dismissed H-1B Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-&S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 13, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner. an engineering services firm, seeks to temporarily employ the Beneficiary as an 
.. engineer technical stafT' under the H-1 B nonimmigrant classification for specialty occupations. 
See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(l5)(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 establish that the proffered position qualifies as a specialty occupation in 
accordance with the applicable statutory and regulatory provisions. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
finding that the proffered position is not 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 of M-&S-. Inc. 
(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 
(.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.P.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.P.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"): Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the letter of support, the Petitioner stated that the Beneficiary's job duties in the proffered position 
would include the following: 
• Specific Job Duties: 40 hours/week 
• Plan Development (50% of time spent per week) - Assist the 
registered mechanical engineer in researching, planning. 
designing, and preparing building construction systems for 
commercial, institutionaL industrial and residential buildings 
from sketches, calculations, concepts and verbal instructions: 
• Design Application (30% of time spent per week) - Assist 
the registered mechanical engineer in applying engineering 
principles and theories such as material science. fluid 
mechanics, structural science and thermodynamics to research 
and analyze a client's design criteria, design specifications and 
design manuals to size, select and layout equipment. ducts and 
pipes; and 
• Project Implementation (20% of time spent per week) -
Assist the registered mechanical engineer in utilizing the 
information obtained from engineering research and analysis to 
design and prepare shop drawings and as-built drawings for 
2 
Matter of M-&S-, Inc. 
commercial, institutional, industrial and residential buildings on 
Auto-Cad for submission to clients. 
• Level of Responsibility -+ Assistant Engineer 
• Supervisor-+ Mechanical Engineer 
In addition, the Petitioner stated that .. [t]he minimum requirement for this position is a Bachelor's 
Degree in Engineering." 
In the Labor Condition Application (LCA) submitted in support ofthe H-1B petition, the Petitioner 
asserted that the proffered position falls under the .. Engineering Technicians, Except Drafters, All 
Other" occupational category corresponding to the Standard Occupational Classification (SOC) code 
17-3029. The Petitioner classified the proffered position at a Level I wage (the lowest of four 
assignable wage levels). 1 
Thereafter, in response to the Director's request for evidence (RFE), the Petitioner stated that the 
Beneficiary would be responsible for the following duties in the proffered position: 
• Specific Job Duties: 40 hours/week 
• Plan Development (50% of time spent per week) - Research, 
plan, design, and prepare building construction systems for 
commercial, institutional, industrial and residential buildings 
from sketches, calculations, concepts and verbal instructions: 
• Design Application (30% of time spent per week) - Apply 
engineering principles and theories such as material science. 
fluid mechanics, structural science and thermodynamics to 
research and analyze a client's design criteria. design 
specifications and design manuals to size, select and layout 
equipment, ducts and pipes: and 
• Project Implementation (20% of time spent per week) -
Utilize the information obtained from engineering research and 
analysis to design and prepare shop drawings and as-built 
drawings for commercial, institutional, industrial and residential 
buildings on Auto-Cad for submission to clients. 
• Level of Responsibility -+ Engineering Technical Staff 
• Supervisor-+ Senior Project Engineer 
1 The "Prevailing Wage Determination Policy Guidance'' issued by the U.S. Department of Labor (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 
PoliGy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _II_ 2009.pdf 
3 
(b)(6)
Matter of M-&S-, Inc. 
On appeal, the Petitioner asserts that the Beneficiary will be a •'technical staff engineer'' who will be 
"assigned to help the licensed engineer." The Petitioner explains that while .. [a] licensed engineer is 
usually in a very senior position in an engineering organization[,] ... [a] technical staff engineer on 
the other hand is an engineering graduate with some experience or knowledge gained through special 
training, internships or work experience." 
III. ANALYSIS 
As a preliminary matter, the Petitioner appears to have materially changed the duties and other 
salient aspects of the proffered position. For example, the Petitioner initially stated that the 
Beneficiary would '·[a]ssist the registered mechanical engineer'' in performing duties related to plan 
development, design application. and project implementation. The Petitioner also initially stated that 
the Beneficiary's level of responsibility would be that of an .. Assistant Engineer," and would be 
supervised by a ''Mechanical Engineer." In its response to the Director's RFE. however. the 
Petitioner no longer stated that the Beneficiary would be assisting the registered mechanical 
engineer. Instead, the Petitioner indicated that the Beneficiary would be directly performing the 
duties he was previously said to ''[a]ssist." The Petitioner also stated that the Beneficiary's level of 
responsibility would be an "Engineer Technical Staff' who would report directly to the .. Senior 
Project Engineer." 
At a more basic level, it is unclear whether the proffered position is an engineering technician 
position, or an engineer position. As previously stated, the Petitioner asserted on the LCA that the 
proffered position is a Level I, entry-level, position falling under the .. Engineering Technicians. 
Except Drafters, All Other" occupational category (corresponding to SOC code 17-3029). Thus, 
according to the LCA, the position is a technician position.1 On the other hand, the Petitioner states 
on appeal that the proffered position is a ''technical staff engineer" and discusses the job duties and 
requirements for '•staff engineers.'' Thus, the Petitioner implies that the proffered position is an 
engineer position and not merely a technician position.2 The Petitioner has not reconciled these 
apparently inconsistent descriptions and established which of the job descriptions are accurate. 
Furthermore, when responding to an RFE, the Petitioner cannot offer a new position to the 
Beneficiary, or materially change a position's title, its level of authority within the organizational 
hierarchy, its 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 
1 O*NET lists a different SOC code and title for engineering positions. See e.g, O*NET OnLine Summary Report for 
"Mechanical Engineers," http://www.onetonline.org/link/summary/17-2141.00 (last visited June 9. 2016). 
2 
We observe that the Level I prevailing wage for mechanical engineers in the CA 
MSA (where the Petitioner's office is located), for the period 7/2014-6/2015, is $64,376 annually, which is far higher 
than the proffered wage of $52,000 per year. For more information regarding the wages for "Mechanical Engineers" -
SOC (ONET/OES Code) 17-2141, for the same MSA and time period, see 
http:/ /www.flcdatacenter.com/OesQuickResults.aspx?code= 17-2141 & &year= 15&source= I (last visited June 
9, 2016). 
4 
Matter of M-&S-, Inc. 
for the benefit sought. See Matter of Michelin Tire Corp., 17 I&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 I&N Dec. 169, 176 (Assoc. 
Comm'r 1998). 
Without more, the evidence of record is insufficient to establish the exact nature and duties of the 
proffered position, and thus, whether it qualities as a specialty occupation. Nevertheless. for the 
purpose of performing a comprehensive analysis of whether the proffered position qualities as a 
specialty occupation, we now tum to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
A baccalaureate or higher degree in a spec(fic ,\pecialty, or its equivalent, is 
normally the minimum requirement ji.Jr entry into the particular position 
To make our determination as to whether the employment described above qualifies as a specialty 
occupation, we tum first to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which is satisfied by 
establishing that a baccalaureate or higher degree in a specific specialty, or its equivalent is 
normally the minimum requirement for entry into the particular position that is the subject of the 
petition. 
We recognize the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook (the 
Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
of occupations it addresses.3 As previously discussed, the Petitioner asserted in the LCA that the 
protTered position corresponds to the ""Engineering Technicians, Except Drafters, All Other" 
occupational category. 
There are occupational categories which are not covered in detail by the Handbook, as well as 
occupations for which the Handbook does not provide any information. The llandbook states the 
following about these occupations: 
Although employment for hundreds of occupations is 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, 2014 employment the May 
2014 median annual wage. the projected employment change and growth rate from 
2014 to 2024, and education and training categories are presented. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-2017 ed., 
''Data for Occupations Not Covered in Detail," http://www.bls.gov/ooh/About/Data-for­
Occupations-Not-Covered-in-Detail.htm (last visited June 9, 2016). 
The Handbook, which is available in printed form. may also be accessed online at 
http://www.stats.bls.gov/oco/. Our references to the Handbook are from the 2016-2017 edition available online. 
5 
(b)(6)
Matter of M-&S-, Inc. 
Thus, the narrative of the Handbook reports that there are some occupations for which only summary 
data is prepared but detailed occupational profiles are not developed. The Handbook suggests that 
for at least some of the occupations, little meaningful information could be developed. 
Accordingly, in certain instances, the Handbook is not determinative. 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 more likely than not satisfies the statutory and regulatory 
provisions, including this or one of the other three criteria, notwithstanding the absence of the 
Handbook's, support on the issue. In such cases. it is the Petitioner's responsibility to provide 
probative evidence (e.g., documentation from other objective, authoritative sources) that indicates 
whether the particular position 
in question qualifies as a specialty occupation. Whenever more than 
one authoritative source exists, we will consider and weigh all of the evidence presented to 
determine whether the particular position qualifies as a specialty occupation. 
In support of its claim, the Petitioner submitted a printout of the Occupational Information Network 
(O*NET) OnLine Summary Report for .. Mechanical Engineering Technologists." The summary 
report provides general information regarding the occupation; however, it docs not support the 
Petitioner's assertion regarding the educational requirements for the occupation. For example, the 
Specialized Vocational Preparation (SVP) rating cited within O*NET's Job Zone designates this 
occupation as 6 < 7. An SVP rating of 6 to less than (''<") 7 indicates that the occupation requires 
•·over 1 year up to and including 2 years'' oftraining. Moreover, while the SVP rating indicates the 
total number of years of vocational preparation required for a particular position, it is important to 
note that it does not describe how those years are to be divided among training, formal education. 
and experience - and it does not specify the particular type of degree, if any, that a position would 
require.4 
Further, the summary report provides the educational requirements of .. respondents" and indicates 
that most of the respondents possess an associate's degree or a post-secondary certificate (completed 
after high school). Further, it is important to note that the respondents' positions within the 
occupation are not distinguished by career level (e.g., entry-level, mid-level, senior-level).6 
The Petitioner also submitted an opinion letter prepared by of 
listed the duties of the proffered position as described by the Petitioner in its 
October 12, 2015, letter, and concluded that the proffered position is a specialty occupation that 
requires a bachelor's degree in mechanical engineering, mechatronics engineering. or a related area. 
4 For additional information, see the O*NET Online Help webpage available at 
http://www.onetonline.org/help/online/svp. 
6 Even if O*NET were generally probative, we observe that O*NET assigns this occupation a Job Zone "Three" rating, 
which indicates that .. [m]ost occupations in this zone require training in vocational schools, related on-the-job 
experience, or an associate's degree." 
6 
(b)(6)
Matter of M-&S-, Inc. 
Upon review of the opmwn letter, there is no indication that possesses sufficient 
knowledge of the Petitioner's proffered position and its business operations. 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. He 
does 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. 
Furthermore, it does not appear that is aware of the Petitioner's inconsistent job 
descriptions. Nor is it apparent that is aware of the Petitioner's designation of the 
proffered position as a Level I (entry) position (the lowest out of four assignable wage-levels) in the 
LCA. As previously discussed, this designation is indicative of a comparatively low, entry-level 
position relative to others within the occupation and signifies that the Beneficiary is only expected to 
possess a basic understanding of the occupation. In contrast, stated that the proffered 
position is not a ''lower level'' position, but rather, has "a great level of responsibility within the 
company." It appears that would have found such information relevant for his opinion 
letter. Accordingly, the Petitioner has not demonstrated that possesses the requisite 
information necessary to adequately and accurately assess the nature of the Petitioner's position. 
We may, in our discretion, use an advisory opinion or statement submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable, 
USC IS is not required to accept or may give less weight to that evidence. Matter l?l ( 'aron 
International. 19 I&N Dec. 791 (Comm'r 1988). As a reasonable exercise of our discretion. we find 
that the advisory opinion letter is not probative evidence of any criterion of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). For efficiency's sake, we hereby incorporate the above discussion regarding 
the opinion letter into our analyses of each criterion at 8 C.F.R. § 214.2(h)( 4 )(iii)(A). 
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)(J). 
The requirement of a baccalaureate or higher degree in a spec!fic special(v. 
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 the 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. 
(b)(6)
Matter of M-&S-, Inc. 
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 another authoritative source, reports a standard industry-wide requirement for at 
least a bachelor's degree in a specific specialty, or its equivalent. We incorporate by reference the 
previous discussion on the matter. 
In support of this criterion ofthe regulations. the Petitioner submitted two letters from of 
in response to the RFE and on appeal. We reviewed the letters in their 
entirety. However, we find that they are not persuasive in establishing the proffered position as a 
specialty occupation position under this or any of the criteria at 8 C.P.R. § 214.2(h)(4 )(iii)(A). 
Specifically, although claims that the company is similar in size and complexity to the 
Petitioner, the letters lack sufficient information regarding to conduct a 
meaningfully substantive comparison of its business operations to the Petitioner. The Petitioner did 
not provide any supplemental information to establish that the organization is similar to the 
Petitioner. 
Furthermore, states that her company "only hire[ s] applicants who can demonstrate l an J 
attainment of a Bachelor's Degree in Engineering or the related disciplines" for the engineering 
technical staff position. However, 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. 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 did not submit any 
probative evidence of her recruitment and/or hiring practices. 
The Petitioner also provided two letters from of the 
in response the RFE 
and on appeal. Notably, the Petitioner did not provide sufficient information regarding the 
association (e.g., the size of the association and requirements for membership). did not 
identify the specific elements of her knowledge and experience that she may have applied in 
reaching her conclusions here. did not indicate that she relied on any authoritative sources 
to support her assertions. She did not include the results of outside formal surveys. research, 
8 
(b)(6)
Matter of M-&S-, Inc. 
statistics, or any other objective quantifying information to substantiate her opinions. Thus, this 
prong of the regulations has not been established by the letters from either. 
For the reasons discussed, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
spec(fic .\pecialty, or its equivalent 
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 submitted a description of the proffered position, along with information regarding its 
business operations. The Petitioner designated the proffered position as an entry-level position 
within the occupational category (by selecting a Level I wage). This designation, when read in 
combination with the Petitioner's job descriptions. further suggests that the particular position is not 
so complex or unique that the duties can only be performed an individual with bachelor's degree or 
higher in a specific specialty, or its equivalent. While related courses may be beneficial in 
performing certain duties of the position, the Petitioner has not demonstrated how an established 
curriculum of 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 Petitioner claims that the Beneficiary is well-qualified for the position, and references his 
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 did not sufficiently develop relative 
complexity or uniqueness as an aspect of the duties of the position and it did not identify any tasks 
that are so complex or unique that only a specifically degreed individual could perfonn them. 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 
~pecific 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 merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not a matter of preference for high-caliber candidates but is 
necessitated by performance requirements of the position. While a petitioner may assert that a 
9 
(b)(6)
Matter of M-&S-, Inc. 
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 the 
Petitioner's claimed self-imposed requirements. then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the Petitioner 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. Evidence provided in support of this criterion may include. but is not limited to. 
documentation regarding the Petitioner's past recruiting and hiring practices, as well as information 
regarding 
employees who previously held the position. 
In response to the RFE, the Petitioner submitted the academic credentials and payroll summaries for 
two of its employees. However. the Petitioner has not established whether the duties and 
responsibilities of these individuals are the same or similar to the proffered position. The Petitioner 
did not provide the job duties and day-to-day responsibilities for these individuals. The Petitioner 
also did not submit any information regarding the complexity of their job duties. supervisory duties 
(if any), and independent judgment required. According to the Petitioner's organizational chart. one 
ofthese individuals is employed in a relatively high-level position as an ""Associate" of the company. 
directly subordinate to the Petitioner's President. The other individual is identified as a .. Senior 
Tech. Staff:' which is also higher than the proffered position according to the organizational chart. 
Without more, the documentation does not establish that the Petitioner satisfied this criterion of the 
regulations. 
Moreover, 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 
regarding flvo individuals is of the Petitioner's normal recruiting and hiring practices. 7 
The Petitioner did not provide suflicient 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. Thus, 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 knmrledge 
required to perform the duties is usually associated with the attainment (~fa 
baccalaureate or higher degree in a specffic specialty, or its equivalent 
7 The Petitioner has not demonstrated what statistically valid inferences, if any, can be drawn from the credentials of two 
employees, taking into consideration the Petitioner's operations since 1977, and the Petitioner's current staffing. See 
general(v Earl Babbie, The Practice ofSocial Research 186-228 ( 1995). 
It must be noted for the record that the Petitioner has provided inconsistent information regarding its number of current 
employees. In the Form 1-129, the Petitioner stated that it has eight employees. However, in the letter of support, the 
Petitioner stated that it has "nine (9) professional employees'' plus two administrative staff. In addition, the Petitioner's 
organizational chart and quarterly reports show nine employees. Further, in the letter from of 
he states that the Petitioner "employs I 4 engineers, engineering assistants, and clerical staff." No 
explanation for these variances was provided. 
10 
Matter of M-&S-, Inc. 
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. 
USCIS examines each piece of evidence for relevance. probative value. and credibility. both 
individually and within the context of the totality of the evidence. The evidence submitted. however. 
does not establish that the Petitioner's proffered position qualifies for the requested classification 
under the applicable statutory and regulatory provisions. It is not the volume of documentation that 
establishes eligibility for the benefit sought, but rather the relevance. probative value, and credibility 
of the documentation - both individually and within the context of the totality of the evidence. 
Matter ofChawathe. 25 I&N Dec. 369. 375-376 (AAO 2010). 
In support of this criterion, the Petitioner provided a description of the duties of the proffered 
position and information regarding its business operations, including copies of several of its 
engineering projects and contracts. The Petitioner asserted that these documents illustrate how the 
company's operations are ''highly complicated and particularly complex, due to large institutional 
contracts.'' However. while the Petitioner submitted various documents relating to its operations. the 
Petitioner did not establish how these documents and aspects of its operations specifically relate to 
the Beneficiary's day-to-day responsibilities. The Petitioner also has not sufficiently explained how 
these aspects of its operations distinguish and differentiate the duties of the proffered position from 
the typical duties performed by other engineering technicians, and why the proffered duties require a 
baccalaureate (or higher degree) in a specific specialty, or its equivalent, as claimed. 
We also 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. 8 Without further 
evidence, the Petitioner has not demonstrated that its proffered position is one with specialized and 
complex duties as such a position within this occupational category vvould likely be classified at a 
higher-level requiring a substantially higher prevailing wage.9 
8 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 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 relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
9 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. For additional information 
regarding wage levels as defined by DOL, see U.S. Dep't of Labor. Emp't & Training Admin .. Prevailing Wage 
Determination Poli9· Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance _Revised_ 11 __ 2009.pdf. 
11 
Matter of M-&S-, Inc. 
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 ofthe regulations at 8 C.F.R. § 214.2(h)(4)(iii)(A)(../). 
IV. CONCLUSION 
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. 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. 
Cite as Matter ofM-&S-, Inc., ID# 17148 (AAO June 13, 2016) 
12