dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-E-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 18,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a B2B Internet asset exchange provider, seeks to temporarily employ the Beneficiary as 
an "enterprise delivery manager" under the H-lB nonimmigrant classification. See Immigration and 
Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, 
California Service Center, denied the petition. The matter is now before us on appeal. The appeal will 
be dismissed. 
I. ISSUES 
The issues before us are whether (1) the proffered position qualifies as a specialty occupation; and 
(2) the Beneficiary is qualified to serve in a specialty occupation position in accordance with the 
applicable statutory and regulatory provisions. 
II. SPECIALTY OCCUPATION 
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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1 )] 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 
Matter ofG-E-, Inc. 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of W-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)( 1) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered 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"). Applying this standard, USCIS regularly approves H-lB petitions for qualified 
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Matter ofG-E- , Inc. 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-IB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position 's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissn er, 201 F. 3d 384. The critical element is not the title 
of the position or 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. 
B. Proffered Position 
In the Form I-129, the Petitioner stated that the Beneficiary would mainly work "at office of an 
affiliate of Petitioner, MN Wage certified for both 
addresses." In the support letter dated March 27, 2015, the Petitioner provided the Beneficiary's job 
duties, which it stated "are, essentially, those of a senior Market Research Analyst[.]" In addition, 
the Petitioner stated that "[t]he job can only be performed effectively by a person with substantial 
professional qualifications, which, at a minimum, translate to a Bachelor's Degree or equivalent" 
and "[b]ecause ofthe highly technical nature of this particular industry, the preferred degree is in the 
Engineering or Computer Science areas or some related discipline." 1 
In response to the RFE, the Petitioner provided a revised job description, along with the approximate 
percentage oftime the Beneficiary would spend on each duty, as follows: 
A. Creation and Delivery of Sales Presentations; Keep Up with 
Company Technology 
(Approximately 8 hours per week= 20%) 
Create and deliver effective technical presentations on connectivity, integration and 
interfaces, including graphics, Power Point presentations, interactive presentations, 
computer demonstrations and "White Papers" to promote the technological and 
1 It must be noted that a preference that a degree be in a specific specialty is insufficient to establish the proffered 
position as qualifyin g as a specialt y occupation position . This assertion by the Petitioner is tantamount to an admission 
that the proffered position is not in fact a specialt y occupation . 
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Matter ofG-E-, Inc. 
related advantages of the company's IT solutions over comparable competitors' 
products. Research the technological, cost and efficiency aspects of competitors' IT 
solutions. Meet with in-house technical personnel on a weekly basis, in person and 
remotely via Webex web meetings, teleconferences, etc., to keep abreast of the 
Company's own technologies, specifications, and innovations; maintain and augment 
detailed extensive knowledge of all company IT products, including the program 
structure and architecture, applications, functions, and underlying computer 
processes. Demonstrate the IT aspects of the company's hosted and downloaded 
product content to existing and prospective clients. 
B. Respond to Inquiries and Requests for Proposals ("RFPs") 
(Approximately 8 hours per week= 20%) 
Research existing and potential clients' businesses, industry sectors, and technology 
needs to create specifically targeted presentation packages and programs. Develop, 
present, and/or respond to proposals and inquiries for specific client requirements, 
including request for proposal responses and industry-specific solutions, showcasing 
the superiority, quality and cost-efficiency of [the Petitioner's] IT solutions. Identify 
and follow-up on opportunities for up-sell and cross-sell of company IT products. 
Create and manage all client related RFP (Request for Proposal), SOW (Statement of 
Work) and BRD (Business Requirements Documents), Process Flow charts and 
Client Reporting requirements and deliverables. Manage customized projects while 
bridging between customer and design team. Project based team management with 
scope, time and cost control. 
C. Client Contract and Sales Activities 
(Approximately 8 hours per week = 20%) 
Investigate, analyze and understand customer IT environment and technical 
requirements for their E-commerce applications and articulate these requirements to 
the sales and service teams. Root Cause Analysis and development of quality 
improvement strategies based on content audit reports and customer response with 
proper preventive measure. Meet with existing clients and potential new clients, both 
alone and with company technology and support personnel. Contact via in-person 
meetings, telephone, video conference, web conference, E-mail, Fax, etc. Initial 
meetings and frequent follow-up on a regularly scheduled basis, and also as-need for 
specific projects. Prepare and deliver specifically targeted technical presentations 
that explain the advantages of [the Petitioner's] IT solutions. Demonstrate the IT 
aspects of the company's product content, and improvements and modifications, to 
existing and prospective clients, at in-person meetings or via web. Confer with 
clients and their in-house engineers and other IT- and marketing-related personnel to 
assess IT data solutions needs, plans and requirements, and to determine existing 
technology infrastructure and appropriate IT products and solutions. Ascertain 
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Matter ojG-E- , Inc. 
whether existing product line -- and which products within product 
line-- are appropriate, or whether custom IT solutions are needed. Work with clients 
to establish parameters of IT services to be purchased and deployed. Ascertain and 
explain how [the Petitioner's] IT products can be designed or modified to suit client 
needs. 
Advise client technical and marketing personnel on how to use and deploy [the 
Petitioner's] IT solutions most efficaciously. 
D. Work with In-House Programming and Engineering Professionals 
to Turn Proposals and Orders into Projects 
(Approximately 6 hours per week= 15%) 
Communicate orders and specifications to in-house programming, software 
engineering and related technical personnel, both in North America and in Pakistan; 
and meet with tech personnel to explain and determine nature of project. Participate 
in planning and modifying IT product configuration to meet client needs articulate 
these requirements to the sales and service teams. Participate in design and 
configuration planning. Provide technical documentation for both clients and in­
house IT personnel. Propose, strategize and implement production and quality 
processes improvements/re-design with effective operational improvement plan. 
Participate in planning and modifying IT product configurations to meet client needs. 
Create and maintain product content modelling as it related to client requirements. 
E. Oversee and Monitor Progress of IT Solutions Ordered By/Sold to 
Clients 
(Approximately 5 hours per week= 12.5%) 
Act as de facto Project Manager for creation of custom IT solutions and modifications 
of existing products for customers. Participate in design and configuration process, 
and help oversee roll-out from planning through debugging and deployment. Provide 
liaison between in-house IT professionals and client personnel to resolve technical 
questions and problems, explain technology issues and answer technology questions, 
and to keep clients abreast of progress of IT product orders. 
F. Post-Sales/Installation Follow-Up 
(Approximately 5 hours per week= 12.5%) 
Respond to technical questions regarding [the Petitioner's] IT product after 
deployment. Identify additional integration opportunities to increase sales in 
professional services and be able to articulate a consistent integration strategy with 
customers. Provide and/or oversee technical support and services to clients or other 
staff members regarding the use, operation, and maintenance of deployed IT 
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Matter ofG-E-, Inc. 
solutions, and resolve technical issues that arise. Diagnose client problems with 
installed IT product, and work with in-house IT professionals to resolve technical 
problems. Assure completeness and currency of product documentation and arrange 
for instruction and training. Identify additional integration opportunities to increase 
sales in professional services. Manage customer relationship through a successful 
integration. Assist in assignment of company personnel, including support, service, 
and management resources, in order to meet account performance objectives and 
customer expectations. 
The Petitioner also stated that "the vast majority of the job duties described above are [sic] duties 
that require substantial technical expertise, which would normally be acquired only by completion of 
university studies in an applicable tech-related major, or by equivalent combination of education and 
experience." · 
A. Analysis 
Upon review of the record of proceedings, we find that there are inconsistencies and discrepancies in 
the petition and supporting documents, which lead us to question the services the Beneficiary will 
perform, as well as the actual nature and requirements of the proffered position. When a petition 
includes numerous discrepancies, those inconsistencies will raise concerns about the veracity of the 
Petitioner's assertions. 
For example, the Petitioner has provided inconsistent information regarding the Beneficiary's work 
site. For instance, on the Form I-129 in Part 5, item 5, the Petitioner provided the following 
information: 
Will the beneficiary work off-site? X No Yes 
However, on the Form I-129, H Supplement on page 19, the Petitioner indicated the following: 
Part D. Off-Site Assignment ofH-lB Beneficiaries 
No X Yes a. The beneficiary of this petition will be assigned to work at an 
off-site location for all or part of the period for which H -1 B 
classification is sought. 
No explanation for this variance was provided. 
In addition, the Petitioner has provided inconsistent information regarding the educational 
requirement for the proffered position. For instance, in the support letter, the Petitioner stated that 
the proffered position requires a bachelor's degree or equivalent and "the preferred degree is in the 
Engineering or Computer Science areas or some related discipline." However, in response to the 
RFE, the Petitioner stated that the duties of the proffered position "require substantial technical 
Matter ofG-E-, Inc. 
expertise, which would normally be acquired only by completion of university studies in an 
applicable tech-related major, or by equivalent combination of education and experience." In 
addition, in the same letter, the Petitioner stated that the position "requires a high degree of 
sophistication in Computer/Information Technology, generally associated with attainment of a 
Bachelor's degree or equivalent in Computer Science, Information Technology or a related 
discipline[.]" No explanation for these inconsistencies was provided. 
"[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective 
evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the Petitioner submits competent objective evidence 
pointing to where the truth lies. !d. at 591-92 
Furthermore, the Petitioner stated on the Labor Condition Application (LCA) that the proffered 
position falls under the "Marketing Research Analysts and Marketing Specialists" occupational 
category- SOC (ONET/OES) code 13-1161. In response to the RFE, the Petitioner claimed that 
"although the job duties on the whole are most akin to Market Research Analyst, they are also akin 
to the job title of Sales Engineer." On appeal, the Petitioner states that "the position in this case 
defies easy categorization or compartmentalization, and bears similarities to the position of Sales 
Engineer, O*NET/SOC Code 41-9031.00." 2 
While these occupational categories may have some general duties in common, they are distinct and 
separate occupational categories. When the duties of the proffered position involve more than one 
occupational category, the U.S. Department of Labor (DOL) provides guidance for selecting the 
most relevant Occupational Information Network (O*NET) code classification. The "Prevailing 
Wage Determination Policy Guidance" by DOL states the following: 
In determining the nature of the job offer, the first order is to review the 
requirements of the employer's job offer and determine the appropriate occupational 
classification. The O*NET description that corresponds to the employer's job offer 
shall be used to identify the appropriate occupational classification . . . . If the 
employer's job opportunity has worker requirements described in a combination of 
O*NET occupations, the NPWHC should default directly to the relevant O*NET­
SOC occupational code for the highest paying occupation. For example, if the 
employer's job offer is for an engineer-pilot, the NPWHC shall use the education, 
skill and experience levels for the higher paying occupation when making the wage 
level determination. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http:/ /www.foreignlaborcert.doleta. gov /pdf/NPWHC _Guidance_ Revised _11_ 2009. pdf. 
2 On appeal, the Petitioner submitted unpublished decisions in support of its claim that the position of "Sales Engineer" 
is a specialty occupation. 
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Matter ofG-E- , Inc. 
Thus, if the Petitioner believed its position was described as a combination of occupations, then 
according to DOL guidance, the Petitioner should have chosen the relevant occupational code for the 
highest paying occupation. The Level 2 prevailing wage for "Market Research Analysts and 
Marketing Specialists" is significantly lower than the Level 2 prevailing wage for "Sales Engineers." 
For instance, at the time the Petitioner's LCA was certified, the Level 2 prevailing wage for "Sales 
Engineers" in Minnesota) was $37.94 per hour and for 
California) was $44.10 per hour, while the Level 2 prevailing wage for "Marketing 
Research Analysts and Marketing Specialists" in Minnesota) was 
$26.52 per 
hour and for California) was $26.99 per hour. Moreover, it is 
important to note that the offered wage of at least $27.00 per hour to the Beneficiary is less than the 
prevailing wages of $30.39 per hour and $34.40 per hour for the "Sales Engineer" occupational 
category. 
Under the H-lB program, a petitioner must offer a beneficiary wages that are at least the actual wage 
level paid by the Petitioner to all other individuals with similar experience and qualifications for the 
specific employment in question, or the prevailing wage level for the occupational classification in 
the area of employment, whichever is greater, based on the best information available as of the time 
of filing the application. See section 212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(l)(A). 
As such, the Petitioner has not established (1) that it submitted a certified LCA that properly 
corresponds to the claimed occupation and duties of the proffered position; and (2) that it would pay 
the Beneficiary an adequate salary for his work, as required under the Act, if the petition were 
granted. These issues preclude the approval of the petition. 
Moreover, the Petitioner claims that the proffered position falls within two occupational categories, 
but has not selected the occupational category with the highest prevailing wage in accordance with 
DOL guidance. Therefore, we cannot conclude that the petition and LCA accurately reflect the 
substantive nature of the work to be performed by the Beneficiary. We are therefore precluded from 
finding that the proffered position satisfies any criterion at 8 C.F .R. § 214.2(h)( 4 )(iii)(A), because it 
is the substantive nature of that work that determines (1) the normal minimum educational 
requirement for the particular position , which is the focus of criterion 1; (2) industry positions which 
are parallel to the proffered position and thus appropriate for review for a common degree 
requirement, under the first alternate prong of criterion 2; (3) the level of complexity or uniqueness 
of the proffered position, which is the focus of the second alternate prong of criterion 2; ( 4) the 
factual justification for a petitioner normally requiring a degree or its equivalent, when that is an 
issue under criterion 3; and (5) the degree of specialization and complexity of the specific duties, 
which is the focus of criterion 4. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. 
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Matter ofG-E-, Inc. 
III. BENEFICIARY QUALIFICATIONS 
The Director also found that the Beneficiary would not be qualified to perfoim the duties of the 
proffered position if the job had been determined to be a specialty occupation. However, a 
beneficiary's credentials to perform a particular job are relevant only when the job is found to be a 
specialty occupation. As discussed in this decision, the proffered position does not require a 
baccalaureate or higher degree in a specific specialty, or its equivalent. Therefore, we need not and 
will not address the Beneficiary's qualifications further, except to note that, if the proffered position 
did require a bachelor's or higher degree in a specific specialty closely related to its duties, the 
Petitioner has not demonstrated how the Beneficiary's education, which according to the educational 
evaluation submitted by the Petitioner is the foreign equivalent to a U.S. bachelor's degree m 
electrical engineering, would qualify him to perform its duties of the proffered position. 
IV. CONCLUSION AND ORDER 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofG-E-, Inc., ID# 15817 (AAO Mar. 18, 2016) 
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