiary's specific responsibilities and the level of education, if any, needed to perform the 
tasks. Some duties appear to involve basic technician duties such as "[t]roubleshoot the Camera issues 
and find the root cause of that issue and create a ticket accordingly provided with all steps for 
reproduction" and "[p]erforming Camera pairing via BLUETOOTH Onboarding using [end-client's] 
Home app to the Gateways." Additional tasks do not include an actual duty but rather appear to refer 
to an issue. For example, the list of tasks include "[f]or [end-client's] Home Security Cameras to 
validate 2-way radio, Mock server is required to speak and to hear Camera volume." It is not clear 
what tasks are involved in resolving this issue. Overall, as previously determined and reiterated here, 
the record does not include sufficient, probative evidence establishing the substantive nature of the 
position, including the level of responsibility and the actual tasks the Beneficiary would be required 
to perform. 
Of further concern, is the various iterations of the requirements to perform the duties of the position 
which creates further ambiguity in the record regarding the substantive nature of the position. For 
example, the Petitioner initially claims that it, and general current industry standards, require a 
"Bachelor Degree ( or equivalent) in a related specialty field and preferably some relevant experience." 
2 Not only does the end-client letter on motion copy the Petitioner's description verbatim, it does not include an explanation 
correlating the additional duties and tasks listed in the new letter to the end-client's initial perfunctory description of the 
proposed duties. The letter on motion does not appear to be an independent description and explanation of the 
Beneficiary's duties at the end-client's worksite and thus the probative value of such a letter is questionable. 
2 
The mid-vendor, in a letter initially submitted in support of the petition, stated that the "position 
requires a person with a Bachelor of Engineering background and hands on experience in testing and 
infotainment with Telecom domain." The end-client, in a letter submitted in response to the Director's 
request for evidence (RFE) stated the position required "at least a Bachelor's Degree (or the 
equivalent) in Computer Science, a field closely and directly related to the nature of the work." On 
motion, the end-client revised its requirements for the position to a "Bachelor's Degree (or the 
equivalent) in a closely related fields [sic] like Computer Science, Electrical Engineering etc. and 
preferably some relevant experience." 3 Although we understand the fields of computer science and 
electrical engineering are related fields, the continuous addition of fields to attempt to regain 
consistency amongst the various iterations raises questions regarding the credibility of the stated 
requirements. 4 Additionally, the Petitioner, the mid-vendor, and the end-client add that some sort of 
experience is either required (mid-vendor) or preferred. The lack of initial specificity regarding the 
requirements to perform the position, as well as the continuous revision of requirements, cast farther 
doubt on the substantive nature of the position and undermine the claim that the proposed position is 
a specialty occupation. 
As the record on motion does not include new, relevant evidence regarding the substantive nature of 
the position, the Petitioner has not shown proper cause to reopen this matter. That is, the record on 
motion is insufficient to grant the motion to reopen. 
B. Motion to Reconsider 
The Petitioner notes that the opinion previously submitted should not be discounted or rejected by the 
Director or this office and cites to the USCIS Adjudicators Field Manual, the Federal Rules of 
Evidence, and caselaw to demonstrate the opinion meets the requirements for expert testimony. The 
Petitioner re-submits the opinion provided in response to the Director's request for evidence. 5 The 
Petitioner, however, does not directly argue that the prior decisions are based on an incorrect 
application of law or policy. Nevertheless, for thoroughness and the Petitioner's understanding we 
will briefly address the opinion. 
3 We note here that the Petitioner cannot materially change a position's title, its level of authority within the organizational 
hierarchy, the associated job responsibilities, or the requirements of the position. The Petitioner must establish that the 
position offered to the Beneficiary when the petition was filed merits classification for the benefit sought. See Matter of 
Michelin Tire Co1p., 17 l&N Dec. 248, 249 (Reg'l Comm'r 1978). A petitioner may not make material changes to a 
petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of lzummi, 22 l&N Dec. 169, 
176 (Assoc. Comm'r 1998). 
4 The Petitioner recites the Beneficiary's coursework in electrical engineering when describing the duties and requirements 
to perform the position; however, to the extent the Petitioner expects the Beneficiary's qualifications to qualify the position 
as a specialty occupation, we note that the test to establish a position as a specialty occupation is not the skill set or 
education of a proposed beneficiary, but whether the position itself qualifies as a specialty occupation. Thus, whether or 
not the Beneficiary in this case has completed a specialized course of study directly related to the proffered position is 
irrelevant to the issue of whether the proffered position qualifies as a specialty occupation, i.e., whether the duties of the 
proffered position require the theoretical and practical application of a body of highly specialized knowledge and the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent. Section 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii). 
5 As the opinion was previously submitted and considered, the evidence is not new and does not provide a basis to grant a 
motion to reopen. 
3 
The opinion is authored b Professor of Computer Science and Computer 
Engineering,~-----~ University. First, we note that it is not clear which versions of the 
descriptions of duties the professor reviewed in order to provide his opinion. Second, the professor 
recites various duties and concludes, without any analysis, that the duties require extensive knowledge 
and skills in a number of different areas. The professor opines farther that the acquisition of the 
knowledge and skills requires courses received in a "Bachelor's Degree in Electrical Engineering, 
Computer Engineering, Computer Science or a related degree." He does not define what he means by 
a "related field" or why any other degree would not lead to a sufficiently similar knowledge set. 
Furthermore, within this conclusory statement, the professor appears to rule out other means one could 
utilize to attain the requisite knowledge, which undermines the evidentiary weight of his statements.6 
.__ ____ _.lalso notes that "this type of position is a typical job placement for students completing a 
Bachelor's or Master's degree from an accredited university in the United States" and that a bachelor's 
degree in electrical engineering, computer engineering, computer science or a related degree provide 
development of the skills and knowledge necessary to perform as a test engineer. This statement 
showcases I I's confusion between (1) the ability of a person with an electrical engineering, 
computer engineering, or computer science degree to perform the duties of the proffered position and 
(2) a degree requirement in order to perform the duties. While the professor may draw inferences that 
engineering or computer science courses may be beneficial in performing certain duties of the position, 
we disagree with any inference that such a degree is required in order to perform the duties of the 
proffered position. Put simply, stating that a person with a bachelor's degree in electrical engineering, 
computer engineering or computer science could perform the duties of the proffered position is not 
the same as stating that such a degree is required to perform those duties. 
~----_.lalso concludes that an entry-level test engineer is still complex and specialized and a 
bachelor's degree in electrical engineering, computer engineering, computer science or a related 
degree represents a common standard for parallel positions among similar organizations. I I 
does not provide a basis for his conclusion. 7 He does not discuss the principles and methods he used to 
reach his conclusion and he does not offer a discussion of how he applied any principles and methods in 
reaching his conclusion. He does not indicate he has published, conducted research, run surveys, or 
engaged in any enterprise or employment regarding the minimum education requirements for positions 
such as the position proffered here. He also does not discuss relevant research, studies, or authoritative 
publications, he utilized as part of his review and foundation for his opinion. 8 We also note that the record 
does not indicate whethe~ I was aware that the Beneficiary would provide services offsite to 
an end-client, nor does he reference the specifics of the particular project upon which the Beneficiary 
would work in meaningful detail. 
6 See Claar v. Burlington NR.R., 29 F.3d 499, 502 (9th Cir. 1994). A lack of sufficient consideration of alternatives is a 
basis that can adversely affect the evidentiary weight of an opinion. See Ambrosini v. Labarraque, 101 F .3d 129, 140 
1
o.C. Cir. 1996). 
I does not indicate whether he reviewed the job postings submitted by the Petitioner in support of its claim 
regarding the requirements to perform the duties of a test engineer. We note, however, that the job postings submitted to 
demonstrate a common requirement for parallel positions show the opposite. The job postings list a range of degrees and 
also indicate that experience may substitute for a degree (without an indication of the standards used to define the type or 
amount of experience). 
! !notes that he consulted the U.S. Dep't of Labor, Occupational Outlook Handbook and the O*NET Online 
web pages but he does not offer an analysis of those sources or describe how they influenced his opinion, if at all. 
4 
As a matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. Matter 
o_f Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we will reject an opinion or 
give it less weight if it is not in accord with other information in the record or if it is in any way 
questionable. Id. We are ultimately responsible for making the final determination regarding an 
individual's eligibility for the benefit sought; the submission of expert opinion letters is not 
presumptive evidence of eligibility. Id.; see also Matter o_f V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 
2008) ("[E]xpert opinion testimony, while undoubtedly a form of evidence, does not purport to be 
evidence as to 'fact' but rather is admissible only if 'it will assist the trier of fact to understand the 
evidence or to determine a fact in issue."'). In this matter, the opinion does not assist in establishing 
the substantive nature of the proffered position and why the particular position offered here is a specialty 
occupation. 
The Petitioner does not state specific reasons for reconsideration and does not offer a cogent analysis 
of how the previous decision was based on an incorrect application of law or policy. Moreover, the 
record on motion does not establish how our decision was incorrect based on the evidence of record 
at the time of the initial decision. The Petitioner has not provided a legal basis to reconsider the 
previous decision. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsidering 
this matter and has not otherwise established eligibility for the immigrant benefit sought. In visa 
petition proceedings, it is a petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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