dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 29,2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting and software development company, seeks to 
temporarily employ the Beneficiary as a "computer systems engineer" under the H-lB nonimmigrant 
classification. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The Director, Vermont Service Center, denied the petition. The matter is 
now before us on appeal. The appeal will be dismissed. 
I. ISSUE 
The issue before us is whether the proffered position qualifies as a specialty occupation m 
accordance with the applicable statutory and regulatory provisions. 1 
II. SPECIALTY OCCUPATION 
As noted, the issue before us is whether the evidence of record demonstrates by a preponderance of 
the evidence that the Petitioner will employ the Beneficiary in a specialty occupation position. 
A. Legal Framework 
For an H -1 B petition to be granted, the Petitioner must provide sufficient evidence to establish that it 
will employ the Beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the Petitioner must establish that the employment it is offering to the Beneficiary. meets the 
applicable statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
1 We reviewed the record in its entirety before issuing our decision. We conduct appellate review on a de novo 
basis. Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); see also 5 U.S.C. § 557(b) ("On appeal from or 
review of the initial decision, the agency has all the powers which it would have in making the initial decision except as 
it may limit the issues on notice or by rule."); Dar v. INS, 891 F.2d 997, I 002 n.9 (2d Cir. 1989). We follow the 
preponderance ofthe evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369,375-76 (AAO 2010). 
Matter of S-S-, Inc. 
(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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. · 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(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 a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. And Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
2 
(b)(6)
Matter of S-S-, Inc. 
regulatory definition. See Defensor v. Meissner, 201 F.3d 387. To avoid this result, 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that must be met in 
accordance with, and not as alternatives to, the statutory and regulatory ·definitions of specialty 
occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1
51 
Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-1B petitions for qualified foreign 
nationals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the foreign national, and determine whether the position qualifies as a 
specialty occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not 
the title of the position nor an employer's self-imposed standards, but whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Proffered Position 
On the Form I-129, the Petitioner stated that the Beneficiary will work at its end-client's 
New Jersey location. The Petitioner's end-client, , stated that the Beneficiary 
will be responsible for the following duties (verbatim): 2 
2 As recognized in Defensor v. Meissner, it is necessary for the end-client to provide sufficient information regarding the 
proposed job duties to be performed at its Iocation(s) in order to properly ascertain the minimum educational 
requirements necessary to perform those duties. See Defensor v. Meissner, 201 F.3d at 387-388. In other words, as the 
nurses in that case would provide services to the end-client hospitals and not to the petitioning staffing company, the 
petitioner-provided job duties and alleged requirements to perform those duties were irrelevant to a specialty occupation 
determination. See id. 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. I d. at 384. Such 
evidence must be sufficiently detailed to demonstrate the type and educational level of highly specialized knowledge in a 
3 
Matter of S-S-, Inc. 
~ Participate in requirements gathering and compile them into design document 
~ Analyze the Unite test framework and design the framework to meet the current 
requirements 
~ Design, develop, test, code various business applications utilizing cutting edge 
technologies 
~ Analyze compilation warnings on various platforms 
~ Write and review test cases for Application Framework components 
~ Be heavily involved in database design, normalization, and indexing SQL Server 
2008 
~ Design and Development of Test Plans, Component testing 
~ Debug and solve build issues 
~ Write and review test cases for all the modules of current working components of 
program3 
The end-client states that its "products are developed for" its clients. It requires "a bachelor's degree 
in Computer Science, MIS or related field" for individuals w:ho will provide services for its projects. 
C. Analysis 
We first find that the duties as described do not establish the depth, complexity, level of specialization, 
or substantive aspects of the duties for which the Beneficiary would be responsible. Rather, the end­
client describes the duties of 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 above 
duties do not provide details regarding the Beneficiary's specific role in the duties to "[ d]esign, 
develop, test, code various business applications," "[p ]articipate in requirements gathering," and 
'·'[b ]e heavily involved in database design." Similarly terms such as "analyze," "write and review," 
and "debug and solve" provide.little insight into the Beneficiary's specific role within these tasks. 
This type of generalized description may be appropriate when defining the range of duties that may 
be performed within an occupational category, but it does not adequately convey the substantive 
work that the Beneficiary will perform within the end-client's business operations. 
Without a meaningful job description, the record lacks evidence sufficiently concrete and 
informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. The tasks as described do not communicate (1) the actual work 
that the Beneficiary would perform, (2) the complexity, uniqueness and/or specialization of the 
tasks, and/or (3) the correlation between that work and a need for a particular level education of 
highly specialized knowledge in a specific specialty. For this reason alone, the petition cannot be 
approved. 
specific discipline that is necessary to perform that particular work. 
3 The Petitioner provided an identical listing of duties in its support letter. 
4 
Matter of S-S-, Inc. 
Nevertheless, we will analyze the duties as described and the evidence of record to determine 
whether the proffered position as described would qualify as a specialty occupation. To that end and 
to make our determination as to whether the employment described above qualifies as a specialty 
occupation, we tum first to the criterion at 8 C.P.R.§ 214.2(h)(4)(iii)(A)(l). 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
USCIS recognizes 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.4 The LCA corresponds to the occupational classification 
"Computer Occupations, All Other" - SOC(ONET/OES) code 15-1199, at a Level II (qualified) 
wage. 
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, 2012 employment, the May 
2012 median annual wage, the projected employment change and growth rate from 
2012 to 2022, and education and training categories are presented. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Data for Occupations Not Covered in Detail," available at http:// www.bls.gov/ooh/About/Data­
for-Occupations-Not-Coyered-in-Detail.htm (last visited Dec. 9, 2015). 
4 All of the references are to the 2014-2015 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 
Matter of S-S-, Inc. 
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 
developed. 5 The Handbook suggests that for at least some of the occupations, little meaningful 
information could be developed. 
Accordingly, in certain instances, the Handbook is not determinative. When the Handbook does not 
support the proposition that a proffered position is one that meets the statutory and regulatory 
provisions of a specialty occupation, it is incumbent upon the Petitioner to provide persuasive 
evidence that the proffered position more likely than not satisfies the statutory and regulatory 
provisions, including this or one of the other three criteria, notwithstanding the . absence of the 
Handbook's, support on the issue. In such case, it is the Petitioner's responsibility to provide 
probative evidence (e.g., documentation from other objection, authoritative sources) that supports a 
finding that the particular position in question qualifies as a specialty occupation. Whenever more 
than one authoritative source exists, an adjudicator will consider and weigh all of the evidence 
presented to determine whether the particular position qualifies as a specialty occupation. 
Furthermore, the Occupational Information Network (O*NET) Summary Report, referenced by the 
Petitioner, is insufficient to establish that the proffered position qualifies as a specialty occupation 
normally requiring at least a bachelor's degree in a specific specialty, or its equivalent. Contrary to 
the assertions of the Petitioner, O*NET does not state a requirement for a bachelor's degree for this 
occupation. Rather, it assigns this occupation a Job Zone "Four" rating, which groups it among 
occupations for which "most ... require a four-year bachelor's degree, but some do not."6 Further, 
O*NET does not indicate whether the four-year bachelor's degrees required by Job Zone Four 
occupations must be in a specific specialty directly related to the occupation. Therefore, O*NET 
holds little probative value toward establishing the proffered position as a specialty occupation.7 
Furthermore, the Petitioner asserts that the "SVP level between 7 and 8" assigned by this 
classification requires a minimum of a bachelor's degree to enter these occupations. However, the 
Dictionary of Occupational Titles (DOT) does not support the assertion that these positions are 
specialty occupation positions. This conclusion is apparent upon reading Section II of the DOT's 
Appendix C, Components of the Definition Trailer, which addresses the Specific Vocational 
Preparation (SVP) rating system.8 The section reads: 
5 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. . 
6 See http://www.onetonline.org/link/summary/15-1199.02 (last visited Dec. 16, 20 15). 
7 Furthermore, according to O*NET, 13 percent of respondents reported possessing a post-secondary certificate, but not 
attaining a degree, and an additional nine percent of respondents reported having completed some college coursework, 
but not attaining a degree. See !d. While not dispositive of the Petitioner's eligibility, these survey results indicating that 
nearly one-fourth of respondents lack a bachelor's degree, Jet alone one in a specific specialty, undermine the 
Petitioner's assertion that a bachelor's degree in a specific specialty, or the equivalent, is normally required. 
8 The Appendix can be found at the following website: http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES 
6 
Matter of S-S-, Inc. 
II. SPECIFIC VOCATIONAL PREPARATION (SVP) 
Specific Vocational Preparation is defined as the amount of lapsed time required by a 
typical worker to learn the techniques, acquire the information, and develop the 
facility needed for average performance in a specific job-worker situation. 
This training may be acquired in a school, work, military, institutional, or vocational 
environment. It does not include the orientation time required of a fully qualified 
worker to become accustomed to the special conditions of any new job. Specific 
vocational training includes: vocational education, apprenticeship training, in-plant 
training, on-the-job training, and essential experience in other jobs. 
Specific vocational training includes training given in any of the following 
circumstances: 
a. Vocational education (high school; commercial or shop training; technical school; 
art school; and that part of college training which is organized around a specific 
vocational objective); 
b. Apprenticeship training (for apprenticeable jobs only); 
c. In-plant training (organized classroom study provided by an employer); 
d. On-the-job training (serving as learner or trainee on the job under the instruction of 
a qualified worker); · 
e. Essential experience in other jobs (serving in less responsible jobs which lead to 
the higher grade job or serving in other jobs which qualify). · 
The following is an explanation of the various levels of specific vocational 
preparation: 
Level 
1 
2 
3 
4 
5 
6 
7 
8 
Time 
Short demonstration only 
Anything beyond short demonstration up to and including 1 month 
Over 1 month up to and including 3 months 
Over 3 months up to and including 6 months 
Over 6 months up to and including 1 year 
Over 1 year up to and including 2 years 
Over 2 years up to and including 4 years 
Over 4 years up to and including 10 years 
/DOT APPC.HTM. 
7 
(b)(6)
Matter of S-S-, Inc. 
9 Over 1 0 years 
Note: The levels of this scale are mutually exclusive and do not overlap. 
Thus, an SVP rating between 7 and 8 does not indicate that at least a four-year bachelor's degree is 
required, or more importantly, that such a degree must be in a specific specialty closely related to the 
occupation to which this rating is assigned. Therefore, the DOT information is not probative of the 
proffered position being a specialty occupation. 
The Petitioner submitted an advisory opinion letter from a faculty member at 
We reviewed the opinion letter in its entirety. However, as discussed 
below, the letter is not persuasive in establishing the proffered position as a specialty occupation 
position.9 
In the letter, asserts that the proffered position is "so specialized and complex that only an 
individual with a Bachelor's degree in Computer Science, Management Information Systems, 
Engineering, or a related quantitative discipline would be able to perform the job duties." However, 
there is no indication that possesses any knowledge of the Petitioner's proffered position 
beyond the limited information provided by the Petitioner in support of the instant petition. 
concedes that he formed his opinion based on lhe job description and company information 
provided by the Petitioner. did not discuss the duties of the proffered position in 
substantive detail. Nor did he demonstrate or assert in-depth knowledge of the Petitioner's specific 
business operations or how the duties of the position would actually be performed in the context of 
the Petitioner's business enterprise or its end-clients. For example, there is no indication that 
visited the Petitioner's business, observed the Petitioner's employees, interviewed them about 
the nature of their work, or documented the knowledge that they apply on the job. opm10n 
does not relate his conclusion to specific, concrete aspects of this Petitioner's business operatio9-s to 
demonstrate a sound factual basis for the conclusion about the educational requirements for the 
particular position here at issue. The very fact that he attributes a degree requirement to such a 
generalized treatment of the proffered position undermines the probative value of his opinion. 
Importantly, his statements are not supported by copies or citations of research material that may 
have been used. He has not provided sufficient facts that would support the contention that the 
proffered position requires at least a bachelor's degree in a specific specialty. 
Furthermore, does not indicate whether he considered, or was even aware of, the fact that the 
Petitioner submitted an LCA certified for a wage-level that is only appropriate for a comparatively 
low-level position relative to others within its occupation, which signifies. that the Beneficiary is 
9 Recognized authority means a person or organization with expertise in a particular field, special skills or knowledge in 
that field, and the expertise to render the type of opinion requested . 8 C.F.R . § 214.2(h)(4)(ii) . A recognized authority's 
opinion must state: (I) the writer 's qualifications as an expert; (2) the writer 's experience giving such opinions , citing 
specific instances where past opinions have been accepted as authoritative and by whom ; (3) how the conclusions were 
reached; and ( 4) the basis for the conclusions supported by copies or citations of any research material used. Jd. 
8 
(b)(6)
Matter of S-S-, Inc. 
only expected to perform moderately complex tasks that require limited judgment. We consider this 
a significant omission, in that it suggests an incomplete review of the position in question and a 
faulty factual basis for the author's ultimate conclusion regarding the educational requirements of the 
position upon which he opines. 
The LCA submitted by the Petitioner in support of the instant position was certified for use with a 
job prospect within the "Computer Occupations, All Other" occupational category, SOC 
(O*NET/OES) Code 15-1199, and a Level II (qualified) prevailing wage rate, the second lowest of 
the four assignable wage-levels. The Prevailing Wage Determination Policy Guidance issued by the 
U.S. Department of Labor (DOL) states the following with regard to Level II wage rates: 
Level II (qualified) wage rates are assigned to job offers for qualified employees who 
have attained, either through education or experience, a good understanding of the 
occupation. They perform moderately complex tasks that require limited judgment. 
An indicator that the job request warrants a wage determination at Level II would be 
a requirement for years of education and/or experience that are generally required as 
described in the O*NET Job Zones.10 
The proposed duties' level of complexity, uniqueness, and specialization, as well as the level of 
independent judgment and occupational understanding required to perform them, are questionable, as 
the Petitioner submitted an LCA certified for a Level II wage level. The LCA's wage-level indicates 
that the proffered position is actually a low-level position relative to others within the same occupation. 
In accordance with the relevant DOL explanatory information on wage levels, this wage rate 
indicates that the Beneficiary is only required to perform moderately complex tasks that require 
limited judgment. 
The author's omission of such an important factor as the LCA wage-level significantly diminishes 
the evidentiary value of his assertions. 
In summary, for the reasons discussed above, we conclude that the opinion letter rendered by 
does not establish the proffered position as a specialty occupation. The conclusions reached by 
lack the requisite specificity and detail and are not supported by independent, objective 
evidence demonstrating the manner in which he reached such conclusions. 
We may, in our discretion, use as advisory opinion statements submitted as expert testimony. 
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. Matter of Caron International, 
19 I&N Dec.· 791 (Comm'r 1988). As a reasonable exercise of our discretion we discount the 
10 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/ 
pdf/NPWHC_Guidance_Revised_11_2009.pdf(last visited Dec. 16, 2015). 
9 
Matter of S-S-, Inc. 
advisory opinion letter as insufficiently probative of any criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). 
For efficiency's sake, we hereby incorporate the above discussion and analysis regarding the opinion 
letter into each of the bases in this decision for dismissing the appeal. 
. Upon review of the totality of the evidence in the entire record of proceeding, we conclude that the 
Petitioner has not established that the proffered position falls within an occupational category for which 
the Handbook, or other authoritative source, indicates that a requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent, is normally required for entry into the occupation. Furthermore, 
the duties and requirements of the proffered position as described in the record of proceeding do not 
indicate that the particular position that is the subject of this petition is one for which a baccalaureate or 
higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry. 
Thus, the Petitioner has not satisfied the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions 
that are identifiable as being (1) in the Petitioner's industry, (2) parallel to the proffered position, and 
also (3) located in organizations that are similar to the Petitioner. 
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 "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)). 
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 
professional association indicating that it has made a degree a minimum entry requirement. 
We will next address the job advertisements submitted by the Petitioner. Upon review of the 
documents, we find that the Petitioner's reliance on the job advertisements is misplaced. 
For the Petitioner to establish that an organization in its industry is similar, it must demonstrate that 
the Petitioner and the organization share the same general characteristics. Without such evidence, 
documentation submitted by a petitioner is generally outside the scope of consideration for this 
criterion, which encompasses only organizations that are similar to the petitioner. When 
determining whether the petitioner and the advertising organization share the same general 
10 
(b)(6)
Matter ofS-S-, Inc. 
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 legitimate basis for such an 
assertion. 
Upon review, we find that the record does not demonstrate that a requirement of a bachelor's or 
higher degree in a specific specialty, or its equivalent, is common for positions that are identifiable 
as being (1) in the Petitioner's industry, (2) parallel to the proffered position, and (3) located in 
organizations that are similar to the Petitioner. 11 
First, the Petitioner did not state what characteristics the Petitioner shares with these companies, and 
the advertisements provide little or no information regarding the advertising entities. Without 
further information, we are unable to determine whether the advertisements involve organizations 
that operate in the Petitioner's industry and that are similar to the Petitioner. The Petitioner did not 
supplement the record of proceeding to establish that the advertising organizations are similar to it. 
Moreover, some of the advertised positions either require a bachelor's degree in business or do not 
specify any degree specialty at all.12 Although a general-purpose bachelor's degree, such as a degree 
in business, 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. See Royal Siam Corp. v. Chertojf, 484 F.3d at 147.13 More importantly, the Petitioner has 
not sufficiently established that the primary duties and responsibilities ofthe advertised positions are 
parallel to those of the proffered position. 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. That is, as the evidence does not establish that similar organizations in the same industry 
routinely require at least a bachelor's degree in a specific specialty, or its equivalent, for parallel 
positions, not every deficit of every job posting has been addressed. 14 
11 See 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
12 See, e.g., the job advertisements from and provided by the Petitioner. 
13 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. See Royal Siam Corp. v. Cherto.ff, 484 F.3d 
at 147. 
14 It must be noted that 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 
does not demonstrate 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 
II 
Matter of S-S-, Inc. 
Thus, based upon a complete review of the record, we find that the Petitioner has not established that 
a requirement for at least a bachelor's degree in a specific specialty, or its equivalent, is common for 
positions that are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the petitioner. Thus, for the reasons 
discussed above, the Petitioner has not satisfied the first alternative prong of 8 C.P.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
We will next consider the second alternative prong of 8 C.P.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the evidence of record shows that the Petitioner's 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. 
Here, the evidence of record does not credibly demonstrate relative complexity or uniqueness as aspects 
of the proffered position. Specifically, it is unclear how the computer systems engineer position, as 
described, necessitates the theoretical and practical application of a body of highly specialized 
knowledge such that a person who has attained a bachelor's or higher degree in a specific specialty or 
its equivalent is required to perform them. The evidence of record did not demonstrate how the duties 
described 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. For instance, the Petitioner did not submit information relevant to a detailed course 
of study leading to a specialty degree and did not establish how such a curriculum is necessary to 
perform the duties of the proffered position. While related courses may be beneficial, or even 
essential, in performing certain duties of a computer systems engineer position, the evidence of 
record does not demonstrate 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 Petitioner's proffered position. The evidence of record does not distinguish the 
proffered position from similar positions within the occupational category which do not require a 
bachelor's degree in a specific specialty, or the equivalent. 
The Petitioner claims that the Beneficiary is well qualified for the position, and references her 
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 evidence of record has not satisfied the second 
alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
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"). 
12 
Matter of S-S-, Inc. 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
The third criterion of 8 e.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. To 
this end, we review the Petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were users limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the Petitioner artificially 
created a token degree requirement, whereby all individuals employed in a particular position 
possessed a baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor 
v. Meissner, 201 F.3d at 388. 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. users must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the 
specific specialty as the minimum for entry into the occupation as required by the Act. 
The record of proceeding does not contain sufficient evidence demonstrating that the Petitioner's 
hiring history for the proffered position. Even though the Petitioner asserts that all of its computer 
professionals hold (). bachelor's degree in a quantitative discipline such as computer science, 
management information systems, engineering, or a related field, the Petitioner did not provide 
sufficient documentation to support its assertion.15 As the record of proceeding does not 
15 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 (BlA 1998). "[G]oing on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings." In 
13 
Matter of S-S-, Inc. 
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)(3). 
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 in a specific specialty, or its equivalent 
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 claiins that the nature of the specific duties of the position in the context of its 
business operations 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 and the end-client's statements regarding the proffered 
position and its end-client's business operations. However, relative specialization and complexity 
have not been sufficiently developed by the Petitioner or the end-client 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. 
Although the Petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the Petitioner has submitted inadequate 
probative evidence to satisfy the criterion ofthe regulations at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address 
another ground of ineligibility we observe in the record of proceeding. Nevertheless, beyond the 
Director's decision, we find that the Petitioner has not established that it meets the regulatory 
definition of a "United States employer" as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). We 
reviewed the record of proceeding to determine whether the Petitioner has established that it will 
have "an employer-employee relationship with respect to employees under this part, as indicated by 
the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee." 
!d. 
re Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 l&N Dec. 190 (Reg'] 
Comm'r 1972)). 
14 
Matter of S-S-, Inc. 
More specifically, section 101(a)(15)(H)(i)(b) ofthe Act defines an H-1B nonimmigrant in pertinent 
part as a foreign national: 
subject to section 2120)(2), who is coming temporarily to the United States to 
perform services . . . in a specialty occupation · described in section 
214(i)(l) ... , who meets the requirements for the occupation specified in section 
214(i)(2) . . ., and with respect to whom the Secretary of Labor determines and 
certifies to the [Secretary of Homeland Security] that the intending employer has 
filed with the Secretary [of Labor] an application under section 212(n)(1) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.P.R. 
§ 214.2(h)(4)(ii) as follows (emphasis added): 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
8 C.P.R.§ 214.2(h)(4)(ii); see also 56 Fed. Reg. 61111,61121 (Dec. 2, 1991). 
The United States Supreme Court determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. 
Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for Creative 
Non- Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party." 
15 
(b)(6)
Matter of S-S-, Inc. 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 
751-752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). As the common-law test contains "no shorthand formula or magic 
phrase that can be applied to find the answer, ... all of the incidents of the relationship must be 
assessed and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB 
v. United Ins. Co. of America, 390 U.S. 254, 258 (1968)). 
As discussed earlier, the Petitioner stated that the Beneficiary will work at the location of the 
end-client, in New Jersey. However, the record contains 
insufficient evidence demonstrating the availability of work for the Beneficiary. As noted above, the 
end-client stated that its "products are developed for" its clients, however, the Petitioner did not 
provide any agreements or purchase orders between the end-client and its customers demonstrating 
the availability of a project on which the Beneficiary will work. Furthermore, in its employment 
offer letter to the Beneficiary, the Petitioner referred to "Exhibit A" that would "provide a written 
description of the project assigned to the Employee." According to the employment letter, the 
project description in the Exhibit A "shall specify the responsibilities, working conditions and 
location of the Project." The Petitioner did not provide an Exhibit A for the Beneficiary.16 
Therefore, the key element in this matter, which is who exercises control over the Beneficiary, has 
not been substantiated. While the record contains multiple assertions regarding the Petitioner's right 
to control the work of the Beneficiary, simply going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. In Re 
Matter ofSofjici, 22 I&N Dec. at 165 (citing Matter ofTreasure Craft ofCal., 14 I&N Dec. 190)). 
The record contains insufficient evidence to demonstrate that the requisite employer-employee 
relationship will exist between the Petitioner and the Beneficiary. Therefore, the appeal is dismissed 
for this additional reason. 
IV. CONCLUSION AND ORDER 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d at 145. 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, a.ff'd, 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm 'n, 351 F.3d 1177, 1183 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis ifthe alternative grounds were unavailable."). 
16 The purchase order signed by the Petitioner and provides no details regarding the working 
conditions for the Beneficiary while she will perform the duties at the end-client's location. 
16 
Matter of S-S-, Inc. 
The petition will be denied and the appeal dismissed for the above stated reasons. 17 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; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-S-, Inc., ID# 15192 (AAO Dec. 29, 2015) 
17 As the grounds discussed above are dispositive of the Petitioner's eligibility for the benefit sought in this matter, we 
will not address and will instead reserve our determination on the additional issues and deficiencies that we observe in 
the record of proceeding with regard to the approval of the H -1 B petition. 
17