dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10065228 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 04, 2020 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary as a project manager 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 Vermont Service Center denied the petition, concluding that the evidence ofrecord 
does not establish that ( 1) the proffered position qualifies as a specialty occupation, and (2) the 
Petitioner has sufficient specialty occupation work available for the requested period . 1 On appeal, the 
Petitioner asserts that the Director erred in the decision. 
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 l&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 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 
1 The Director also denied the Petitioner 's request to change the Beneficiary 's status. Issues relating to the Beneficiary 's 
change of status are outside the scope of our jurisdiction . See 8 C.F.R. §§ 248.3(a) and 248.3(g) . We have no jurisdiction 
over such matters, as issues surrounding a beneficiary's maintenance ofnonimmigrant status are within the sole discretion 
of the Director. Accordingly , we will not address the change of status request. 
(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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. The 
court held that the former Immigration and Naturalization Service had reasonably interpreted the 
statute and regulations as requiring the petitioner to produce evidence that a proffered position 
qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the 
beneficiary's services. Id. Such evidence must be sufficiently detailed to demonstrate the type and 
educational level of highly specialized knowledge in a specific discipline that is necessary to perform 
that particular work. 
II. PROFFERED POSITION 
The Petitioner states that the Beneficiary will perform the services of a project manager for an 
end-client in Massachusetts. The record's labor condition application (LCA) was certified for a 
position falling within the Standard Occupation Classification (SOC) code and category 15-1199, 
"Computer Occupations - All Other." 2 
2 2 A petitioner is required to submit an LCA to the Department of Labor 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 212(n)(l) of the Act; 
20 C.F.R. § 655.73l(a). 
2 
In the response to the request for evidence (RFE), the Petitioner described the Beneficiary's duties as 
follows: 
• Working with Senior PM and Engineering Management to help drive a leading 
revenue generating program through completion. 
• Support the team to ensure that all necessary follow up and action items are 
completed to ensure milestones are achieved and the project stays on track. 
• Acting as the Scrum Master for the current agile team, assisting with project 
milestones, addressing bottlenecks and prepare storyfeatures. 
• Hosting weekly meetings to discuss any dependencies, roadblocks and overall 
status of the project. 
• Prepare detailed plans, schedules, project estimates and resources allocations and 
budgeting. 
• Working alongside Procurement and Configuration Management Team to get 
documents signed off and released for the required phase gates. 
• Working closely with cross-functional teams, vendors and Program Managers to 
identify any potential risks to projects, address and escalate when necessary. 
According to the Petitioner, the proffered position requires a bachelor's degree in computer science, 
computer applications, information technology, information systems, computer engineering, or a 
closely related field. 3 
III. 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. 
As a preliminary matter, we observe that the Petitioner has provided insufficient information regarding 
the minimum requirements for the proffered position. The Petitioner maintains that a bachelor's 
degree in computer science, computer applications, information technology, information systems, 
computer engineering, or a closely related field is required for the position. Although the Petitioner 
submits copies of purchase orders with the vendor, which outline the terms of the Beneficiary's 
assignment at the end-client location, and a letter from the vendor, which simply lists the duties to be 
performed by the Beneficiary, none of these documents articulate the minimum requirements for the 
position. Moreover, the Petitioner did not provide copies of the end-client's contractual material, end­
client letters, or other evidence to establish the end-client's requirements for the proffered position. 
Here, the documentation provided does not sufficiently establish the terms and conditions of the 
Beneficiary's assignment as imposed by the end-client, including the end-client's requirements for the 
3 We note that the vendor, through whom the Beneficiary's assignment at the end-client location was procured, also 
provides a similar overview of the duties to be performed but does not confirm the minimum educational requirements for 
the position. In addition, no statement from the end-client regarding the duties or its minimum educational requirements 
was provided. 
3 
position. 4 See Defensor, 201 F.3d at 387-88 (where the work is to be performed for entities other than 
the petitioner, evidence of the client companies' job requirements is critical). As explained above, 
we interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific 
specialty that is directly related to the proposed position. Absent evidence of the end-client's 
requirements, the petition may not be approved. 
Moreover, it also cannot be found that the proffered position is a specialty occupation because the 
Petitioner has not satisfied any of the supplemental, additional criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
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 will consider the information contained in the Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the duties and educational 
requirements of the wide variety of occupations it addresses. 5 The Petitioner designated the proffered 
position on the LCA as a Standard Occupation Classification (SOC) code 15-1199 "Computer 
Occupations, All Other" occupation. In response to the Director's 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. 6 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" 
is a "Bachelor's degree," without indicating that the bachelor's degree must be in a specific specialty. 7 
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. 
The Petitioner cites to Matter o_f Panganiban, 13 I&N Dec. 581 (DCA 1970), in support of the assertion 
that the Handbook should be relied upon to determine whether the job offered is a specialty occupation. 
Here, the Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonimmigrant 
classification for specialty occupations. Matter of Panganiban, however, applies to an immigrant 
petition for a professional under section 203(b)(3)(ii) of the Act, 8 U.S.C. § l 153(b)(3)(ii), and 
examines whether a medical technologist is considered a professional for purposes of that 
classification. We therefore do not find the Petitioner's reliance on this decision probative to the 
matter currently before us. 
4 Although the Petitioner asserted its own education requirements, similar to the Defensor case, the education details the 
Petitioner provided are less probative to our analysis than the end-client's requirements. 
5 The Handbook may be accessed at https://www.bls.gov/ooh. 
6 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 Jul. 24, 2020). 
7 The Handbook also indicates that this occupation does not require work experience in a related occupation or typical 
on-the-job training. Id. 
4 
We have also reviewed the DOL's O*NET summary report for "Information Technology Project 
Managers." 8 The summary report provides general information regarding the occupation. 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. 9 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. 10 We have 
considered the O*NET's summary report of the educational requirements of "respondents." The 
summary report indicates that 38 percent of the respondents had a bachelor's degree, 24 percent an 
associate's degree, and 19 percent a post-baccalaureate certificate. 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. 11 Moreover, 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. 
On appeal, the Petitioner submitted an expert opinion letter authored by.__ _______ __. In his 
letter, the professor (1) describes the credentials that he asserts qualify him to opine upon the nature 
of the proffered position; (2) describes the duties proposed for the Beneficiary; and (3) states that these 
duties require at least a bachelor's degree, or its equivalent, in computer science, computer information 
systems, management information systems, or closely related fields. We carefully evaluated the 
professor's assertions in support of the instant petition but find them insufficient. In his letter, the 
professor states that his assessment is based upon the Petitioner's letter of support, the Beneficiary's 
resume and academic credentials, and his review of the Handbook and O*NET. While the professor 
provides a brief: general description of the Petitioner's business activities, he does not acknowledge 
the Beneficiary's proposed assignment at the end-client's location. Therefore, he does not demonstrate 
any knowledge of the end-client's operations or how the duties of the position would actually be 
performed in the context of the end-client's business enterprise. 
Further, the professor's opinion letter does not substantiate his conclusions, such that we can conclude 
that the Petitioner has met its burden of proof. For instance, the professor indicates that "it is apparent, 
upon review of the O*NET online and the [Handbook], that most positions similar to the IT Project 
Manager at [the Petitioner] require a four-year bachelor's degree," which as we have already discussed 
does not establish that the Petitioner's industry requires a degree in a specific specialty for the 
proffered position. While he farther opines that "[g]iven my expertise in the field I am highly 
qualified to analyze and objectively determine what the educational and experiential requirements are 
for a given position," he does not reference, cite, or discuss any studies, surveys, industry publications, 
8 See https://www.onetonline.org/link/summary/15-1199.09 (last visited Jul. 24, 2020). 
9 See id. 
1° For additional information, see the O*NET Online Help webpage available at 
http://www. onetonline. org/help/ online/ svp. 
11 See https://www.onetonline.org/link/summary/15-l l 99.09 (last visited Jul. 24, 2020). 
5 
authoritative publications, or other sources of empirical information which he may have consulted to 
complete his evaluation, beyond his general references to the Handbook and O*NET. 
In addition, the professor quotes the Petitioner's position description verbatim and concludes that the 
proffered position "has responsibilities and authority commensurate with professional standing." 
However, he does not reference the specifics of the particular projects or tasks upon which the 
Beneficiary would work in meaningful detail. While we appreciate his brief discussion of the duties 
provided by the Petitioner, that description still falls short of providing a meaningful discussion of 
what the Beneficiary would actually do in the proffered position and how those duties actually require 
the theoretical and practical application of a body of highly specialized knowledge. 
Here, the professor repeats a partial list of the Beneficiary's duties as submitted by the Petitioner and 
follows it with a discussion of the coursework involved in obtaining a typical bachelor's degree in 
computer science or software engineering. The professor then links some of the Beneficiary's duties 
in the proffered position to a course of study in these degree programs. While we acknowledge that 
the professor may be attempting to demonstrate how an established curriculum of courses leading to 
a bachelor's degree in a specific specialty is required to perform the duties of the proffered position, 
we cannot agree with his analysis. Here, the professor confuses the ability of a degreed computer 
science person to perform the duties of the proffered position with a degree requirement in order to 
perform the duties. While the professor may draw inferences that computer science related courses 
may be beneficial in performing certain 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. Put simply, stating for 
example that a person with a bachelor's degree in computer science or a related field could perform 
the duties of the proffered position is not the same as stating that such a degree is required to perform 
those duties. As such, the professor's analysis misconstrues the statutory and regulatory requirements 
of a specialty occupation. 
For the reasons discussed, we conclude that the Petitioner has not demonstrated that the professor 
possessed the requisite information to adequately assess the nature of the position and appropriately 
determine parallel positions based upon the job duties and level ofresponsibilities. 12 We may, in our 
discretion, use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int 'l, Inc., 
19 I&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in accord with other 
information or is in any way questionable, we are not required to accept or may give less weight to 
that evidence. Id. We find that this evaluation does not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(]) and, 
for the sake of brevity we will not address other deficiencies within the professor's analyses of the 
proffered position. 
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)(]). 
12 On appeal, the Petitioner objects to similar concerns expressed by the Director in her denial regarding the professor's 
opinion letter. indicating "there is absolutely no evidence provided by [USCTS] that the Adjudicating Officer who wrote 
this denial is qualified [], or is eligible to make an expe1t determination about the Petitioner's field and its degree 
requirements." Here, the Petitioner seeks to shift the evidentiary burden in these proceedings from the Petitioner to USCIS, 
which would be contrary to section 291 of the Act, 8 U.S.C. § 1361. 
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 concentrates on 
the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 
1. First Prong 
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. The Petitioner does not 
assert eligibility under this prong, nor has it submitted any evidence in support of this prong. 
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. Although we again 
acknowledge the letter fro~ I his conclusions regarding the requirements for the proffered 
position, and whether an industry standard exists in the Petitioner's industry, are not supported by 
references, citations, or discussions of any studies, surveys, industry publications, authoritative 
publications, or other sources of empirical information beyond his general references to the Handbook 
and O*NET. 
The Petitioner has not provided sufficient probative 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. 
§ 2 l 4.2(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. The Petitioner, however, 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. 
7 
The Petitioner claims that the Beneficiary is well qualified for the pos1t10n and references his 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner did not submit information relevant to 
a detailed course of study leading to a specialty degree and establish how such a curriculum would be 
necessary to perform the duties it believes are so complex and unique. While some related courses 
may be beneficial, or even required, in performing certain duties of the position, the Petitioner has not 
demonstrated how an established curriculum of such courses leading to a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is required to perform the proffered position's duties. 
The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the duties 
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. 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. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 
See Defensor, 201 F.3d at 387-88. Were we limited solely to reviewing a petitioner's claimed 
self-imposed requirements, an organization could bring any individual with a bachelor's degree to the 
United States to perform any occupation as long as the petitioning entity created a token degree 
requirement. Id. 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. 
We reviewed the Petitioner's statements regarding the proffered position. However, it does not assert 
eligibility under this criterion, nor has it provided evidence in support of this criterion. Therefore, it 
has not satisfied the third criterion at 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. 
The Petitioner did not provide evidence to establish this criterion. 13 
13 Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to examine whether the Petitioner 
established that it has sufficient specialty occupation work available for the Beneficiary for the requested period. See INS 
v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of 
8 
IV. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 T&N Dec. 516, 526 n.7 (BIA 2015) 
(declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
9