dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-M-. INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 20. 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129. PETITION FOR A NOIMMIGRANT WORKER 
The Petitioner. an information technology company. seeks to temporarily employ the Beneficiary as 
a "systems analyse under the H-1 B nonimmigrant classification for specialty occupations. .\'ee 
Immigration and Nationality Act (the Act) section IOI(a)(I5)(H)(i)(b). 8 U.S.C. ~ 110l(a)(l5)(H)(i)(b). 
The H-1 B 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 Petitioner did 
not establish that the proffered position is a specialty occupation. 
On appeal. the Petitioner submits a brief and contends that the petition should be approved. 
Upon de novo 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 specitic specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
1 
We follow the preponderance of the evidence standard as specified in Matter of Chmrathe. 25 I&N Dec. 369. 3 75-76 
(AAO 2010). 
A1atter olE-M-. Inc. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part the following: 
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 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 toll owing criteria: 
(1) A baccalaureate or higher degree or its equivalent 1s normally the mm1mum 
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 perfcnmed only by an 
individual with a degree: 
(3) The employer normally requires a degree or its equivalent tor the position: or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to pert()rm the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue. the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) 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. S'ee K Afar/ ( 'orp. v. ('artier. Inc., 486 U.S. 281. 291 ( 1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred): see also COlT 
Independence .Joint Venture v. Fed. ,\'av. and Loan Ins. ( 'orp .. 489 lJ .S. 561 ( 1989): Matter of W-F-. 
21 l&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 tor 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 Defimsor 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. 
2 
Matter of'E-M-. Inc. 
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), we have consistently interpreted 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 ( 'orp. l'. ('her/off~ 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'"). 
To determine whether a particular job qualifies as a specialty occupation, we do 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. We must examine the ultimate 
employment of the individuaL and determine whether the position qualifies as a specialty 
occupation. See generally Defensor, 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. 
II. PROFFERED POSITION 
The Petitioner stated in the 11-1 B petition that the Beneficiary will serve as a '"systems analyst" from 
March 2017 to March 2020. In its support letter. the Petitioner stated that the Beneficiary vvill be 
assigned in-house to its online food ordering and delivery platform and will perform the following 
duties (note: errors in the original text have not been changed): 
Analyze computer systems and all other data processing problems for application to 
electronic data processing systems. Analyze user requirements, procedures. and 
problems to automate or improve existing systems and review computer system 
capabilities, workflow. and scheduling limitations. Provide staff and users \Vith 
assistance solving computer related problems, test, maintain. and monitor computer 
programs and systems, compute program needs, coordinate and link the computer 
systems. consult with management to ensure agreement on systems principles. expand 
or modify system to serve new purposes or improve work f1ow. observe job 
performance. determine information processing, determine needed computer software 
and hardware to set up or alter system. train staff and users to work with computer 
systems and programs, computer systems problems. detect and troubleshoot operating 
problems. 
In response to the Director's request for evidence (RFE). the Petitioner provided additional job 
details and confirmed the Beneficiary's assignment to its in-house food ordering platform. which 
was first built and released in September 2013. The Petitioner stated that it has been continuously 
improving its product. and seeks the Beneficiary's services to help expand the product's offerings. 
Matter of E-M-. Inc. 
According to the Petitioner. the proffered positiOn involves the '"deployment of academic, 
conceptuaL and theoretical knowledge of computer systems analysis and implementation." as well as 
""hands-on experience with the duties described above.'' The Petitioner stated that the position 
requires a bachelor's degree in engineering. computer science. or information technology. 
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 qualities 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. 2 
Preliminarily, the Petitioner has not sufficiently demonstrated the nature of the work the Beneficiary 
will perform during the entire validity period requested. 
The Petitioner asserts that the Beneficiary, as a full-time ··systems analyst:· will work exclusively on 
its in-house food ordering platform for the entire validity period requested (March 2017 through 
March 2020). However. numerous documents in the record undermine this claim. For example. the 
Petitioner's project business plan does not describe the position duties of a ""systems analyst." 
Rather. it describes duties for numerous other technical positions including software developer. 
business analyst, system administrator. quality assurance, front end developer. and engineer 
positiOns. While the same business plan contains an organizational chart depicting a '"systems 
analyst"' position, the chart also depicts the '"systems analyst" position as directly supervising the 
""web designer" position. The proffered duties. however. do not include any supervisory duties. 
The business plan includes a timeline indicating that the project will be completed in 143 days. 
starting in April 2017 and finishing in October 2017. In contrast. the Petitioner is requesting a 
validity date until March 2020. The Petitioner has not explained what the Beneficiary \vill do 
beyond the projected tinish date in October 2017. Further. the timeline indicates that the Beneficiary 
will work in the .. inception phase" and perform duties such as .. study different apps by competitors:· 
·'make the feature list:· and ""create the basic tlow of the app... There is no further explanation of 
how these duties relating to the product's ""inception phase" are consistent with the Petitioner's claim 
that its product has already been developed and launched since September 2013. 
Moreover. the business plan's 2017 projected tinancials indicate that the Petitioner plans to spend 
$137.500 on .. salaries" and an additional $43.200 on ""development expense." It is not apparent that 
these projected expenses are sufficient to cover the expansive project team depicted in the business 
plan. consisting of at least 22 different positions and an unknown number of persons in each 
position. The Beneficiary's proposed annual salary alone is either $61.000 (per the ll-1 B petition 
2 
The Petitioner submitted documentation to support the H-1 B petition. including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted. we have reviewed and 
considered each one. 
4 
Matter of E-M-. Inc. 
and labor condition application (LCA) 3 submitted in support of the petition) or $70.000 (per the 
Petitioner's offer letter and employment agreement with the Bencticiary). 4 
The Petitioner repeatedly states that this is an in-house project. Y ct the Petitioner· s offer letter and 
employment agreement with the Beneficiary makes numerous references to her duties for 
unspecified clients. The offer letter. for example, states that the Beneficiary will be required to send 
daily work reports to the Petitioner ··and the person in charge of the client coordination vmuld guide 
your work (verbatim).'' The employment agreement describes the scope of the Beneficiary's 
employment and duties as to provide technical services "'[as] directed to perform by [the Petitioner J 
for [the Petitioner's] Clients ... at Client locations as directed by [the Petitioner] and at any other 
location." It also requires the Beneficiary to submit to the Petitioner weekly status reports and daily 
time sheets validated by the client. These and other provisions collectively suggest that the 
Beneficiary's client-facing duties will be significant, and consequently. inconsistent with the claimed 
in-house position. The record does not contain any explanation for these numerous discrepancies. 
Accordingly, the record does not credibly demonstrate the substantive nature of the work to be 
performed by the Beneficiary. This precludes a conclusion 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 entry into the particular position. 
which is the f(Kus 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 ofthe proffered position. which is the focus of the 
second alternate prong of criterion 2: ( 4) the tactual justification f()r 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 f(Kus of criterion 4. As the Petitioner has not 
established that it has satisfied any ofthe criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot be found 
that the proffered position qualities t()r classification as a specialty occupation. The appeal will be 
dismissed and the petition denied tor this reason. 
Nevertheless. for the sake of a more comprehensive analysis. we will analyze the criteria at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A) assuming arguendo that the Beneficiary \viii perform the proffered duties as 
described. 5 
y The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either 
the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the 
employer to other employees with similar experience and qualifications who arc performing the same services. See 
Matter ofSimeio Solutions. LLC. 26 I&N Dec. 542. 545-546 (AAO 20 15) . 
.J The Petitioner has not explained why the Beneficiary's salary is different among these documents. 
'Although some aspects ofthc regulatory criteria may overlap. we will address each of the criteria individually. 
Malter of E-M-. Inc. 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 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. h 
On the LCA. the Petitioner designated the proffered position under the occupational category 
··computer Systems Analysts" corresponding to the Standard Occupational Classification code 15-
1121. The Handbook states. in pertinent part about these occupations: ··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 (20 16-17 ed. ). The Handbook also states: "Although many 
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." 
!d. 
The Handbook therefore does not support the assertion that at least a bachelor's degree in a specific 
specialty, or its equivalent. is normally the minimum requirement for these positions. As noted. the 
Handbook specifically states that a bachelor's degree in a related field is "not always a 
requirement.., The Handbook continues by stating that there is a wide range of degrees that are 
acceptable for positions located within this occupational category, including general-purpose degrees 
such as business and liberal arts. As discussed. we interpret the term .. degree" to mean a degree in a 
specific .specialty that is directly related to the proposed position. 7 See Royal Siam Corp .. 484 F.3d 
at 147. Since there must be a close correlation between the required specialized studies and the 
position. a requirement of general and wide-ranging degrees in business and liberal arts strongly 
suggests that a computer systems analyst position is not categorically a specialty occupation. See id. 
Cl Matter ofMichael Hertz Assoc.\· .. 19 I&N Dec. 558. 560 (Comm·r 1988). While the Hand/wok 
indicates that a bachelor's degree in a computer or information science field is common. it docs not 
report that such a degree in normally a minimum entry requirement. 
(, All of our references are to the 2016-2017 edition of the Ham/hook. which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handhook is the exclusive source of relevant 
information. That is. the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position. and we regularly review the !fum/hook 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 pat1icular position 
would normally have a minimum. specialty degree requirement. or its equivalent. for entry. 
7 
As the statute requires a ··a bachelor"s or higher degree in the specific specialty (or its equivalent)'" (emphasis added). 
the Petitioner's assertion that by applying this requirement the Director "read plain language out of the statute"" is 
unpersuasive. 
Matter olE-M-. Inc. 
According to the Ham/hook, many individuals who hold positions located within this occupational 
category have liberal arts degrees and have gained programming or technical expertise elsewhere. It 
further reports that many analysts have technical degrees. The Ham/hook does not specify a degree 
level (e.g., associate· s degree, baccalaureate) for these technical degrees. Thus. the Hand hook docs 
not support the claim that this occupational category is one for which the normal minimum 
requirement for entry is a baccalaureate degree (or higher) in a specific specialty. or its equivalent. 
The Petitioner submits information from several other sources f(w our consideration under this 
criterion, including DOL's Occupational Information Network (O*NET). printouts fi·om several 
college and career-preparation websites, and an evaluation of the position prepared by a college 
professor. 8 None of it is persuasive. 
The O*NET Summary Report provides general information regarding the occupation. hut it does not 
support the Petitioner's assertion regarding the educational requirements for the occupation. For 
example, the Job Zone Four designation indicates that most. but some do not require a four-year 
bachelor's degree. It does not specify the specific field of study. if any. from which the degree must 
come. The occupation's Specialized Vocational Preparation (SVP) rating of 7 < 8 is even less 
persuasive. An SVP rating of 7 to less than (""<") 8 indicates that the occupation requires --over 2 
years up to and including 4 years" of training. While the SVP rating indicates the total number of 
years of vocational preparation required for a pm1icular position. it is important to note that it does 
not describe how those years are to he divided among training. experience. and formal education 
which, by definition, includes high school education and commercial or shop training.
9 
The SVP 
rating also does not specify the particular type of degree, if any. that a position would require. For 
all of these reasons. we are not persuaded by the Petitioner's citations to O*NET. 
We acknowledge the Petitioner's assertions on appeal regarding the definition of the terms 
··profession" and --professional.'' However. those definitions are not relevant here. as they relate to 
immigrant visa petitions and whether the beneficiaries of those petitions were members of the 
professions as defined in section 10l(a)(32) ofthe Act 8 U.S.C. ~ 110l(a)(32).
10 
The issue before 
us is whether the Petitioner's proffered position qualities as a nonimmigrant H-1 B specialty 
. h h . . i' • II occupatiOn- not w ct er It IS a proJcssion. 
8 The Petitioner asserts that the job vacancy announcements should be considered under this criterion. and contends that 
the Director erred in not doing so. We disagree. Job vacancy announcements printed from the Internet generally do not 
constitute the type of objective. authoritative source we rely upon under this criterion. In any event. these vacancy 
announcements contain numerous evidentiary deficiencies we will also discuss later in this decision. 
9 
For additional information, see the O*NET Online Help webpage available at 
http://www .oneton I ine .org/he lp/ on I i nei svp. 
10 
The primary difference between qualifying as a profession and qualifying as a specialty occupation is that specialty 
occupations require the U.S. bachelor's or higher degree to be in a specific specialty. or its equivalent. Thus. while an 
occupation may be specifically identified as qualifying as a profession as defined in section I 0 I (a)(32) of the Act, it 
would not necessarily qualify as a specialty occupation unless it met the de tin ition of that term at section 2 14( i )( I ) of the 
Act. 
11 
Moreover. even if the definition of a ·'professional" were at issue. we would look to section I 0 I (a)(32) of the Act 
rather than to a pamphlet issued by the Equal Employment Opportunity Commission. 
.
Matter of E-M-. Inc. 
Nor are we persuaded by the information printed from various career preparation and college 
websites, as we dispute neither the availability, nor the value, of a bachelor's degree in a computer­
related field. These materials are insutlicient to establish that a bachelor's degree in a specific 
specialty, or the equivalent. is normally required for positions located within this occupational 
category. 
Nor does the position evaluation from meet the Petitioner's burden. First 
does not discuss the Petitioner's business operation and particular in-house project in any 
meaningful detail. Though he does recite the duties of the proffered position. he docs not discuss 
them within the context in which they will actually be performed. 
According to his evaluation, a bachelor's degree in business would adequately prepare an individual 
to perform the duties of the proffered position. However, as stated above. a requirement for a 
general-purpose bachelor's degree in business is inadequate to establish that a position qualifies as a 
specialty occupation. See Royal Siam Corp., 484 F.3d at 147. Cf lv!ichael Hertz Assocs .. 19 I&N 
Dec. at 560. In general. provided the specialties are closely related. e.g., computer science and 
information technology, a minimum of a bachelor's or higher degree in more than one specialty is 
recognized as satisfying the '·degree in the specific specialty (or its equivalent)" requirement of 
section 214(i)(l )(B) of the Act. In such a case, the required '·body of highly specialized knowledge .. 
would essentially be the same. Since there must be a close correlation between the required "body 
of highly specialized knowledge" and the position, however, a minimum entry requirement of 
degrees in disparate fields, such as computer science and business, would not meet the statutory 
requirement that the degree be "in the specific specialty (or its equivalent), .. unless the Petitioner 
establishes how each field is directly related to the duties and responsibilities of the particular 
position such that the required body of highly specialized knowledge is essentially an amalgamation 
of these ditTerent specialties. Section 214(i)(l )(B) of the Act (emphasis added). The Petitioner has 
not established how business and liberal arts degrees, for example. are directly related to the 
proffered duties. For all these reasons, evaluation does not satisfy 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(1). 12 
With respect to the multiple degrees apparently acceptable for this position - including degrees in 
computer science and business - the Petitioner asserts that "multiple degree specializations are 
permitted'' for H-1 B purposes. The Petitioner cites to Raj and Co. v. USC/S, 85 F. Supp. 3d 1241 
(W.O. Wash. 2015), Tapis !nt 'I v. INS, 94 F. Supp. 2d 172 (D. Mass. 2000), and Residential Finance 
Corp. v. USCIS. 839 F. Supp. 2d 985 (S.D. Ohio 2012). among other cases. to support its claim that 
1
" For the same reasons. evaluation does not satisfy any other criterion at 8 C.F.R. ~ 214.2(h)( 4 )(iii)( A). For 
the sake of eftlciency, we hereby incorporate this conclusion into our analysis of the remaining specialty-occupation 
criteria. We may. in our discretion. use opinion statements submitted by the Petitioner as advisory. Matter of Camn 
In!'/, Inc .. 191&N Dec. 791,795 (Comm·r 1988). However, where an opinion is not in accord with other information or 
is in any way questionable, we are not required to accept or may give less weight to that evidence. /d. 
Matter (~f E-M-. Inc. 
the first regulatory criterion does not preclude the finding of a specialty occupation position \Vhen 
multiple disciplines may be permitted. 
We are not persuaded. Rather. the comi in Raj specifically stated that a specialty occupation 
requires the attainment of a bachelor's degree or higher in a .\pecijic .\pecialty. or its equivalent. Raj. 
85 F. Supp.3d at 1246. The court confirmed that this issue is well-settled in case law and within the 
agency"s reasonable interpretation of the legal framework. !d. The court also observed that 
"'permitting an occupation to qualify simply by requiring a generalized bachelor degree would run 
contrary to congressional intent to provide a visa program for specialized. as opposed to merely 
educated, workers." !d. The Tapis court similarly confirmed that the agency is "'not unreasonable in 
interpreting the guidelines to demand that an employer require a degree in a speciJic field. 
Otherwise a position would qualify if any bachelor's degree were required." Tapis. 94 F. Supp. 2d 
at 175. 
We agree with the general proposition that "'[t]he knowledge and not the title of the degree is what is 
important." Residential Finance. 839 F. Supp. 2d at 997 (citing Tapis. 94 F. Supp. 2d at 175-76 ). 
Moreover, we generally agree that if the requirements to perform the duties and job responsibilities 
of a profTered position are a combination of a general bachelor's degree and specialized experience 
such that the standards at both section 214(i)( 1 )(A) and (B) of the Act have been satisfied. then the 
profTered position may qualify as a specialty occupation. However. these general propositions are 
not applicable here. 
Instead. they are applicable in circumstances where (I) a specific degree is not available in a 
particular field. and (2) the beneficiary has obtained the equivalence to that specific degree through a 
combination of general education and specialized experience. The Petitioner appears to 
acknowledge this as welL stating on appeal that these cases apply .. where a specifically tailored 
baccalaureate program is not typically available for a given field." The Petitioner does not 
demonstrate that the same circumstances existed here. e.g .. that a degree in computer science does 
not exist or is not typically available. or that a liberal arts or business degree is acceptable only under 
certain circumstances. 
In any event. the Petitioner has furnished no evidence to establish that the facts of the instant petition 
are sufficiently analogous to those in Raj. Residential Finance. and Tapis. all of which concerned 
marketing-related, not computer-related. occupations. 13 And in contrast to the broad precedential 
authority of the case law of a United States circuit court. we are not bound to follow the published 
decision of a United States district court in matters arising even within the same district. 5/ee K-S-. 
20 I&N Dec. at 719-20. Although the reasoning underlying a district judge· s decision will he given 
due consideration when it is properly before us. the analysis does not have to he followed as a matter 
oflaw. !d. 
1
' It is important to note that the district judge's decision in Residential Finance appears to have been based largely on 
the many factual errors made by the service center in its decision denying the petition. See. e.g .. 839 F. Supp. 2d at 996-
97. 
9 
Matter olE-M-. Inc. 
The Petitioner also cites unpublished AAO decisions in which we determined that the positions 
proffered in those matters qualified as a specialty occupation. However. those decisions were not 
published as a precedent and therefore do not bind otlicers in future adjudications. See 8 C.F.R. 
~ 103.3(c). Non-precedent decisions apply existing law and policy to the specific facts of the individual 
case, and may be distinguishable based on the evidence in the record of proceedings, the issues 
considered, and applicable law and policy. Furthermore, any suggestion that we must review 
unpublished decisions and possibly request and review each case file relevant to those decisions, 
while being impractical and ineftlcient would also be a shift in the evidentiary burden in these 
proceedings from the Petitioner to the agency. which would be contrary to section 291 of the Act 8 
U.S.C. ~ 1361. 
For all of these reasons. we conclude that the Petitioner has not established that the proffered 
position is located within an occupational category for which the Ham/hook. or any other relevant 
authoritative source, indicates that the normal minimum entry requirement is at least a bachelor's 
degree in a specific specialty. or the equivalent. Moreover. the Petitioner has not provided 
documentation from another probative source to substantiate its assertion regarding the minimum 
requirement tor entry into this particular position. The Petitioner therefore has not satisfied the 
criterion at 8 C.F.R. ~ 214.2(h)(4)(iii)(A)( /). 
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 a/lerna/ire, 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[.r 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 narrmvs its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion. the Petitioner must establish that the ""degree 
requirement" (i.e .. a requirement of a bachelor's or higher degree in a specific specialty. or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
We generally consider the following sources of evidence to determine if there is such a common 
degree requirement: whether the Handhook 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 Shanli. Inc. v. Reno. 36 F. Supp. 2d 1151. 1165 
(D. Minn. 1999) (quoting Hird/Blaker Corp. \'. Sava. 712 F. Supp. 1095. 1102 (considering these 
·'factors" to inform the commonality of a degree requirement) (S.D.N. Y. 1989)). 
10 
.
Matter olE-M-. Inc. 
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.
14 
Furthermore , the Petitioner did not submit 
any letters or affidavits from similar firms or individuals in the Petitioner·s industry to establish that 
such tirms "routinely employ and recruit only degreed individuals .'' 
The record contains several job vacancy announcements submitted for our consideration under this 
prong. However. to merit consideration the job vacancy announcements must advertise "parallel 
positions,'' and the announcements must also have been placed by organizations that (1) conduct 
business in the Petitioner's industry and (2) are also ··similar" to the Petitioner. Absent such 
evidence. job postings submitted by a Petitioner are generally outside the scope of consideration for 
this prong , which encompasses only organization s that are similar to the Petitioner. 
We will first consider whether the advertised job opportunities could be considered "parallel 
positions.'' The Petitioner attested to DOL that the proffered position is a Level L entry-level 
position. 15 Likewise , the Petitioner did not state any particular experience requirement in addition to 
the claimed educational requirement. However, many of the advertised positions require substantial 
work experience. For example, several of the advertisers require five years of work experience, one 
requires six years of work experience. and another requires ··s to T years of work experience. 
Moreover, several of the announcements contain phrases which indicate they do not advertise Level 
1 positions (e.g., ·'self-directed," "experienced." "ability to work independentl y or under general 
direction only;· "leadership," "self-starter:' "abilit y to self-direct,'. '·train and teach." etc.). 
Considered collectively. these factors indicate that the advertised positions are not entry-level 
positions, and that they are therefore not --parallel'' to the one protTered here . 
Nor does the record establish that any of these announcement were placed by companies that both 
( 1) conduct business in the Petitioner's "industry" and (2) are otherwise ··similar'' to the Petitioner. 
The advertisements themselves contain limited or no information about the hiring companies. The 
Petitioner submits information from the website Linkedln as evidence that the advertising companies 
meet these requirement s. Though we acknowledge the brief company protiles contained within 
1
~ The Petitioner indicates that we should treat letter as one issued by a professional association. We 
decline to do so: did not submit his letter on behalf of a professional association. Even if he had. the same 
deficiencies we outlined above would be relevant here and preclude us from finding that it satisfies this prong of the 
second criterion. 
15 
A prevailing wage determination starts with an entry level wage and progresses to a higher wage level atie r 
considering the experience, education, and skill requirements of the Petitioner's job opportunity. U.S. Dep"t of Labor. 
Emp"t & Training Admin .. Prevailing Wage Determination Policl' Guidance , Nonagric. Immigration Programs (rev. 
Nov. 2009). available at http://flcdatacenter.com /download/NPWHC _G uidance_ Revised I I_ 2009 .pdf ld 
.
Matter olE-M-. Inc. 
these printouts, they are not sufficiently detailed to carry the Petitioner's burden. 1 
h Further. none of 
the claims made in these profiles are supported by documentary evidence. The Petitioner must 
support its assertions with relevant probative, and credible evidence. See Chawathe. 25 I&N Dec. at 
376. 
For all of these reasons, the Petitioner has not established that any of these job vacancy 
announcements are from similar organizations in the Petitioner's industry. Even if that threshold 
had been met we would still conclude that they did not satisfy this prong of the second criterion, as 
they do not indicate that a bachelor's degree in a specific .\pecialty. or the equivalent is common. 
To the contrary, several advertising companies indicate that they would accept a general-purpose 
bachelor's degree in business. or in business administration. Again. we interpret 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 .. 484 F.3d at 147; Defensor. 201 F.3d 384 at 
387. A bachelor's degree in business. or in business administration. is not a degree in a specific 
specialty. Royal Siam Corp., 484 F.3d at 14 7. 
The Petitioner also submits printouts of random individuals' Linkedln profiles for our consideration 
under this prong. At a foundational level. we conclude that these profiles arc equivalent to resumes. 
which have little evidentiary weight. A resume represents a claim made by an individual rather 
evidence to support the claim. Again. the Petitioner must support its assertions with relevant 
probative, and credible evidence. See Chawathe. 25 I&N Dec. at 376. 
Setting that deficiency aside, we conclude that these profiles do not establish that the individuals hold 
"parallel positions'' at organizations which ( 1) conduct business in the Petitioner's industry and (2) arc 
also ·'similar .. to the Petitioner. 
First, none of these individuals appear to occupy positions which "parallel'' the Level I wage-level 
position proffered here. Most of these individuals hold positions whose titles include the descriptors 
"senior'' or ··m·• and many also discuss their leadership and/or supervisory duties, and the Petitioner 
has not demonstrated that such positions would be consistent with I ,eve! I designation. Nor docs the 
record indicate that these individuals are employed by organizations which conduct business in the 
Petitioner's industry and are also "similar" to the Petitioner. For example, we observe that these 
individuals claim to work for government agencies such as the 
16 
Moreover, we observe that several of the company profiles contain conflicting information which undermine 
their credibility. For example, after first stating that it employs between 51 and 200 individuals. one company states that 
it has 16 employees. Another states first that it employs between 51 and 200 individuals. and then states that it has six 
employees. Another states first that it employs between 51 and 200 individuals, and then states that it has 4 7 employees. 
The Petitioner must resolve these inconsistencies with independent. objective evidence pointing to where the truth lies. 
Matter of'Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the 
reliability and sufficiency of other evidence submitted in support ofthe requested immigration benefit. /d. In any event. 
we fundamentally disagree with the Petitioner's implication that companies with up to 200 employees are ··substantially 
similar·· to the Petitioner. which has 14 employees. 
12 
.
Matter of E-M-. Inc. 
as well as for companies that are dissimilar to the Petitioner in size. scope. and scale 
of operations (e.g.. . 7 
For all of these reasons. the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.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 be 
performed only by an individual with at least a bachelor's degree in a specific specialty. or its 
equivalent. 
The Petitioner appears to concede on appeal that it does not meet this criterion. stating the following: 
[The] Petitioner has consistently asse11ed that the otlered position is complex (i.e. 
requires a bachelor's degree or [the] equivalent in a specific discipline). but not so 
complex or so unique by any means. as per the requirement in the second criterion. 
No where, do we state that the position is so unique or so complex. and therefore. we 
will not now, nor did we previously make, 18 any argument in this regard. 
We agree that the evidence of record does not satisfy this prong. As noted, the Petitioner designated 
the proflered position as an entry-level position within the occupational category (by selecting a 
Level I wage). This designation. when read in combination with the Petitioner's job description and 
the Handbook 's account of the requirements for this occupation. suggests that this particular position 
is not so complex or unique relative to other computer systems analysts that the duties can only be 
performed by an individual with a bachelor's degree or higher in a specific specialty. or its 
equivalent. 
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. 
17 
Again. the Petitioner claims to have 14 employees. One of these individuals claims to work for a company with 
313.237 employees. another claims to work for a company with 7,171 employees, another claims to work for a company 
with 872 employees, and another claims to work for a company with 152 employee s. 
IR This is not accurate. In the RFE response , the Petitioner pointed to evidence regarding the protTered position and to 
evidence regarding the Beneficiary 's qualifications , and asse1ted that it had satisfied this prong by a preponderance of the 
evidence. 
,., 
.
Matter of E-M-. Inc. 
we conclude that the Petitioner has not demonstrated how an established curriculum of such courses 
leading to a baccalaureate or higher degree in a specific specialty, or its equivalent is required to 
perform the duties of the proflered position. 
19 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references her 
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 sufticiently develop 
relative complexity or uniqueness as an aspect of the duties of the position. and it did not identify 
any tasks that are so complex or unique that only a specifically degrced individual could perform 
them. Accordingly. the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
~ 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. ~ 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
nonnally requires a bachelor's degree in a specific specialty. or its equivalent for the position. The 
Petitioner concedes that this is a newly-created position. In other words. the Beneficiary is the 
company's first and only systems analyst. Consequently, the record contains no evidence of prior 
recruiting and hiring requirements for this particular position, which is the focus of the third criterion 
The Petitioner contends that "past hiring cannot be a dispositive factor. '· We agree that the lack of a 
prior history of recruiting and hiring tor the position does not preclude classification of a proffered 
position under the other three specialty-occupation criteria. However . it is unclear how a petitioner who 
has never filled a position would be able to demonstrate that it normally requires a bachelor's degree in 
a specific specialty . or its equivalent, for the position in order to satisfy this criterion. In any event. 
we do not find the Petitioner's assertions persuasive. It has not satisfied the third criterion of 
8 C.F.R. ~ 214.2(h)(4)(iii)(A). 
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. 
We also incorporate our earlier discussion and analysis regarding the duties of the proffered position. 
and the designation of the proffered position in the LCA as a Level I position (ofthe lowest off()ur 
assignable wage-level s) relative to others within the same occupational category. 20 The Petitioner 
19 
In this case, any attempt at making such a demonstration would be undermined by conclusion that a 
general-purpose bachelor's degree - in this case, a bachelor's degree in business would suffice. 
20 The Petitioner's designation of this position as a Level I, entry-level position suggests that the position is not 
14 
Matter olE-M-, Inc. 
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)(.f). 
Accordingly. the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). and 
therefore. has not demonstrated that the proffered position qualifies as a specialty occupation. 
Finally, we acknowledge the Petitioner's numerous constitutional claims. However. we have no 
authority to entertain constitutional challenges. .\'cc. c g. \!ufla of Fuenf('\-( ·wllflO\. ~ 1 I. & 1\. 
Dec. ')05. 912 (BI;\ 1997) (citing \fuffc'l' o/( ·-. 20 I&'\ Ike. ).:'9 (BL\ I \)(J:2l: .\furta n(/!emondc:::­
J>wmre. :w I. & '\.Dec. n5. 33l) (BL\ 1991 ). 
IV. CONCLUSION 
The Petitioner has not established that the proffered position qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter ojE-M-. Inc .. ID# 742881 (AAO Dec. 20. 2017) 
particularly complex, specialized. or unique compared to other positions H'ithin the .1ame occupation. Nevertheless. a 
Level I 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 occupation~ (e.g .. doctors or 
lawyers). a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty. or 
its equivalent, for entry. Similarly. however. a Level IV wage-designation would not reflect that an occupation qualities 
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. 
15