dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-V-S-. LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 1, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner. a technical support business, seeks to temporarily employ the Beneficiary as a 
.. senior engineer" under the H-1 B nonimmigrant classification f()r specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(l5)(1I)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-1 B 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 f()f entry into the position. 
The Director. California Service Center. denied the petition. The Director concluded that the 
proffered position does not qualify as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred as the Petitioner has established that its proffered position meets at 
least one, and likely three. of the four alternative criteria for .. specialty occupation" in 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A). 
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 proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
Matter (?f S- V-S-, LLC 
(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 shovv 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 
(.f.) 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 tenn .. 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. r. Chertqf}; 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. lvfeissner. 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 .. senior engineer." In 
its letter of support. the Petitioner stated that. in the position of senior engineer, the Beneficiary ··will 
design, build, and be in charge of [its] Nct\vork Operations Center (NOC)." The Petitioner 
explained its NOC as a .. complex system [which] will pull in information from multiple sources and 
use multiple computers with half a dozen monitors to build a status board . . . [to provide the 
Petitioner] with an overview of all of [its] client's networks and [devices]." The Petitioner stated 
that the .. minimum academic requirement for this position is a Bachelor's degree in Computer 
Science. Computer Engineering. Information Systems Engineering. or in a closely related 
discipline." 
In response to the Director's request for evidence (RFE). the Petitioner asserted that the proffered 
position will be .. focused on designing. building and running [the] NOC." and provided the 
following job duties (verbatim): 
Network Operations Center (NOC) design and setup (-80% of time, or 32+ 
hours per week): The job duties involved in designing, building and maintaining a 
NOC is similar in some ways to a software development process. in that it entails 
developing a requirements statement, selecting products that support those 
requirements, developing a design specification and then tracking the project's 
progress. The Senior Engineer at [the Petitioner] will: 
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Matter (?fS- V-S-. LLC 
• Assess and collate clients' current and projected systems and requirements 
• Create a business plan containing NOC design requirements to present to the 
CEO of [the Petitioner]. 
• Review best software to fit [Petitioner's] requirements for this business plan. 
• Set up comprehensive monitoring software and scripts using PowerShelL 
Linux tools, and N-able. 
• Set up comprehensive notification systems using email and SMS ale11ing 
• Set up patch management, antivirus controls and backup monitoring 
environments and tools 
• Create a workflow process and document all procedures 
• Create a business continuity/redundancy plan for the NOC 
• Create new service level client agreements reflecting NOC model of service. 
Senior-level client support (~20% of time, or 8+ hours per week): Via remote 
access, provide IT engineering expertise to resolve clients' software issues \Vith MS 
Office programs, email programs, antivirus software, VPN software, and related: 
server issues with server hard\vare, operating systems, services and software: and 
network issues with network hardware, DNS, DHCP. switches, routers, and patching. 
Build PCs and laptops as needed: contribute to knowledgebase for both colleagues 
and end users. Manage incidents raised by 3 rd party hardware, software or service 
providers on behalf of clients dependent on resolution. Via remote access and as­
needed client visits, resolve hardware issues with desktops, laptops, printers. 
scanners. and mobile devices. Ensure the delivery of service in accordance with the 
company's service-level agreements. 
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 qualities as a specialty occupation. 1 
Specifically, the record (1) does not describe the position's duties with sufficient detail: and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation? 
In this matter, the Petitioner has not adequately and consistently described the specific duties and 
tasks to be performed in the proffered position. For example, the Petitioner indicated that the 
Beneficiary would spend 80 percent of his time on "designing, building and maintaining a NOC." 
However, there is no clear delineation in the time allocated to the design and build out of the NOC. 
versus the time dedicated to maintaining the NOC for the Petitioner's clients. We observe that the 
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 
(b)(6)
Matter o.fS-V-S-, LLC 
tasks of designing and building a network more closely align with the occupation of ··computer 
Network Architects." See Occupational Information Network (O*NET) Details Report for 
''Computer Network Architects.'' http :1 /w\\w .onetonl inc .org/linkl details/15-1 14 3. 00 (last visited 
May 5, 2016); U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook. 
2016-17 ed., ''Computer Network Architects," http://www.bls.gov/ooh/computer-and-information­
technology/print/computer-network-architects.htm (last visited May 5. 2016). The Petitioner did not 
designate the position as such on the corresponding labor condition application (LCA):' 
Moreover, the Petitioner indicated that the Beneficiary would 
spend 20 percent of his time on a 
variety of .. client support'' duties, such as resolving clients' --software issues with MS Office 
programs," ''[b]uild PCs and laptops as needed." and •·resolve hardware issues with desktops. 
laptops, printers. scanners, and mobile devices."' Again. however. there is no clear delineation in the 
time allocated to these particular duties. There is also no detailed explanation of what particular 
.. issues'' and associated tasks the Beneficiary would be involved. Accordingly, the Petitioner has not 
established that these duties involving clients· software and hardware issues. as well as building 
computers as needed, are consistent with the '·Network and Computer Systems Administrators" 
occupational classification chosen here. Moreover. the Petitioner has not established that these 
duties all represent H-1 B caliber work. 
To qualify for classification as a specialty occupation, the Petitioner must establish. among other 
things, that the duties of the proffered position require a bachelor's or higher degree in a specific 
specialty, or its equivalent. See section 214(i)(l)(B) of the Act and 8 C.F.R. § 214.2(h)(4)(ii) 
(defining the term --specialty occupation"). There are no provisions in the law relevant to H-1 B 
-' If the proffered position is primarily a "Computer Network Architects" position, then the LCA submitted with the 
petition does not support the Form 1-129. With respect to the LCA. the Department of Labor's (DOL's) ··Prevailing 
Wage Determination Policy Guidance" advises that. when a job offer has requirements described in a combination of 
O*NET occupations, a petitioner "should default directly to the relevant O*NET-SOC occupational code for the highc:sl 
paJ•ing occupation (emphasis added).'' U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 1i'age D<'l<'l'minalion 
Pofh:v Guidance. Nonagric. Immigration Programs (rev. Nov. 2009). available at 
http:/ /www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ll __ 2009 .pdf 
A Level I ''Computer Network Architects" position in the California area requires a substantially higher 
prevailing wage ($95,950 per year) than the prevailing wage of a Level I "Network and Computer Systems 
Administrators" position ($56,742 per year) that is being proffered here. For more information regarding prevailing 
wages for "Computer Network Architects" (SOC code 15-1143) in the CA MSA. for 
the period 7/2014 - 612015. see FLC Data Center at http://www.tlcdatacenter.com!OesQuickResults.aspx?code-15-
1143& year=15&source=l (last visited May 5, 2016). Thus. ifthe proffered position were a combination of 
the two. the Petitioner should have defaulted directly to the highest-paying occupation of .. Computer Network 
Architects" on the LCA. 
4 
Matter (?fS-V-S-, LLC 
nonimmigrants that allow a beneficiary to perform non-qualifying duties, i.e .. duties not of H-1 B 
caliber .... 
Further. we must consider the Petitioner's designation of the proffered position at a Level I (entry) 
wage level (the lowest of four assignable wage levels). The '"Prevailing Wage Determination Policy 
Guidance·· issued by the Department of Labor (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: ( 1 ) 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 Ciuidance. 
Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC_ Guidance_Revised_11_2009. pdf The Petitioner's 
designation of the proffered position as a Level I, entry-level position undermines the credibility of 
the Petitioner's claim that the Beneficiary will be expected to serve in a leadership or ··senior"" role. 
or otherwise work at an advanced level. 
For the above reasons. the record does not describe the position ·s duties with sufficient detail to 
convey substantive information about the relative complexity. uniqueness and/or specialization of 
the proffered position or its associated duties. The record also does not demonstrate whether the 
proffered position 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 as the 
minimum for entry into the occupation. The record therefore docs not establish that the proffered 
position qualifies for classification as a specialty occupation. 
Nevertheless, for the purpose of performing a comprehensive analysis of whether the proffered 
position qualities as a specialty occupation. we will now analyze the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
A. First Criterion 
We tum 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. 
4 Compare e.g, 8 C.F.R. § 214.2(1)(3)(v)(C) (permitting L-lA managers or executives that are coming to the United 
States to open a .. new office'" in the United States to perform some non-qualifying duties during a one year grace period). 
While no provision in the law for specialty occupations permits the performance of non-qualifYing duties. we will view 
the performance of duties that are incidental to the primary duties of the proffered position as acceptable when they are 
unpredictable, intermittent. and of a minor nature. The job duties collectively comprising 20 percent of the Beneficiary's 
time. however. cannot be considered merely incidental duties. 
5 
(b)(6)
Matter ofS-V-S-. LLC 
On the LCA submitted in support ofthe H-1B petition, the Petitioner designated the proffered position 
under the occupational category ''Network and Computer Systems Administrators,'' corresponding to 
Standard Occupational Classification (SOC) code 15-1142 at a Level I wage. The Petitioner 
submitted copies of the DOL's Occupational Outlook Handbook (Handbook) chapter on ··Network 
and Computer Systems Administrators" as evidence under this criterion. 5 
However, as previously discussed. there is insufficient evidence to establish that the protlered 
position can appropriately be classified under the ·'Network and Computer Systems Administrators" 
occupational category. Absent such evidence. we will not further consider the Handbook's 
information regarding this occupational category. 
Under this criterion. the Petitioner also submitted letters prepared by 
Professor, Computer Science Department, and Computer 
Science and Computer Engineering, both at Upon review of the two 
opinion letters. we must question the reliability and factual foundation upon which these letters were 
based. 
For instance, while the two evaluators reviewed the same job description. one found that the 
Beneficiary will ''assist[] with network design responsibilities.'' The other found that the Beneficiary 
"will be solely responsible for the design, implementation. and management of this complex NOC 
system." This is an important distinction in the interpretation of the Beneficiary's actual duties 
because as noted above, a position with the primary duty of designing a NOC would more closely 
align with a "Computer Network Architect" position, a position that requires a significantly higher 
wage. These different interpretations of the actual duties of the position demonstrate the lack of 
clarity of the Petitioner's descriptions for the pro tiered position. 
Additionally. compares the duties of the proffered position to one that needs the deep 
theoretical and practical knowledge that is required for more advanced Network and Computer 
System Administrator positions. similarly find that the Petitioner is seeking an 
experienced computer network engineer. Both opinions 
conflict with the Petitioner's designation of 
the position as a Level L entry-level position, as such a position requires only a basic understanding 
ofthe occupation. U.S. Dep't of Labor. Emp't & Training Admin., Prevailing Wage Determination 
Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC_Guidance_Revised_ll_2009. pdf It is unclear whether 
these evaluators were informed of the Petitioner's attestation on the LCA that the proffered position 
was a Level I (entry) wage position. The omission of any discussion of the entry-level wage 
5 We normally recognize the Handhook as an authoritative source on the duties and educational requirements of the wide 
variety of occupations that it addresses. We do not, however, maintain that the Handhook is the exclusive source of 
relevant intonnation. To satisfy the first criterion. the burden of proof remains on the Petitioner to submit sufficient 
evidence to suppmt a finding that its particular position would normally have a minimum, specialty degree requirement, 
or its equivalent, for entry. Whenever more than one authoritative source exists, an adjudicator will consider and weigh 
all of the evidence presented to detennine whether the particular position qualifies as a specialty occupation. 
6 
(b)(6)
Alatter ofS- V-S-, LLC 
designation further diminishes the evidentiary value of these opinions as the opinions do not appear 
to be based on a complete understanding of the proffered position. 
Moreover. the record does not include evidence that either evaluator has published. conducted 
research. run surveys. or engaged in any enterprise, pursuit. or employment - academic or 
otherwise - regarding the minimum education requirements for the performance of the duties of the 
proffered position. While the evaluators may have anecdotal infonnation regarding the minimum 
educational requirements for a network and computer systems administrator position. the record 
does not include any relevant research. studies, surveys. or other authoritative publications as part of 
their review and/or as a foundation for their opinions. 6 Nor have the evaluators indicated that they 
made personal observations of or other research into the Petitioner's particular business operations. 
and the duties of the protTered position within that specific context. The record thus does not 
establish that these opinion letters are based upon sufficient information about the position proposed 
here. '·[G]oing on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings." Matler l?{ S'ld/ici. 22 I&N Dec. 158. 165 
(Comm'r 1998) (citing Matter qfTreasure Crqfi (?{Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
We may. in our discretion. use opinion statements submitted by the Petitioner as advisory. l'vfatler 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. !d. For the reasons discussed above, the opinion letters do not 
constitute probative evidence towards satisfying 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). or any other 
criterion. For efficiency's sake. we hereby incorporate the above discussion and analysis regarding 
the opinion letters into each of the bases in this decision for dismissing the appeal. 
In this case, the Petitioner has not established that the proffered position falls under an occupational 
category for which an authoritative source indicates that normally the minimum requirement for 
entry is at least a bachelor's degree in a specific specialty, or its equivalent. Thus. the Petitioner has 
not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I). 
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 
6 
Although both evaluators reference a few job announcements, they do not discuss what statistically valid inferences, if 
any, can be drawn from these few advertisements with regard to determining the common educational requirements for 
entry into a network and computer systems administrator position. See generally Earl Babbie, The Practice r!lSocial 
Research 186-228 (7th ed. 1995). In addition, and but did not attach printouts of the 
advertisements they referenced. 
(b)(6)
Matter ofS- V-S-. LLC 
contemplates common industry practice. while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. 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. 
Here. the Petitioner submitted two letters to establish that similar firms in the Petitioner's industry 
·•routinely employ and recruit only degreed individuals." The first letter is signed by a principal of 
who stated that his business is similar in size and provides similar 
information technology and support services as the Petitioner. stated further that the 
Petitioner's planned NOC is similar to his company"s data center and for '·a Senior Engineer to 
design, build, and take charge of a NOC tor a company in our particular industry. he/she absolutel y 
must have the level of knowledge and skill usually associated with a Bachelor's or the equivalent in 
Information Technology, Management Information Systems. Computer Science. or Engineering ... 
also repeated portions of the Petitioner's job description and outlined his expectation that 
in such a position the senior engineer would need a '·deep understanding of data structures and 
network architecture.'' programming skills using particular technical software. expertise in 
communications and networking. and a sophisticated understanding of data warehousing and 
database management systems as well as knowledge of computer systems security, systems analysis 
and systems development. also noted that most of his technical statT had Bachelor's 
degrees in Computer Science, Engineering, Information Systems , or a related field and that those 
that did not have degrees had demonstrated a functional equivalent with technical trainings and 
certifications. noted that his two current employees with work that is approximate to the 
Petitioner's profTered position have Bachelor's degrees in Information Technology and Mechanical 
Engineering. 
The second letter is signed by CEO of who also 
compared the size and purpose of his company to that of the Petitioner. indicated that 
he had discussed the profTered position with the Petitioner's principals and had reviewed the written 
details of the proffered job and that he believes that the proffered position .. is at the far end of the 
complexity spectrum for what companies like ours do." illustrates this point by noting 
that at one end of the spectrum, IT services companies supporting small businesses might have 
non-degreed technicians performing installations of pre-packaged software and basic networking of 
office computers to a local server. but at the opposite end of the spectrum they would have de greed 
engineers or their functional equivalent handling an array of project work for clients with more 
complex information system needs. noted that his company hired .. full-time 
network/systems administrators who have the level of network architecture. systems design, and 
programming knowledge most often associated with a Bachelor's degree in an IT or 
engineering-related field." 
8 
(b)(6)
Matter (?fS-V-S-, LLC 
Both and appear to believe that the individual in the protTered position 
would need expertise, and an advanced understanding to handle setting up the Petitioner's NOC 
or to handle client's complex information system needs Again, however, as 
noted above, the Petitioner has designated the proffered position as an entry Level I wage on the 
LCA not a position that requires expertise and advanced understanding of the occupation. 
Furthermore, although referencing his employees. does not provide the level of 
responsibility, experience, salary, or actual job duties of individuals he has hired for positions he 
claims are parallel to the proffered position. also indicates that members of his staff who 
do not have degrees have demonstrated a functional equivalent with technical trainings and 
certifications. however. does not offer an analysis of what he believes to be a functional 
equivalent to a bachelor's degree in a specific specialty. Although notes his company 
hires ''full-time network/systems administrators who have the level of network architecture. systems 
design. and programming knowledge most often associated with a Bachelor's degree in an IT or 
engineering-related field,'' he does not provide detailed information and evidence of his employees· 
specific duties, level of responsibilities. and educational levels. 
It is not possible to conclude from these two letters that it is common to the Petitioner's industry to 
hire individuals with a bachelor's degree in a specific specialty. The letters do not convey sufficient 
infonnation to evidence that the letter-writers had a complete understanding of the proffered position 
so that they could otTer comparisons to positions in their companies that are parallel to the proffered 
position. 
We have also reviewed the printouts of the online job announcements submitted by the Petitioner. 
Here, none of the advertisements referenced or submitted provide sufficient information regarding 
the advertising organizations to establish that the advertising organizations are similar to the 
Petitioner. To satisfy this criterion and for the Petitioner to establish that an advertising organization 
is similar, it must demonstrate that it shares the same general characteristics with the advertising 
organization. Without such evidence. documentation submitted by a petitioner is generally outside 
the scope of consideration for this criterion, which encompasses only organizations that are similar 
to the petitioner. It is not suflicient for a petitioner to claim that an organization is similar and in the 
same industry without providing a legitimate basis for such an assertion. 
Additionally, the requirements to perform the duties of the advertised positions vary widely. Several 
of the advertisements indicate that experience equivalent to a bachelor's degree will suffice but do 
not delineate the standards for determining equivalency. Two ofthe advertisements indicate that the 
prospective employers consider a bachelor's degree a plus or a preference. A preference, however. 
is not a requirement. One advertisement lists a requirement for a technical degree but does not 
specify whether an associate's degree would be sufficient. Moreover, the duties described in the 
submitted job announcements are general. It is not possible to conclude from the limited 
information provided that the advertised positions are parallel to the protTered position. 
9 
Matter ofS- V-S-. LLC 
Accordingly, the job advertisements do not establish that similar organizations to the Petitioner 
routinely employ individuals with degrees in a specific specialty, in parallel positions. 7 
Based upon a complete review of the record, we conclude that the Petitioner has not established that 
the ··degree requiremenC (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. The 
Petitioner has not satisfied the first alternative prong of8 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. § 2I4.2(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 sufficiently 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. The Petitioner provided a general overview of the proposed duties that is subject to different 
interpretations regarding the level of design involvement by the Beneficiary and other salient aspects 
of the position. The descriptions do not specifically identify any tasks that are so complex or unique 
that only a specifically degreed individual could perform them. 
Again. the LCA submitted by the Petitioner indicates a wage level at a Level I (entry) wage. which. 
as noted above. is the lowest of four assignable wage levels. As previously discussed. in designating 
the proffered position at a Level I wage. the Petitioner has indicated that the proffered position is a 
comparatively low. entry-level position relative to others within the occupation. See U.S. Dep't of 
Labor, Emp't & Training Admin .. Prerailing Wage Determination Policy Guidance. Nonagric. 
Immigration Programs (rev. Nov. 2009). ami/ah/e a/ 
http://www.foreignlaborcert.doleta.gov/pdt/NPWHC _Guidance _Revised _II_ 2009.pdf Without 
further evidence. the record of proceedings does not indicate that the proflered position is so 
complex or unique as such a position 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 
7 The Petitioner did not provide any independent evidence of how representative these job adve11isements arc of the 
advertising employers' recruiting history for the type of jobs advertised. As they are only solicitations for hire. they arc 
not evidence of the employers' actual hiring practices. In addition, the Petitioner did 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 organizations. See generally Earl Babbie, The Practice (!(Social 
Research 186-228 (7th ed. 1995). 
10 
Matter (?f S- V-S-. LLC 
wage.8 The Petitioner has not satisfied 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. Here 
the Petitioner does not claim. and the record does not show. that the Petitioner has previously 
employed other persons in the proffered position. Therefore. the Petitioner has not satisfied the 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 9 
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 specitic specialty. or 
its equivalent. 
In the instant case. relative specialization and complexity have not been sufficiently developed by 
the Petitioner as an aspect of the profTered position. The Petitioner does not establish how the 
proffered duties elevate the position to a specialty occupation. We again refer to our earlier 
comments and findings with regard to the insufficient position description. as well as to the 
implication ofthe Petitioner's designation ofthe proffered position as a Level I wage. which is for a 
position that is not likely distinguishable by relatively specialized and complex duties. Upon review 
of the totality of the record. the Petitioner has not established that the nature of the specific duties is 
8 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. a 
Level I wage-designation docs 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 qualities 
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 
We note, for the Petitioner's infom1ation only. that while a petitioner may believe or otherwise assert that a profTercd 
position requires a degree in a specific specialty, that opinion alone without corroborating evidence cannot establish the 
position as a specialty occupation. Were USCIS limited solely to reviewing a petitioner's claimed self-imposed 
requirements, then any individual with a bachelor's degree could be brought to the United States to perform any 
occupation as long as the employer artificially created a token degree requirement, whereby all individuals employed in a 
particular position possessed a baccalaureate or higher degree in the specific specialty or its equivalent. See Defensor v. 
Meissner. 201 F.3d at 387. In other words, if a petitioner's degree requirement is only symbolic and the profTered 
position does not in fact require such a specialty degree or its equivalent to perform its duties, the occupation vvould not 
meet the statutory or regulatory definition of a specialty occupation. See section 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining the term "'specialty occupation"). 
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Matter l?(S- V-S-. LLC 
so specialized and complex that the knowledge required to perform the duties is usually associated 
with the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent. 
We have reviewed the six-year old book excerpt the Petitioner submits on appeal which discusses 
our past non-precedent decisions. First the record of proceedings does not contain sufticient 
information regarding the underlying facts of the non-precedent decisions and, theref()re, no 
substantive determination could be made to establish what facts, if any, were analogous to those in 
this proceeding. Second, 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. Finally, as previously discussed, the evidence of record in this matter regarding the 
proffered position is insufficient and inconsistent regarding the nature of the duties and their level of 
responsibility. Thus, we cannot find that the Petitioner will employ the Beneficiary in a position that 
has duties that are so specialized and complex. 
For the reasons discussed above, the evidence of record does not satisfy the fourth criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
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 qualities as a specialty occupation. The burden is on the 
Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act 8 U.S.C. 
§ 1361; Afatter l~{Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter l~{S-V-S-. LLC ID# 16586 (AAO June 1, 2016) 
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