dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 10348052 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonirnrnigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 21, 2020 
The Petitioner, an information technology company , seeks to temporarily employ the Beneficiary as a 
"tech lead" under the H-lB nonirnrnigrant classification for specialty occupations . See 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 Vermont Service Center denied the petition, concluding that the evidence of record 
does not establish that the proffered position qualifies as a specialty occupation. The matter is now 
before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 2 l 4(i)(l) of the Act, 8 U.S.C. § l l 84(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: 
( 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). We construe the term "degree" 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. Chertoff, 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"). 
II. THE PROFFERED POSITION 
The labor condition application (LCA) 1 was certified with the job title "tech lead" for a position falling 
within the Standard Occupation Classification (SOC) code and category 15-1199, "Computer 
Occupations, All Other." The Petitioner asserted that the most appropriate occupational 
sub-classification is that of "Information Technology Project Managers" corresponding to the 
sub-code of 15-1199.09. The Petitioner provided a description of the proffered position in its initial 
letter of support. In response to the Director's request for evidence (RFE), the Petitioner submitted 
project-specific duties and indicated the percentages of time the Beneficiary would spend on each 
duty. For the sake of brevity, we will not quote all of the duty descriptions; however, we have closely 
reviewed and considered each one. 
The Petitioner states that the position requires "a Bachelor's Degree in computer science, computer 
engineering, software engineering, information systems or equivalent." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons discussed below, we have determined that 
the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 2 
1 A petitioner submits the LCA to the Department of Labor (DOL) 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 duties, experience, and qualifications. Section 2 l 2(n)(l) of the Act; 
20 C.F.R. § 655.73l(a). 
2 The Petitioner submitted documentation to suppmt the H-lB 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. 
2 
Specifically, we conclude that the record does not establish that the job duties require an educational 
background, or its equivalent, commensurate with a specialty occupation." 
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. To inform this inquiry, we will consider the information contained 
in the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the 
duties and educational requirements of the wide variety of occupations it addresses. 3 On the LCA 
submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the 
occupational category "Computer Occupations, All Other" corresponding to the SOC code 15-1199. 
However, there are some occupations for which detailed profiles have not been developed, such as for 
the occupational category "Computer Occupations, All Other." 4 Therefore, it is the Petitioner's 
responsibility to provide probative evidence ( e.g., documentation from other objective, authoritative 
sources) that supports a finding that the particular position qualifies as a specialty occupation. 
On appeal, the Petitioner asserts that the "Computer and Information Systems Manager" position is 
similar to the "Tech Lead" position and states that the Handbook "actually confirms that the entry 
level education for a 'Computer and Information Systems Manager' position ... is a bachelor's 
degree." However, the Petitioner does not elaborate on what makes the proffered position similar to 
the computer and information systems manager position. According to the Handbook, Computer and 
Information Systems Managers (SOC 11-3021) "plan, coordinate and direct computer-related 
activities in an organization." 5 The Handbook lists "Chief Information Officers (CIOs)," "Chief 
Technology Officers (CTOs)," "IT directors," and "IT security managers" as examples of types of 
computer and information systems managers. 6 Some of their duties include analyzing "organization's 
computer needs and recommend[ing] possible upgrades for top executives to consider;" they "plan 
and direct installation and maintenance of computer hardware and software;" "ensure the security of 
an organization's network and electronic documents;" "assess the costs and benefits of new projects 
and justify funding on projects to top executives;" and, "negotiate with vendors to get the highest level 
of service for the organization's technology." 7 In essence, the computer and information systems 
managers are responsible for an organization's overall computer needs and activities. However, the 
3 All of our references to the Handbook may be accessed at the Internet site http://www.bls.gov/ooh/. We consider the 
information in the Handbook regarding the duties and educational requirements of the wide variety of occupations that it 
addresses. We do not, however, maintain that the Handbook is the exclusive source ofrelevant information. That is, the 
occupational category designated by the Petitioner is considered as an aspect in establishing the general tasks and 
responsibilities of a proffered position, and we regularly review the Handbook on the duties and educational requirements 
of the wide variety of occupations that it addresses. However, the burden of proof remains on the Petitioner to submit 
sufficient evidence to establish that the proffered position qualifies as a specialty occupation. 
4 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Data for Occupations Not Covered in 
Detail, on the Internet at https://www.bls.gov/ooh/about/data-for-occupations-not-covered-in-detail.htm (last visited Sep. 
17, 2020). 
5 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer and Information Systems 
Managers, on the Internet at https://www.bls.gov/ooh/management/computer-and-infonnation-systems­
managers.htm#tab-2 (last visited on Sept. 17, 2020). 
6 Id. 
7 Id. 
3 
duties of the tech lead position proffered by the Petitioner appear to be project specific. The duties as 
described do not indicate that the Beneficiary will be planning, coordinating and directing 
computer-related activities in the Petitioner's organization. Moreover, the relevant prevailing wage for 
a Level II "Computer Occupations, All Other" position ($78,291 per year) is significantly lower than the 
relevant prevailing wage for a Level II "Computer and Information Systems Managers" position 
($120,661 per year). 8 Such a wage disparity highlights the difference between the "Computer 
Occupations, All Other" and "Computer and Information Systems Manager" occupational categories 
generally, and more specific to this case, the significance of the Petitioner's choice of the lower paying 
occupational category. If the Petitioner believes that the Beneficiary will perform duties similar to that 
of a "Computer and Information Systems Managers" position, we question why the Petitioner did not 
designate this higher-paying occupation on the LCA. Thus, we do not find the Handbook's discussion of 
academic requirements for the significantly higher paying occupation relevant to establishing the 
academic requirements for the particular position proffered here. 
The Petitioner also references the O*NET summary report for "Information Technology Project 
Managers" - SOC code 15-1199.09. The O*NET Summary Report provides general information 
regarding the occupation, but it does not support the Petitioner's assertion regarding the educational 
requirements for the occupation. For example, the Job Zone Four designation indicates that most, but 
some do not, require a four-year bachelor's degree. It does not specify the specific field of study, if 
any, from which the degree must come. The occupation's Specialized Vocational Preparation (SVP) 
rating of 7 < 8 is even less persuasive. An SVP rating of 7 to less than ("<") 8 indicates that the 
occupation requires "over 2 years up to and including 4 years" of training. While the SVP rating 
indicates the total number of years of vocational preparation required for a particular position, it is 
important to note that it does not describe how those years are to be divided among training, 
experience, and formal education which, by definition, includes high school education and commercial 
or shop training. 9 The SVP rating also does not specify the particular type of degree, if any, that a 
position would require. For all of these reasons, we are not persuaded by the Petitioner's citations to 
O*NET. 
The Petitioner submitted an opinion letter authored by.__ _______ __., an adjunct professor at 
University I [ 1° In his letter, the professor (1) described the credentials 
that he asserts qualify him to opine upon the nature of the proffered position; (2) described aspects of 
the job duties proposed for the Beneficiary; and (3) stated that the "described job duties are of a 
8 See FLC Data Center Online Wage Library for "Computer Occupations All Other" SOC code 15-1199 at 
https://www.flcdatacenter.com/OesQuickResults.aspx?code= l 5-l l 99&area=t::::::kyear= l 9&source= 1 and "Computer 
and Information Systems Managers" SOC code 15-1132 at https://www.flcdatacenter.com/OesQuickResults. 
aspx?code= 11-3021 &area=C=1&year= l 9&source= 1 (last visited on Sep. 17, 2020). 
9 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/online/svp. 
10 Effective July 1, 2019, University I I changed its name to University I I i povernor! !signed legislation approving the change inC]2019. The university's name 
change predates the professor's letter (dated October 16, 2019) and there is no explanation why the professor used the 
university's old letterhead and referred to the institution by its former name in his opinion letter. Furthermore. a web 
search of the university's faculty list does not reflect professor as one of the ad"unct rofessors and the record does 
not contain evidence that the professor was employed by Universit when he authored the 
opinion letter. For these reasons, the advisory letter from professo_.__ _ _.has diminished probative value in establishing 
that the proffered position is a specialty occupation. 
4 
professional nature and require preparation at the Bachelor's Degree level in Computer Science, 
Computer Engineering, Software Engineering, Information Systems, or a related area at a minimum." 
We carefully evaluated the professor's assertions in support of the instant petition but find them 
insufficient. 
The professor stated that "after comparing the responsibilities of this Tech Lead position to existing 
job categories as defined by the Occupational Information Network (O*NET) ... it is clear that this 
position should be classified as a 'Information Technology Project Managers' occupation .... " After 
listing the general duties provided in O*NET under this occupational category, the professor stated 
that according to O*NET, "most Information Technology Project Manager positions require a 
four-year Bachelor's Degree and knowledge and skills in engineering and technology, project 
management software, computers and electronics, and related areas" but also acknowledged that "a 
minority of Information Technology Project Manager positions ... require less than a Bachelor's 
Degree .... " The professor, however, opined that because of the Petitioner's "proprietary software 
platform responsible for generating high revenues," the Petitioner "cannot afford to hire a candidate 
without at least a Bachelor's Degree to safeguard its systems." However, the professor did not 
elaborate on his assertion and did not address how use of the Petitioner's proprietary products would 
be learned in a bachelor's degree program rather than through on-the-job training. The professor did 
not sufficiently explain that the stated degree requirement is not a matter ofpreference for high-caliber 
candidates but is necessitated by the position's performance requirements. See Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). Furthermore, we find the professor's reliance on the O*NET 
Summary Report to support his opinion insufficient. As we discussed earlier, the O*NET Summary 
Report provides general information regarding the occupation, but it does not support the assertions 
regarding the educational requirements for the occupation. Here, we incorporate our earlier discussion 
on this matter. 
Moreover, the professor did not provide an in-depth analysis of the duties. While he stated that he 
interviewed the senior vice president of the Petitioner to "obtain a detailed understanding of the 
company's operations, key client service offerings, major clients, and IT staffing requirements," his 
analysis of the position duties and the requirements fell short of providing a meaningful discussion of 
what the Beneficiary will actually do in the proffered position and how those duties require the 
theoretical and practical application of a body of highly specialized knowledge. The professor listed 
the job-specific duties that were provided in the Petitioner's RFE response and concluded that the 
duties "are not those of a lower-level employee performing tasks such as those duties performed by a 
Technologist or and IT-support employee, but rather those of a professional employee with a strong 
background in computer science concepts and principles and a great level of responsibility within the 
company." He went on to say, "[t]he superior background of a Bachelor's Degree in Computer 
Science, Computer Engineering, Software Engineering, Information Systems, or a related area, or the 
equivalent qualifies the Tech Lead to serve in this highly skilled role, as opposed to the non-specialty 
occupation workers .... " The professor's analysis misconstrues the statutory and regulatory 
requirements of a specialty occupation. The test to establish a position as a specialty occupation is 
whether the position itself requires at least a bachelor's degree in a specific specialty, or its equivalent. 
The professor's suggestion that a computer-related degree at a bachelor's level qualifies a person to 
perform the duties of the proffered position is not sufficient to demonstrate that a bachelor's degree in 
a specific specialty is required to perform those duties. 
5 
Further, the professor's opinion letter does not substantiate his conclusions regarding the industry 
standard for 'Tech Lead" positions. For instance, he stated: 
[T]he industry standard for a position such as Tech Lead for [the Petitioner] is to be 
filled through recruiting a college graduate with the minimum of a Bachelor's Degree 
in Computer Science, Computer Engineering, Software Engineering, Information 
Systems, or a related area, or the equivalent. 
However, the professor did not reference, cite, or discuss studies, surveys, industry publications, 
authoritative publications, or other sources of empirical information, which he may have consulted to 
arrive this conclusion. Although he referenced websites for CarreerOneStop and ITCareerFinder and 
stated that "[ c ]areers in Information Technology are among the fastest growing professional 
occupations in the country that typically require a Bachelor's Degree" and that "[e]ducational 
preparation at the Bachelor's Degree level or higher is the norm, rather than the exception," we note 
that information contained in these websites do not indicate a requirement of a bachelor's degree in a 
specific specialty for "Tech Lead" or similar positions. Therefore, we conclude that the professor's 
opinion letter is not probative towards establishing industry standards for the educational requirements 
for "Tech Lead" or similar positions. 
In summary, we conclude that the Petitioner has not demonstrated through the professor's letter how 
an established curriculum of courses leading to a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is required to successfully serve in the proffered position. For the reasons discussed, 
we find that the professor's opinion letter lends little probative value to the matter here. Matter of 
Caron Int'!, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not required to accept or may give 
less weight to an advisory opinion when it is "not in accord with other information or is in any way 
questionable."). For the sake of brevity, we will not address other deficiencies within his analysis of 
the proffered position. 11 
The record lacks sufficient evidence to support a finding that the proffered position is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. For the aforementioned reasons, the Petitioner has not met its burden to 
establish that the particular position offered in this matter requires a bachelor's or higher degree in a 
specific specialty, or its equivalent, directly related to its duties in order to perform those tasks. Thus, 
the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]). 
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 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 
11 We hereby incorporate our discussion of the professor's opinion letter into our discussion of the other 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) criteria. 
6 
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. 
We generally consider the following sources of evidence to determine if there is such a common degree 
requirement: 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 establish 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) (considering these 
"factors" to inform the commonality of a degree requirement)). 
As noted, the Handbook does not indicate that a bachelor's degree in a specific specialty is a common 
requirement within the industry for parallel positions among similar organizations. Here, we also 
incorporate our discussion of I ts opinion letter regarding industry standards for "Tech 
Lead" or similar positions. 
In support of this criterion, the Petitioner submitted copies of job announcements placed by other 
employers. However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements is misplaced. First, the Petitioner has not demonstrated that these organizations are 
similar. When determining whether the Petitioner and the advertising organization share the same 
general characteristics, we look at the information regarding the nature or type of organization, and, 
when pertinent, the particular scope of operations, as well as the level of revenue and staffing (to list 
just a few elements that may be considered). It is not sufficient for the Petitioner to claim that an 
organization is similar and in the same industry without providing a legitimate basis for such an 
assertion. The Petitioner did not submit information regarding the employers' revenue or staffing, and 
the advertisements provide little or no information regarding the advertising companies. 
Moreover, many of the advertisements do not appear to involve parallel positions, as they appear to 
be for more senior positions than the proffered position. For instance, in addition to the educational 
requirement, the posting placed by SAIC requires six years or more experience; the posting placed by 
Anthem, Inc. requires five years or more related experience; and, the posting placed by DMI requires 
more than seven years of "demonstrated technical leadership." The Petitioner has not sufficiently 
established that the primary duties and responsibilities of the advertised positions are parallel to the 
proffered position. Moreover, Cognizant Technology Solutions states that a "degree in science, 
engineering or equivalent [is] preferred." A preference for a degree in a field is not necessarily an 
indication of a minimum requirement. Overall, the job postings suggest, at best, that although a 
bachelor's degree is sometimes required for these positions, a bachelor's degree in a specific specialty 
(or its equivalent) is not. 12 
12 It must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a specific 
specialty is common to the industry in parallel positions among similar organizations (which they do not). the Petitioner 
7 
The Petitioner also submitted one of its advertisements for a 'Technical Lead" position. However, 
the advertised position does not appear to be a parallel position to the one proffered to the Beneficiary. 
Unlike the proffered position, the advertised position requires a "Master's degree in Computer 
Science, Engineering, Information systems or equivalent and 2 years of experience" or in the 
alternative, a "Bachelor's degree in Computer Science, Engineering, Information systems or 
equivalent and 5 years of experience." The Petitioner does not require a masters degree with 
experience or a bachelor's degree with experience for the proffered position. Therefore, it has not 
established that the advertised position is parallel to the proffered position. 
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. 13 That is, not every deficit of every job posting has been addressed. 
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. However, the Petitioner has not 
sufficiently developed relative complexity or uniqueness as an aspect of the proffered position. In 
other words, the Petitioner has not demonstrated how the duties of the proffered position require the 
theoretical and practical application of a body of highly specialized knowledge such that a bachelor's 
or higher degree in a specific specialty, or its equivalent, is required to perform them. 
On appeal, the Petitioner states that O*NET Summary Report for the Information Technology Project 
Managers classification ... reflects that there is a considerable level of similarity between the general 
has not demonstrated what statistically valid inferences, if any, can be drawn from the advertisements with regard to 
determining the common educational requirements for entry into parallel positions in similar organizations. See generally 
Earl Babbie, The Practice of Social 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 detennined 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"). 
13 The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
8 
duties of this job classification and the proffered position." According to O*NET, the information 
technology project managers are responsible for the following: 
Plan, initiate and manage information technology (IT) projects. Lead and guide the 
work of technical staff Serve as liaison between technical aspects of projects. Plan 
project stages and assess business implications for each stage. Monitor progress to 
assure deadlines, standards, and cost targets are met. 14 
In essence, the IT project managers are responsible for all aspects of a project including "directing or 
coordinating activities of project personnel." 15 However, the Petitioner's project-specific duties 
submitted with its RFE response and again on appeal suggest that the Beneficiary will be primarily 
testing the software. The duties do not indicate that the Beneficiary will have an overarching 
responsibility for the assigned project. We also reiterate that although the Petitioner referenced 
"Computer and Information Systems Managers" occupational category while discussing the 
entry-level educational requirements under the first criterion, it did not certify the LCA for this 
category. The Petitioner did not explain why it did not certify the LCA for the higher-paying 
classification if it believed that the duties of the position were more aligned with the general duties 
listed for the Computer and Information Systems Managers occupational category. The Petitioner's 
decision to certify the LCA for a significantly lower-paying category farther raises questions about 
claimed complexity of the duties. 
The Petitioner references the end-client's letter and states that the "letter lists the beneficiary's specific 
duties giving details about the complexity of each duty and clearly states that a 'bachelor's degree in 
computer science, computer engineering, software engineering, information systems or equivalent, or 
a related field' is the minimum educational requirement to perform the job duties. The Petitioner also 
emphasizes that "[t]he position must be a computer related position as stated in the letter." However, 
in its RFE response, the Petitioner asserts that the contracts it has with the end-client are "not staffing 
contracts" ( emphasis omitted), rather they are "solutions based" contracts. The Petitioner farther states 
that the Beneficiary will be working at the Petitioner's office and the end-client "cannot attest to the 
position duties as they do not supervise him." The end-client's letter, among other things, details the 
services the Petitioner has been providing, lists the Beneficiary's duties as stated in the Petitioner's 
support letter, and states the educational requirements for the position. However, we find it perplexing 
that while the Petitioner states that the end-client cannot attest to the position's duties as they do not 
supervise him, it submits a letter from the end-client listing the position's duties and its requirements 
and relies on this letter on appeal to demonstrate complexity and uniqueness of the position. While 
we appreciate the end-client's explanation of the services the Petitioner has been providing, we 
conclude that its letter has little probative value in establishing the duties' complexity and uniqueness. 
On appeal, the Petitioner also states that its "'Business Overview' showing the company's goals, 
performance reviews, business plans and targets ... clearly evidence that in order to perform as a 
'Tech lead' for a such high[- ]level company it is definitely required to have at least a bachelor degree." 
This document, however, does not provide information regarding the project, and is not specific to the 
Beneficiary or to the proffered position. While the document gives us a general idea of the Petitioner's 
14 See https://www.onetonline.org/link/summary/15-l l 99.09 (last visited on Sept. 17, 2020). 
is Id. 
9 
operations, it is not sufficient to demonstrate the position's complexity and uniqueness. Furthermore, 
the Petitioner stated that the Beneficiary will be working at its I I California, office. 
However, it did not submit an organizational chart of its California office or a chart depicting the 
positions within the project and the Beneficiary's hierarchical position therein. Therefore, the extent 
of his duties cannot be determined. The evidence does not show the operational structure within the 
Petitioner's business operations in a manner that would establish the Beneficiary's relative role 
therein. The Petitioner has not adequately evidenced the scope of the Beneficiary's responsibilities 
within the context of its business operations. 
The Petitioner also relies onl ts opinion letter to demonstrate the duties are complex 
and unique. However, as we discussed earlier, the professor's letter is insufficient to demonstrate that 
the position is a specialty occupation. Here, we incorporate our earlier discussion regarding! I I ~ opinion letter on the matter. 
The record also contains a three-page document, signed by a program director, that lists the duties of 
the proffered position and discusses the project to which the Petitioner claims the Beneficiary will be 
assigned. Notably, the pages of this document do not logically flow. It appears that a page from a 
different document was inserted and on this page the Petitioner refers to the Beneficiary in the feminine 
pronoun case. Thus, we must question the accuracy of the document and whether the information 
provided is correctly attributed to this particular Beneficiary and position. 
The Petitioner repeatedly 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. We are required to follow long-standing 
legal standards and determine first, whether the proffered position qualifies for classification as a 
specialty occupation, and second, whether the Beneficiary was qualified for the position at the time 
the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 
(Comm'r 1988). ("The facts of a beneficiary's background only come at issue after it is found that 
the position in which the petitioner intends to employ him falls within [a specialty occupation]."). 
The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the 
position. Accordingly, 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. 
In support of this criterion, the Petitioner submits a list of employees hired in "Tech Lead" positions 
with copies of their degrees and educational evaluations, as well as pay stubs for some them. However, 
the record lacks evidence establishing that these individuals were hired into a tech lead position that 
is the same or similar to the one offered to the Beneficiary. As we discussed earlier, the position 
advertised by the Petitioner, which has the same position title, has different educational and experience 
10 
requirements than the one proffered to the Beneficiary. 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 these individuals are 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 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. 
For reasons we discussed under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), we conclude that 
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)(4). We incorporate our earlier 
discussion and analysis on this matter. 
Consequently, the Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
ORDER: The appeal is dismissed. 
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