dismissed H-1B Case: Industrial Production

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 0-M-S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 23,2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a machinery business, seeks to temporarily employ the Beneficiary as a "general 
(industrial) production manager" under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(l5)(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, Vermont Service Center, denied the petition. The Director concluded that there is 
insufficient evidence to establish that the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the proffered position is 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 profiered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter ofG-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 
( 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. 
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"); Defonsor 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 "general (industrial) 
production manager." In the letter of support, the Petitioner provided the Beneficiary's job duties in 
the proffered position. 1 In addition, the Petitioner stated that the proffered position reqmres a 
bachelor's degree in mechanical engineering, or its equivalent. 
In response to the Director's request for evidence (RFE), the Petitioner provided a revised job 
description for the position, along with the approximate percentage of time the· Beneficiary will 
spend on each duty as follows: 
• Oversee purchasing of raw material according to the critical customer-related 
specifications 1 0% 
• Oversee Disposition Process for non-manufacturing services, such as heat treat, 
honing, NDE, and coating 5% 
' • Review deliveries and outside processing in order to update orders list 10% 
1 We observe that the wording of the duties provided by the Petitioner for the proffered position in the letter of support is 
taken almost verbatim from the Occupational Information Network (O*NET) OnLine's summary report for the 
occupational category "Industrial Production Managers." 
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Matter ofG-M-S-, Inc. 
• Oversee the purchasing and ordering of outside processing jobs according to the 
customers' critical specifications 5% 
• Calculate material prices based on the dimensions of the parts and the chemical 
disposition of the material. Also, negotiate material price with various vendors 12% 
• Create Purchase Orders for material according to the procedures outlined in [the 
Petitioner's] Total Quality Management System 10% 
• Understand complete process of the jobs in order to create router in the job travel that 
is sent to shop floor. Router is step-by-step process of all the unique parts 15% 
• Review material quotation log which outlines material dimensions and quoted price 
6% 
• , Plan and maintain [the Petitioner's] Open Order Report 5% 
• Expedite orders based on the customers' delivery requirements, while taking into 
consideration lead time, machine hours, capacity, and machine capabilities 7% 
• Supervise Estimator 5% 
• Supervise Production Assistant I 5% 
• Supervise Production Assistant II 5% 
The Petitioner also stated that the position reqmres a bachelor's degree m engmeenng, or its 
equivalent. 2 
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. 3 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 4 
A. First Criterion 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) 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. 5 
2 
We note that the Petitioner has provided inconsistent information regarding the educational requirement for the 
proffered position. The Petitioner did not provide an explanation for the variance. 
3 Although some aspects ofthe regulatory criteria may overlap, we will address each of the criteria individually. 
4 
The Petitioner submitted documentation in support of the H-1 B 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. 
5 
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 
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Matter ofG-M-S-, Inc. 
On the labor condition application (LCA) 6 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Industrial Production Managers" 
corresponding to the Standard Occupational Classification code 43-3011. 7 
The Handbook subchapter entitled "How to Become an Industrial Production Manager" states, in 
pertinent part: "Employers prefer managers have at least a bachelor's degree. While the degree may 
be in any field, many industrial production managers have a bachelor's degree in business 
administration or industrial engineering." U.S. Dep't of Labor, Bureau of Labor Statistics, 
Occupational Outlook Handbook. 2016-17 ed., "Industrial Production Managers," 
https:/ /www. bls.gov/ooh/management/industrial-production-managers.htm#tab-4 (last visited Jan. 
18, 20 17). The Handbook also states: "Sometimes, production workers with many years of 
experience take management classes and become a production manager. At large plants, where 
managers have more oversight responsibilities, employers may look for managers who have a 
Master of Business Administration (MBA) or a graduate degree in industrial management." !d. 
The Handbook does not support the assertion that a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for entry into the occupation. The 
Handbook states that employers prefer managers who have at least a bachelor's degree. However, a 
preference for a degree is not necessarily an indication of a minimum requirement. The Handbook 
further states that the degree may be in any field. Thus, there is a wide-range of disparate fields that 
employers find to be acceptable for these positions. The Handbook further reports that some 
production workers with many years of experience take management classes to become a production 
manager. The Handbook does not indicate that such experience and courses must be the equivalent 
to a bachelor's degree in a specific specialty. Upon review, the Handbook does not support the 
assertion that the proffered position falls under an occupational category for which at least a 
general tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook 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 sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
6 
The Petitioner is required to submit a certified LCA to USC IS to demonstrate that it will pay an H-1 B worker 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. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
7 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
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 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 Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.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. 
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(b)(6)
Matter ofG-M-S- , Inc. 
bachelor's degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry. 
The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Thus, the Petitioner has 
not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
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 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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
contemplates the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To sat~sfy the 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 
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 other authoritative source, reports a requirement for at least a bachelor's degree in 
a specific specialty , or its equivalent. Thus, we incorporate by reference ·the previous discussion on 
the matter. 
In support of this criterion , the Petitioner submitted letters from of 
of and of 
We reviewed the letters in their entirety. However, contrary to the purpose for which the letters 
were submitted, they are not persuasive in establishing the proffered position as a specialty 
occupation position under any ofthe criteria at§ 214.2(h)(4)(iii)(A). 
Notably, the letters are almost identical to each other. More specifically, the wording of the letters 
match virtually verbatim , including grammatical and punctuation errors . ·When letters 
are worded 
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. l'vfatter ofG-M-S-, Inc. 
the same (and include identical errors), it indicates that the words are not necessarily those of the 
authors and may cast some doubt on the letters' validity. 
Further, the letters state that they "require someone to have at a minimum, an engineering degree or 
the equivalent in education, training and/or experience." Notably, the letters do not specify the level 
of education required (e.g., associate's degree, baccalaureate, master's degree, doctorate) for the 
position. Thus, the letters do not establish that the organizations require at least a bachelor's degree 
in a specific specialty, or its equivalent. 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's 
degree in a specific specialty, or its equivalent, is common to the industry in parallel positions 
among similar organizations. Thus, the Petitioner has not satisfied the first alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
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. · 
In support of its assertion that the proffered- position qualifies as a specialty occupation, the 
Petitioner described the proffered position and its business operations. In response to the RFE and 
on appeal, the Petitioner asserts that the duties of the prot1ered position are so complex or unique 
that only an individual with a bachelor's degree in a specific specialty can perform the duties. 
However, 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 and the Handbook's account of the requirements for this 
occupation, further suggests that the particular position is not so complex or unique that the duties 
can only be performed by an individual with bachelor's degree or higher in a specific specialty, or its 
equivalent. 
Although the Petitioner may believe that the proffered position meets this criterion of the 
regulations, it has not sufticiently demonstrated how the position as described requires the 
theoretical and practical application of a body of highly specialized knowledge and the attainment of 
a bachelor's or higher degree in a specific specialty, or its equivalent. 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 tasks. While a few related 
courses may be beneficial in performing certain duties of the position, the Petitioner has not 
demonstrated how an established curriculum of such courses is required. The evidence in the record 
does not refute the Handbook's information to the effect that a bachelor's degree in a specific 
specialty is not required for entry into the occupation. Without more, the record lacks sufficiently 
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Matter ofG-M-S-, Inc. 
detailed information to distinguish the level of judgment and und~rstanding necessary to perform the 
duties as so complex and unique. 
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 perform them. 
Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.P.R. 
§ '214.2(h)( 4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.P.R. § 214.2(h)(4)(iii)(A) requires an employer to demonstrate that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
In response to the RPE, the Petitioner submitted the academic credentials and the 2010 Form W-2, 
Wage and Tax Statement, of its former general (industrial) production manager. Upon review, we 
find that the Form W-2 indicates that the individual was compensated $48,866 per year in 2010. The 
documentation indicates that the individual was paid substantially less than the salary offered to the 
Beneficiary. Thus, this strongJy suggests that the former employee was employed in a different 
position. The Petitioner did not provide an explanation for the variance in the wages. Without more, 
the documentation does not establish that the Petitioner satisfied this criterion of the regulations. 
Further, the Petitioner did not provide the job duties and day-to-day responsibilities for the former 
employee. The Petitioner also did not submit any information regarding the complexity of the job 
duties, supervisory duties (if any), independent judgment required or the amount of supervision 
received. Accordingly, it is unclear whether the duties and responsibilities of the former employee 
were the same or similar to the proffered position. 
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 one individual is of the Petitioner's normal recruiting and hiring practices. The Petitioner 
has not persuasively established that it normally requires at least a bachelor's degree in a specific 
specialty, or its equivalent, for the position. Therefore, the Petitioner has not satisfied the third 
criterion of8 C.P.R.§ 214.2(h)(4)(iii)(A). 
D. Fourth Criterion 
The fourth criterion at 8 C.P.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 
Matter ofG-M-S-, lne, 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. c 
In the instant case, relative specialization and complexity have not been sufficiently developed by 
the Petitioner as an aspect of the proffered position. That is, the Petitioner does not establish how 
the generally described duties of its general (industrial) production manager elevate the proffered 
position to a specialty occupation. We also reiterate our earlier comments and findings regarding the 
implications of the position's wage level designation on the LCA. 8 Thus, the Petitioner has not 
demonstrated in the record that its proffered position is one with duties sut1iciently specialized and 
complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
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. 
IV. BENEFICIARY'S QUALIFICATIONS 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need 
not fully address other issues evident in the record. Nevertheless, the Petitioner should address an 
additional issue in any future proceedings. 9 
Specifically, the record does not currently demonstrate that the Beneficiary's combined education 
and work experience is the equivalent of a U.S. bachelor's degree in a specific specialty. While the 
claimed equivalencies are based in part on experience, the record does not establish (1) that the 
evaluators had authority to grant college-level credit for training and/or experience in the specialty at 
an accredited college or university with a program for granting such credit, or (2) that the 
Beneficiary's expertise in the specialty is recognized through progressively responsible positions 
directly related to the specialty. See 8 C.F.R. §§ 214.2(h)(4)(iii)(C)(4) and (D)(l). 
8 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly specialized and complex 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 In reviewing a matter de novo, we may identify additional issues not addressed below in the Director's decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d I 025, I 043 (E.D. Cal. 200 I), affd, 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
8 
Matter ofG-M-S-, Inc. 
V. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. I 
Cite as Matter ofG-M-S-. Inc., ID# 205659 (AAO Jan. 23, 2017) 
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