dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6197834 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 21, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "senior project lead" 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 California Service Center Director denied the petition, concluding that the record did not establish 
that the proffered position qualifies as a specialty occupation. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. Upon 
de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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: 
(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. Chertojf, 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. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record 
does not include sufficient consistent, probative evidence establishing that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation. 
A. First Criterion 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]), requires that a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular 
position. To inform this inquiry, we recognize the Department of Labor's (DOL) Occupational Outlook 
Handbook (Handbook) as an authoritative source on the duties and educational requirements of the wide 
variety of occupations that it addresses. 1 The Petitioner designated the proffered position on the labor 
condition application (LCA)2 as a Standard Occupation Classification (SOC) code 15-1199 "Computer 
Occupations, All Other" occupation. In response to the Director's request for evidence (RFE) the 
Petitioner asserted that the duties of the proffered position are consistent with the duties of the 
"Information Technology Project Managers" occupation, SOC code 15-1199.09. 
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. 3 The subchapter of the Handbook titled "Data for Occupations Not Covered in Detail" states, in 
relevant part, that the "[t]ypical entry-level education" for "Information Technology Project Managers" 
1 The Handbook may be accessed at https://www.bls.gov/ooh. 
2 A petitioner is required to submit an LCA to the Depaitment of Labor to demonstrate that it will pay an H-lB 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 212(n)(l) of the Act; 
20 C.F.R. § 655.73 l(a). 
3 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 Jan. 17. 2020). 
2 
is a "Bachelor's degree," without indicating that the bachelor's degree must be in a specific specialty. 4 
Thus, the Handbook is not probative in establishing that these positions comprise an occupational group 
for which normally the minimum requirement for entry is at least a bachelor's degree in a specific 
specialty, or its equivalent. 
In response to the Director's RFE, the Petitioner asserts that the job duties and skills required to perform 
the "Information Technology Project Managers" occupation is a hybrid of two occupations discussed in 
the Handbook, the occupations of "Software Developers" and "Computer and Information Systems 
Managers." The Petitioner points out that the Handbook reports that: "[ d]evelopers who supervise a 
software project from the planning stages through implementation sometimes are called information 
technology (IT) project managers." 5 First, the Petitioner has not submitted a description that demonstrates 
the Beneficiary will be a"[ d]eveloper[];" that is, the description does not suggest that the Beneficiary will 
develop, create, and modify computer applications software or specialized utility programs or otherwise 
design or customize software. Second, if the Beneficiary will perform such duties, the Petitioner has not 
submitted an LCA that corresponds to the petition. If the proffered position is a combination of two 
different, but related occupations, the Petitioner must choose the higher paying occupation's SOC code 
for the certified LCA. 6 Notably, the relevant prevailing wage for a Level II "Computer Occupations, All 
Other" position ($69,722 per year) is significantly lower than the relevant prevailing wage for a Level II 
"Software Developers, Applications" position ($112,549 per year). 7 Such a wage disparity highlights the 
difference between the "Information Technology Project Managers" and "Software Developers, 
Applications" occupational categories generally, and more specific to this case, the significance of the 
Petitioner's choice of the lower paying occupational category. 
Similarly, the Petitioner points out that the "Information Technology Project Managers" and the 
Computer and Information Systems Managers" occupations "share many of the same duties," "such as, 
planning and directing the installation and maintenance of software, and planning and directing the work 
of other IT professionals." 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. 8 
4 The Handbook also indicates that this occupation does not require work experience in a related occupation or typical 
on-the-job training. Id. 
5 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Software Developers, 
https://www.bls.gov/ooh/computer-and-information-technology/software-developers.htm (last visited Jan.17, 2020). 
6 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdfi'NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
7 See FLC Data Center Online Wage Library for ·'Computer ~tions, All Other" SOC code 15-1199 at 
https://flcdatacenter.corn/OesQuickResults.aspx?code= l 5- l l 99&area=[____J&year= l 8&source= 1 and "Software 
Developers, ~lications" SOC code 15-1132 at https://flcdatacenter.corn/OesQuickResults.aspx?code= l 5-
l l 32&area=L______&year= l 8&source= 1. 
8 The prevailing wage for a Level II "Computer and Information Systems Managers" SOC code 11-3021 is $130,603 per 
year, almost double what the Petitioner attests it will pay the Beneficiary on the LCA in this matter. See FLC Data Center 
Online Wage Library for "Computer and ~ation Systems Managers" at 
https://flcdatacenter.com/OesQuickResults.aspx?code= 11-3021 &area=l.._____&,_ _ _,.,year= l 8&source= 1. 
3 
Thus, we do not find the Handbook's discussion of academic requirements for either of these two 
significantly higher paying occupations relevant to establishing the academic requirements for the 
particular position proffered here. 
The Petitioner also references the DOL's O*NET summary report for "Information Technology Project 
Managers." The summary report provides general information regarding the occupation; however, it does 
not support the Petitioner's assertion regarding the educational requirements for these positions. For 
example, the Specialized Vocational Preparation (SVP) rating cited within O*NET's Job Zone Four 
rating designates this occupation as 7 < 8. 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, formal education, and 
experience - and it does not specify the particular type of degree, if any, that a position would require. 9 
We have considered the Petitioner's reference to the O*NET' s summary report of the educational 
requirements of"respondents" and its claim that 100 percent of respondents report a bachelor's degree is 
required. 10 However, the respondents' positions within this occupation are not distinguished by career 
level (e.g., entry-level, mid-level, senior-level). Additionally, the graph in the summary report does not 
indicate that the "education level" for the respondents must be in a specific specialty. The O*NET 
summary report for this occupation does not establish the duties of the Petitioner's particular position 
would normally require a baccalaureate or higher degree in a specific specialty, or its equivalent. 
The record does not include sufficient documentation from a probative source to establish the normal 
minimum requirement for entry into this particular occupation. The Petitioner has not satisfied the 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. First Prong of the 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 concentrates upon the common 
industry practice, while the alternative prong narrows its focus to the Petitioner's specific position. We 
will address the second prong of this criterion, in section D below. 
To satisfy the first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent) 
is common to the industry in parallel positions among similar organizations. 
9 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/online/svp. 
10 The excerpt from the O*NET provided by the Petitioner indicates that 84 percent of the respondents report a bachelor's 
degree, 10 percent repolt a post-baccalaureate ceitificate, and 6 percent rep01i a master's degree. The excerpt shows that 
it was updated in 2019 and the Petitioner provided this excerpt on appeal (circa April/May, 2019). However. in a newer 
version of the O*NET summary report (last visited Jan. 17, 2020 which again indicated the update occurred in 2019) the 
respondents surveyed indicated that 38 percent had a bachelor's degree, 24 percent an associate's degree, and 19 percent 
a post-baccalaureate ce11ificate. The wide variance in the type of degree, within the same year, undermines any reliance 
on these types of surveys to establish a normal minimum requirement of even a general bachelor's degree. 
4 
Here and as already discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook ( or other independent, authoritative sources) reports an industry-wide requirement for at 
least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by reference the 
previous discussion on the matter. Also, there are no submissions from the industry's professional 
association indicating that it has made a degree a minimum entry requirement. 
In response to the Director's RFE, the Petitioner submitted several job postings to demonstrate that a 
degree in a specific specialty is a common requirement of the industry for parallel positions among similar 
organizations. The Petitioner submits additional job postings for our consideration on appeal. Even if 
we assume that the job postings submitted include similar duties and responsibilities as the duties listed 
for the proffered position, and are from similar organizations, these job postings raise significant concern 
that the Petitioner has not submitted a certified LCA that supports the petition. All of the job 
advertisements require experience in addition to the stated bachelor's degree. Of the ten advertisements 
submitted in total, seven require five to seven years of experience. One requires three to five years of 
experience and the remaining two require experience but do not define the amount of experience. The 
Petitioner has identified its particular position as a wage Level II position on the certified LCA. A Level 
II wage for a Job Zone Four occupation with an SVP 7 < 8 rating is for a position that may require more 
than two years and up to three years of experience. Any required additional experience would require a 
corresponding increase in the wage level. 11 Additionally, several of the advertisements require 
certificates in software development or particular third technology in addition to a bachelor's degree and 
experience. The requirement of such certifications may also require an increase in wage level. Either the 
advertised positions are for more senior-level positions than the position proffered here, and thus are not 
parallel to the proffered position, or the Petitioner has not submitted an LCA that corresponds to and 
supports the petition. 12 In either case, the advertisements do not establish that there is a common 
requirement of the industry for parallel positions among similar organizations. 13 
The Petitioner has not submitted sufficient probative evidence establishing that there is a common degree 
requirement in the industry for parallel positions among similar organizations. 
11 A requirement of more than three years and up to four years of experience requires a corresponding two-level increase 
in wage level and a requirement for more than four years of experience requires a corresponding three-level increase in 
wage level. 
12 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. That is not every deficit of every 
job posting has been addressed. For example, the Petitioner did not provide any independent evidence of how 
representative the job postings are of the particular adve1iising 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. 
13 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 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 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"). 
5 
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. 14 Evidence provided 
in support of this criterion may include, but is not limited to, documentation regarding the Petitioner's 
past recruitment and hiring practices, as well as information regarding employees who previously held 
the position. 
In response to the Director's RFE, the Petitioner submitted the names, degrees, and a paystub for several 
of its employees. 15 The Petitioner asserts that these individuals are employed in roles parallel to the 
proffered position. The Petitioner, however, did not describe the duties for each of these employees or 
the level of responsibility demanded for their particular role. Without knowing what duties the employees 
are actually required to perform, other specifics about the project(s) they will actually service, and their 
level of responsibility, we cannot determine the relevance of these submissions. 
On appeal, the Petitioner provides copies of its job postings for a lead developer, a technical lead, and a 
technical project manager. The duties listed for the lead developer indicate that the position the Petitioner 
is advertising corresponds more closely to a software developer occupation. As discussed, the Petitioner 
did not designate the duties of the proffered position as falling within the SOC code 15-1132 "Software 
Developers, Applications," an occupation that requires a significantly higher wage. The technical lead 
position includes a perfunctory description of duties and is insufficiently detailed to determine it is a 
parallel position to the position proffered here. These job postings do not establish the Petitioner's normal 
hiring requirements for a position that is the same or similar to the position proffered here. 16 
The technical project manager posting also includes a brief description of duties but it appears to align 
more closely to the position proffered here. The requirements to perform the duties described are either 
a master's degree in computer science or information/software systems plus two years of experience in 
the job offered or as technical lead or a bachelor's degree in computer science or information/software 
systems plus five years of experience in the job offered or as technical lead. If this is the same position 
the Petitioner is proffering here, the Petitioner has not submitted an LCA that corresponds to and supports 
the petition and the petition could not be approved on that basis. That is, a requirement for a bachelor's 
degree and five years of experience for a Job Zone Four occupation with an SVP 7 < 8 rating requires a 
Level IV wage, not the Level II wage designated on the certified LCA submitted in support of this petition. 
14 To satisfy this criterion, the record must establish that the specific performance requirements of the position generated 
the Petitioner's recruiting and hiring history. In this pursuit, the critical element is not the title of the position, or the fact 
that an employer has routinely insisted on ce1tain educational standards, but whether performance of the position actually 
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, or its equivalent, as the minimum for entry into the occupation as 
required by section 2 l 4(i)( I) of the Act. 
15 The employee records do not all include credential evaluations for a foreign degree. 
16 The lead developer posting lists a requirement for a master's degree in computer science/applications or software 
engineering plus two years of experience or a bachelor's degree in computer science/applications or software engineering 
plus five years of experience. The technical lead posting lists a requirement for a master's degree in computer science or 
computer engineering plus two years of experience or a bachelor's degree in computer science or computer engineering 
plus five years of progressive experience. The academic and experience requirements for these positions do not correspond 
to a Level II Job Zone Four occupation. 
6 
We note here that the LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 
8 U.S.C. § l 182(n)(l). See Labor Condition Applications and Requirements for Employers Using 
Nonimmigrants on H-lB Visas in Specialty Occupations and as Fashion Models; Labor Certification 
Process for Permanent Employment of Aliens in the United States, 65 Fed. Reg. 80,110, 80,110-11 
(proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage protections 
in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage in 
hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing 
of an LCA] with [DOL]."). According to section 212(n)(l)(A) of the Act, an employer must attest that it 
will pay a holder of an H-1 B visa the higher of the prevailing wage in the "area of employment" or the 
amount paid to other employees with similar experience and qualifications who are performing the same 
services. See 20 C.F.R. § 655.73l(a); Venkatraman v. REI Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 
2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal Vojtisek-Lom & Adm 'r Wage & 
Hour Div. v. Clean Air Tech. Int'l, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Admin. 
Rev. Bd. July 30, 2009). Additionally, while DOL is the agency that certifies LCA applications before 
they are submitted to U.S. Citizenship and Immigration Services (USCIS), DOL regulations note that 
the Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS) is the 
department responsible for determining whether the content of an LCA filed for a particular Form 
I-129 actually supports that petition. See 20 C.F.R. § 655.705(b). Again, if the Petitioner requires the 
academic education and experience listed in its job posting for the position it claims is parallel to the 
proffered position, the Petitioner has not submitted a valid LCA that has been certified for the proper 
occupational wage classification. 
The inconsistency in the record regarding the submitted certified LCA and the Petitioner's own stated 
requirements undercuts any claim regarding the Petitioner's normal hiring requirements for this particular 
position. Additionally, the Petitioner has not established that the performance of the position actually 
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, or its equivalent, as the minimum 
for entry into the occupation as required by section 2 l 4(i)(l) of the Act. 
The Petitioner has not established the third criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
D. Second Prong of the Second Criterion and the Fourth Criterion 
As noted above, to satisfy the second prong of the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), 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. 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. 
We have reviewed the duties of the proffered position and the allocation of time that the Petitioner 
provided in response to the Director's RFE and again on appeal. However, the duties as described in the 
table presented are insufficient to establish that such duties require a bachelor's level degree in a specific 
discipline, rather than the duties requiring only certifications in source code management tools, 
SharePoint and SQL server backend systems, and a few foundational technical courses. That is, the 
Petitioner does not expand upon which of the particular duties of this position are so specialized and 
7 
complex or unique as to require a bachelor's degree in a specific specialty in order to perform them. We 
do not find that the Petitioner has sufficiently developed the duties of its particular position to establish 
which of the duties, if any, of the proffered position would be so specialized and complex or unique as to 
be distinguishable from those of similar but non-degreed or non-specialty degreed employment. We 
understand that the individual in the proffered position will manage particular software development 
projects. The Petitioner, however, has not provided sufficient probative evidence to demonstrate that 
such a manager requires a bachelor's-level degree in a computer-related discipline to manage such 
projects, rather than general knowledge of third party technology, experience in project management, and 
some technical skills and knowledge. The proposed duties do not include meaningful discussion of what 
the Beneficiary will actually be required to do in the proffered position and how those duties require the 
theoretical and practical application of a body of highly specialized knowledge. 
We have reviewed the work product samples from the Beneficiary's work for the Petitioner overseas. 
However, past work does not establish the Beneficiary's proposed work. While the past work 
demonstrates to some degree the Beneficiary's knowledge and experience, the test to establish a position 
as a specialty occupation is not the skill set or education of a proposed beneficiary, but whether the 
position itself qualifies as a specialty occupation. The work product does not assist in establishing that 
the proposed duties are specialized and complex or unique. 
We have also reviewed the Petitioner's business operations, the information submitted regarding its 
proprietary frameworks, and the proposed contracts wherein the Beneficiary may perform as senior 
project lead. These documents, however, provide little insight into the level of complexity or demands 
associated with the proposed duties or the specialized knowledge required to perform them. The 
Petitioner does not adequately develop relative specialization and complexity or uniqueness as an 
aspect of the duties of the position. In other words, the proposed duties have not been described with 
sufficient specificity to show that they are more specialized and complex or unique than an information 
technology project managers' position that is not usually associated with at least a bachelor's degree in a 
specific specialty, or its equivalent. The Petitioner's designation of the proffered position as requiring 
only a Level II wage is especially troubling. This designation undermines any claim that the proffered 
position satisfies these criteria. As discussed above, typical positions located within the occupational 
category do not require a bachelor's degree in a specific specialty, or the equivalent, thus it is unclear 
how a position with only Level II characteristics would require a bachelor's degree in a specific 
specialty, or its equivalent. 17 
The record does not include probative consistent evidence establishing that the proposed position is so 
specialized and complex or unique such that only an individual with a bachelor's degree in a specific 
specialty, or its equivalent, can perform the position. The Petitioner has not demonstrated that its 
proffered position is one with duties sufficiently specialized and complex or unique to satisfy the second 
prong of the second criterion or the fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
17 The Petitioner classified the proffered position at a Level TT wage on the certified LCA, indicating that it is a position 
for an employee who has a good understanding of the occupation but who will only perform moderately complex tasks 
that require limited judgment. See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborce11.doleta.gov/pdfi'NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf Therefore, it does not appear that 
the position is one with specialized and complex or unique duties, as such a higher-level position would be classified as a 
Level III ( experienced) or Level IV (fully competent) position, requiring a significantly higher prevailing wage. 
8 
III. CONCLUSION 
The Petitioner has not established that the proffered position satisfies any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The Petitioner has not presented probative evidence or argument sufficient to 
establish that, more likely than not, the proffered position is a specialty occupation as defined by the 
regulations and the statute. We do not reach the deficiencies regarding the Beneficiary's qualifications 
to perform the duties of the proffered position as the specialty occupation issue is dispositive of the appeal. 
ORDER: The appeal is dismissed. 
9