dismissed H-1B Case: Human Resources

U.S. Citizenship 
and Immigration 
Services 
InRe: 5131851 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 15, 2020 
The Petitioner, a semiconductor manufacturer, seeks to temporarily employ the Beneficiary as a senior 
specialist human resources under the H-lB 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-lB program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty ( or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish that the proffered position qualifies as a specialty occupation. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. ANALYSIS 
The Director concluded that the Petitioner did not establish that the proffered position qualifies as a 
specialty occupation . In her decision, the Director thoroughly discussed the Petitioner's failure to 
meet any of the four regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J)- (4). 
Upon consideration of the entire record, including the evidence submitted and arguments made on 
appeal, 1 we adopt and affirm the Director's decision with the comments below. See Matter of P. 
Singh, Attorney, 26 I&N Dec. 623 (BIA 2015) (citing Matter of Burbano, 20 I&N Dec. 872,874 (BIA 
1994); see also Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996) ("[I]f a reviewing tribunal decides that the 
facts and evaluative judgments prescinding from them have been adequately confronted and correctly 
resolved by a trial judge or hearing officer, then the tribunal is free simply to adopt those findings" 
provided the tribunal's order reflects individualized attention to the case). 
Regarding the Director's discussion of the regulation at 8 C.F .R. § 214 .2(h)(4)(iii)(A)(J), we would 
add that the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (the Handbook) 
1 While we may not discuss every document submitted , we have reviewed and considered each one. 
includes business as one of the acceptable fields for entry into the occupation. However, the 
Handbook's recognition that a general, non-specialty "background" in business is sufficient for entry 
into the occupation strongly suggests that a bachelor's degree in a specific specialty is not a standard, 
minimum entry requirement for this occupation. A petitioner must demonstrate that the proffered 
position requires a precise and specific course of study that relates directly 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, without further specification, does 
not establish the position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 
558,560 (Comm'r 1988). 
The Petitioner also states that the duties of the proffered position can be performed by an individual 
with only a general-purpose bachelor's degree, i.e., a bachelor's degree in business administration. 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. 
We interpret 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. We have consistently stated that, although a 
general-purpose bachelor's degree, such as a degree in business, may be a legitimate prerequisite for 
a particular position, requiring such a degree, without more, will not justify a conclusion that a 
particular position qualifies for classification as a specialty occupation. See Royal Siam Corp. v. 
Chertojf, 484 F.3d 139, 147 (1st Cir. 2007). This assertion alone indicates that the proffered position 
is not in fact a specialty occupation. 
On appeal, the Petitioner addresses the Director's statements regarding the general nature of a business 
administration degree stating that: 
[C]ourses of study in business provide specialized knowledge and incredibly niche skillsets in 
a range of important business specialties, such as finance, operations, human resources, 
accounting, marketing and advertising. While there are specialized programs that provide 
more narrow curriculums, business degrees also provide specialized and narrow tracks of study 
where business professionals gain relevant knowledge and education for a specific business 
specialty. 
We would agree that business is a broad category that covers numerous and various specialties. 
Besides a business degree with a human resources major, it is not readily apparent that a general degree 
in business or one of its other specialties, such as finance or advertising, is directly related to the duties 
and responsibilities of the particular position proffered in this matter. Therefore, we cannot conclude 
that the position in this matter has a normal minimum entry requirement of a bachelor's or higher 
degree in a specific specialty or its equivalent under the Petitioner's own standards, and, thus, does 
not meet the statutory or regulatory definition of a specialty occupation. See section 214(i)(l) of the 
Act and 8 C.F.R. § 214.2(h)(4)(ii). 
The Petitioner also asserts that the Beneficiary took courses directly related to the position. First, the 
test to establish a position as a specialty occupation is not the skill set or education of a proposed 
beneficiary, but whether the position itself qualifies as a specialty occupation. Second, while a few 
related courses may be beneficial in performing certain duties of the position, the Petitioner has not 
2 
demonstrated how an established curriculum of such courses leading to a baccalaureate or higher 
degree in a spec[fic specialty, or its equivalent, is required to perform the duties of the proffered 
position. 
As the above is dispositive of the Petitioner's appeal, we need not address the remaining issues in the 
record of proceeding. We do, however, briefly note the following, which was not discussed in the 
Director's decision. 
The record raises questions regarding the Level II wage level provided on the submitted labor 
condition application 2 (LCA). According to the Petitioner, this is "a senior-level" positon that requires 
"only general supervision." 3 In fact, the Petitioner quotes the DOL's Prevailing Wage Guidance4 to 
explain that "this role is not an entry-level position and therefore does not perform only routine tasks 
that require limited, if any, exercise in judgment." Notably, the Guidance also states the following: 
Level II ( qualified) wage rates are assigned to job offers for qualified employees who have 
attained, either through education or experience, a good understanding of the occupation. They 
perform moderately complex tasks that require limited judgment. An indicator that the job 
request warrants a wage determination at Level II would be a requirement for years of 
education and/or experience that are generally required as described in the O*NET Job Zones. 
Level III ( experienced) wage rates are assigned to job offers for experienced employees who 
have a sound understanding of the occupation and have attained, either through education or 
experience, special skills or knowledge. They perform tasks that require exercising judgment 
and may coordinate the activities of other staff They may have supervisory authority over 
those staff. A requirement for years of experience or educational degrees that are at the higher 
ranges indicated in the O*NET Job Zones would be indicators that a Level III wage should be 
considered. 
Frequently, key words in the job title can be used as indicators that an employer's job offer is 
for an experienced worker. Words such as 'lead' (lead analyst), 'senior' (senior programmer), 
'head' (head nurse), 'chief' (crew chief), or 'journeyman' (journeyman plumber) would be 
indicators that a Level III wage should be considered. 
2 The LCA serves as the critical mechanism for enforcing section 212(n)(1) of the Act, 8 U.S.C. § 1182(n)(1). 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-lB 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. Sec 20 C.F.R. § 655.731 (a); Vcnkatraman v. REI 
Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 2005); Patel v. Boghra, 369 F. App'x 722,723 (7th Cir. 2010); Michal 
Vojtisck-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). 
3 The Petitioner has also stated that the position requires "limited supervision." 
4 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.foreignlaborcert.doleta.gov/pdf/ 
NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
3 
The Petitioner explains, in part, that 1) the proffered pos1t10n "requires an advanced level of 
understanding of the theoretical and practical application of employee relations and talent 
management," 2) the employee "is expected to possess the high level of fluency and proficiency with 
human resources processes, business practices, and specific skills commensurate with a senior -level 
specialist," and 3) that "[a]t least a Bachelor's degree and relevant experience is essential." The 
Petitioner also requires the ability to "recognize how a candidate's skills fit into the context of the 
semiconductor development and device fabrication process," and "an advanced knowledge of human 
resources management within the semiconductor fabrication environment." In addition, the 
Beneficiary will have a role in "increased cost savings and organizational efficiency." 
The Level II wage is farther undermined by the submitted job postings that the Petitioner states are 
"similar in nature to the proffered role." The employee relations specialist and human resources 
manager positions' requirements include a "[m]inimum of 3-5 years of Human Resource Experience" 
and "8+ years related experience" respectively. Both of these positions would require a Level IV 
wage. 
For all of these reasons, the Petitioner has not established that the Level II wage was correct, and thus, 
that the LCA corresponds with the petition. 5 
II. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden here, 
and the petition will remain denied. 
ORDER: The appeal is dismissed. 
5 While DOL is the agency that ce1iifies LCA applications before they are submitted to USCIS, DOL regulations note that 
the Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS) is the depaiiment responsible 
for determining whether the content of an LCA filed for a particular Form I-129 actually supports that petition. See 20 
C.F.R. § 655.705(6), which states, in pertinent part (emphasis added): 
For H-IB visas ... DHS accepts the employer's petition (DHS Form I-129) with the DOL-certified LCA 
attached. In doing so, the DHS determines whether the petition is supported by an LCA which corresponds with 
the petition, whether the occupation named in the [LCA] is a specialty occupation or whether the individual is a 
fashion model of distinguished merit and ability, and whether the qualifications of the nonimmigrant meet the 
statutory requirements for H-1 B visa classification. 
4