dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 11274925 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 19, 2021 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"software test specialist I" under the H-lB nonimmigrant 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 California 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. 1 
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 : 
1 On appeal, the Petitioner asserts that the Director "applied a standard higher than the required preponderance of evidence 
review." The Petitioner references Executive Order (E.O.) 13788, "Buy American and Hire American" and states that 
"existing regulations concerning H-lB visas, which have been in place since before President Trump's Buy American and 
Hire American Executive Order, should guide the Service 's decision making" (emphasis omitted). The Petitioner asserts 
that the Director's denial "represent[s] an unlawful abuse of power on behalf of the Service and the executive branch to 
systematically attempt to carry out the proposed H-lB Visa Reform ... without first going through the administrative law 
process .... " However , upon careful review of the record, the Director did not cite to E.O. 13788 as a basis for the decision; 
therefore , the Petitioner's assertion is without merit. 
(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)2 was certified with the job title "software test specialist I" for 
a position falling within the Standard Occupation Classification (SOC) code and category 15-1199, 
"Computer Occupations, All Other." 3 The Petitioner asserted that the most appropriate occupational 
sub-classification is that of "Software Quality Assurance Engineers and Testers" corresponding to the 
sub-code of 15-1199.01. 4 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 expanded on 
2 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. § 655.73 l(a). 
3 The occupational code 15-1199 is no longer in use. Instead, 15-1299.00 (Computer Occupations, All Other) is used. See 
https://www.onetonline.org/link/summary/15-1299.00 (last visited Mar. 15, 2021). 
4 This occupational code is no longer in use. Instead, 15-1253.00 (Software Quality Assurance Anaylsts and Testers) is 
used. See https://www.onetonline.org/link/summary/15-1253.00 (last visited Mar. 15, 2021). 
2 
those duties and indicated the percentages of time the Beneficiary would spend on each duty. 5 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 m applied computer science, 
information technology, or closely related field of study. 
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. 6 
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 first tum 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. 7 As noted above, 
on the LCA submitted in support of the H-1B petition, the Petitioner designated the proffered position 
under the occupational category "Computer Occupations, All Other" corresponding to the SOC code 
15-1199. The Handbook is a career resource offering information on hundreds of occupations. However, 
there are occupational categories which the Handbook does not cover in detail, and instead provides only 
summary data. 8 Thus, the Handbook is not probative in establishing that these positions comprise an 
occupational group for which the normal minimum requirement for entry is at least a bachelor's degree 
in a specific specialty, or its equivalent. 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. 
5 The Petitioner did not indicate the percentage of time the Beneficiary would spend on duty #6, "Implement automation 
process solutions in accordance with standard automation tool design principles and conventions." 
6 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. 
7 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. 
8 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Data for Occupations Not Covered in 
Detail, https://www.bls.gov/ooh/about/data-for-occupations-not-covered-in-detail.htm (last visited Mar. 15, 2021 ). Here, 
the Handbook does not provide specific information for various occupations which might be classified within the occupational 
category. 
3 
The Petitioner submitted an opinion letter authored b a Professor and Chair of 
Computer Science at the University~------~ 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 'job's responsibilities 
could not be performed satisfactorily without Bachelor-level competence in Applied Computer 
Science, Information Technology, or a related technical field." We carefully evaluated the professor's 
assertions in support of the instant petition but find them insufficient. 
The professor repeats the position's duties in the Petitioner's support letter and lists 18 "knowledge areas" 
from the 2013 Curriculum Guidelines for Undergraduate Programs in Computer Science, published by 
the Association for Computing Machinery (ACM). 9 These guidelines for potential curriculums are far 
too broad to establish that a particular position requires a body of highly specialized knowledge that 
is attained through study at a bachelor-level degree in a specific specialty, or its equivalent. The 
professor also states "[i]n my opinion, any of the duties listed for the position could be matched to a 
corresponding knowledge area, suggesting a high degree of competence necessary to perform them" and 
that "if any of the job duties require competence in a major knowledge area, it stands to reason that the 
whole of the job's responsibilities could not be performed satisfactorily without Bachelor-level 
competence in Applied Computer Science, Information Technology, or a related technical field." The 
professor concludes farther that because "there is significant overlap between the prescribed duties for 
the position, and the general knowledge areas covered in Bachelor-level Applied Computer Science and 
Information Technology programs, ... any individual lacking a Bachelor's degree (or its equivalent) in 
these fields would not be able to perform these duties to the degree [the Petitioner] requires for the 
continuous execution of its business operations." The professor, however, does not offer a cogent 
analysis of why matching any of the duties of the particular position to the broadly described 
corresponding knowledge areas for a potential curriculum is the same as establishing that the duties 
require a bachelor's degree in a specific specialty, or its equivalent. Other than referring to the "wide 
adoption of the ACM's Curriculum Guidelines," he does not discuss their relevance in establishing 
that the particular position offered here requires a specific bachelor's degree. 
Furthermore, while the professor suggests that certain baccalaureate-level computer science related 
courses may be beneficial in performing various duties of the position, we disagree with his inference 
that such a degree is required in order to perform the duties of the proffered position. In other words, 
the professor's suggestion that a person with a bachelor's degree in computer science could perform 
the duties of the proffered position is not the same as stating that a bachelor's degree in a specific 
specialty is required to perform those duties. As such, the professor's analysis misconstrues the 
statutory and regulatory requirements of a specialty occupation. 
In summary, we conclude that the opinion letter rendered b~ I is not sufficient to establish 
the proffered position as a specialty occupation. The conclusion reached byl I lacks the 
requisite specificity and detail and is not supported by independent, objective evidence demonstrating 
the manner in which he reached such conclusion. Therefore, the letter from I I does not 
establish that the proffered position is a specialty occupation. We may, in our discretion, use advisory 
opinion statements submitted as expert testimony. 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 
9 This document or pertinent excerpts were not provided for the record for our review. 
4 
to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm'r 1988). As a reasonable 
exercise of our discretion, we discount the advisory opinion letter as not probative of any criterion of 
8 C.F.R. § 214.2(h)(4)(iii)(A). 10 
On appeal, the Petitioner asserts that the Director "incorrectly concluded that the position is not a 
specialty occupation because varying fields of study prepare a candidate for entry" and cites to a few 
district court decisions. 11 In general, these courts held that the regulatory provisions do not restrict 
qualifying occupations to those for which there exists a single, specifically tailored and titled degree 
program. For example, the court in Residential Finance stated that "[t]he knowledge and not the title 
of the degree is what is important. Diplomas rarely come bearing occupation-specific majors. What 
is required is an occupation that requires highly specialized knowledge and a prospective employee 
who has attained the credentialing indicating possession of that knowledge." 
We agree with the aforementioned proposition that "[t]he knowledge and not the title of the degree is 
what is important." In general, provided the specialties are closely related, e.g., chemistry and 
biochemistry, a minimum of a bachelor's or higher degree in more than one specialty is recognized as 
satisfying the "degree in the specific specialty ( or its equivalent)" requirement of section 214(i)(l )(B) 
of the Act. In such a case, the required "body of highly specialized knowledge" would essentially be 
the same. Since there must be a close correlation between the required "body of highly specialized 
knowledge" and the position, however, a minimum entry requirement of a degree in two disparate 
fields, such as philosophy and engineering for example, would not meet the statutory requirement that 
the degree be "in the specific specialty ( or its equivalent)," unless the Petitioner establishes how each 
field is directly related to the duties and responsibilities of the particular position. Section 214(i)(l )(B) 
of the Act (emphasis added). Here, 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. 
In any event, the Petitioner has famished no evidence to establish that the facts of the instant petition 
are analogous to those cases it cites. 12 We also note that, in contrast to the broad precedential authority 
of the case law of a United States circuit court, we are not bound to follow the published decision of a 
United States district court in matters arising even within the same district. See Matter of K-S-, 20 
I&N Dec. 715, 719-20 (BIA 1993). Although the reasoning underlying a district judge's decisions 
will be given due consideration when it is properly before us, the analysis does not have to be followed 
as a matter oflaw. Id. 
The Petitioner also cites Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252,267 (S.D.N.Y. 
201 7) and states that the court held that the Handbook's "language, 'most computer programmers have 
10 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. 
11 The Petitioner cites Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012), Raj and Co. v. USCIS, 
85 F. Supp. 3d 1241, 1246 (W.D. Wash. 2015), and Chung Song Ja Corp. v. USCIS, 96 F. Supp. 3d 1191 (W.D. Wash. 
2015). 
12 We note that the Directors' decisions in Raj and Residential Finance were not appealed to our office. Based on the 
district court's findings and description of the record, if those matters had first been appealed through the available 
administrative process, we may very well have remanded the matters to the service centers for a new decision in our de 
nova review of the matter. It is also noted that the district judge's decision in Residential Finance appears to have been 
based largely on the many factual errors made by the Director in the decision denying the petition. 
5 
bachelor's degree in computer science or a related subject' was conclusive evidence that a bachelor's 
degree or higher in a specific specialty of equivalent is the minimum requirement for entry into the 
occupation." First, the court in Next Generation Tech., Inc. discussed our reading of the Handbook's 
discussion of the entry requirements for positions located within a different and separate occupational 
category "Computer Programmers" rather than the "Computer Occupations, All Other" (SOC code 
15-1199) category designated by the Petitioner in the LCA relating to this case. As noted above, the 
Handbook does not cover this occupational category in detail, and instead provides only summary data. 
Moreover, the court in Next Generation Tech., Inc. relied in part on a U.S. Citizenship and Immigration 
(USCIS) policy memorandum regarding "Computer Programmers" indicating generally preferential 
treatment toward computer programmers, and "especially" toward companies in that particular 
petitioner's industry. However, USCIS rescinded the policy memorandum cited by the court in Next 
Generation Tech. Inc. 13 Furthermore, as noted above, we are not bound to follow the published 
decision of a United States district court in matters arising even within the same district. See Matter 
of K-S-, 20 I&N Dec. at 715. 
The Petitioner also asserts that DOL's "occupational analysis establish[es] that it is common for 
Computer Occupations, All (Software Quality Assurance Engineers and Testers) positions to require 
at least a Bachelor's degree in a specific specialty (or equivalent) for entry into the occupation" and 
directs us to review a copy of the O*NET summary report for "Software Quality Assurance Engineers 
and Testers" - SOC code 15-1199.01 it submitted. 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, while 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. 14 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 
assertions regarding O*NET. 
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)(I). 
13 See USCTS Policy Memorandum PM-602-0142, Rescission of the December 22, 2000 "Guidance memo on HI B 
computer related positions" (Mar. 31, 2017), https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-
0142-H-1 BComputerRelatedPositionsRecission.pdf. 
14 For additional information, see the O*NET Online Help webpage available at 
http://www. onetonline. org/help/ online/ svp. 
6 
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. 
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. 
In support of this criterion, the Petitioner submitted copies of two 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, these advertisements do not appear to involve parallel positions, as they appear to be for 
more senior positions than the proffered position. In addition to the educational requirement, these 
two companies require minimum five years of experience in specific skills. The Petitioner has not 
sufficiently established that the primary duties and responsibilities of the advertised positions are 
parallel to the proffered position. 15 
15 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 job announcements for an "Analyst, IT Operations" 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 five-year experience in 
"IT Operations role supporting diverse business units." Additionally, the Petitioner requires 
experience in "managing Active Directory at the Organization Unit level" and specific experience in 
various operating systems and software for the advertised position. Therefore, the Petitioner 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. 16 That is, not every deficit of every job posting has been addressed. We also incoworate 
here by reference our earlier discussing regarding the conclusions reached by._l ______ _.J 
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 asserts that the Director "appears to misunderstand the complexity, size, and 
scope of the Petitioner's testing solutions as a global leader in the technology field." It asserts that its 
"portfolio of services include end-to-end process outsourcing to customers in various industry vertical 
markets delivered through omni-channels that include both voice and non-voice mediums and in more 
has not demonstrated what statistically valid inferences, if any, can be drawn from two job announcements 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 determined even if the 
sampling unit were sufficiently large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] process 
[ of probability sampling]" and that "random selection offers access to the body of probability theory, which provides the 
basis for estimates of population parameters and estimates of error"). 
16 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 
than 70 languages." 17 The Petitioner goes on to say, the "incumbent must have knowledge of business 
operations and requirements as they relate to implementing automation process solutions and 
managing operations and requirements as they relate to implementing automation process solution and 
managing end-to-end development of business processes." While the Petitioner gives us a general 
idea of its operations, it does not sufficiently demonstrate the position's complexity and uniqueness. 
Neither the general duties submitted initially, nor the more detailed job description submitted in 
response to the RFE establish that the duties are more specialized and complex than positions that are 
not usually associated with at least a bachelor's degree in a specific specialty, or its equivalent. The 
Director essentially concluded that the Petitioner did not establish that entry into the occupation of 
Software Quality Assurance Engineers and Testers required a bachelor's degree in a specific specialty, 
or an equivalent. And more importantly, she decided the Petitioner did not establish why the duties 
of the proffered position were any more specialized and complex than those types of positions that do 
not necessarily require a qualifying degree for entry into the occupation. 
Furthermore, the Petitioner's assertions regarding the complexity of the duties only reiterated the 
claimed degree requirement without demonstrating a sufficient nexus between an established course 
of study leading to a specialty degree and the duties, and without establishing how such a curriculum 
is necessary to perform the duties it claims are so specialized and complex. For instance, it is unclear 
from the Petitioner's claims and evidence what the numerous duties relating to automated test 
activities would involve and how this supports its claim that the position requires a particular degree 
in a specific specialty. To execute some functions of the proffered position, associated courses may be 
helpful or necessary. However, the Petitioner has not established that to perform the duties, a prepared 
educational program leading to a bachelor's degree or higher in a specific specialty, or its equivalent, is 
required. 
We acknowledge the work product samples contained in the record. While these are helpful in 
providing additional context, as well as general information about the position and the product upon 
which the Beneficiary will work, this information does not sufficiently convey why the work requires 
specialized knowledge or is particularly complex or unique. Further, the Petitioner has not addressed 
how having the "knowledge of business operations and requirements" would be learned in a bachelor's 
degree program, as it seems apparent that this knowledge would be gained through on-the-job training. 
The Petitioner also relies onl l's 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 
I Is opinion letter on the matter. 
The Petitioner repeatedly claims that the Beneficiary is well qualified for the position and references 
her 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 
17 The proffered position does not require foreign language proficiency. 
9 
(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 provides the names of two individuals and asserts that they 
hold similar software test specialist positions. In support of its assertion, the Petitioner submits their 
resumes. However, the record contains insufficient evidence establishing that these individuals were 
hired into a position that is the same or similar to the one offered to the Beneficiary. Moreover, the 
Petitioner did not provide the total number of people it has employed to serve in the proffered position. 
On the petition, the Petitioner indicated that it has been in operation since 1997 and employs 9050 
individuals in the United States. However, it submitted information for only two employees to 
demonstrate its hiring history for 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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