dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-T-S INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 27, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , an information technology consulting business , seeks to temporarily employ the 
Beneficiary as a "software quality assurance engineer" 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 record did not 
establish that the proffered position qualifies as a specialty occupation . 
On appeal, the Petitioner contends that the evidence submitted establishes the proffered position is a 
specialty occupation. 1 
Upon de nova review, we will dismiss the appeal. 2 
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 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. 
2 A petitioner must establish that it meets each eligibility requirement of the benefit sought by a preponderance of the 
evidence . Matter of Chawathe, 25 I& N Dec . 369, 3 75-76 (AAO 2010). In other words, a petitioner must show that what 
it claims is "more likely than not" or "probably " true. To determi_ne whether a petitioner has met its burden under the 
preponderance standard, we consi_der not only the quantity , but also the quality (including relevance , probative value, and 
credibility) of the evidence. Id. at 376; Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). 
Matter of N-T-S- Inc 
(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: 
(]) 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). 
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 a consistent, probative description of the nature of the proposed position and does not 
establish that the job duties require an educational background, or its equivalent, commensurate with 
a specialty occupation. 
Preliminarily, we note that in a letter in support of the petition, the Petitioner described the proposed 
position in broad and general terms and stated that the Beneficiary "will be assigned to [its] in-house 
project'1 I a mobile inspection application. Although the Petitioner provided an outline of 
this project, the record does not include evidence of the number of resources needed for the project, 3 
3 In response to the Director's request for evidence, the Petitioner provided a project estimation for its claimed!~--~ 
project which noted the project would require a project manager, developer, tester, and support team and listed the number 
of hours the project would require the services of these occupations. However, the Petitioner does not indicate the number 
of individuals it will need in each of the occupations and does not specify the actual duties the individuals in each of the 
occupations will perform in relation to the product. 
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Matter of N-T-S- Inc 
a roadmap detailing the stage of this project, 4 or evidence corroborating the Petitioner's claim that it 
has a market for the resulting mobile application product. 5 The Petitioner's descriptions of the 
proposed duties are not described within the context of the project and the Petitioner does not submit 
any other evidence corroborating that it has actual work for the Beneficiary to perform. Accordingly, 
the record does not establish that the Petitioner had secured work for the Beneficiary at the time of 
filing the petition. The Petitioner must establish eligibility at the time of filing the nonimmigrant visa 
petition. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date after the 
Petitioner or the Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). 
Setting outside the issue of availability of work, the record also contains inconsistencies and 
deficiencies that further preclude the approval of the petition. 
A. Position Requirements 
The Petitioner initially asserted that the position requires a bachelor's degree in "computer science, 
management information systems, business administration, electrical engineering, electronics 
engineering, commerce, economic [sic], a relative analytic or scientific discipline, or the equivalent 
thereof" The Petitioner's claim that a bachelor's degree in business administration is sufficient to 
perform the proffered position strongly suggests the position does not qualify as a specialty 
occupation. A petitioner must demonstrate that the proffered position requires a precise and specific 
course of study that relates directly and closely to the position in question. There must be a close 
correlation between the required specialized studies and the position; thus, the mere requirement of a 
general degree, such as business administration, without further specification, does not establish the 
position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 
(Comm'r 1988) ("The mere requirement of a college degree for the sake of general education, or to 
obtain what an employer perceives to be a higher caliber employee, also does not establish 
eligibility."). Thus, while a general-purpose bachelor's degree in business administration may be a 
legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify 
a finding that a particular position qualifies for classification as a specialty occupation. Royal Siam 
Corp., 484 F.3d at 147.6 
4 Other than stating that it is currently developing this project, the Petitioner does not provide evidence showing when the 
project started, its anticipation of when each stage will be completed, and when the project has been or will be rolled out. 
5 The Petitioner includes a brief market analysis for the product and an unsigned statement of work, as well as a service 
order, dated July 31, 2018, for a limited number of services to integrate thel !product. The uncorroborated 
information submitted is insufficient to establish that thel I product is proprietary and that the Petitioner requires 
the services of a software quality assurance engineer to perform duties in relation to the product. 
6 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation. In 
either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a specific 
specialty that is directly related to the proffered position. The Petitioner has not provided such evidence here. 
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Matter of N-T-S- Inc 
In response to the Director's request for evidence (RFE), the Petitioner listed the same general duties 
for the proffered position as initially provided, 7 but provided a different iteration of the minimum 
requirements to perform the position. The Petitioner deleted several of the fields of study without 
explanation. Moreover, the Petitioner did not offer a cogent analysis of why the position requires a 
bachelor's degree in "Computer Science, Computer Applications, Engineering (Electronics, 
Electrical, Electronics and Communication, Computer, Information Technology) or a related 
discipline and how these various degrees directly relate to the proffered position. 8 The inconsistent 
versions of the requirements to perform the duties of the position undermine the Petitioner's claim that 
the proffered position is a specialty occupation. 
B. Petitioner's Assertions on Appeal 
The Petitioner identified the proffered position on the Form I-129, Petition for a Nonimmigrant 
Worker, as a software quality assurance engineer. On the labor condition application (LCA)9 
submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the 
occupational category "Computer Occupations, All Other" corresponding to the Standard 
Occupational Classification (SOC) code 15-1199. The Petitioner asserts on appeal that the proffered 
position satisfies the regulatory requirements for a specialty occupation at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(l), the first prong of (2), and (3). 
1. First Criterion 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I), 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. 
We often look to the U.S. Department of Labor's (DOL) Occupational Outlook Handbook 
(Handbook), which is an authoritative source on the duties and educational requirements of the wide 
variety of occupations that it addresses. 10 However, there are some occupations for which detailed 
profiles have not been developed, such as for the occupational category "Computer Occupations, All 
7 The Petitioner also provided a second description of the proffered position within the same letter. This version lists the 
tasks in found in the O*NET summary report for the SOC 15-1199.01 occupation. Repeating general tasks found in 
government publications does not develop duties attached to specific employment. To establish a position as a specialty 
occupation, a petitioner must describe the specific duties and responsibilities to be performed by a beneficiary in relation 
to its particular business interests. In the instant matter, the petitioner has not offered a specific, detailed description of the 
duties of its proffered position beyond a generalized outline of the occupation. It has not detailed the actual work to be 
performed for this position rather than describing the occupation. 
8 We have reviewed the opinion prepared byl lwho offers a third version of the requirements needed 
to perform the duties of the Petitioner's initially described position. 
9 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-IB 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 who are performing the same services. See Section 
212(n)(l) ofthe Act; 20 C.F.R. ~ 655.73l(a). 
10 We do not, however, maintain that the Handbook is the exclusive source ofrelevant information. The Handbook may 
be accessed at the Internet site http://www.bls.gov/ooh/. 
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Matter of N-T-S- Inc 
Other." 11 It is the Petitioner's responsibility to provide probative evidence ( e.g., documentation from 
objective, authoritative sources) that supports a finding that the particular position qualifies as a 
specialty occupation. 
Here, the Petitioner references DOL's Occupational Information Network (O*NET) summary report 
for "Computer Occupations, All Other," to support its assertions regarding the educational 
requirement for the proffered position. We reviewed the summary report and note that it provides 
general information regarding occupations. First, DOL designates the occupations falling under this 
SOC code as having an SVP 7 < 8. This indicates that the occupations require "over 2 years up to and 
including 4 years" of training. While the SVP rating provides 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. 12 
Similarly, the DO L's designation in the summary report of this category as Job Zone Four, does not 
indicate that any academic credentials for Job Zone Four occupations must be directly related to the 
duties performed. Further, although the summary reports provide the educational requirements of 
"respondents," it does not account for 100% of the "respondents." Moreover, the respondents' 
positions within the occupation are not distinguished by career level ( e.g., entry-level, mid-level, 
senior-level). Furthermore, the graph in the summary report does not indicate that the "education 
level" for the respondents must be in a specific specialty. The summary report for the occupational 
category designated on the LCA does not support the Petitioner's assertion regarding the educational 
requirements for these positions. 
The Petitioner has not provided sufficient documentation from a probative source to substantiate its 
assertion regarding the minimum requirement for entry into this particular position. Thus, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I). 
2. 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 on the 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. The Petitioner does not challenge the Director's determination that the position does not 
qualify under the second prong of the second criterion on appeal. Thus, our discussion of this criterion 
is limited to the 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. 
11 For additional information, see https://www.bls.gov/ooh/about/data-for-occupations-not-covered-in-detail.htm. 
12 For additional information. see the O*NET Online Help webpage available at http://www.onetonline.org/help/ 
online/svp. 
5 
Matter of N-T-S- Inc 
We generally consider the following sources to determine if there is 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 attest 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 already discussed, the Petitioner has not established that its proffered position is one for which the 
Handbook (or other independent, authoritative source) 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. In addition, there are no submissions from the industry's 
professional association indicating that it has made a degree a minimum entry requirement. 
In support of this criterion, the Petitioner provided copies of job announcements placed by other 
employers. However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements is misplaced. 
First, the Petitioner does not include evidence demonstrating that the advertising organizations are 
similar to the Petitioner. When determining whether the Petitioner and the organization share the same 
general characteristics, such factors may include 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 basis for such an 
assertion. 
Second, the advertisements do not appear to be for parallel positions. For instance, the postings do 
not include sufficient information about the duties and responsibilities for the advertised positions to 
ascertain that they actually correspond to the proffered position. Also, some of the postings appear to 
be for more senior, experienced employment than the proffered position, requiring significant 
experience in addition to any required education. It is not possible to determine important aspects of 
the advertised jobs, such as the day-to-day responsibilities, complexity of the job duties, supervisory 
duties (if any), and independent judgment required or the amount of supervision received. Here, the 
Petitioner has not sufficiently established that the primary duties and responsibilities of the advertised 
positions are parallel to the proffered position. 
Third, the postings do not demonstrate that a bachelor's degree in a directly related specific specialty 
( or its equivalent) is a common requirement. Of the limited number of advertisements submitted, one 
indicates that a bachelor's degree in computer science or software engineering or related field is 
preferred and another indicates that a bachelor's degree in information systems or a related field is a 
plus. A preference or a plus is not an indication of a minimum requirement. Overall, the job postings 
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Matter of N-T-S- Inc 
suggest, at best, that although a bachelor's degree is sometimes required for these positions, a 
bachelor's degree in a spec[fic specialty ( or its equivalent) is not. 13 
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. 14 That is, not every deficit of every job posting has been addressed. 
The Petitioner also conflates the qualifications of a beneficiary to perform the duties of a position with 
the common industry requirement for a position. 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. Here, the Petitioner did 
not provide evidence that a bachelor's degree in a specific specialty, or its equivalent, is common to 
the industry in parallel positions among similar organizations. The Petitioner has not satisfied the first 
alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
3. 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. 
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. 
The Petitioner provides a printout of its job postings which includes postings for a senior software 
quality assurance engineer, among other positions. The brief description for the senior position does 
not correspond to the duties the Petitioner ascribes to the position proffered here. Moreover, the 
posting indicates that a master's in computer science, applications, engineering ( electronic, electrical, 
telecom) or a bachelor's degree in computer science, applications, engineering, followed by at least 
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"). 
14 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. 
7 
Matter of N-T-S- Inc 
five years of progressive experience in the field, are the requirements for the position. The Petitioner 
does not specify that any experience is required for the position proffered here. 
In response to the Director's RFE, the Petitioner submitted the foreign degrees and credential 
evaluations for two employees it claims were software quality assurance engineers. However, the 
Petitioner did not provide the job duties and day-to-day responsibilities for these individuals. Nor did 
the Petitioner provide paystubs or W-2s to demonstrate the wages paid to these individuals. 
Accordingly, it is unclear whether the duties and responsibilities of these individuals were the same 
or similar to the proffered position. 
On appeal, the Petitioner submits a description of duties for a third employee it claims was a software 
quality assurance engineer. However, the description of duties is different than the duties for the 
proffered position. Although the Petitioner also submits copies of this individual's W-2 for 2017, it 
is not clear if the $48,960 wage was for the whole or a portion of the 2017 year. This individual's pay 
stubs through October 2018 show she had received $68,544 for the ten months employed in 2018. 
This appears to be a higher rate of pay than the Beneficiary's proffered wage. The evidence submitted 
suggests that this individual is employed in a different position than the position proffered here. 
Without more, the documentation does not establish that the Petitioner satisfied this criterion of the 
regulations. 
Moreover, the Petitioner did not provide the total number of people it has employed to serve in the 
proffered position. Consequently, it cannot be determined how representative the Petitioner's claim 
regarding these three individuals are of the Petitioner's normal recruiting and hiring practices, even if 
the positions corresponded in duties and level of responsibility as the proffered position. 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. The Petitioner has not satisfied the third criterion 
of 8 C.F .R. § 214.2(h)( 4 )(iii)(A). 
The Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). It also has not 
satisfied the statutory and regulatory definitions of specialty occupation. Thus, it has not demonstrated 
that the proffered position qualifies as a specialty occupation. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. 
Cite as Matter of N-T-S- Inc, ID# 4690448 (AAO Sept. 27, 2019) 
8