dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 0-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 2, 2020 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"digital marketing engineer" under the H-lB 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-lB program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty ( or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the proffered 
position does not qualify as a specialty occupation. On appeal, the Petitioner submits additional 
evidence and asserts that the Director erred. 
Upon de nova review, we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of 0-, Inc. 
(]) 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 construe 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. PROFFERED POSITION 
The Petitioner described the duties of the proffered "digital marketing engineer" position, and the 
percentage of the Beneficiary's time required to perform them, as follows: 
• Analyzing SEO performance, site performance and visitor behavior metrics in 
detail, on a weekly basis, through utilizing advanced software tools (45%); 
• Building custom dashboards on marketing performance for use by stakeholders and 
internal teams using object-oriented, server-side software (PHP) and Structured 
Query Language (SQL) for relational database management systems (10%); 
• Analyzing and providing detailed SEO performance reports, recommending SEO 
strategies based on those reports, and optimizing in-bound traffic (20% ); 
• Tracking digital conversion rates, and utilizing engineering tools to improve 
conversion rates using XHTML, JavaScript (high-level software language), and 
marketing platforms such as Google Analytics and Optimizely (10%); 
• Researching new technologies to keep the company at the forefront of 
developments in digital marketing technology (10%); and 
• Overseeing the implementation strategic [sic] back linking, directory placement, 
and SEO strategies (5%). 2 
According to the Petitioner, the position requires "a Bachelor's degree, in Computer Science, or a 
related degree, or equivalent in experience and training." 
2 The Petitioner included additional information about each bulleted duty. Although we omit the additional information 
here for brevity, we have reviewed the duty description in its entirety. 
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Matter of 0-, Inc. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
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 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I) 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 
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 "Computer Systems Analysts" 
corresponding to the Standard Occupational Classification code 15-1121. The subchapter of the 
Handbook titled "How to Become a Computer Systems Analyst" states, in relevant part, that "[a] 
bachelor's degree in a computer or information science field is common, although not always a 
requirement. Some firms hire analysts with business or liberal arts degrees who have skills in 
information technology or computer programming." Bureau of Labor Statistics, U.S. Dep't of Labor, 
Occupational Outlook Handbook, Computer Systems Analysts, https://www.bls.gov/ooh/computer­
and-informatoin-technology/computer-systems-analysts.htm#tab-4 (last visited Jan. 2, 2020). The 
Handbook does not state whether business or liberal art degrees and "skills in information technology 
or computer programming" are equivalent to a bachelor's or higher degree in computer or information 
science. 
The Handbook reiterates that, although "[ m ]any 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." Id. Furthermore, the Handbook distinguishes 
academic requirements for "more technically complex [computer systems analyst] jobs" from less 
technically complex ones: "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." Id. The Handbook does not 
3 The Petitioner submitted documentation to support the H- IB petition, including evidence regarding the proffered position 
and its business operations. Although 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 ofrelevant 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 
degree requirement, or its equivalent, for entry. 
5 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-IB 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. § 655.731(a). 
3 
Matter of 0-, Inc. 
elaborate on the criteria that distinguishes a "more technically complex job[]" from one that may be 
performed by a worker with a business or liberal arts degree, to assist us in determining the particular 
position's relative technical complexity and the normal minimum requirements for the particular 
position. Because the Handbook observes that disparate degree fields of business and liberal arts, with 
some unspecified level of skills may qualify a worker for computer systems analyst positions, in lieu 
of a bachelor's or higher degree in computer or information science, the Handbook does not satisfy 
the first criterion. 
On appeal, the Petitioner asserts that, because the Handbook subchapter also states that "[ m Jost 
computer systems analysts have a bachelor's degree in a computer-related field," id., "it would be 
erroneous to conclude that the occupation does not 'normally' require a bachelor's degree as a 
minimum requirement," thereby satisfying the first criterion. However, as discussed, the Handbook 
also notes other varying requirements for the occupation such as a degree in the fields of business and 
liberal arts and an unspecified level of skills. Moreover, the Handbook also observes that "[ m Jany 
[Computer Systems Analysts] have liberal arts degrees and have gained programming or technical 
expertise elsewhere." Id. Therefore, the Handbook does not establish that a bachelor's or higher 
degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into 
the occupation. 
The Petitioner also asserts on appeal that the proffered position satisfies the first criterion because "the 
Computer Systems Analyst classification falls within Job Zone Four classification" under the DOL's 
Occupational Information Network (O*NET) summary report for "Computer Systems Analysts." The 
Petitioner's reliance on the summary report is misplaced. The summary report groups the "Computer 
Systems Analysts" occupational category among occupations for which "most ... require a four-year 
bachelor's degree, but some do not." O*NET OnLine Summary Report for "15-1121.00 - Computer 
Systems Analysts," http://www.onetonline.org/link/summary/15-1121.00 (last visited Jan. 2, 2020); 
O*NET OnLine Help - Job Zones, http://www.onetonline.org/help/online/zones (last visited Jan. 2, 
2020). O*NET OnLine does not indicate that four-year bachelor's degrees required by Job Zone Four 
occupations must be in a specific specialty directly related to the occupation. The summary report 
also provides the educational requirements of "respondents," but it does not account for 100% of the 
"respondents." The respondents' positions within the occupation are not distinguished by career level 
( e.g., entry-level, mid-level, senior-level). Additionally, the graph in the summary report does not 
indicate that the "education level" for the respondents must be in a specific specialty. Therefore, the 
summary report information is not probative of the proffered position satisfying the first criterion. 
In summation, 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). The first prong contemplates common industry 
practice, while the alternative prong narrows its focus to the Petitioner's specific position. 
4 
Matter of 0-, Inc. 
On appeal, the Petitioner does not specifically assert, and the record does not support the conclusion, 
that the proffered position qualifies as a specialty occupation under the second alternative prong of the 
second criterion. 6 Therefore, we limit our analysis of the second criterion to the first alternative prong. 
To satisfy the 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 establish that such firms "routinely employ and 
recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) 
(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989) (considering these 
"factors" to inform the commonality of a degree requirement)). 
Here, however, the Handbook does not indicate that a bachelor's degree in a specific specialty is a 
common requirement within the industry for parallel positions among similar organizations. 
On appeal, the Petitioner submits for the first time evidence that it describes as 'job postings for 
parallel positions from the Petitioner's competitors" in order "to demonstrate that the proffered 
position of Digital Marketing Manager 7 is a real or common position in the industry that requires a 
minimum requirement of bachelor's [sic] degree in Computer Science." However, the Petitioner 
previously did not address the Director's RFE for "Li]ob postings or advertisements showing a degree 
requirement of a bachelor's degree or higher in a specific specialty, or its equivalent, is common to 
the industry in parallel positions among similar organizations." Where, as here, a petitioner has been 
put on notice of a deficiency in the evidence and has been given an opportunity to respond to that 
deficiency, we will not accept evidence offered for the first time on appeal. See Matter of Soriano, 
19 I&N Dec. 764, 766 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988). 
If the Petitioner had wanted the submitted evidence to be considered, it should have submitted the 
documents in response to the Director's RFE. Id. 
Under the circumstances, we need not and do not consider the sufficiency of the evidence submitted 
for the first time on appeal. 8 
6 Similarly, in response to the Director's request for evidence (RFE), the Petitioner asserted that "[p ]rongs 1, 2A, 3, and 4 
of the specialty occupation test have been met." Although the Petitioner asse1is on appeal that the position qualifies as a 
specialty occupation under the fourth criterion, addressed below, the two criteria are distinct. 
7 We note that the Petitioner's reference to a "digital marketing manager" appears to be of a supervisory nature and 
therefore not parallel to the proffered "digital marketing engineer" position. 
8 Furthermore, even if the Petitioner had submitted the job postings to the Director upon request, and 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, could be drawn rrom the job postings with regard to the common educational requirements for entry 
into parallel positions in similar organizations. See generalzv Earl Babbie, The Practice of Social Research 186-228 (7th 
ed. 1995). Moreover, given that there is no indication that the advertisements were randomly selected, the validity of any 
5 
Matter of 0-, Inc. 
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. 
In response to the Director's RFE, the Petitioner stated that the Beneficiary "is the only individual to 
hold [the digital marketing engineer position] within the company" and it submitted a copy of an 
internal job announcement for the position, which it resubmits on appeal. The job announcement 
identifies the position as a "digital marketing engineer," describes duties similar to those described in 
support of the petition, and states that qualifications include, in relevant part, a "BS/MS in computer 
science or [a] related field." However, the record does not establish whether the Petitioner hired a 
"digital marketing engineer" prior to the Beneficiary during the two decades since the Petitioner was 
founded, in 1998, and if so, the requirements for those workers to enter the position( s ). Accordingly, 
the single job announcement in the record is insufficient to establish that the Petitioner normally 
requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
In summation, 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. 
On appeal, the Petitioner "does not assert that the duties [ of the proffered position] are 'uniquely' 
complex, compared to other Digital Marketing Engineer or Computer Systems Analyst positions, or 
that 'the position is more complex or specialized than similar positions within the occupation."' 
Instead, the Petitioner asserts that "the job duties for the proffered position are so complex and 
specialized by virtue of the theoretical knowledge and education required to perform these duties." 
The Petitioner's assertion undermines its position regarding the fourth criterion. Essentially, the 
Petitioner informs us that the proffered position's duties are no more specialized and complex than the 
duties of other positions in the "Computer Systems Analysts" occupational category, which the 
Handbook observes can be performed by workers with degrees in disparate fields such as business and 
liberal arts with some unspecified level of skills in information technology or computer science. We 
have reviewed the Petitioner's description of the proffered position's duties, quoted above, and agree 
such inferences could not be accurately determined even if the sampling unit were sufficiently large. See id. at 195-96 
( explaining that "[r ]andom selection is the key to [the] process [ of probability sampling]" and that "random selection offers 
access to the body of probability theory, which provides the basis for estimates of population parameters and estimates of 
error"). 
As such, it cannot be found that such a limited number of postings that appear to have been consciously selected could 
credibly refute the conclusions of the Handbook published by the Bureau of Labor Statistics that such a position does not 
normally require at least a baccalaureate degree in a specific specialty, or its equivalent, for entry into the occupation in 
the United States. 
6 
Matter of 0-, Inc. 
that they do not appear to be so specialized and complex that the knowledge required to perform them 
is usually associated with the attainment of a bachelor's or higher degree in a specific specialty, or its 
equivalent, particularly when considered along with documents described as work product samples, 
discussed below. 
The Petitioner also asserts on appeal that work product in the record satisfies the fourth criterion. In 
response to the Director's RFE, the Petitioner described the work product simply as "[s]ampling of 
work product produced by the [B]eneficiary at [the Petitioner]" with no additional narrative other than 
that it "corroborates that the specific job duties are specialized and complex that the knowledge 
required to perform them is usually associated with the attainment of a Bachelor's or higher degree in 
Computer Science, or a related field." On appeal, the Petitioner itemizes that work product as follows: 
• Optimization testing results; 
• Localization metrics and campaign code change; 
• Google Analytics KPI tracking; 
• Real-time dashboards; 
• Geo-specific goals dashboard; 
• SEO goals dashboard; 
• Content optimization; 
• Optimizer reports; 
• SEO backlinking reports; 
• SEO benchmarks report; 
• SEO coverage report; [ and] 
• SEO performance overview report. 
We first note that none of the work product in the record indicates who created it, whether that was 
the Beneficiary, whom the Petitioner stated is its only "digital marketing engineer," some other 
worker, or possibly automatically generated by computer system activity. At least 18 of the 38 total 
pages in the exhibit of work product contain copyright information or logos belonging to other 
companies, such as I I, raising questions 
regarding how those documents may represent work produced by the Beneficiary or any other worker 
for the Petitioner. 9 Additionally, most of the work product is a single page without a title, raising 
questions regarding what it is, how it was created, who may use the information it depicts, and how. 
Moreover, the substance of most pages are spreadsheets, charts, or graphs, which can be-and in 
several instances in the record were-generated with common desktop software like Microsoft Excel, 
which does not require a bachelor's or higher degree in a specific specialty or its equivalent to use. 
Other documents, such as a three-page printout of a webpage from the Petitioner's website, titled 
.__ ________ __. ' does not appear to correspond to the proffered position, given that none of 
the duties involve creating a webpage. One of the few pages containing computer programming 
code-which in this case is HTML-is a W ordPress template, raising questions regarding the level of 
programming knowledge required for the position rather than relying on automated coding provided 
9 On appeal, the Petitioner submits 33, not 38, pages it describes as the Beneficiary's work product. These are the same 
or similar documents produced in response to the Director's RFE, but printed in color rather than in grayscale. Similarly, 
at least 18 of the 33 pages contain copyright information or logos belonging to other companies such as I I and 
I I 
7 
Matter of 0-, Inc. 
by third-party software. Similarly, only two of the pages described as work product reproduced on 
appeal contain computer programming language-with a combined total of less than 40 lines-and 
both specifically label the code as HTML. The level of complexity of the code in the record does not 
indicate that it is so specialized and complex that it requires a bachelor's or higher degree in a specific 
specialty, or its equivalent, to produce it. 
Considered as a whole, the documents described as work product samples do not establish that the 
nature of the specific duties of the Beneficiary's position is so complex and specialized that the 
knowledge required to perform them is usually associated with the attainment of a bachelor's or higher 
degree in a specific specialty, or its equivalent. 
The Petitioner also states on appeal that "evidence ... in its response to [the] RFE to demonstrate that 
the nature of the Petitioner's web-based services and marketing technologies is complex [sic] that the 
knowledge to perform the duties of the [ d]igital marketing [ e ]ngineer position is normally associated 
with the attainment of a bachelor's degree in Computer Science or a related field" includes the 
following: 
• Printouts from the [P]etitioner's website describing its business and proprietary 
technology; 
• Printouts of recent news articles outlining notable achievements and milestones 
regarding [the Petitioner's] business based on its unique technology; [and] 
• Printouts ofrecent press releases. 10 
The information from the Petitioner's website and media articles regarding the Petitioner's business 
and technology, and the Petitioner's press releases do not address the nature of the proffered position's 
specific duties, the knowledge required to perform those duties, or the type of degree usually 
associated with such knowledge. Accordingly, although we have reviewed those documents, they 
bear minimal probative value for the fourth criterion. 
In summation, the Petitioner has not demonstrated in the record that its proffered position is one with 
duties sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
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. 
Cite as Matter of 0-, Inc., ID# 5098655 (AAO Jan. 2, 2020) 
10 We omit the five itemized descriptions under the second and third groups for brevity. 
8