dismissed H-1B Case: Information Technology

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-A-C-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 25,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and information technology consulting company, seeks to 
temporarily employ the Beneficiary as an "HR specialist - IT" under the H-1 B 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)(l5)(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. H-IB visas are statutorily capped at 65,000 per year (H-1B Cap) with an 
additional 20,000 provided for those who hold a U.S master's or higher degree (Master's Cap 
Exemption). Section 214(g)(l)(A)(vii), (5)(C) ofthe Act, 8 U.S.C. § 1184(g)(l)(A)(vii), (5)(C). 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not establish that the Beneficiary qualifies for the Master's Cap Exemption. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. 
Upon de novo review, we will dismiss the appeal. 
I. MASTER'S CAP EXEMPTION 
Eligibility for the Master's Cap Exemption is reserved for an individual who "has earned a master's 
or higher degree from a United States institution of higher education (as defined in [20 U.S.C. 
§ 1001(a)]) .... " Section 214(g)(5)(C) of the Act (emphasis added). In turn, an "institution of 
higher education" is defined, among other requirements, as "a public or other nonprofit institution" 
and "accredited by a nationally recognized accrediting agency or association .... " 20 U.S.C. 
§ 1001(a) (2012) (originally enacted as the Higher Education Act of 1965, Pub. L. No. 89-329, 79 
Stat. 1219) (Higher Education Act) (emphasis added). 
The Director found that the institution which granted the 
Beneficiary's master's degree, does not meet the definition of an institution of higher education. In 
reaching this conclusion, the Director determined that the Petitioner has not established that 
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Matter ofT-A-C-, Inc. 
is fully accredited and is a nonprofit institution. On appeal, the Petitioner submits additional 
evidence to establish that is accredited by a nationally recognized accrediting agency; 
therefore, we withdraw this part of the Director's decision. 
However, the Petitioner has not sufficiently established that is a nonprofit organization. On 
appeal, the Petitioner submits a letter from the Internal Revenue Service (IRS) which indicates that 
the Petitioner is "recognized as exempt under section 501(c)(03) of the Internal Revenue Code." 
The Petitioner notes the Director's finding that the National Center for Education Statistics (NCES) 
describes as a "private for-profit" institution. The Petitioner asserts that "NCES does not 
determine the nonprofit status of an institution; the [IRS] is the agency that determines such status." 
The Petitioner further claims that NCES "will be updating their data as soon as the Department of 
Education updates Eligibility and Certification Approval Report (ECAR)." However, 
the Petitioner did not submit any evidence to substantiate its claim. Further, eight months have 
passed since the date of the Petitioner's letter, but NCES has not updated its data, and it still 
indicates that is a private, for-profit institution. 
NCES is the primary federal entity for collecting and analyzing data related to education in the 
United States. NCES is located within the Department of Education and the Institute of Education 
Sciences, and it fulfills a Congressional mandate to collect, collate, analyze, and report complete 
statistics on the condition of American education; conduct and publish reports; and review and report 
on education activities internationally. 1 
As noted, an "institution of higher education" is defined at 20 U.S.C. § 1001(a), which was 
originally enacted as the Higher Education Act of 1965. We further note "nonprofit" is defined at 
20 U.S.C. § 1003 as follows: 
The term "nonprofit" as applied to a school, agency, organization, or institution 
means a school, agency, organization, or institution owned and operated by one or 
more nonprofit corporations or associations no part of the net earnings of which 
inures, or may lawfully inure, to the benefit of any private shareholder or individual. 
While the Petitioner has provided a 501(c)(3) letter, it has not sufficiently demonstrated that it is 
designated as a nonprofit institution by NCES or that the information on the NCES was incorrect 
based on the definition of "nonprofit." 
As the record does not establish that was a "public or other nonprofit institution" on the date 
the Beneficiary earned his master's degree, it does not establish that the institution qualified as a 
"United States institution of higher education" for purposes of the Master's Cap Exemption. 
1 
Additional information regarding NCES may be found on its website at https://nces.ed.gov/about. 
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Matter ofT-A-C-, Inc. 
II. SPECIALTY OCCUPATION 
While the Beneficiary's ineligibility for the Master's Camp Exemption is dispositive of the 
Petitioner's appeal and we need not address fully address other issues evident in the record, we will 
enter an additional basis for denial. 
A. 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: 
(I) 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. Cherto.ff, 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). 
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Matter ofT-A-C-, Inc. 
B. The Proffered Position 
The Petitioner stated in the H -1 B petition that the Beneficiary will serve as an "HR specialist - IT." 
In its support letter, the Petitioner stated that the Beneficiary would perform the following duties 
(note: errors in the original text have not been changed): 
• Identify, engage, and recruit qualified IT candidates by performing sourcing activities 
to include, but not limited to: market and Internet research identifying alternate 
candidate sources, cold calling, executing recruiting calls, referral recruiting, online 
social networking, attending seminars and local networking events. 
• Responsible for processing and contacting qualified IT candidates who respond to 
[the Petitioner] via phone, email, employee referrals or web. 
• Qualify candidates by conducting telephone, skype and in-person interviews to obtain 
work history, education, training, job skills, and salary requirements. 
• Manage offer process, and make salary recommendations. 
• Complete appropriate reference checks on candidates to ensure authenticity of stated 
skills and experience. Coordinate applicable background investigations (Criminal 
background, work history and drug screening). 
• Educate candidates on company policies and procedures. 
• Should attend all major technology related conferences, Seminars and local 
networking meetings. 
According to the Petitioner, the position reqmres a bachelor's degree m engmeenng, business 
administration, or a directly related field. 
C. 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 
Before addressing the specialty-occupation criteria contained at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4), 
we will briefly discuss an issue which precludes a finding that the proffered position is a specialty 
occupation. 
As noted, the Petitioner indicates that a bachelor's degree in business administration, with no further 
specialization, would adequately prepare an individual to perform the duties of the proffered 
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-1 8 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. 
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Matter ofT-A-C-, Inc. 
position. However, a requirement for a bachelor's degree in business administration, with no further 
specialization, is inadequate to establish that a position qualities as a specialty occupation. A 
petitioner must demonstrate that the proffered position requires a precise and specific course of study 
that relates directly and closely to the position in question. Since there must be a close correlation 
between the required specialized studies and the position, the requirement of a degree with a 
generalized title, such as business administration, without further specification, does not establish the 
position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 
(Comm'r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)( 1) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed, we interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to 
require a degree in a specific specialty that is directly related to the proposed position. Although a 
general-purpose bachelor's degree, such as a degree in business administration, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a finding 
that a particular position qualifies for classification as a specialty occupation. Royal Siam Corp., 
484 F.3d at 147. 
Though this issue precludes approval of the H-1 B petition, we will nonetheless review the evidence 
of record under 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4) for the purpose of performing a more 
comprehensive analysis. 
1. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(i), 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 
On the labor condition application (LCA)5 submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Human Resources Specialists" 
4 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. 
5 The Petitioner is required to submit a certified LCA in order to demonstrate that it will pay an H-1 8 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 experience and qualifications who are performing the same services. See 
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Matter ofT-A-C-. Inc. 
corresponding to the Standard Occupational Classification code 13-1071.6 The Handbook states the 
following with regard to positions located within this occupational category: "Human resources 
specialists must usually have a bachelor's degree." It also states that while "[a]pplicants seeking 
positions as a human resources specialist must usually have a bachelor's degree in human resources, 
business, or a related field," "the level of education and experience required varies by position and 
employer." Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, 
Human Resources Specialists (2016-17 ed.). 
The Handbook does not indicate that a bachelor's degree in a specific specialty, or the equivalent, is 
normally required. As noted, education and experience requirements vary by position and employer. 
Further, though the Handbook states that human resources specialists "must usually have a 
bachelor's degree," 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 proffered 
position. See Royal Siam Corp., 484 F.3d at 147; Defensor, 201 F.3Cl at 387. Moreover, the 
Handbook specifically states that a business degree would adequately prepare an individual to work 
in positions located within this occupational category. However, that finding does not establish 
eligibility under the first criterion. As explained above, we interpret the degree requirement at 
8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the 
proposed position. Requiring a general-purpose bachelor's degree, such as a degree in business 
administration, without more, will not justify a finding that a particular position qualifies for 
classification as a specialty occupation. Royal Siam Corp., 484 F .3d at 14 7. 
The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Therefore, it has not 
satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
2. 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. 
Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
6 The Petitioner classified the proffered position at a Level II wage. 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 II wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to 
perform "moderately complex tasks that require limited judgment.'' U.S. Dep't of Labor, Emp't & Training Admin., 
Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC_Guidance_Revised_ll_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. 
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Matter ofT-A-C-, Inc. 
a. 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 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)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a 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 does the record currently 
contain any other evidence for our consideration under this prong. 
Accordingly, the evidence of record does not currently satisfy the first alternative prong of 8 C.P.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
b. Second Prong 
We will next consider the second alternative prong of 8 C.P.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can Qe 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
The Petitioner has not sufficiently developed relative complexity or uniqueness as an aspect of the 
proffered position. In other words, the Petitioner has not demonstrated how the duties of the 
proffered position as described in the record require the theoretical and practical application of a 
body of highly specialized knowledge such that a bachelor's or higher degree in a specific specialty, 
or its equivalent, is required to perform them. For example, the Petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and establish how 
such a curriculum would be necessary to perform the duties it believes are so complex and unique. 
While a few related courses may be beneficial, or even required, in performing certain duties of the 
position, we find that the Petitioner has not demonstrated how an established curriculum of such 
Matter ofT-A-C-, Inc. 
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 Handbook does not indicate that a bachelor's degree in a specific specialty, or the equivalent, is 
normally required for positions located within the occupational category designated by the 
Petitioner, and the evidence of record does not currently demonstrate that the proffered position is 
more complex or unique than such positions. 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references his 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. We find that Petitioner did not sufficiently develop 
relative complexity or uniqueness as an aspect of the duties of the position, and that it did not 
identify any tasks that are so complex or unique that only a specifically degreed individual could 
perform them. Accordingly, the evidence of record does not currently satisfy the second alternative 
prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
3. 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. 
The record contains no evidence for consideration under this prong. Accordingly, the evidence of 
record does not currently satisfy the third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). 
4. 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. 
The Petitioner's generalized assertions regarding the specialization and complexity of the position's 
duties are acknowledged. However, those claims are undermined by the Petitioner's Level II wage 
designation. In classifying the proffered position at a Level II wage, the Petitioner effectively 
attested to DOL that the Beneficiary would perform only moderately complex tasks that require 
limited judgment. 7 In any event, the evidence of record does not currently demonstrate that the 
7 The Petitioner's designation of this position as a Level II position undermines its claim that the position is particularly 
complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a Level II wage­
designation does not preclude a proffered position from classification as a specialty occupation, just as a Level IV wage­
designation does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Level 
II would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for entry. Similarly, 
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Matter ofT-A-C-, Inc. 
Petitioner's proffered position is one with duties sufficiently specialized and complex to satisfy 
8 C.P.R.§ 214.2(h)(4)(iii)(A)(4). 
Because the record of proceedings as currently constituted does not satisfy one of the criteria at 
8 C.P.R. § 214.2(h)(4)(iii)(A), the Petitioner has not demonstrated that the proffered position 
qualifies as a specialty occupation. For this additional reason, the petition may not be approved. 
III. CONCLUSION 
The Petitioner has not established its eligibility for the nonimmigrant benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-A-C-, Inc. ID# 389669 (AAO July 25, 2017) 
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 relevant factor but is not itself conclusive evidence that 
a proffered position meets the requirements of section 214(i)( I) of the Act. 
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