dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF BNSI- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 3, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology firm, seeks to temporarily employ the Beneficiary as a 
"systems 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, Vermont Service Center, initially approved the petition. However, in response to new 
evidence and upon subsequent review, the Director issued a notice of intent to revoke (NOIR), and 
ultimately revoked, approval of the petition. According to the Director, the proffered position does 
not qualify as a specialty occupation position. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
contends that the petition's approval should be reinstated. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
A. Revocation Authority 
U.S. Citizenship and Immigration Services (USCIS) may revoke the approval of an H-1B petition 
pursuapt to 8 C.F.R. § 214.2(h)(11)(iii), which states the following: 
(A) Grounds for revocation. · The director shall send to the petitioner a notice of 
intent to revoke the petition in relevant part if he or she finds that: 
(1) The beneficiary is no longer employed by the petitioner in the 
capacity specified in the petition ... ; or 
Matter of BNSI- Inc. 
(2) The statement of facts contained in the petition ... was, not true 
and correct, inaccurate, fraudulent, or misrepresented a material 
fact; or 
(3) The petitioner violated terms and conditions of the approved 
petition; or 
( 4) The petitioner violated requirements of section 1 01 (a)( 15)(H) of 
the Act or paragraph (h) of this section; or 
(5) The approval of the petition violated paragraph (h) ofthis section 
or involved gross error. 
B. Specialty Occupation 
Section 2l4(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) 
(B) 
theoretical and practical application of a body of highly specialized 
knowledge, and 
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: 
(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. 
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Matter of BNSI- Inc. 
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. Chertoff, 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 "systems analyst." 
The Petitioner provided the following job duties for described the duties of the position as follows 
(note: errors in the original text have not been changed): 
[The Beneficiary] is responsible for custom program development & implementation, 
system analysis & design. Identify and document business or test requirements to the 
support of the project. Perform object-oriented analysis and preliminary 
design/development of the solutions for client server platform. Utilize object­
oriented language and concepts and databases appropriate to the project. Perform 
object-oriented analysis, design and development of software for client server 
platforms using computer skills. Analyzing users' data, general modes of operation, 
existing operation procedures, and problems and devising methods and approaches to 
meet the users' need based upon knowledge of project management, supply chain 
management, products, operation research, data processing techniques, management 
information, and statistical, audit, and control systems. The position involves 
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extensive use of modem computer languages. The incumbent creates new solutions 
and algorithms to manage and implement those solutions. Additionally he will 
provide software support, which includes testing, debugging and modifying software 
as per needs of the client. 
The nature of these duties are extremely specialized and complex and require the 
theoretical and practical application ofhighly specialized knowledge. 
According to the Petitioner, the proffered position requires a bachelor's degree in computer science 
or engineering, management information, or electrical/electronic engineering. 
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. 1 
1 
Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 
Matter of BNSI- Inc. 
Specifically, the record 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)(J), 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.3 
On the labor condition application (LCA) submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Systems Analysts" 
corresponding to the Standard Occupational Classification code 15-1121.4 
The Handbook states the following with regard to the educational requirements of computer system 
analyst positions: 
Most computer systems analysts have a bachelor's degree in a computer-related field. 
Because these analysts also are heavily involved in the business side of a company, it 
may be helpful to take business courses or major in management information 
systems. 
2 The Petitioner submitted documentation to support the H-1B 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. 
3 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 USCIS 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. 
· 
4 
The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). 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 I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (1) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. 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. 
4 
Matter of BNSI- Inc. 
Some employers prefer applicants who have a master's degree in business 
administration (MBA) with a concentration in information systems. For more 
technically complex jobs, a master's degree in computer science may be more 
appropriate. 
Although many computer systems analysts have technical degrees, such a degree is 
not always a requirement. Many analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Computer Systems Analysts," http://www.bls.gov/ooh/computer-and-information-technology/ 
computer-systems-analysts.htm#tab-4 (last visited Sept. 29, 2016). 
The Handbook does not support the assertion that at least a bachelor's degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for these positions. This section of the 
narrative begins by stating that a bachelor's degree in a related field is not a requirement. The 
Handbook continues by stating that there is a wide-range of degrees that are acceptable for positions 
in this occupation, including general purpose degrees such as business and liberal arts. While the 
Handbook indicates that a bachelor's degree in a computer or information science field is common, 
it does not report that such a degree is normally a minimum requirement for entry. 
According to the Handbook, many systems analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. It further reports that many analysts have technical 
degrees. We observe that the Handbook does not specify a degree level (e.g., associate's degree, 
baccalaureate) for these technical degrees. Moreover, it specifically states that such a degree is not 
always a requirement. Thus, the Handbook does not support the claim that the occupational 
category of computer systems analyst is one for which normally the minimum requirement for entry 
is a baccalaureate degree (or higher) in a specific specialty, or its equivalent. Even if it did, the 
record lacks sufficient evidence to support a finding that the particular entry-level position proffered 
here would normally have such a minimum, specialty degree requirement or its equivalent. 
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 this or one of 
the other three criteria, notwithstanding the absence of the Handbook's support on the issue. In such 
cases, it is the Petitioner's responsibility to provide, probative evidence (e.g., documentation from 
other objective, 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. 
However, in this case, the record of proceedings does not contain sufficient persuasive documentary 
evidence from any other relevant authoritative source establishing that the proffered position's 
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Matter of BNSI- Inc. 
inclusion within the "Computer Systems Analysts" occupational category establishes the proffered 
position as, in the words of this criterion, a "particular position" for which "[a] baccalaureate or 
higher degree orits equivalent is normally the minimum requirement for entry." 
For the reasons- explained above, 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 USC IS 
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)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative source) reports an industry-wide requirement 
for at least a bachelor's degree in a specific specialty or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. 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." Nor is there any other evidence for our consideration under this prong. Thus, 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 
6 
i 
/ 
Matter of BNSI- Inc. 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
A review of the record of proceedings finds that the Petitioner has not credibly demonstrated that the 
duties the Beneficiary will be responsibie for or perform on a day-to-day basis constitute a position 
so complex or unique that it can only be performed by a person with at least a bachelor's degree in a 
specific specialty, or its equivalent. Even when considering the Petitioner's general descriptions of 
the proffered position's duties, the evidence of record does not establish why a few related courses 
or industry experience alone is insufficient preparation for the proffered position. While a few 
related courses may be beneficial, or even required, in performing certain duties of the position, the 
Petitioner has not demonstrated how an established curriculum of such courses leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the 
duties of the proffered position. The description of the duties does not specifically identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. The 
record lacks sufficiently detailed information to distinguish the proffered position as more complex 
or unique from other positions that can be performed by persons without at least a bachelor's degree 
in a specific specialty, or its equivalent. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant 
petition. While the Petitioner's claims with regarding the complexity of the position are 
acknowledged, the Petitioner also attested on the LCA that the proper wage level for the proffered 
position would be a Level I (entry-level) wage. However, that wage level is for a position which 
only requires a basic understanding of the occupation; the performance of routine tasks that require 
limited, if any, exercise of judgment; close supervision and work closely monitored and reviewed for 
accuracy; and the receipt of specific instructions on required tasks and expected results, is contrary 
to a position that requires the performance of complex duties. 5 . It is, instead, a position for an 
employee who has only basic understanding of the occupation. In order to attempt to show that 
parallel positions require a minimum of a bachelor's degree in a specific specialty or its equivalent, 
the Petitioner would be obliged to demonstrate that other wage Level I computer systems analyst 
positions, entry-level positions requiring only a basic understanding of computer systems analysis, 
require a minimum of a bachelor's degree in a specific specialty or its equivalent, the proposition of 
which is not support_ed by the Handbook. 6 
5 The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its claim 
that the position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an entry-level 
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 consideration but is not a substitute for 
a determination of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
6 The discrepancy between the Petitioner's claims regarding the complexity of the petition's duties appear to conflict 
with its wage-level designation in the LCA. This raises questions as to whether the LCA corresponds to and supports the 
H-1 B petition. 
7 
Matter of BNSI- Inc. 
Therefore, the evidence of record does not establish that this position is significantly different from 
other positions in the occupation such that it refutes the Handbook's information to the effect that 
there is a spectrum of degrees acceptable for such positions, including degrees not in a specific 
specialty. In other words, the record lacks sufficiently detailed information to distinguish the 
proffered position as unique from or more complex than positions that can be performed by pe~sons 
without at least a bachelor's degree in a specific specialty, or its equivalent. 
As the Petitioner did not demonstrate how the proffered position is so complex or unique relative to 
other positions within the same occupational category that do not require at least a baccalaureate 
degree in a specific specialty or its equivalent for entry into the occupation in the United States, it 
cannot be concluded that the Petitioner has 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. To 
this end, we usually review a petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position. 
As the Petitioner has not expressly asserted eligibility nor submitted evidence for our consideration 
under this criterion, we cannot conclude that the Petitioner has satisfied the third criterion of 
8 C.F.R. § 214.2(h)(4)(iii)(A).7 
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. 
7 While a petitioner may believe or otherwise assert that a proffered position requires a degree in a specific specialty, 
that opinion alone without corroborating evidence cannot establish the position as a specialty occupation. Were USClS 
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 employer 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, 20 I F. 3d at 387. In other words, if a 
petitioner's degree requirement is only symbolic and the proffered position does not in fact require such a specialty 
degree or its equivalent to perform its duties, the occupation would not meet the statutory or regulatory definition of a 
specialty occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty 
occupation"). 
8 
Matter of BNSI- Inc. 
In the instant case, relative specialization and complexity have not been sufficiently developed by 
the Petitioner as an aspect of the proffered position. We again refer to our earlier comments and 
findings with regard to the implication of the Petitioner's designation of the proffered position in the 
LCA as a Level I (the lowest of four assignable levels) wage. That is, the Level I wage designation 
is indicative of a low,. entry-level position relative to others within the occupational category, and 
hence one not likely distinguishable by relatively specialized and complex duties. 
Upon review of the totality of the record, the Petitioner has not established that the nature of the 
specific duties is so specialized and complex that the 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. Therefore, the evidence of record does not satisfy the fourth criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
Because the Petitioner has not satisfied one ofthe 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. 
As noted, the regulation at 8 C.F.R. § 214.2(h)(l1)(iii)(A)(5) permits the Director to revoke a 
petition's approval, upon notice, if she finds that the approval of the petition violated 8 C.F.R. 
§ 214.2(h) or involved gross error pursuant to 8 C.F.R. § 214.2(h)(l1)(iii)(A)(5). We agree with the 
Director that approval of this petition violated 8 C.F.R. § 214.2(h), because the current record of 
proceedings does not establish that the proffered position is a specialty occupation position. 
IV. CONCLUSION 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe 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 of BNSI- Inc., ID# 124814 (AAO Oct. 3, 2016) 
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