dismissed H-1B Case: Engineering Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 21162560 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 23, 2022 
The Petitioner, an engineering services company, seeks to temporarily employ the Beneficiary as a 
project 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 Vermont Service Center denied the petition, concluding that the record does not 
establish that the proffered position qualifies as a specialty occupation. The matter is now before us 
on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(1) ... "(emphasis added). Section 214(i)(1) of the Act, 8 U.S.C. § 1184(i)(1), defines 
the term "specialty occupation" as an occupation that requires "theoretical and practical application of 
a body of highly specialized knowledge, and 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 section 214(i)(I) of the Act, but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position.1 Lastly, 
1 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... "(emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the services in a specialty occupation that the Beneficiary would perform during the requested period 
of employment, which precludes a determination of whether the proffered position qualifies as a 
specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(1) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(1), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 2 
The Petitioner states on the Form 1-129, Petition for a Non immigrant Worker, that it is an "Engineering 
Services" company. In its letter in support of the petition, the Petitioner adds that it provides 
engineering consulting services in "gas pipeline inspection, facilities and infrastructure operations and 
maintenance, project controls, nuclear waste management, startup engineering support, environmental 
investigations, monitoring, and remediation services, ecological and environmental modeling, project 
and construction management, and water and wastewater design services" to public and private 
entities, as well as federal, state, and local agencies. The Petitioner also submitted printouts of its 
company webpage in which the Petitioner describes itself as a project management organization 
Siam Corp. v. Chertoff, 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"). 
2 The Petitioner submitted documentation to support the H-1B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 
(PMO) that provides "full suite of project controls and project delivery experts." On the labor condition 
application (LCA) 3 submitted in support of the H-1B petition, the Petitioner designates the proffered 
position under the occupational subcategory "Energy Engineers" corresponding to the standard 
occupational classification (SOC) code 17-2199.03, with a level I wage.4 The Petitioner requires a 
"bachelor's degree (or equivalent) in an Engineering field, or a closely related technical discipline, and 
industry experience" for the proffered position. 
A crucial aspect of this matter is whether the duties of the proffered position are described in such a 
way that we may discern the actual, substantive nature of the position. When determining whether a 
position is a specialty occupation, we 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 performance of those duties 
within the context of that particular employer's business operations. 
On a fundamental level, we conclude that the Petitioner has not sufficiently delineated the substantive 
nature of the Beneficiary's proposed duties within its operations. Specifically, the record contains 
insufficient information regarding the proffered position, which in turn precludes us from 
understanding the position's substantive nature and determining whether the proffered position 
qualifies as a specialty occupation. 
The Petitioner initially stated that the Beneficiary will be responsible for executing 19 duties in the 
proffered position and listed broadly described duties, which included serving as central point of 
communication for assigned projects, developing and maintaining a project ream roster, facilitating 
communication between various teams in the project and PMO, facilitating activities from inception 
to Notice to Proceed, providing input and maintain constant communication during construction, 
providing a daily status reports, and assisting teams through problem solving efforts on active 
projects.5 However, facilitating communication, facilitating activities, assisting teams, and providing 
input are generic terms that fail to communicate (1) the actual work the Beneficiary would perform; 
(2) the complexity, uniqueness and/or specialization of the tasks; or (3) the correlation between that 
work and a need for a particular level of education of highly specialized knowledge in a specific 
specialty. 
In the RFE, the Director requested an explanation of how the Beneficiary's specific job duties relate 
to the Petitioner's products and services. In response to the RFE, the Petitioner submitted a table in 
which it identified four core duties of the proffered position and indicated the percentages of time the 
Beneficiary would spend on each core duty as follows: 
3 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services (USCIS) to demonstrate 
that it will pay the Beneficiary 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 experience and qualifications who 
are performing the same services. Section 212(n)(1) of the Act; 20 C.F.R. § 655.731(a). 
4 The subcategory of"Energy Engineers" is listed under the occupational category of·'Engineers, All Other" corresponding 
to SOC code 17-2199. See FLC Data Center Online Wage Library for "En gineers, All Other," SOC code 17-2199 at 
https://www.flcdatacenter.com/OesQuickResu1ts.aspx?code=17-2199&area &year=21&source=1 (last visited 
Mar. 23, 2022) 
5 For the sake of brevity, we will not quote the duties listed verbatim; however, we have closely reviewed and considered 
the duties. 
3 
• Core Duty #1 Support Engineering and Design Process - 20% 
• Core Duty #2 Perform Data analysis - 10% 
• Core Duty #3 Perform Cost Management - 20% 
• Core Duty #4 Project Management - 50% 
Under each core duty, the Petitioner listed sub-tasks.6 However, the tasks listed under each core duty 
are also described in broad terms, and therefore, do not establish a necessary correlation between the 
proffered position and a need for a particular level of education, or its equivalency, in a body of highly 
specialized knowledge in a specific specialty. For example, under Core Duty #1, the Petitioner stated 
that the Beneficiary will "[p]rovide support to the Senior Engineer for optimizing the engineering and 
design process" but did not elaborate on what entails providing support to the senior engineer. 
Similarly, the duties such as "[a]ssist[ing] in performing records research and information gathering" 
(Core Duty #2), "[m]anag[ing] changes to project scope, cost, and schedule, and prepar[ing] necessary 
change documents" (Core Duty #3), and "[w]ork[ing] with cost engineers in updating the cash 
flow/cost forecast for projects" (Core Duty #3) do not illuminate the substantive application of 
knowledge involved or any particular educational requirement associated with such duties. Notably, 
the Petitioner does not describe the proposed duties in relation to a specific project despite stating that 
the Beneficiary will spend 50 percent of his time on project management. Under Core Duty #4, the 
Petitioner listed nine sub-taks, such as "[a]ssist[ing] in the development of project objectives by 
reviewing project proposals and plans," "[r]review[ing] project specifications by studying project 
design, customer requirements," "[p]repar[ing] project status reports," and "[c]oordinat[ing] the visual 
survey activities and scope of work on the project." Again, such a generalized description does not 
establish a necessary correlation between the proffered position and a need for a particular level of 
education, or its equivalency, in a body of highly specialized knowledge in a specific specialty. While 
the position may require that the Beneficiary possess some skills and technical knowledge in order to 
perform these duties, the Petitioner has not sufficiently explained how these tasks require the theoretical 
and practical application of a body of highly specialized knowledge, and the attainment of a bachelor's 
or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. 
Without a detailed and more precise description as well as some context of the particular work the 
Beneficiary will perform, the record does not establish that the proposed duties are the duties of a 
"Energy Engineers" occupation or that the duties require the theoretical and practical application of 
highly specialized knowledge and attainment of at least a bachelor's degree in a specific specialty or 
its equivalent. 
Moreover, the Petitioner repeatedly refers to "team members," and "functional groups," when 
describing the Beneficiary's duties and states that the Beneficiary will be facilitating communication 
between the field personnel and the PMO. However, the record does not include the Petitioner's 
organizational chart depicting its organizational structure and staffing hierarchy, further restricting 
analysis of the Beneficiary's role and level of responsibility within the company. As the Petitioner 
does not include the necessary detail, the Beneficiary's level and depth of participation, contribution, 
and assistance in collaborative duties cannot be determined. 
6 For the sake of brevity, we will not quote the duties listed under each core duty; however, we have closely reviewed and 
considered them. 
4 
Throughout the descriptions, the Petitioner fails to provide the context for the actual duties the 
Beneficiary wi 11 perform as those duties relate to specific projects or products. Although the Petitioner 
provided documents, which it described as '·evidence of work product performed by the project 
engineer," these documents give us a general idea of the Petitioner's operations but they are not 
sufficient to establish the scope and nature of the Beneficiary's proposed position. For example, the 
document entitled "Work Process Map: Above Ground Storage (AGS)" - outlining various stages of 
a project - lists various positions next to certain activities such as plant manager, plant engineer, 
maintenance supervisor, operations supervisor, storage technical services team lead, and storage 
project owner. However, the Petitioner does not indicate which one of these positions corresponds to 
the proffered position. Overall, work product documents provide general information that cannot 
substitute for credible explanations from the Petitioner to convey the substantive nature of the 
proffered position. Without more, the sample work product documents have little probative weight 
towards establishing the actual work the Beneficiary will be doing. 
We also reviewed the position evaluation prepared byl I a professor at University of 
_______ to assist in understanding the nature of the proffered position. Significantly, 
the professor does not discuss the Petitioner's business operations in a manner sufficient to establish 
the scope and complexity of the Beneficiary's job duties therein. Rather, I lists the 
duties that the Petitioner provided in its support letter and states that "[aa ]fter examining the 
responsibilities of the position in detail, it becomes apparent that a bachelor's degree, or higher, in 
Engineering, or a closely related fields" provides the student with skills needed to execute the 
"specialized duties" of the proffered position. I I concludes, without analysis, that the 
job duties are "complex" and require "the theoretical and practical application of an advanced, highly 
specialized body of knowledge in the field of Engineering, or closely related fields." Offering 
conclusory statements is insufficient to assist in an understanding of the nature of the position and an 
understanding of why the position requires a bachelor's level degree in a specific specialty, or its 
equivalent. The absence of any substantive discussion of the duties specific to the Petitioner's projects 
raises doubts about his level of familiarity with the proffered position and also undermines his conclusion 
regarding the degree requirement of the position. We may, in our discretion, use opinion statements 
submitted by the Petitioner as advisory. Matter of Caron Int 'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 
1988). However, where an opinion is not in accord with other information or is in any way questionable, 
we are not required to accept or may give less weight to that evidence.7 Id. 
The Petitioner asserted that the position requires a "bachelor's degree (or equivalent) in an Engineering 
field, or a closely related technical discipline, and industry experience" for 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 credentials of a proposed 
beneficiary, but whether the position itselfrequires at least a bachelor's degree in a specific specialty, 
or its equivalent. In this matter, as we cannot determine the substantive nature of the position, we 
cannot properly evaluate what degree is required in order to perform the duties of the position. 
Accordingly, an analysis of the Beneficiary's qualifications in this matter is premature. A beneficiary's 
credentials to perform a particular job are relevant only when the job is first found to be a specialty 
7 We also reviewed the letter froml I rnanaging owner a inl ,lcalifornia. In 
her letter.I makes declarations regarding industry standards; however, she does not discuss the Petitioner's 
business operations in a manner sufficient to establish the scope and complexity of the Beneficiary's job duties therein. 
Accordingly.I Is letter is insufficient to assist us in understanding the nature of the proposed position. 
5 
occupation. Absent a determination that a baccalaureate or higher degree in a specific specialty or its 
equivalent is required to perform the duties of the particular position proffered here, it cannot be 
determined that the Beneficiary possesses the degree the position requires in order to perform it. 
Moreover, we note that the Petitioner's undefined "industry experience" requirement in addition to 
the degree requirement adds another layer of ambiguity to the nature of the proffered position. As the 
Petitioner's business operations encompass various industries ranging from gas and nuclear energy to 
infrastructure maintenance, and water/wastewater design, it is essential for the Petitioner to specify 
the type of industry experience the position requires. Furthermore, the Petitioner does not quantify 
the length of experience it requires, nor does it elaborate on whether such experience should be 
equivalent to knowledge gained through a bachelor's degree or higher in a specific specialty. 
Lastly, we note that the Petitioner provides such a broad outline for the proffered position that the 
description could encompass the duties of either "Energy Engineers" or "Construction Managers" 
occupations or even other construction occupations. We understand there may be overlap between 
various occupations; however, the information in the record is not sufficiently detailed so that we may 
ascertain the substantive nature of the proffered position and whether the LCA corresponds to the 
petition. Notably, at the time the Petitioner's LCA was certified, the Level I prevailing wage in the 
area of intended employment for "Construction Managers" was $71,5318 per year, which is higher 
than the prevailing wage for "Energy Engineers" which was $63,0249 per year. Such a wage disparity 
highlights the difference between the "Construction Managers" and "Energy Engineers" occupational 
categories generally, and more specific to this case, the significance of the Petitioner's choice of the 
lower paying occupational category. Although these two occupations may include overlapping duties, 
in general, if the duties of a proffered position involve more than one occupational category, the 
Department of Labor's "Prevailing Wage Determination Policy Guidance" states that the employer 
"should default directly to the relevant O*NET-SOC code for the highest paying occupation."10 Again, 
8 See FLC Data Center Online Wage Library for "Construction Managers," SOC code 11-9021 at 
https://www.flcdatacenter.com/OesQuickResults.aspx?code=11-9021&area=~&year=21&source=1 (last visited 
Mar. 23, 2022). 
9 The subcategory of"Energy Engineers" is listed under the occupational category of"Engineers, All Other" conesponding 
to SOC code 17-2199. See FLC Data Center Online Wage Library for "Engineers, All Other," SOC code 17-2199 at 
https://www.flcdatacenter.com/OesQuickResu1ts.aspx?code=17-2199&area= &year=21&source=l (last visited 
Mar. 23, 2022). 
10 We observe that if a position is a combination of two different, but related occupations, the higher paying SOC code 
must be on the LCA. See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://www.flcdatacenter.com/pdf/NPWHC 
_Guidance_Revised_11_2009.pdf. To permit otherwise may result in a petitioner paying a wage lower than that required 
by section 212(n){l){A) of the Act, 8 U.S.C. § 1182{n)(l){A), by allowing that petitioner to submit an LCA for a different 
occupation and at a lower prevailing wage than the one being petitioned for. The LCA serves as the critical mechanism 
for enforcing section 212{n)(l) of the Act, 8 U.S.C. § 1182(n)(l). See Labor Condition Applications and Requirements 
for Employers Using Nonimmigrants on H-lB Visas in Specialty Occupations and as Fashion Models; Labor Certification 
Process for Permanent Employment of Aliens in the United States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 
2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage protections in the Act seek "to protect U.S. 
workers' wages and eliminate any economic incentive or advantage in hiring temporary foreign workers" and that this 
"process of protecting U.S. workers begins with [the filing of an LCA] with [DOL ]."). According to section 212(n){l){A) 
of the Act, an employer must attest that it will pay a holder of an H- IB visa the higher of the prevailing wage in the "area 
of employment" or the amount paid to other employees with similar experience and qualifications who are performing the 
same services. See 20 C.F.R. § 655.731(a); Venkatraman v. REI Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 2005); Patel 
6 
without a meaningful description of the proposed duties within the context of the Petitioner's business 
operations, we cannot determine whether the Petitioner properly categorized the proffered position on 
the LCA. 
With the broadly described duties, and the lack of evidence regarding work specific to a particular 
project, the record lacks sufficient information to understand the nature of the actual proffered position 
and to determine that the duties require the theoretical and practical application of a body of highly 
specialized knowledge attained by a bachelor's degree, or higher, in a specific discipline. 
The Petitioner has not established the substantive nature of the Beneficiary's work. Consequently, this 
precludes a conclusion 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 (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 4.11 
The Petitioner has not established that the proffered position is a specialty occupation. 
ORDER: The appeal is dismissed. 
v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal Vojtisek-Lom & Adm 'r Wage & Hour Div. v. Clean Air Tech. 
Int'/, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
11 As the lack of probative evidence in the record precludes a conclusion that the proffered position is a specialty occupation 
and is dispositive of the appeal, we will not further discuss the Petitioner's asse1iions on appeal regarding the criteria under 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
7