dismissed H-1B Case: Information Technology

MATTER OF S-BIS-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 28,2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as 
a "business intelligence analyst" under the H-1B 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-1B 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 Petitioner did 
not establish, as required, that the proffered position is a specialty occupation. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. 
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: 
Matter ofS-BIS-, 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). We have consistently interpreted 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. PROFFERED POSITION 
On the labor condition application (LCA) 1 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 code 15-1199.
2 
The Petitioner has 
maintained throughout the pendency of the H-lB petition that the Beneficiary would work onsite, on 
in-house projects. 
On appeal, the Petitioner describes the nature of its business as follows: 
1 
The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services (USCIS) to 
demonstrate that it will pay an H-1 8 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 experience and 
qualifications who are performing the same services. See Matter of Simeio Solutions, LLC, 26 l&N Dec. 542, 545-546 
(AAO 2015). 
2 The Petitioner classified the proffered position at a Level II wage level. We will consider this selection in our analysis 
ofthe position. The "Prevailing Wage Determination Policy Guidance" issued by the DOL provides a description of the 
wage levels. A Level II wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary 
to "perform moderately complex tasks that require limited judgement.'' U.S. Dep't of Labor, Emp't & Training Admin., 
Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.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. · 
2 
.
Matter ofS-BIS- , Inc. 
[The Petitioner] is a small and growing consultancy business currently managed by 
one specialist in the field, and with a legitimate need for an additional employee - the 
beneficiary. The nature of its business operations are such that, at any given time, it 
has at least one project under execution, often more, and a number of projects under 
negotiation. 
The Petitioner listed the following duties for the proffered position in its support letter (note: errors 
in the original text have not been changed): 
• Manage timely flow of business intelligence information to users; 
• Collect business intelligence data from available industry reports, public 
information, field reports, or purchased sources; 
• Identify and analyze industry or geographic trends with business strategy 
implications; I 
• Analyze technology trends to identify markets for future product development or 
to improve sales of existing products; 
• Generate standard or custom reports summarizing business, financial, or 
economic data for review by executives, managers, clients, and other 
stakeholders; 
• Identify or monitor current and potential customers, using business intelligence 
tools; , 
• · Maintain or update business intelligence tools, databases, dashboards , systems, or 
methods; 
• Offer various service delivery offerings to customers including Short term 
mentoring engagements with a customer on site to assist in the ramping up of 
their team to the intelligence technology platform; 
• Business intelligence development engagements working with a customer to 
understand requirement, make recommendation and develop Business Intelligence 
solutions; 
• Solution delivery working with other mentors on a project team to deliver a 
solution for the customer; 
• Solution delivery working as part of the customer team in a designated role, such 
as Business Intelligence development, technology tier expert, or training as 
appropriately suited to the mentoring skills; [and] 
• Working with and other vendors to develop content, which includes 
white 
papers, develop training, or other resources. In addition it includes courses 
that are taught privately to customers or publicly at partner locations, through 
online training program as well as training for private and public on-demand 
delivery. 
3 
.
Matter ofS-BIS- , Inc. 
III. ANALYSIS 
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. 3 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation.4 
A. First Criterion 
We turn 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 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. 5 
However, there are some occupations for which occupational profiles have not been developed, such as 
the one designated by the Petitioner - "Computer Occupations, All Other."6 Therefore, it is 
incumbent upon the Petitioner to provide persuasive evidence that the proffered position satisfies 
this or one of the other three criteria. 
The Petitioner submits information from several resources for our consideration under this criterion, .... 
including O*NET Online (O*NET), and However, none of 
this information establishes the Petitioner's eligibility under the first criterion. 
We will first address O*NET's summary report for "business intelligence analysts," which does not 
establish the proffered position as a specialty occupation. The summary report provides geperal 
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 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 
3 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually . 
4 
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. · 
5 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position , and USC IS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however , the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum , specialty degree requirement, or its equivalent , for entry. 
6 
See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Employment Statistics: Occupational Employment 
and Wages, May 2016 Computer Occupations, All Other, https://www .bls.gov /oes/current /oes 151199.htm . 
4 
.
Matter of S-BIS-, Inc. 
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. 7 
Further, the summary report provides the educational requirements of "respondents," but does not 
account for 100% of the "respondents." The respondents' positions within the 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. 
Nor do or establish eligibility under the first criterion. While 
reports that business intelligence analysts usually have a bachelor's degree, it 
does not report that it needs to be in a specific specialty. Thus, does not 
establish that a bachelor's degree in a specific specialty, or the equivalent, is normally required for 
these positions. As simply redirects to the website of it does 
not satisfy the first criterion, either. 
For all of these reasons, we find that the Petitioner has not established that the proffered position is 
located within an occupational category for which the Handbook, or any other relevant, authoritative 
source, indicates that the normal minimum entry requirement is at least a bachelor's degree in a 
specific specialty, or the equivalent. Consequently, the evidence of record does not support a finding 
that the particular position proffered here, a position located within the "Computer Occupations, All 
Other" occupational 
category involving only moderately complex tasks that require limited 
judgment, would normally have such a minimum specialty degree requirement, or the equivalent. 
The Petitioner therefore has not satisfied the criterion at 8 C.F .R. § 214.2(h)( 4)(iii)(A )(I). 
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. 
7 
For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/ 
online/svp. 
5 
Matter ofS-BIS-, Inc. 
We generally consider the following sources of evidence to determine if there is such a common 
degree requirement: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry establish that such firms "routinely 
employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 
(D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (considering these 
"factors" to inform the commonality of a degree requirement) (S.D.N. Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a 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. Furthermore, the Petitioner did not submit 
any letters or affidavits from similar firms or individuals in the Petitioner's industry attesting that 
such firms "routinely employ and recruit only degreed individuals." 
The record contains job vacancy announcements for our consideration under this prong. To be 
relevant for this consideration, the job vacancy announcements must advertise "parallel positions," 
and the announcements must have been placed by organizations that (1) conduct business in the 
Petitioner's industry and (2) are also "similar" to the Petitioner. Upon review, we find that none of 
these job vacancy announcements satisfy that threshold. 
We will first consider whether any of the advertised job opportunitie~could be considered "parallel 
positions." As noted, the Petitioner attested to DOL that the proffered position is a Level II position 
involving moderately complex tasks that require limited judgment. However, all of the advertised 
positions require experience - some significant. We observe further that several of the advertised 
positions contain the word "senior" in their titles.8 In addition, several of the job vacancy 
announcements contain terms that seem to be at odds with a Level II designation (e.g., "ability to 
effectively manage developers," "mentors other analysts," "able to work with a minimum of 
supervision," "ability to work independently," "strong managerial skills," "leads high-level problem 
solving," "lead a team of cross-functional members," etc.). These factors indicate that the advertised 
positions are not Level II positions, and that they therefore are not "parallel positions" to the one 
proffered here. 
Nor does the record contain documentary evidence sufficient to establish that any of these job 
vacancy announcements were placed by companies that ( 1) conduct business in the Petitioner's 
industry and (2) are also "similar" to the Petitioner. For example, though the Petitioner submitted 
job vacancy announcements placed by several health care systems, an e-commerce company, a 
speech analytics solutions company, an insurance company, a timeshare company, and a media 
viewership measurement company, it does not explain how any of them meet either requirement. 
8 The wage-level guidance cited above specifically states that the term "senior" is an indicator that a Level III wage 
should be considered. 
6 
Matter ofS-BIS-, Inc. 
For all of these reasons, the Petitioner has not established that any of these job vacancy 
announcements are relevant. Even if that threshold had been met, we would find that they did not 
satisfy this prong of the second criterion, as they do not indicate that a bachelor's degree in a specific 
specialty, or the equivalent, is common to the industry in parallel positions among similar 
organizations.9 To the contrary, one company specifically stated that two additional years of work 
experience would compensate for the lack of a bachelor's degree, two indicated that a bachelor's 
degree in business would adequately prepare an individual to perform the advertised duties, 
10 
and 
another stated a preference- as opposed to a requirement- for a bachelor's degree. 
Consequently, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
We find that the Petitioner has not sufficiently developed relative complexity or uniqueness as an 
aspect of the proffered position. In other words, the Petitioner has not demonstrated how the duties 
of the proffered position as described in the record require the theoretical and practical application of 
9 In addition, the Petitioner does not demonstrate what statistically valid inferences, if any, could be drawn from the job 
· postings with regard to the common educational requirements for entry into parallel positions in similar organizations. 
See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 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 195-96 (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"). 
As such, even if the job vacancy announcements supported the finding that the position requires a bachelor's or higher 
degree in a specific specialty, or its equivalent, it could not be found that such a limited number ofpostings that appear to 
have been consciously selected could credibly refute the findings of the Himdbook published by the Bureau of Labor 
Statistics that such a position does not normally require at least a baccalaureate degree in a specific specialty, or its 
equivalent, for entry into the occupation in the United States. 
10 Since there must be a close correlation between the required specialized studies and the position, the requirement of a 
degree with a generalized title, such as business, 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 I 988). To prove that a job 
requires the theoretical and practical application of a body of highly specialized knowledge as required by section 
214(i)( I) of the Act, a petitioner must establish that the position requires the attainment of a bachelor's or higher degree 
in a specialized field of study or its equivalent. 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. We have 
consistently stated that, although a general-purpose bachelor's degree, such as a 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. 
Matter ofS-BIS-, Inc. 
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. For example, 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 a few related courses may be beneficial, or even required, in performing certain duties of the 
position, we find that 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 duties of the proffered position. 
As discussed neither the Handbook, O*NET, nor the alternative resources submitted by the 
Petitioner indicate that a bachelor's degree in a specific specialty, or the equivalent, is normally 
required for positions located within this occupational category. We acknowledge the Petitioner's 
general indications regarding the knowledge and associated entry requirements associated with the 
proffered position. However, the Petitioner's wage-level designation undercuts any claim that it 
satisfies this criterion. 11 
The Petitioner claims that the Beneficiary is well-qualified for the position, 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. We find that 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. 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 indicates that this is a newly-created position and, in any event, there is no evidence of prior 
recruiting or hiring requirements. Therefore, the Petitioner has not satisfied the third criterion of 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
11 
The Petitioner's designation of this position as a Level II position undermines its claim that the position is particularly 
complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a Level II wage­
designation does not preclude a proffered position from classification as a specialty occupation, just as a Level IV 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)( I) of the Act. 
0 
Matter ofS-BIS-, Inc. 
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 
I 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
We acknowledge the Petitioner's generalized assertions regarding the specialization and complexity 
of the position's duties. However, as above, those claims are undermined by the Petitioner's Level 
II wage designation. Again, in classifying the proffered position at a Level II wage, the Petitioner 
effectively attested to DOL that the Beneficiary would perform moderately complex tasks that 
require limited judgment. 12 The Petitioner has not demonstrated in the record that its proffered 
position is one with duties sufficiently specialized and complex to satisfy 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(4). 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
IV. CONCLUSION 
The Petitioner has not established that the proffered position is a specialty occupation. 13 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-BIS-, Inc., ID# 407071 (AAO July 28, 2017) 
12 
Again, the Petitioner's designation of this position as a Level II position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. 
13 
Because these issues preclude approval of the petition we will not address any of the additional issues we have 
observed in our de novo review of this matter. 
9