dismissed H-1B Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-S-, INC . 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 19, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an engineering services business, seeks to temporarily employ the Beneficiary as an 
"RF engineer" under the H-lB nonimmigrant classification for specialty occupations. See Immigration 
and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b) . The H-lB 
program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that 
requires both (a) the theoretical and practical application of a body of highly specialized knowledge 
and (b) the attainment of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a 
minimum prerequisite for entry into the position . 
The Vermont Service Center Director denied the petition , concluding that the Petitioner had not 
established that it had specialty occupation work for the Beneficiary for the requested period of 
intended employment. 
On appeal, the Petitioner submits additional evidence and asserts that the petition should be approved. 1 
Upon de nova review , we will dismiss the appeal. 2 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C . § 1184(i)(l) , defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
1 The Petitioner submitted documentation to support the H-1 B petition , including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted , we have reviewed and considered each 
one. 
2 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). In other words, a petitioner must show that what it claims is "more likely than not" or "probably " true. To 
determine whether a petitioner has met its burden under the preponderance standard , we consider not only the quantity , 
but also the quality (including relevance , probative value, and credibility) of the evidence . Id. at 376; Matter of E-M- , 
20 I&N Dec. 77, 79-80 (Comm 'r 1989). 
Matter of A-S-, Inc. 
(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: 
(]) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertojf, 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"). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
that there is specialty occupation work available for the Beneficiary. The Petitioner also has not 
demonstrated the substantive nature of the proffered position and has not established that the job duties 
require an educational background, or its equivalent, commensurate with a specialty occupation. 
A. Availability of Specialty Occupation Work 
In its letter in support of the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner explained 
that it is a telecom and technology company and that the Beneficiary as an RF engineer "will be 
involved in the cellular/wireless telecommunications system design, implementation, and 
enhancement of wireless telecommunications networks." The Petitioner, however, did not sufficiently 
describe the proposed duties in relation to its business operations or particular assignments. 
In response to the Director's request for evidence (RFE), the Petitioner elaborated that its business 
requires that the Beneficiary work on several client and turnkey RF projects to support its client's 
networks. In support of the proposed work, the Petitioner submitted statement of work (SOW) 
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Matter of A-S-, Inc. 
documents and past invoices from various companies. The documents are not signed or dated and are 
not connected to any specific contract legally obligating the "clients" to provide work for the 
Beneficiary. 
On appeal, the Petitioner submits a master services agreement (MSA) withl I (E-) and the 
Petitioner's corporate predecessor. 3 The MSA includes E-' s desire to engage the Petitioner as a 
supplier and E-' s expectation that it "in the future may become, a party to various Customer ( as later 
defined) contracts under which will provide services for I I and/or site maintenance 
projects." The record als¥--'........_......,.......,_......_:,r_'~r .... ~..r·....,_
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..,_,,__,.........,........, agreement (GSA) between the Petitioner's 
corporate lrede
1
cessor and~---------- which has a "Scope of Services" for EME 
studies fo wireless division. A 2014 amendment to the GSA adds a "Scope of Services" for RF 
consultants for~ireless division. The Scope of Services attachments indicate that the work will 
be awarded through competitive bid or firm price quote. 
We have reviewed the invoices/orders the Petitioner submits on appeal to establish that it has an 
ongoing relationship with E- andO However, the purchase orders dated in August, September, 
October 2018, still identify the supplier as the Petitioner's corporate predecessor. 4 Significantly, the 
orders do not identify the particular work to be performed, who will perform the work, and the number 
of resources needed for the work. The orders state, for example, "Engineering Services - FCC study 
engineering services - FCC study - Cell" or "Baseline Compliance Audit & Report Engineering 
Services - RF test/AM study/tower detune, surve [sic]." Other orders provide even less information 
simply referencing EME. The record does not include the length of time particular projects will be 
ongoing or indicate the stage of any particular projects. 
The record does not include sufficient information to corroborate the length of the Beneficiary's actual 
assignment of work. The record does not include a timeline or roadmap corroborating the stage of 
and requirement for the continuation of the Beneficiary's services. Without probative, current detail, 
we cannot ascertain the nature of the Beneficiary's work, whether such work is of specialty occupation 
caliber, 5 and how long the Beneficiary's services will be required. The record does not sufficiently 
establish the existence of a definite, non-speculative specialty occupation position for the Beneficiary. 6 
Setting aside the inadequacy of the documentation establishing that work actually continues to exist 
for the Beneficiary to perform, the record here also does not include probative evidence that any work 
that may be available will be H-lB caliber work. 
3 The record includes a certificate of amendment to the Petitioner's corporate predecessor's incorporation documents 
changing the corporate name to the Petitioner. The certificate of amendment is dated October 30, 2015 and is filed with 
the State Treasurer on December 1, 2015. 
4 We observe that the Petitioner's name is also on the purchase orders. This creates confusion in the record and raises 
questions regarding the validity of the orders. 
5 We have reviewed the amendment to thUGSA which states that the ·'[s]upplier personnel must demonstrate through 
a combination of formal education, professional certification, and industry experience a complete and comprehensive 
knowledge of Radio Frequency (RF) engineering and compliance." This statement does not establish a requirement for a 
bachelor's degree in a specific specialty, or its equivalent, to perform any of the duties that might have fallen under this 
contract. 
6 Speculative employment is not permitted in the H-1 B program. See, e.g., 63 Fed. Reg. 30,419, 30,419-20 (proposed June 
4, 1998)(to be codified at 8 C.F.R. pt. 214). 
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Matter of A-S-, Inc. 
B. Nature of Position 
The Petitioner designated the position on the labor condition application (LCA) 7 as a Standard 
Occupation Classification code 17-2071 "Electrical Engineers" occupation. In response to the 
Director's RFE, the Petitioner allocated the Beneficiary's time to the following responsibilities: 
• EME analysis -40% 
• LTE design and implementation - 30% 
• 5G node survey - 20% 
• RF drive testing - 5% 
• Wireless network optimization - 5% 
The Petitioner also listed duties under each of these responsibilities including duties that refer to the 
Beneficiary's use of various third party tools, but does not specify the actual day-to-day duties it 
expects the Beneficiary to perform. 
On appeal, the Petitioner re-orgamzes the responsibilities and the Beneficiary's time to those 
responsibilities as follows: 
• Electromagnetic Energy (EME) analysis and RF compliance services - 60% 
• L TE design and implementation - 20% 
• RF design 5G node survey and wireless network optimization - 15% 
• RF drive testing - 5% 
Notably, the Petitioner also added duties to those previously mentioned. For example, under the first 
heading the Petitioner now states that the Beneficiary will also generate quotes for clients based on 
pre-analysis site information, will invoice the purchase order for the reviewed work sites, will zone 
and map the work sites using third party tools, and will analyze the work sites to gather the access 
information and document it in the database. The Petitioner does not offer an explanation for the 
addition of these duties. Moreover, and most importantly, some of the additional tasks appear 
administrative in nature. 8 The Petitioner also adds three new responsibilities under the second 
heading. The Petitioner adds that the Beneficiary will use clutter data and wave propagation modeling 
to predict RSRP and SINR of new cells and optimization of existing cells, design cell layout including 
antenna selection, cabling, diplexer connections, and remote radio head placement. In addition, to this 
being a new duty, the jargon-heavy description does not convey an understanding of what the 
Beneficiary is actually required to do. The Petitioner also adds that the Beneficiary will prepare 
integration reports for new carrier added to the site and will confirm no connectivity issues in the 
hardware and validate the performance of the new site build and perform the audit to make sure the 
7 A petitioner is required to submit an LCA to the Depaitment of Labor to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.73 l(a). 
8 We have reviewed the emails to and from the Beneficiary and note that many of the emails include the Beneficiary 
providing a quote, tracking down purchase orders, and discussing access to worksites. Neither the emails nor the described 
duties include sufficient evidence to demonstrate the Beneficiary will be the individual who prepares the quotes or other 
reports. 
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Matter of A-S-, Inc. 
site is per market requirements. Again, this description does not convey an understanding of what this 
position entails. 
Reviewing the totality of the tasks, including the descriptions under each of the headings, the 
descriptions do not illuminate the substantive application of knowledge involved or any particular 
educational requirement associated with such duties. It is not possible to ascertain the nature and level 
of responsibility of the proposed position, including whether the duties as generally described 
correspond to the occupation designated on the LCA. The record is simply deficient in this regard. 
Although the proposed tasks may require some technical skills, the record does not include probative 
and consistent information which identifies the Beneficiary's role in performing these tasks, or other 
evidence which identifies the Beneficiary's specific day-to-day duties as they relate to a specific 
assignment and overall level of responsibility within any project team. The broad description of duties 
does not include sufficient information to conclude that the duties are electrical engineering duties, 
rather than the routine duties of a telecommunications engineering specialist, or some other supporting 
technician role. 
The generalized description does not establish the necessary correlation between the proffered position 
and the need for a particular level of education, or its equivalency, in a body of highly specialized 
knowledge in a specific specialty. With the broadly described duties, and insufficient evidence 
regarding work specific to a particular project, the record lacks evidence sufficiently concrete and 
informative to demonstrate that the proffered position requires a bachelor's degree level of knowledge 
in a specific specialty. That is, the record does not adequately communicate (1) the actual day-to-day 
work that the Beneficiary will perform; (2) the complexity, uniqueness, or specialization of the tasks; 
and (3) the correlation between that work and a need for a particular level of education and knowledge. 
Because the Petitioner has provided inconsistent and general descriptions, it has not established the 
substantive nature of the Beneficiary's work as it will be performed in relation to particular projects 
for any potential clients. Even if the Petitioner's contracts and work orders continue and are valid, the 
record does not include a sufficiently comprehensible description so that we are able to evaluate 
whether 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 (1) the normal minimum educational requirement for 
entry into the particular position, which is the focus of criterion 1; (2) industry positions which are 
parallel to the proffered position and thus appropriate for review for 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 for classification as a 
specialty occupation. The Petitioner also has not established the proffered position is a specialty 
occupation under the statutory definition. 
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Matter of A-S-, Inc. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-S-, Inc., ID# 4551705 (AAO Sept. 19, 2019) 
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