dismissed H-1B Case: Information Technology

U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: LIN 03 273 51319 Office: NEBRASKA SERVICE CENTER Date: 1 8 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
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DISCUSSION: The director of the service center denied the nonirnrnigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner, a corporation engaged in information technology and solutions, employs the beneficiary as an 
electronics engineer, as authorized by a previously approved petition to employ the beneficiary as an H-1B 
nonirnrnigrant worker in a specialty occupation pursuant to section 101 (a)(lS)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. tj I 101 (a)(l S)(H)(i)(b). In order to continue this employment beyond the 
period approved in the initial petition, the petitioner endeavors to continue the beneficiary's H-1B classification 
and extend his stay. 
The director denied the petition on the basis that the petitioner had failed to establish that the beneficiary 
would actually perform the work in the proffered position, which the petitioner asserts to be that of an 
electronics engineer. The director focused on deficiencies in the petitioner's response to the director's request 
for additional information (RFE). The director noted that the petitioner failed to describe the projects upon 
which the beneficiary would work, and failed to provide related work orders or contracts. The director stated, 
in part: "Absent the actual contracts with work orders, the Service cannot find that the beneficiary will be 
performing any of the duties claimed." Also, the director declared that the evidence of record did not 
establish that the petitioner had sufficient office space to employ the beneficiary in-house at the beneficiary's 
corporate headquarters. 
On appeal, counsel submits an eight-page brief and ten exhibits. 
Counsel first focuses on the fact that the Form 1-129 and accompanying letter of support describe the 
proposed duties as including "research, design, development, and testing of computer systems and networks, 
[and] analysis of resolution of operational problems," as well as "the supervision of the installation and 
maintenance of these networks." (Brief, at page 2.) Counsel asserts that "a technical description of the 
position lies beneath the surface of the individual terms themselves," and that the petitioner's description of 
the position "tracks the language" of the Department of Labor's (DOL) Dictionary of Occupational Titles 
(DOT) on electronics engineers and the DOL's Occupational Outlook Handbook (Handbook) on electrical 
and electronics engineers. 
Counsel provides a copy of the January 2004 "Installation Services Subcontract Agreement" (contract) - - - 
between the petitioner and a client, t counsel declines to provide the "precise duties"invo1ved 
in the work for this client: "Certainly, given the copious and complex nature of the duties of a[n] Electronics 
Engineer, it would be inappropriate to include the precise duties of the position within this particular 
agreement." (Brief, at page 4.) 
Counsel submits other documents, such as spreadsheets and accompanying invoices for off-site work 
throughout the country, in part to counter the director's perception that there is insufficient office space for all 
the people that the petitioner states that it employs: 
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Thus, it is certainly not the case that the petitioner will have hundreds of employees worlung 
at its corporate headquarters on one of seven work stations suggested in the denial. These 
numerous employees are deployed throughout the U.S. to work at client sites; however, given 
the wireless nature of the computing field, much work may be performed from the 
headquarters using laptop computers, networks, and the internet . . . . 
[Brief, at pages 4 and 5.1 
To support his contention that the petitioner hires only persons with at least a bachelor's degree in 
engineering, counsel cites a statement to that "effect in the September 22, 2004 letter from the petitioner's 
administrative manager that is submitted as an appellate exhibit. 
Counsel asserts that the proffered position is one that normally requires at least a bachelor's degree in 
engineering, as the Handbook reports that entry-level electrical and electronics engineer positions require this 
credential: "The option of being an electronics or electrical engineer without a formal education is not even 
entertained as it is simply not the industry standard to permit anything less than a bachelor's degree in this 
field." [Brief, at page 6.1 
Counsel submits a number of job advertisements from other firms to support his contention that an 
engineering degree is a requirement for positions in the petitioner's industry that are parallel to the one 
proffered here. Counsel asserts that "no professional organization of any size would entertain the possibility 
of hiring an Electronics Engineer without at least a Bachelor of Science in computer science, engineering, or 
related field." (Brief at page 6.) Counsel also asserts that, as the petitioner's clients "require the highest level 
of expertise," it would be a breach of contract and "an exercise of poor business judgment to hire anyone 
without a degree." (Brief, at pages 6 and 7.) 
The director's decision to deny the petition was correct. The AAO bases its decision upon its consideration of 
the entire record of proceeding before it, which includes: (1) the petitioner's Form 1-129 and the supporting 
documentation filed with it; (2) the director's RFE; (3) the materials submitted in response to the WE; (4) the 
director's denial letter; and (5) the Form I-290B, counsel's brief, and the documents submitted with the brief. 
Section 10 l(a)(l S)(H)(i)(b) of the Act, 8 U.S.C. 9 1 101 (a)(lS)(H)(i)(b), provides a nonimmigrant 
classification for aliens who are coming temporarily to the United States to perform services in a specialty 
occupation. 
Section 2 14(i)(l) of the Act, 8 U.S.C. 8 1 184 (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. 
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Thus, it is clear that Congress intended this visa classification only for aliens who are to be employed in an 
occupation that requires the theoretical and practical application of a body of highly specialized knowledge 
that is conveyed by at least a baccalaureate or higher degree in a specific specialty. 
Consonant with section 214(i)(l) of the Act, the regulation at 8 C.F.R. 5 214.2(h)(4)(ii) states that a specialty 
occupation means an occupation: 
which [I] 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 speciJic specialty, or its equivalent, as a minimum for entry into 
the occupation in the United States. (Italics added.) 
Pursuant to 8 C.F.R. 9 214.2@)(4)(iii)(A), to qualify as a specialty occupation, the 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 lmowledge required 
to perform the duties is usually associated with the attainment of a baccalaureate or 
higher degree. 
Citizenship and Immigration Services (CIS) has consistently interpreted the term "degree" in the criteria at 
8 C.F.R. 9 214.2(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. Applying this standard, CIS regularly approves 
H-IB petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public 
accountants, college professors, and other such professions. These occupations all require a baccalaureate 
degree in the specific specialty as a minimum for entry into the occupation and fairly represent the types of 
professions that Congress contemplated when it created the H-1B visa category. 
The burden of proof in these proceedings rests solely with the petitioner, section 291 of the Act, 8 U.S.C. 
$ 1361, and the burden does not shift because the prior petition was approved. Furthermore, if the previous 
nonimmigrant petition was approved based on the same unsupported assertions that are contained in the 
current record, the approval constituted material and gross error on the part of the director. The AAO is not 
required to approve applications or petitions where eligibility has not been demonstrated, merely because of 
prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N 
LIN 03 273 51319 
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Dec. 593,597 (Cornrn. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged 
errors as binding precedent. Sussa Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1988). Furthermore, the AAO's authority over the service centers is comparable to the 
relationship between a court of appeals and a district court. Just as district court decisions do not bind a court 
of appeals, service center decisions do not control the AAO. Even if a service center director had approved 
the nonirnrnigrant petition that is the subject of this appeal, the AAO would not be bound to adopt that 
decision as precedent. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
As discussed below, neither counsel nor the petitioner has provided evidence that substantiates the contention 
that the proffered position qualifies as a specialty occupation in accordance with 8 C.F.R. § 214.2@)(4)(iii)(A). 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Without documentary evidence to 
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); 
Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). 
On the Form 1-129 and in its September 17, 2003 letter of support, the petitioner described the proposed 
duties as follows: 
Research, design, develop, and test computer systems and networks, solve operating 
problems, and supervise its installation. 
In response to the portions of the RFE that requested "a detailed description of the specific projects that 
require the beneficiary's services," the petitioner listed a total of 19 "External Projects" divided among ten 
firms, and three of its own "External Projects." The petitioner introduces the list with a generalized statement 
that conveys nothing specific about the proposed duties: 
The beneficiary was hired because of his exceptional ability on [the] area of system design, 
analysis, and development. As such, the beneficiary is primarily tasked to perform 
maintenance and revisions of the following internal and external projects undertaken in-house 
for the past six months. 
The specific nature of the related "maintenance and revisions" is not discussed. For each project, the 
petitioner provided only brief, generalized information related to: Company, Location, SystemsIApplication, 
PlatformsILanguages Used, Operating System, Database System, System Description, System URL, and 
System Status. This information has little probative value, as it contains no specific details about the work 
entailed on any of the projects. Information about the nature of the related work is limited to this generalized 
comment at the System Status section on every project: "Maintenance and modification required." 
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The AAO will now discuss the evidentiary deficiency of these documents submitted with the appellate brief: 
(1) the aforementioned September 22, 2004 letter fi-om the petitioner in support of the appeal; (2) the 
beneficiary's curriculum vitae; (3) excerpts from the DOT and the Handbook; (4) copies of other employers' 
job advertisements for electronics engineers; (5) printouts of information about the petitioner fi-om its 
Internet site; (6) copies of the following documents related to the client- a contract for the 
petitioner to install and service voice and data telecommunications equipment; invoices and - 
checks for the petitioner's services; and related spreadsheets (identifying the petitioner's employees who 
provided the services, and the dates, location, and type of system for which the services were provided). 
The petitioner's September 2004 letter asserts that the proffered position requires a degreed 
"Electronics/Electrical Engineer," but it provides no evidence of specific duties or how the duties substantiate 
this claim. 
The beneficiary's curriculum vitae has no evidentiary value. The beneficiary has been working for the 
petitioner for approximately three years. Yet this document provides no specifics about what the beneficiary 
has been doing. It only states that the beneficiary has been a project manager since May 200 1. 
The AAO is not persuaded by counsel's assertion that the brief and generalized duty description of the Form 
1-129 and its accompanying letter of support establish that the proffered position comports with the 
electronics engineer occupation as described in the DOT and the Handbook. Any similarity between the 
petitioner's generalized job description and the language of the DOT or Handbook only demonstrates that the 
petitioner is able to generally describe the position in terms used by the two DOL resources. In the absence of 
details about the beneficiary's specific tasks, such similarity in general wording does not justify a deduction 
that the beneficiary will be performing the work of an electronics engineer. 
The job advertisements from other employers are not probative, as the record does not establish that the 
specific duties of the advertised positions are substantially similar to those of the proffered position, which are 
not developed in the record. While the advertisements reflect the fact that engineering is a specialty 
occupation, they are not a measure of the accuracy of the petitioner's assertion that it is proffering an engineer 
position. 
The information from the petitioner's Internet site indicates that the petitioner provides services in field 
support, data communication, networking, structured cabling, software development, and contract personnel. 
The Internet site also indicates that the petitioner provides "[nletwork design, installation, and administration, 
including cabling, network operating system (NOS) installation, NIC/hub/switch/router installation and 
configuration"; "network installation and maintenance"; and "VSAT (Very Small Aperture Terminal) 
Satellite Communications Systems Maintenance." This abstract information about areas of the petitioner's 
business conveys nothing about the beneficiary's specific duties or about the educational credentials that he 
would need to perform them. 
The QualxServ documents also provide only general information about the petitioner's business, but no 
information fiom which the AAO can conclude that performance of the proffered position requires at least a 
bachelor's degree in a specific specialty. 
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Aside from the evidentiary deficiencies just discussed, the credibility of some assertions in the record is 
questionable. The MO notes that the petitioner's only representation about the qualifications of its 
employees for the - contract is that they are "qualified to install and service voice and data 
telecommunications equipment" (contract, at page l), and that they shall be "HNS certified for Satellite 
Repair work" (Exhibit A of the contract, at page 1). This contract is inconsistent with counsel's contention 
that a degree in engineering or a related specialty is a contractual requirement or at least a client expectation. 
Further, it is remarkable that, after employing the petitioner for more than three years by the time of the 
appeal, the petitioner has provided no documentation or descriptions of the specific work that the beneficiary 
has performed. The AAO also notes that, despite the criticality of such information, counsel and the 
petitioner have displayed a continuous reluctance to specify any of the particular duties and tasks in which its 
employees hired as engineers engage. Also, the MO finds unconvincing counsel's explanation of how the 
petitioner's workspace would accommodate the beneficiary and the petitioner's many other employees.' In 
addition, there is a material inconsistency between the "research, design, develop" duty components on the 
Form 1-129 and the contradictory WE reply information (at page 1 of the document "1.0 Responses to 
Requests Nos. 1 and 2") that the "beneficiary is primarily tasked to perform maintenance and revisions." 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to 
explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the tmth, in 
fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The skeletal nature of the evidence submitted with regard to the actual work involved in the proffered position 
is insufficient to satisfy any criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A). 
The petitioner has not satisfied the first criterion of 8 C.F.R. 3 214.2(h)(4)(iii)(A), as the evidence of record 
does not establish that the proffered position is one for which the normal minimum entry requirement is a 
baccalaureate or higher degree, or the equivalent, in a specific specialty closely related to the position's 
duties. The evidence does not substantiate the accuracy of the petitioner's assigning the position the title of 
electronics engineer. The generalized nature to which the petitioner has limited the information about the 
proffered position and its duties does not establish that the position exceeds the electrical and electronics 
installers and repairers occupational category, to which the 2004-2005 edition of the Handbook (at pages 
526-528) ascribes the duties of installing, maintaining, and repairing complex pieces of electronic equipment. 
According to the Handbook, this occupational category does not require a bachelor's degree in a specific 
specialty. 
To the extent that the petitioner will be contracting out the services of the beneficiary, the record must contain 
a comprehensive description of the beneficiary's proposed duties from an authorized representative of the 
petitioner's client. In Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000)' the court held that the Immigration 
and Naturalization Service, now CIS, reasonably interpreted the statute and the regulations when it required the 
1 The AAO notes that according to LexisNexis Internet reports on the petitioner, the petitioner also operates 
as an employment agency. 
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petitioner to show that the entities ultimately employing the proposed beneficiaries require a bachelor's degree for 
all employees in that position. The court found that the degree requirement should not orignate with the 
employment agency that brought the beneficiaries to the United States for employment with the agency's clients. 
Thus, without such a job description, the petitioner has not demonstrated that the beneficiary will perform work at 
the external job sites in a specialty occupation. 
The petitioner had not satisfied the first of the two alternative prongs of 8 C.F.R. 3 214.2(h)(4)(iii)(A)(2), 
which assigns specialty occupation status to a proffered position if it has a requirement for at least a 
bachelor's degree in a specific specialty, and if that requirement is common to the industry in positions which 
are both (1) parallel to the proffered position and (2) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by CIS 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 1 151, 1 165 (D.Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1 102 
(S.D.N.Y. 1989)). The evidence of record does not contain these any of these factors. As already discussed, the 
job advertisements &om other firms are not probative, due to the lack of evidence that the performance 
requirements of the advertised position are substantially similar to those of the proffered position. 
As limited as it is to generalized information, the evidence does not establish that the proffered position and 
its duties are especially complex, specialized, or unique. Accordingly, the petitioner had not satisfied either 
the second alternative prong of 8 C.F.R. 3 214.2(h)(4)(iii)(A)(2) (which provides that "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") or the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4) (for positions with specific duties so specialized 
and complex that their performance requires knowledge that is usually associated with the attainment of a 
baccalaureate or higher degree in a specific specialty). 
Finally, the petitioner has not satisfied the third criterion of 8 C.F.R. 3 214.2@)(4)(iii)(A). The petitioner has 
not presented a prior history of hiring for the proffered position only persons with at least a bachelor's degree 
in engineering or a related specialty. As earlier noted, undocumented assertions are not sufficient to satisfy 
any evidentiary criterion. Furthermore, even if the petitioner had documented such a hiring history, it would 
not satisfy this criterion unless it were also established that such hiring was necessitated by the position's 
actual performance requirements. A petitioner's creation of a position with a perfunctory bachelor's degree 
requirement will not mask the fact that the position is not a specialty occupation. CIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty occupation. CJ: 
Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000). 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. 
As the petitioner has failed to establish that the proffered position qualifies as a specialty occupation under any 
criterion of 8 C.F.R. fj 214.2(h)(4)(iii)(A), the director's decision shall not be disturbed. 
\ 
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The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
9 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.