dismissed H-1B Case: Government Contracting

U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
Iden- QQ to U. S. Citizenship 
and Immigration desrly unwa- Services 
hQsion OCm~ p* 
FILE: WAC 03 174 52680 Office: CALIFORNIA SERVICE CENTER Date: SEp 1 9 m5 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(IS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 174 52680 
Page 2 
DISCUSSION: The service center director denied the nonirnmigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a federal contractor licensed to sell goods and services to U.S. government agencies. It 
seeks to employ the beneficiary as a bidding analyst and to classify him as a nonimrnigrant worker in a 
specialty occupation pursuant to section IOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the ground that the record did not establish that the proffered position 
qualifies as a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 3 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation the position must meet one 
of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties is so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty 
that is directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) 
the director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the notice of 
decision; and (5) Form I-290B and an appeal brief. The AAO reviewed the record in its entirety before 
issuing its decision. 
WAC 03 174 52680 
Page 3 
On Form 1-129 and an accompanying letter the petitioner described itself as a federal contractor, 
established in 1998, with 36 employees and gross annual income of over $20 million. The goods and 
services provided by the petitioner include such items as electrical components and equipment; medical 
and surgical instruments, equipment and supplies; Army and defense equipment; accounting and 
calculating machines; and office supplies and devices. To facilitate further business growth the petitioner 
stated that it was seeking to hire the beneficiary as a bidding analyst. The duties of the position, and the 
percentage of the beneficiary's time they required, were listed by the petitioner as follows in its response 
to the RFE: 
35% Formulate policies and procedures for bid proposals and procurement of goods and 
services. Analyze price proposals, financial reports and other data and information to 
determine reasonable prices. Review orders or bid proposals and review requisitions 
for goods and services. Conduct cost factors used for preparing estimates for 
management and determining cost effectiveness. 
25% Participate in the formulation, development andlor recommendation to management 
of systems andlor programs. These include, but are not limited to, requests for 
quotes, bids and proposals from software and hardware manufacturers, suppliers and 
wholesalers. Prepare and receive bidding documents ready before the bidding date 
and have them sent to the corresponding federal agency. Consult with clients and 
vendors to discuss and formulate estimates and resolve bidding issues. 
25% Direct and coordinate workers' activities involving bid proposals and procurement of 
goods and services. Evaluate and monitor contract performance to determine need 
for changes and to ensure compliance with contractual obligations. Confer with the 
contract specialist or the person in charge of the order from the federal agency about 
the solicitation or proposal. 
15% Monitor or ask the federal agency's contact person about the progress of the bidding 
one week after the bidding date. Coordinate with the bank in reference to the 
bidding, transaction for the early release of funds and telegraphic transfer of the 
payment from the Department of the Treasury. 
The petitioner stated that the beneficiary was qualified for the job by virtue of his bachelor of science in 
civil engineering from Far Eastern University in Manila, the Philippines, granted on May 25, 1983. 
The director found that the position offered to the beneficiary did not qualify as a specialty occupation. 
The director determined that the duties of the proffered position fit within the occupational category of 
purchasers and buyers, as described in the Department of Labor (D0L)'s Occupational Outlook 
Handbook (Handbook). The director quoted information in the Handbook indicating that a baccalaureate 
level of training is not a normal industry-wide requirement for entry into the occupation. The evidence of 
record did not establish that the petitioner normally required applicants for the position to have at least a 
baccalaureate degree in the field, the director stated, or that the duties of the position and its 1eve:l of 
responsibility indicated a complexity or authority beyond that normally encountered in the occupational 
WAC 03 174 52680 
Page 4 
field. The director concluded that the proffered position did not qualify as a specialty occupation under 
any of the criteria enumerated at 8 C.F.R. 3 214.2(h)(4)(iii)(A). 
In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, 
CIS routinely consults the DOL Handbook as an authoritative source of information about the duties and 
educational requirements of particular occupations. Factors typically considered are whether the 
Handbook indicates a degree is required by the industry; 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 indivicluals." 
See Shanti, Inc. v. Reno, 36 F.Supp. 2d 1151, 1165 (D.Minn. 1999) (quoting HiraBlaker COT. v. Sava, 
764 F.Supp. 1095, 1102 (S.D.N.Y. 1989)). CIS also scrutinizes the specific duties and complexity of the 
position at issue, with the Handbook's occupational descriptions as a reference, as well as the petitioner's 
past hiring practices for the position. See Shanti, Inc. v. Reno, id., at 1165-66. 
On appeal counsel states that the petitioner is diversifying its business operations by including 
engineering services and materials required in their various contracts, and therefore needs an individual 
with an academic and employment background in engineering - like the beneficiary - to perform the job 
of an "engineering materials bidding analyst." The job would entail researching available materials on 
the market, testing and analyzing them, performing cost comparisons, and purchasing appropriate 
products, counsel indicated, as well as setting up systems for billing and collections and budget planning 
and control. According to counsel, the director misinterpreted the DOL Handbook's information about 
the educational requirements of purchasing managers, buyers, and purchasing agents. In counsel's view, 
the Hnndbook confirms that the occupation requires a college degree. Counsel also submits a list of 
eleven individuals with baccalaureate degrees in various disciplines whom he asserts are current 
employees of the petitioner with "previously approved cases" for "the same or related positions." 
Counsel's description of the proffered position as an ''engineering materials bidding analyst" (emphasis 
added) and the additional duties discussed in the appeal, such as setting up systems for billing and 
collections and budget planning and control, represent an expansion of the position and its duties from 
what was described in the initial petition and in the petitioner's subsequent correspondence with the 
service center. CIS regulations require a petitioner to establish eligibility for the benefit it is seeking at 
the time the petition is filed. See 8 C.F.R. 3 103.2(b)(12). A petitioner many not make material changes 
to its petition in an effort to make a deficient petition conform to legal requirements. See Matter of 
Izummi, 22 I&N Dec. 169 (Assoc. Cornm. 1998). "The AAO cannot consider facts that come into king 
only subsequently to the filing of the petition." Id. at 176. If significant changes are made to the petition 
and new facts come into play, therefore, a new petition must be filed. 
The AAO agrees with the director that the duties of the proffered position reflect those of a purchaser or 
buyer, as described in the DOL Handbook's occupational category of "purchasing managers, buyers, and 
purchasing agents." As explained in the Handbook, 2004-05 edition, at 61: 
Purchasing managers, buyers, and purchasing agents seek to obtain the highest quality 
merchandise at the lowest possible purchase cost for their employers. In general, 
purchasers buy goods and services for use by their company or organization, whereas 
buyers typically buy items for resale. Purchasers and buyers determine which 
commodities or services are best, choose the suppliers of the product or service, negotiate 
WAC 03 174 52680 
Page 5 
the lowest price, and award contracts that ensure that the correct amount of the product or 
service is received at the appropriate time . . . . 
Purchasing managers, buyers, and purchasing agents evaluate suppliers on the basis of 
price, quality, service support, availability, reliability, and selection . . . . Once all of the 
necessary information on suppliers is gathered, orders are placed and contracts are 
awarded to those suppliers who meet the purchaser's needs. 
With respect to the educational requirements of the occupation, the Handbook states the following: 
Qualified persons may begin as trainees, purchasing clerks, expediters, junior buyers, or 
assistant buyers. Retail and wholesale firms prefer to hire applicants who have a college 
degree and who are familiar with the merchandise they sell and with wholesaling and 
retailing practices. Some retail firms promote qualified employees to assistant buyer 
positions; others recruit and train college graduates as assistant buyers. Most employers 
use a combination of methods. 
Educational requirements tend to vary with the size of the organization. Large stores and 
distributors, especially those in wholesale and retail trade, prefer applicants who have 
completed a bachelor's degree program with a business emphasis. Many manufacturing 
firms put yet a greater emphasis on formal training, prefemng applicants with a 
bachelor's or master's degree in engineering, business, economics, or one of the applied 
sciences. A master's degree is essential for advancement to many top-level purchasing 
manager jobs. 
Id. at 62-63. Thus, the Handbook indicates that a variety of backgrounds can be suitable for a purchaser 
or buyer, depending on the particular position. Smaller companies tend to be more flexible. They may 
"prefer" a college degree, but do not always require one, or may not require a degree in a specific 
specialty. Furthermore, the Handbook describes other possible routes to a purchaser or buyer pos,ition, 
such as promotion through the ranks after initial employment at a lower position that does not require a 
degree. The AAO notes, in this regard, that the proffered position in this case is not managerial in nature, 
but rather an entry-level position alongside four other bidding analyst positions already in existence in the 
petitioner's organization as part of its "purchasing operations." (See petitioner's organizational chart.) 
Based on the foregoing analysis, the AAO determines that a baccalaureate or higher degree in a specific 
specialty is not the minimum requirement for entry into the proffered position. Accordingly, the position 
does not meet the first alternative criterion of a specialty occupation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)( I). 
As for the second alternative criterion to qualify as specialty occupation, set forth at 8 C.F.R. 
3 214.2(h)(4)(iii)(A)(2), there is no evidence in the record that a degree requirement in a specific specialty 
is common to the petitioner's industry in parallel positions among similar organizations. Nor has the 
petitioner shown that the bidding analyst position is so complex or unique that it can only be performed 
by an individual with a degree in a specific specialty. Thus, the proffered position does not qualify as a 
specialty occupation under either prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
WAC 03 174 52680 
Page 6 
As for the third alternative criterion of a specialty occupation, 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3), the 
petitioner has furnished the names of eleven individuals it claims are employees with "previously 
approved cases" for "the same or related positions." There is no documentation in the record, however, to 
substantiate any of the petitioner's assertions. There is no documentary proof that the listed individuals 
are employees of the petitioner, that they were approved for H-1B classification, that their positions are 
the same or similar to the proffered position in this case, or that they have the educational degrees 
identified by the petitioner. Simply going on record without supporting documentary evidence does not 
satisfy the petitioner's burden of proof. See Matter of Soffici, 22 I&N Dec. 158, 165 (Cornrn. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Moreover, the 
unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The AAO 
determines that record fails to show that the petitioner normally requires a degree in a specific specialty 
for the proffered position, as required for it to qualify as a specialty occupation under 8 C.F.R. 5 214.2 
(h)(4)(iii)(A)(3). 
Lastly, the record does not establish that the duties of the bidding analyst position are so specialized and 
complex that they require knowledge associated with a baccalaureate or higher degree in a specific 
specialty. Therefore, the proffered position does meet the fourth alternative criterion of a specialty 
occupation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
For the reasons discussed above, the petitioner has failed to establish that the proffered position qualifies 
as a specialty occupation under any of the criteria enumerated at 8 C.F.R. 3 214.2(h)(4)(iii)(A). The 
record does not establish that the beneficiary will be coming temporarily to the United States to perform 
services in a specialty occupation, as required under section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 
§ 1 lol(a)( lWH)(i)(b). 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. $ 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: The appeal is dismissed. The petition is denied.