dismissed H-1B Case: Information Technology

MATTER OF N-S- INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 3, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary as a "quality assurance analyst" under the H-IB 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-IB 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, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish that the proffered position qualifies as a specialty occupation in 
accordance with the applicable statutory and regulatory provisions. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the proffered position is not a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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.P.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: 
Matter of N-S- Inc 
(1) 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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A) 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. Cherto.IJ, 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. PROFFERED POSITION 
In the H-1B petition, the Petitioner stated that the Beneficiary will serve as a "quality assurance 
analyst." In the initial letter of support, the Petitioner stated that the Beneficiary will work on an in­
. house project at the Petitioner's location and that she will "design and provide technical consulting." 
The Petitioner also claimed that she would perform the following duties (verbatim): 
• Develop requirements and establish traceability to the business vision 
• Manage the requirements through the project lifecycle by establishing and 
maintaining agreements between the customer and the project team 
• Strong analytical and problem solving skills 
• Well versed with project Life Cycle (SDLC & STLC) 
• Extensive experience in performing database testing by executing SQL queries 
• Strong understanding and experience of QA processes (requirement analysis, test 
case creation and execution, defects) 
• Creates basic to moderately complex test plans using templates and guidelines. 
Works with more experienced analysts to assist in test strategy development. 
• Proficient with technical documentation, including business requirements, 
functional specifications, support documentation, user guides, workflow processes 
and test cases 
2 
(b)(6)
Matter of N-S- Inc 
III. ANALYSIS 
Upon review of the record of proceedings, we find that there are inconsistencies and discrepancies in 
the petition and supporting documents, 'Yhich do not support the Petitioner's credibility with regard 
to the services the Beneficiary will perform; as well as the nature and requirements of the proffered 
position. When a petition includes numerous discrepancies, those inconsistencies will raise serious 
concerns about the veracity of the Petitioner's assertions. · 
For instance, although the Petitioner claims that the Beneficiary will be employed onsite at its place 
of business in New Jersey, the Appointment Letter states that "irrespective of any 
client location or project that [the Beneficiary] may be assigned to .. .. " This suggests that the 
Beneficiary may be assigned to projects at end-client locations, which contradicts the Petitioner's 
assertion that the Beneficiary would be employed for an in-house project. The evidence of record 
does not resolve this inconsistency. 
In addition, the Petitioner has provided inconsistent information regarding the requirements for the 
proffered position. Specifically, in the letter of support, the Petitioner stated that the proffered 
position requires a bachelor's degree in computer science, engineering, or a closely related field. 
However, further in same letter, the Petitioner stated that the position is a specialty occupation 
"requiring at least a Bachelor's degree in Computer Science or related fields, or its equivalent." 
No explanation for this inconsistency was provided. 
"[l]t is incumbent upon the Petitioner to resolve the inconsistencies by independent objective 
evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the Petitioner submits competent objective evidence 
pointing to where the truth lies. !d. at 591-92. "Doubt cast on any aspect of the petitioner's proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support ofthe visa petition." Id. at 591.1 1 
Further, the Petitioner has represented that the position requires a bachelor's degree in computer 
science and/or engineering. 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)( 1 )(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, would not meet the statutory 
1 The record also contains insufficient evidence demonstrating that the Beneficiary would be relocating to New Jersey as 
claimed by the Petitioner . She currently resides in California. She is married and her spouse is employed in 
California as an H-1 B nonimmigrant worker, and the Beneficiary holds H-4 status. The Petitioner has not submitted 
sufficient evidence indicating that the Beneficiary would relocate from California to New Jersey for the proffered 
position . 
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Matter of N-S- Inc 
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 such that the required "body of highly specialized knowledge" is essentially an 
amalgamation of these different specialties. Section 214(i)(l )(B) ofthe Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," 
we do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
occupations if they permit, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
Again, the Petitioner has represented that a bachelor's degree in computer science and/or 
engineering is acceptable. The issue here is that it is not readily apparent that these two fields of 
study are closely related or that the field of engineering is directly related to the duties and 
responsibilities of the particular position proffered in this matter. 
Here and as indicated above, the Petitioner, who bears the burden of proof in this proceeding, does 
not establish either (1) that the disciplines are closely related fields, or (2) that the field of 
engineering is directly related to the duties and responsibilities of the proffered position. Absent this 
evidence, it cannot be found that normally the minimum requirement for entry into the particular 
position proffered in this matter is a bachelor's or higher degree in a specific specialty, or its 
equivalent, under the Petitioner's own standards. 
Nevertheless, we will continue our evaluation and analysis of the evidence provided by the 
Petitioner. Upon review of the record in its totality and for the reasons set out below, we determine 
that the Petitioner has not demonstrated that the proffered position qualifies as a specialty 
occupation. 2 Specifically, the record (1) does not describe the position's duties with sufficient detail; 
and (2) does not establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation? 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 The Petitioner submitted documentation to support the H-1 8 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. 
4 
Matter of N-S- Inc 
) 
Labor's (DOL's) Occupational Outlook Handbook (Handbook) as an authoritative source on the 
duties and educational requirements of the wide variety of occupations that it addresses.4 
On the labor condition application (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 Standard Occupational Classification code 15-1199.5 
We reviewed the Handbook regarding the occupational category "Computer Occupations, All 
Other." However, the Handbook does not provide a detailed narrative account nor does it provide 
summary data for this occupational category. More specifically, the Handbook does not provide the 
typical duties and responsibilities for "Computer Occupations, All Other." It also does not provide 
any information regarding the academic and/or professional requirements for these positions. Thus, 
the Handbook does not support the claim that the occupational category here is one for which 
normally the minimum requirement for entry is a baccalaureate degree (or higher) in a specific 
specialty, or its equivalent. 
There are occupational categories which are not covered in detail by the Handbook, as well as 
occupations for which the Handbook does not provide any information. The Handbook states the 
following about these occupations: 
Although employment for hundreds of occupations are covered in detail in the 
Occupational Outlook Handbook, this page presents summary data on additional 
occupations for which employment projections are prepared but detailed occupational 
information is not developed. For each occupation, the Occupational Information 
Network (O*NET) code, the occupational definition, 2014 employment, the May 
2015 median annual wage, the projected employment change and growth rate from 
2014 to 2024, and education and training categories are presented.6 
Thus, the narrative of the Handbook indicates that there are many occupations for which only brief 
summaries are presented and that detailed occupational profiles for these occupations are not 
4 All of the references are to the 2016-2017 edition of the Handbook, which is available at http://www.bls.gov/OCO/. 
The excerpts of the Handbook regarding the duties and requirements of the referenced occupational category are hereby 
incorporated into the record of proceeding. 
5 The Petitioner classified the proffered position at a Level II wage. We will consider this selection in our analysis of the 
position. The "Prevailing Wage Determination Policy Guidance" issued by the DOL provides a description of the wage 
levels. A Level II wage rate is for a petitioner who expects its employee to perform moderately complex tasks that 
require limited judgment. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance _Revised _11_ 2009.pdf. A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
6 U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., "Data for Occupations 
Not Covered in Detail," on the Internet at http:// www.bls.gov/ooh/ About/Data-for-Occupations-Not-Covered-in­
Detail.htm (last visited Aug. 2, 20 16). 
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Matter of N-S- Inc 
developed. 7 The Handbook suggests that for at least some of the occupations, little meaningful 
information could be developed. 
When the Handbook does not support a petitioner's assertion that a position meets the statutory and 
regulatory provisions of a specialty occupation, it is incumbent upon the Petitioner to provide 
persuasive evidence (e.g., documentation from other objective, authoritative sources) that the 
proffered position qualifies, notwithstanding the absence of the Handbook's support on the issue. 
Whenever more than one authoritative source exists, we will consider and weigh all of the evidence 
presented. Here, the Petitioner has not provided documentation from an authoritative source that 
supports its assertion that this particular position qualifies as a specialty occupation. Thus, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
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 
casts its gaze upon the 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. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: 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 "routi~ely employ 
and recruit only de greed 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)). 
As discussed, the Petitioner has. not established that its proffered position is one for which the 
Handbook (or other independent, authoritative source) reports a standard 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 
~ 
7 We note that occupational categories for which the Handbook only includes summary data includes a range of 
occupations, including for example, postmasters and mail superintendents; agents and business managers of artists, 
performers, and athletes; farm and home management advisors; audio visual and multimedia collections specialists; 
clergy; merchandise displayers and window trimmers; radio operators; first-line supervisors of police and detectives; 
crossing guards; travel guides; agricultural inspectors, as well as others. 
Matter of N-S- Inc 
professional association indicating that it has made a degree a minimum entry requirement. Finally, 
the Petitioner submits no evidence to establish that firms or individuals in the industry routinely 
employ and recruit only degreed individuals. Thus, the Petitioner has not satisfied the first alternative 
prong of8 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. 
The Petitioner described the proffered position in relatively generalized and abstract terms that do not 
relate substantial details about either the position or its constituent duties. For example, the Petitioner 
stated that the Beneficiary will "[d]evelop requirements," "[m]anage the requirements," and 
"[create] ... test plans using templates and guidelines" without providing specific tasks associated with 
managing and testing. Nor did the Petitioner provide details regarding the types of templates and 
guidelines the Beneficiary would use and the steps she would take in creating test plans. The Petitioner 
also did not explain the Beneficiary's specific role in working with "more experienced analysts" and 
what duties are involved in assisting these analysts in test strategy development. Furthermore, as part 
of the duties, the Petitioner lists items such as "[ s ]trong analytical and problem solving skills," 
"extensive experience in performing database testing," and "strong understanding and experience of 
QA process," which are skills required in performing tasks but do not provide any insight into the 
actual tasks the Beneficiary will perform. Out of eight bullets listed, five were such skill 
requirements. 
Considering the totality of all of the Petitioner's duty descriptions, we find that the evidence of record 
does not establish the depth, complexity, or level of specialization, or substantive aspects of the matters 
upon which the Petitioner claims that the Beneficiary will engage. Such generalized information does 
not in itself establish a correlation between any dimension of the proffered position and a need for a 
particular level of education, or educational equivalency, in a body of highly specialized knowledge 
in a specific specialty. Therefore, it is not evident that the proposed duties as described in the record 
of proceedings, and the position that they comprise, merit recognition of the proffered position as a 
specialty occupation. The duties as described give very little insight to actual tasks that the Beneficiary 
would perform on a day-to-day basis. 
Although the Petitioner claims that the Beneficiary is well qualified for the position, and references 
her qualifications, 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 sufficiently develop relative 
complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. 
Matter of N-S- Inc 
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. 
The record of proceedings does not contain sufficient evidence demonstrating the Petitioner's hiring 
history for the proffered position. Even though the Petitioner asserts that it does not employ quality 
assurance analysts unless they meet its minimum educational standards (i.e., a bachelor's degree in 
computer science or related fields), the Petitioner did not provide documentation to support its 
assertion. 8 As the record of proceeding does not demonstrate that the Petitioner normally requires at 
least a bachelor's degree in a specific specialty, or its equivalent, for the proffered position, the 
Petitioner does not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 
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. 
We reviewed the Petitioner's statements regarding the proffered position. However, relative 
specialization and complexity have not been sufficiently developed by the Petitioner as an aspect of 
the proffered position. That is, the proposed duties have not been described with sufficient 
specificity to establish that they 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. 
Specifically, we find that the Petitioner has not supplemented the job duty descriptions with 
documentary evidence establishing the substantive nature of the work that the Beneficiary would 
perform, whatever practical and theoretical applications of highly specialized knowledge in a specific 
specialty would be required to perform such substantive work, and whatever correlation may exist 
8 The Board of Immigration Appeals (Board) has held that testimony should not be disregarded simply because it is 
"self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing cases). The Board also held, 
however: "We not only encourage, but require the introduction of corroborative testimonial and documentary evidence, 
where available." !d. If testimonial evidence lacks specificity, detail, or credibility, there is a greater need for the 
petitioner to submit corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). "[G]oing on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings." 
Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft ofCal., 14 I&N Dec. 190 
(Reg'l Comm'r 19,72)). 
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Matter of N-S- Inc 
between such work and associated performance-required knowledge and attainment of a particular level 
of education, or educational equivalency, in a specific specialty. 
Furthermore, the Petitioner states that one of the Beneficiary's duties is to create "basic to 
moderately complex test plans using templates and guidelines," which undermines the Petitioner's 
assertion that the duties of the proffered position are complex. Our conclusion is further supported 
by the Petitioner's statement that the Beneficiary would work with "more experienced analysts to 
assist in test strategy development." As previously noted, the Petitioner has designated the proffered 
position as a Level II position on the LCA, which indicates that the Petitioner expects the 
Beneficiary to perform moderately complex tasks that require limited exercise of judgment (by its 
selection of a Level II wage on the LCA) compared to other positions within the same occupation.9 
The Petitioner has not demonstrated in the record that its proffered position is one with duties 
sufficiently specialized and complex to satisfy 8 C.P.R.§ 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. The burden is on the 
Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-S- Inc, ID# 17420 (AAO Aug. 3, 2016) 
9 Nevertheless, a low wage-designation does 'not preclude a proffered position from classification as a specialty 
occupation, just as a high wage-designation does not definitively establish such a classification. In certain occupations 
(e.g., doctors or lawyers), a Level II position would still require a minimum of a bachelor's degree in a specific specialty, 
or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation 
qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's 
degree in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but 
is not itself conclusive evidence that a proffered position meets the requirements of section 214(i)( 1) of the Act. 
9