dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6866384 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 6, 2020 
The Petitioner, a provider of end-to-end information technology services and solutions, seeks to 
temporarily employ the Beneficiary as an "associate vice president - sales" under the H-lB 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner had not 
established that the proffered position is a specialty occupation. 
On appeal, the Petitioner asserts that the Director erred and that the proffered position is a specialty 
occupation. 
Upon de nova review, we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § l 184(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: 
1 A petitioner must establish that it meets each eligibility requirement of the benefit sought by a preponderance of the 
evidence. Matter of Chawathe, 25 I& N Dec. 369, 375-76 (AAO 2010). 
(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. 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"). 
II. ANALYSIS 
The Petitioner seeks to employ the Beneficiary as an "associate vice president - sales" and states that 
the duties of the proffered position require a computer-related bachelor's degree. At other points 
within the record, the Petitioner farther specifies its minimum requirement as "a computer-related 
bachelor's degree like Computer Science." Upon review of the record in its totality and for the reasons 
set out below, we determine that the Petitioner has not demonstrated that the proffered position 
qualifies as a specialty occupation. 2 Specifically, the record does not establish that the job duties 
require an educational background, or its equivalent, commensurate with a specialty occupation. 3 
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. 4 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 The Petitioner submitted documentation to support the H- IB petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
4 We do not 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 we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. Nevertheless, to satisfy the first criterion, 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 
2 
On the labor condition application (LCA)5 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Sales Engineers" corresponding to 
the Standard Occupational Classification (SOC) code 41-9031. 
The subchapter of the Handbook entitled "How to Become a Sales Engineer" states, in relevant part: 
A bachelor's degree is typically required to become a sales engineer. .. 
Sales engineers typically need a bachelor's degree in engineering or a related field. 
However, a worker without a degree, but with previous sales experience as well as 
technical experience or training, may become a sales engineer. Workers who have a 
degree in a science, such as chemistry, or in business with little or no previous sales 
experience, may also become sales engineers. 6 
The Handbook does not state that the occupation of sales engineer normally requires at least a 
bachelor's degree, or the equivalent, in a specific field for entry. Instead, it states that the educational 
requirements for sales engineer positions may vary from a degree in an unspecified engineering or 
science field to a degree in business to no degree requirement at all. This does not suffice to establish 
eligibility under this criterion. 
In the absence of support from the Handbook, the Petitioner cited to DOL' s Occupational Information 
Network (O*NET) summary report for "Sales Engineers" (SOC code 41-9031.00). 7 The O*NET 
Summary Report does not establish that a bachelor's degree in a specific specialty, or the equivalent, 
is normally required. It provides general information regarding the occupation, but it does not support 
a conclusion that the proffered position requires a bachelor's degree in a specific specialty, or the 
equivalent. Instead, O*NET assigns these positions a "Job Zone Four" rating, which states "most of 
these occupations require a four-year bachelor's degree, but some do not." Moreover, the Job Zone 
Four designation does not indicate that any academic credentials for Job Zone Four occupations must 
be directly related to the duties performed. 
In addition, the specialized vocational preparation (SVP) rating 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 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, experience, and formal education. The SVP rating also does 
not specify the particular type of degree, if any, that a position would require. 8 Further, although the 
degree requirement, or its equivalent, for entry. 
5 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-1 B worker the higher of either the prevailing 
wage for the occupational classification in the area of employment or the actual wage paid by the employer to other 
employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). 
6 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Sales Engineers, 
http://www.bls.gov/ooh/sales/sales-engineers.htm (last visited Feb. 5, 2020). 
7 O*NET OnLine, Summary Rep01t for: 41-9031.00 - Sales Engineers, http://www.onetonline.org/link/summary/4 l-
9031.00 (last visited Feb. 5, 2020). 
8 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/ 
help/online/svp. 
3 
summary reports provide the educational requirements of "respondents," it does not account for 100% 
of the "respondents." Moreover, the respondents' positions within the occupation are not 
distinguished by career level (e.g., entry-level, mid-level, senior-level). Furthermore, the graph in the 
summary report does not indicate that the "education level" for the respondents must be in a specific 
specialty. For all of these reasons, O*NET does not establish the proffered position as a specialty 
occupation. 
In the instant matter, the Petitioner has not provided sufficient documentation from a probative, 
authoritative source to substantiate its assertion regarding the minimum requirement for entry into this 
particular position. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(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 looks to the common 
industry practice, while the alternative prong narrows its focus to the Petitioner's specific position. 
As a reliminar matter, we note that it is not entirely clear whether the Petitioner submitted the letter 
fro Senior Vice President and Head of Human Resources atl I 
.__ __________ ____. for our consideration under prong one or prong two of this criterion. 
Therefore, we will consider it under both, first as an industry letter and then as a position evaluation. 9 
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. 
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 attest that such firms "routinely employ and recruit 
only degreed individuals." 10 
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 
9 We hereby incorporate our discussion the._l __ __.ls letter into our discussion of the other 8 C.F.R. § 214.2(h)(4)(iii)(A) 
criteria. 
10 See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Co1p. v. Sava, 712 F. Supp. 
1095, 1102 (S.D.N.Y. 1989) (considering these "factors" to inform the commonality ofa degree requirement)). 
4 
reference the previous discussion on the matter. The Petitioner has not submitted any evidence from 
a professional association. Therefore, we tum to the letter provided by the Petitioner from I I 
First, we note that the majority of the two-page letter informs us aboutl I himself, provides 
general information about his employer, I I and repeats a verbatim list of the proffered 
position's duties, which were already provided to us by the Petitioner. I ts opinion letter 
offers little substantive value in establishing that a degree is common to the industry in parallel 
positions among similar organizations and he does not state, nor may we infer from the information 
provided, thatl lroutinely employs and recruits only degreed individuals. 
Just five sentences of the entire letter are devoted to information pertaining to the industry's degree 
requirements, however, the letter does not provide any information regarding the source of the 
information on this particular issue. I I provides no information to support his conclusions, 
such as references/citations to statistical surveys, authoritative industry publications, or professional 
studies. Instead, I I implicitly requires us to accept his own personal work history as 
sufficiently authoritative to allow him to opine on the hiring standards across an entire, constantly­
changing industry. 
In providing us the annual report forl I we presume that the Petitioner wishes us to infer that 
I land the Petitioner conduct business in the same !industry land are similar organizations. 11 Even 
if this annual report established that the Petitioner and are similar organizations within the 
industry, we note thatl !does not provide any information concerning parallel positions and 
degree requirements within any specific organization so as to establish a basis for the claim of an 
industry standard. His sweeping claims as to the degree requirements for all "Associate Vice President 
- Sales" positions in the IT field in general do not lend evidentiary support for an industry standard 
absent any specific context or analysis of why performance of the duties requires a specific degree. 
As previously 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. Therefore, without any specific 
context or analysis,! ~s opinion letter holds little probative value in the matter at hand. 
The Petitioner has not provided sufficient evidence to establish that a bachelor's degree in a specific 
specialty, or its equivalent, is common to the industry in parallel positions among similar 
organizations. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
II The annual rlport dor not provide sufficient information to establish that the two organizations are similar within the 
industry or that even offers parallel positions. First, we note that the Petitioner has not submitted a similar report 
for its own business so that we may make a side-by-side comparison of the two organizations. From the limited int~ 
before us, we note that the Petitioner stated on the petition that it has 310 employees in the United States, whereas L___J 
states that it employs "l ,000 North American employees and 400 emf loyees offshore, in addition to 130 subcontracted 
professionals." In addition to this, the revenue breakdowns provided in I's 2017 annual report cannot be adequately 
compared to the Petitioner's adjusted gross income figure listed in the petition, which we can only assume is a 2018 
statistic. As such, without fmiher information, we decline to make conclusions as to any similarity between the Petitioner 
and I I 
5 
2. Second Prong 
The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) 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 first note that the duties themselves do not reflect a complexity or uniqueness such that they can 
be performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. The Petitioner lists several duties that appear to be administrative or clerical in nature with 
little additional information or analysis to substantiate its claim that the duty requires a computer­
related bachelor's degree like computer science to perform. For instance, the Petitioner states that the 
proffered position includes the duty of ensuring "that the invoicing and all related processes are 
documented and adhered to, address all exceptions personally." After listing the duty, the Petitioner 
then summarily declares that the duty requires a computer-related bachelor's degree such as computer 
science in order to perform it. The Petitioner does not sufficiently develop the duty with details as to 
why this seemingly straightforward clerical duty is so complex or unique that it requires a bachelor's 
degree in a computer related field. 
Similarly, the duty to "[ e ]nsure customer feedback in [sic] documented, channeled, and acted upon" 
does not contain a description that allows us to understand the complexity or uniqueness of the duty. 
The description of the duty states that it requires a bachelor's degree in a computer-related field 
because it requires (1) the Beneficiary to serve as a single point of contact for customer products; (2) 
a deep understanding of deliverables across projects; and (3) that the Beneficiary take appropriate 
action for successful delivery. However, the Petitioner does not explain why or how this is so, or what 
the Beneficiary will actually be doing when he completes this duty. Without farther explanation 
surrounding the duty, we might well expect that this duty could be appropriately carried out by 
administrative support staff answering a phone and passing along a message or entering data into a 
spreadsheet. 
Additionally, many duties themselves are vague and too general to allow us to understand what the 
Beneficiary will do as he carries out the undefined tasks. For example, the duty, "[ e ]nsure client 
satisfaction across all projects and services delivered" contains a description that the Beneficiary must 
participate in business reviews and ensure that projects and services meet their deadlines. The 
Petitioner fails to clarify what "participation" means, which we might expect could include merely 
attending a review meeting to taking notes about the review to leading the review. Furthermore, we 
have no information on what the review is or why it is important for ensuring client satisfaction. 
Finally, we question what exactly the Beneficiary will do to ensure that deadlines are met. 12 
Another example includes the duty, "[l]everage technical knowledge in the projects being managed," 
the description of which lists various technology trends that must be understood to perform the duty. 
Merely listing trends fails to help us understand why they are needed, how they fit into the Petitioner's 
business or the proffered position as a whole, or why an understanding of them can only be obtained 
12 While the website printouts provide general information concerning the Petitioner's business, nothing in them provides 
support for a conclusion that the duties of the proffered position require a computer-related bachelor's degree to perform 
them. 
6 
through a computer-related bachelor's degree. Moreover, we question why the Petitioner designated 
this duty as requiring only 5% of the Beneficiary's time. A duty as broad and general as "leverage 
technical knowledge" might well be applied to the entire position overall. 
In our analysis of this prong, we return to the letter from I I and consider it here as an 
evaluation of the Petitioner's proffered position. As previously stated, the letter does not discuss the 
duties of the proffered position in any substantive detail, but rather lists word-for-word the duties 
already provided to us in the Petitioner's support letter. Thus, there is no indication thatl I 
possesses any knowledge of the Petitioner's proffered position beyond this job duty list. Aside from 
listing the duties, I I's letter offers conclusory assertions that the position's duties mandate a 
computer-related bachelor's degree. His level of familiarity with the actual job duties as they would 
be performed in the context of the Petitioner's business has therefore not been substantiated. 
Regardless of the prong or criterion for which I ts letter was submitted, we are not required to 
accept primarily conclusory assertions, even from a purported expert. 13 Where an opinion letter does 
not cite to the source of its contents, and is not corroborated by other probative evidence, but instead 
generally offers conclusory and unsubstantiated statements, USCIS is justified in determining that 
such material is not persuasive. 14 USCIS may, in its discretion, use material submitted as expert 
testimony as an advisory opinion only. 15 USCIS may ascribe less weight to an opinion that is not 
corroborated, in accord with other information, or is in any way questionable. 16 
In summary, the Petitioner did not sufficiently develop the relative complexity or uniqueness as an 
aspect of the duties of the position and it did not provide sufficient evidence to establish what tasks of 
the position 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. Evidence 
provided in support of this criterion may include, but is not limited to, documentation regarding the 
Petitioner's past recruitment and hiring practices, as well as information regarding employees who 
previously held the position. The Petitioner has not submitted evidence to support eligibility under 
this criterion. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
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. 
13 1756, Inc. v. Atty Gen, 745 F. Supp. 9, 17 (D.D.C. 1990). 
14 Sagarwala, No. CV 18-2860 (RC), 2019 WL 3084309 at *6. 
15 See Matter of Caron International, 19 l&N Dec. 791, 795 (Comm'r 1988). 
16 Caron International, 19 l&N Dec. at 795. 
7 
For the same reasons we discussed under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), we 
conclude that the Petitioner has not established 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). We incorporate our earlier 
discussion and analysis on this matter. 
In addition to this, the Petitioner refers to a non-precedent decision in which we determined that the 
position of sales engineer proffered in that matter qualified as a specialty occupation. On appeal, the 
Petitioner lists the duties that were written into the cited non-precedent decision followed directly by 
its list of duties for the proffered position in the instant matter. We infer that the Petitioner wishes us 
to draw conclusions as to the similarity of the duties between the two positions, but the Petitioner has 
provided no analysis to support such a conclusion. Moreover, the Petitioner has famished no evidence 
to establish that the facts of the instant petition are analogous to those in the non-precedent decision. 
We note that because the evidence presented in the cited decision is not contained within this record 
of proceedings, it cannot be examined by us at this time. Accordingly, we cannot know whether the 
duties listed in the cited decision contained the entire description of the proffered position or whether 
the record of those proceedings contained additional descriptions apart from this list. Further, we 
cannot analyze any of the underlying facts of that case and therefore have no ability to determine 
whether the Petitioner's proffered position and the position in the cited decision are similar. 
Even if it could be established that the facts of that case were analogous to those in this matter, the 
cited decision is an unpublished decision and, as such, is not binding on us. While 8 C.F.R. § 103.3(c) 
provides that our precedent decisions are binding on all USCIS employees in the administration of the 
Act, unpublished decisions are not similarly binding. 
Without farther evidence, the Petitioner has not demonstrated that its proffered position is one with 
duties sufficiently specialized and complex to satisfy the criterion at 8 C .F.R. § 2 l 4.2(h )( 4 )(iii)(A )( 4). 
III. CONCLUSION 
Because the Petitioner has not satisfied any 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. The appeal will be 
dismissed for the above stated reasons, with each considered an independent and alternative basis for 
the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the 
immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that 
burden. 
ORDER: The appeal is dismissed. 
8