dismissed H-1B Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-C-H-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 22,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a home hospice and health care provider_ seeks to temporarily employ the 
Beneficiary as a .. contract administrator'' 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. 
§ 110l(a)(15)(H)(i)(b). The H-IB 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 
profTered position is not a specialty occupation. 
The matter is now before us on appeal. In its appeal. the Petitioner submits additional evidence 
asserts that the Director erred in its analysis by classifying the protTered position as a purchasing 
manager. 
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 tem1 .. 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 A-C-H-
(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 
( ./) The nature of the specific duties [is] so special~zed 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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted 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 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 H-1 B petition, the Petitioner stated that the Beneficiary will serve as a .. contract 
administrator... In a letter dated December 17, 2014, the Petitioner indicated that the Beneficiary 
will perform the following duties (with percentages added from the letter submitted in response to 
the Director's request for additional evidence (RFE)): 
Responsible for negotiating, preparing, and revising (as required), contracts with 
third-parties for services, equipment, and supplies [55 percent]. Provides contractual 
summaries to management which identify legal duties [20 percent]. Ensures that 
contractual execution is in full conformance with legal requirements and company 
policies. Coordinates with accounting to plan and administer budgets for contracts, 
and to certify that all contractually required payments are timely issued/received. 
Advises management of any disputes which arise in the execution of contracts, and 
acts to timely resolve any disputes. [ 10 percent.] Researchers, and keeps abreast of 
changes in, applicable laws and regulations to ensure compliance with contractual 
terms while conforming with company policies. Responsible for maintaining a 
detailed and complete audit tile for each contract which includes the original contract 
any amendments and/or addendums, correspondence. and relevant accounting and 
financial documents. [15 percent.] 
According to the Petitioner, the position requires a bachelor's degree in business administration. 
2 
Matter of A-C-H-
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below. we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 1 
Specifically. the record does not establish that the job duties require an educational background. or 
its equivalent, commensurate with a specialty occupation. 2 
As a preliminary matter. the Petitioner's claim that a bachelor's degree in business administration or 
its equivalent is a sufficient minimum requirement for entry into the proffered position is inadequate 
to establish that the proposed position qualifies as a specialty occupation. A petitioner must 
demonstrate that the proffered position requires a precise and specific course of study that relates 
directly and closely to the position in question. Since there must be a close correlation between the 
required specialized studies and the position. the requirement of a degree with a generalized title. 
such as business administration. without further specification. does not establish the position as a 
specialty occupation. Cf Matter c~j"Michael Hertz Assoc.\'., 19 I&N Dec. 558.560 (Comm·r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(l) of the Act a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed supra. USCIS interprets the degree requirement at 8 C.F.R. § 
214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
position. Although a general-purpose bachelor's degree, such as a degree in business administration. 
may be a legitimate prerequisite for a particular position, requiring such a degree. without more. will 
not justifY a finding that a particular position qualifies for classification as a specialty occupation. 
Royal Siam Corp. v. Chertc~ff; 484 F.3d at 147. 
Again, the Petitioner in this matter claims that the duties of the proffered position can be perfonned 
by an individual with only a general-purpose bachelor's degree. i.e., a bachelor's degree in business 
administration. Without more. this assetiion alone indicates that the proffered position is not in fact 
a specialty occupation. 3 The Director's decision must therefore be affirmed and the appeal 
dismissed on this basis alone. However, in order to conduct a comprehensive analysis we will also 
consider the supplemental criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
1 Although some aspects of the regulatory criteria may overlap. we will address each of the criteria individually. 
2 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. 
3 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example. an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field. or a bachelor's or higher degree in business administration combined with relevant 
education, training. and/or experience may. in certain instances, qualify the proffered position as a specialty occupation. 
In either case. it must be demonstrated that the entry requirement is equivalent to a bachelor"s or higher degree in a 
specific specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertof/484 F.3d at 147. 
3 
Matter of A-C-H-
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry. we recognize the U.S. Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the 
duties and educational requirements of the wide variety of occupations that it addresses. 4 
On the labor condition application (LCA) submitted in support of the H-1 B petition. the Petitioner 
designated the proffered position under the occupational category ''Purchasing Managers" 
corresponding to the Standard Occupational Classification code 11-3061.5 On appeaL the Petitioner 
states that the proffered position is not a purchasing manager position. and faults the Director for 
relying on the Handbook's information regarding positions located within that occupational 
category. However. because the Petitioner submitted an LCA certified for a position located within 
the "Purchasing Managers" occupational category, we accord that assertion little weight. 
We have reviewed the section of the Handbook entitled "How to Become a Purchasing Manager" in 
formulating our analysis. which states the following. in part: 
Purchasing managers need a bachelor's degree and work expenence as a buyer or 
purchasing agent. 
Education 
Purchasing managers usually have at least a bachelor's degree and some work 
experience in procurement. A master's degree may be required for advancement to 
some top-level purchasing manager jobs. 
4 All of our references are to the 2016-2017 edition of the Handbook. which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a protlered position, and USCIS regularly reviews the Ham/hook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion. however. the 
burden of proof remains on the Petitioner to submit sutTicient evidence to support a finding that its particular position 
would normally have a minimum. specialty degree requirement. or its equivalent, for entry. 
" The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We \Yill 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the 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 perfonn routine tasks that require limited, if any. exercise of judgment: (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy: and (3) that she will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin"' Prcmi!ing 
Wage Determination Polk)' Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). available at 
http://tlcdatacenter.com/download/NPWHC _ Guidance_Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience. education. and skill 
requirements of the Petitioner's job opportunity. !d. 
4 
Matter of A-('-H-
Work Experience in a Related Occupation 
Purchasing managers typically must have at least 5 years of experience as a buyer or 
purchasing agent. At the top levels, purchasing manager duties may overlap with 
other management functions. such as production. planning. logistics. and marketing. 
U.S. Dep 't of Labor. Bureau of Labor Statistics. Occupational Outlook Handbook, 2016-17 ed .. 
Purchasing Managers. http://www.bls.gov/ooh/management/purchasing-managers.htm#tab-4 (last 
visited Apr. 15, 2016). 
These findings do not indicate that a bachelor's degree in a specific specialty. or the equivalent. is 
normally required for entry into positions located within this occupational category. let alone into the 
one protTered here, which is an entry-level position relative to others within the same occupational 
category. While the Handbook does indicate that individuals working in positions located within 
this occupational category usually possess a bachelor's degree. it does not indicate that the degree 
must be in a spectfic ,\pecialty. As explained above. USCIS interprets the degree requirement at 8 
C.F.R. § 214.2(h)(4)(iii)(A) to require a bachelor's degree in a specific specialty that is directly 
related to the proposed position. 
Nor does the record of proceeding contain any persuasive documentary evidence from any other 
relevant authoritative source establishing that the proffered position's inclusion within the 
.. Purchasing Managers'' occupational category is sufficient in and of itself to establish the proffered 
position as, in the words of this criterion. a .. particular position" for which .. [a] baccalaureate or 
higher degree 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). 
B. Second Criterion 
The second criterion presents two. alternative prongs: ··The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternatire, 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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice. while the alternative prong narrows its focus to the 
Petitioner's specific position. 
I. First Prong 
To satisfy this first prong of the second criterion. the Petitioner must establish that the .. degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty. or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
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 
5 
(b)(6)
Matter C?fA-C-H-
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or at1idavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals:· See .%anti, 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 independent. authoritati ve 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. 
There are no submissions from the industry's professional association(s) indicating that it has made a 
degree a minimum entry requirement. In support of the assertion that a degree requirem ent is 
common to the Petitioner's industry in parallel positions among similar organizations. the Petitioner 
submitted copies ofjob vacancy announcements. However, upon review of the document s. we tind 
that the Petitioner's reliance on the job vacancy announcements is misplaced. 
The Petitioner claims to be a home care and hospice service established in with 20 employees 
and a gross annual income of $2 million. The Petitioner designated its business operations under the 
North American Industry Classification System (NAICS) code 621610 .6 This NAICS code is 
designated for .. Home Health Care Services." The U.S. Department of Commerce, Census Bureau 
website describes this NAICS code as follows: 
This industry comprises establishments primarily engaged in providing skilled 
nursing services in the home, along with a range of the following : personal care 
services; homemaker and companion services; physical therapy; medical social 
services; medications; medical equipment and supplies; counseling: 24-hour home 
care; occupation and vocational therapy: dietary and nutritional services; speech 
therapy; audiology; and high-tech care, such as intravenous therapy. 
See U.S. Dep't of Commerce, U.S. Census Bureau. 2012 NAICS Definition, 621610- Home Health 
Care Services, available at http://www.census .gov/cgi-bin/sssd /naics/naicsrch (last visited Apr. 15. 
2016). 
For the Petitioner to establish that an organization in its industry is also similar under this criterion. it 
must demonstrat e that the Petitioner and the organization share the same general characteristics . 
Without such infom1ation. evidence submitted by a petitioner is generally outside the scope of 
consideration for this criterion. which encompasses only organizations that are similar to the 
Petitioner. 
6 According to the U.S. Census Bureau , the North Americ an Industr y Classification System (NA ICS) is used to classif)' 
business establi shments according to type of economic activity and, each establishment is classified to an industry 
according to the primary business activity taking place there . See http://www .census.gov/eos/www/naics/ (last visited 
Apr. 15, 2016) . 
6 
Matter of A-C-H-
We will briefly note that without more. the job postings do not appear to be from organizations 
similar to the Petitioner. 7 When determining whether the Petitioner and the organization share the 
same general characteristics. such factors may include information regarding the nature or type of 
organization, and. when pertinent the particular scope of operations. as well as the level of revenue 
and staning (to list just a few elements that may be considered). Further. the Petitioner has not 
sufficiently established that the primary duties and responsibilities of the advertised positions 
parallel those of the proffered position. 
In addition, most of the advertisements require at least a bachelor's degree in business administration 
but, as discussed above, a requirement of a bachelor's degree or its equivalent in business 
administration, without more, is not sufficient to establish that a position is a specialty occupation. 
Again, a bachelor's degree in business administration, absent further specialization. is not a 
bachelor's degree in a specific specialty. See Royal Siam Corp. v. Chert<?!!: 484 F.3d at 147. 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. That is, not every deficit of every job posting has been addressed.8 
For all of these reasons. the Petitioner has not established that a requirement of a bachelor's or 
higher degree in a specific specialty, or its equivalent, is common to the Petitioner's industry in 
positions that are (1) in the Petitioner's industry. (2) parallel to the proffered position. and also (3) 
located in organizations that are similar to the Petitioner. 
Thus, the Petitioner has not satisfied the first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
7 It does not appear that any of the advertisements were placed by companies primarily engaged in home hospice and 
health care services. 
8 Although the size of the relevant study population is unknown. the Petitioner does not demonstrate what statistically 
valid inferences, if any, can be drawn from these advertisements with regard to determining the common educational 
requirements for entry into parallel positions in similar companies. See general(v Earl Babbic. The Practice of' S'ocial 
Research 186-228 ( 1995). Moreover, given that there is no indication that the advertisements were randomly selected. 
the validity of any such inferences could not be accurately determined even if the sampling unit were sufficiently large. 
See id. at 195-196 (explaining that ''[r]andom selection is the key to [the] process [of probability sampling]" and that 
"random selection offers access to the body of probability theory, which provides the basis for estimates of population 
parameters and estimates of error.") 
As such, even if the job announcements supported the finding that jobs within the purchasing managers occupational 
category at companies similar to the Petitioner require a bachelor's or higher degree in a specific specialty. or its 
equivalent, it could not be found that such a limited number of postings that appear to have been consciously selected 
could credibly refute the findings of the Handbook that such a position does not require at least a baccalaureate degree in 
a specific specialty. or its equivalent, for entry into the occupation in the United States. 
Matter o.f A-C-H-
2. Second Prong 
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. 
Upon review, we find that the Petitioner has not sut1iciently developed relative complexity or 
uniqueness as an aspect of the proffered position. For instance, the Petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform the duties it may believe are so complex and 
unique. While a few related courses may be beneficiaL or even required, in performing certain 
duties of the position. the Petitioner has not demonstrated how an established curriculum of such 
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 description of the duties does not 
specifically identify any tasks that are so complex or unique that only a specifically degreed 
individual could perform them. The record lacks sufficiently detailed information to distinguish the 
proffered position as more complex or unique from other positions within the specified occupational 
category that can be performed by persons without at least a bachelor's degree in a specific 
specialty, or its equivalent. While the Petitioner's claim that a bachelor's degree in business 
administration is required, we note once again that a bachelor's degree in business administration is 
not a bachelor's degree in a specific specialty. See Royal Siam Corp. v. Chert<?{/: 484 F.3d at 147. 
Moreover, the evidence of record does not establish that this position is significantly different from 
other positions within the occupational category designated on the LCA such that it refutes the 
Handbook's information that a bachelor's degree in a specific specialty or its equivalent is not 
normally required for such positions. 
Further, the LCA submitted by the Petitioner indicates a wage level at a Level I (entry) wage, which 
is the lowest of four assignable wage levels. Without further evidence, the record of proceeding 
does not indicate that the proffered position is complex or unique as such a position falling under 
this occupational category would likely be classified at a higher-leveL such as a Level III 
(experienced) or Level IV (fully competent) position, requiring a significantly higher prevailing 
wage.9 For example, 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." 
9 
The issue here is that 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. it is important to note that a Level I wage-designation does not preclude a protlcrcd position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example). an 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 specitic 
8 
Matter (?f A-C-H-
The Petitioner claims that the Beneficiary is well qualified for the position. 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 sutliciently 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 perform them. Accordingly. the 
evidence of record is insufficient to satisfy the second alternative prong of 8 C.F.R. ~ 
214.2(h)( 4 )(iii)(A)(2). 
C. Third Criterion 
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 
this end, we usually review the Petitioner's past recruiting and hiring practices, information 
regarding employees who previously held the position. and any other documentation submitted by a 
petitioner in support ofthis criterion ofthe regulations. 10 
The Petitioner has not provided any evidence that it has previously employed or recruited anyone as 
a contract administrator to perform the proffered duties. Therefore. the evidence of record docs not 
indicate that the Petitioner normally requires a baccalaureate or higher degree in a ,,pec(fic specialty. 
or its equivalent tor the proffered position under the third criterion of 8 C.F.R. ~ 214.2(h)(4 )(iii)(A). 
D. Fourth Criterion 
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. 
specialty or its equivalent. That is, a position's wage level designation may be a consideration but is not a substitute for 
a determination of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
10 
To satisfy this criterion, the record must establish that the specific performance requirements of the position generated 
the recruiting and hiring history. USC IS must examine the actual employment requirements and. on the basis of that 
examination, determine whether the position qualifies as a specialty occupation. See generally Defensor v. Meissner. 
20 I F.3d 384. In this pursuit. the critical element is not the title of the position. or the fact that an employer has routinely 
insisted on certain educational standards. but whether performance of the position actually requires the theoretical and 
practical application of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in 
the specific specialty. or its equivalent. as the minimum for entry into the occupation as required by section 214(i)( 1) of 
the Act. According to the Court in Defensor. "To interpret the regulations any other way would lead to an absurd result." 
!d. at 388. If USC IS were constrained to recognize a specialty occupation merely because a petitioner has an established 
practice of demanding certain educational requirements for the proffered position - and without consideration of how a 
beneficiary is to be specifically employed- then any beneficiary with a bachelor's degree in a specitie specialty could be 
brought into the United States to perform non-specialty occupations, so long as the employer required all such employees 
to have baccalaureate or higher degrees. See id. 
9 
,\latter of A-C-H-
Upon review of the record of the proceeding. we find that the Petitioner has not provided sufficient 
evidence to satisfy this criterion of the regulations. In the instant case, relative specialization and 
complexity have not been credibly developed by the Petitioner as an aspect of the proffered position. 
That is. the proposed duties have not been described with sufficient specificity to establish that they 
are more specialized and complex than positions that are not usually associated with at least a 
bachelor's degree in a specific specialty. or its equivalent. Therefore, the evidence of record does 
not establish that the duties which collectively constitute this position are significantly different from 
those of other positions located within the purchasing manager occupational category such that it 
refutes the Handbook's finding that a bachelor's degree in a specific specialty. or the equivalent. is 
not required. 
We also incorporate our earlier discussion and analysis regarding the duties of the proffered position. 
and the designation of the position in the LCA as a Level I position (the lowest of four assignable 
wage-levels) relative to others within the same occupational category. 11 The Petitioner has not 
demonstrated in the record that its proffered position is one with duties sufficiently specialized and 
complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(..,t). 
For all of these reasons, the evidence of record does not satisfy the fourth criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
E. Prior H-1 B Approvals 
The Petitioner states that USCIS has approved other petitions that had been previously tiled on 
behalf of the Beneficiary by other employers. 12 Copies of those petitions. however. were not 
included in the record. If a petitioner wishes to have unpublished service center or our prior 
decisions considered by USCIS in its adjudication of a petition, the petitioner is permitted to submit 
copies of such evidence that it either obtained itself and/or received in response to a Freedom of 
Information Act request tiled in accordance with the applicable regulations. Otherwise. ··[t]he non­
existence or other unavailability of required evidence creates a presumption of ineligibility." 8 
C.F.R. § 103.2(b)(2)(i). 
Moreover. if the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory assertions that are contained in the current record. the approvals would constitute 
material and gross error on the part of the Director. We are not required to approve applications or 
petitions where eligibility has not been demonstrated, merely because of prior approvals that may 
11 Again, the Petitioner"s designation of this position as a Level I, entry-level position undermines its claim that the 
duties of the position are particularly complex, specialized. or unique compared to other positions wilhin the same 
occupational category. 
12 The Petitioner's claims regarding the Beneficiary's "extensive employment experience" appear to be at odds with its 
designation ofthe proffered position as an entry-level position on the LCA. Again. DOL guidance indicates that a Level 
I designation should be considered for positions in which the employee will serve as a research fellow. worker in 
training. or an intern. This apparent inconsistency raises questions regarding the validity of the LCA. 
10 
Matter (~f A-C-H-
have been erroneous. See. e.g. Maller (?{Church Scientology Int '1, 19 I&N Dec. 593. 597 (Comm 'r 
1988). It would be •·absurd to suggest that [USCISl or any agency must treat acknowledged errors 
as binding precedent.,. Sussex Eng 'g. Ltd. v. Montgomery. 825 F .2d 1084. 1090 (6th Cir. 1987). 
F. Unpublished AAO Decisions 
The Petitioner also refers to unpublished decisions in which we determined that the contract 
administrator positions proffered in those matters constituted specialty occupations. The Petitioner 
did not submit copies of the unpublished decisions. As the record of proceeding does not contain 
evidence of the unpublished decisions. there were no underlying facts to be analyzed and. therefore. 
no prior, substantive determinations could have been made to determine what facts. if any. were 
analogous to those in this proceeding. We further note that while 8 C.F.R. § 103.3(c) provides that 
our precedent decisions are binding on all USCIS employees in the administration of the Act. 
unpublished decisions are not similarly binding. 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). it has not 
demonstrated 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 ofthe Act. 8 U.S.C. § 1361; Matter l?{Otiende. 26 I&N Dec. 127. 128 
(BIA 2013). Here. that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Ma1ter q{A-C-H-. ID# 16494 (AAO Apr. 22, 2016) 
11