dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10547287 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUNE 30, 2020 
The Petitioner, an information technology services company, seeks to temporarily employ the 
Beneficiary as a "customer success engineer" under the H-lB nonimmigrant classification for specialty 
occupations. 1 The H-IB 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 record did not 
establish that the position qualifies as a specialty occupation. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 2 
We review the questions in this matter de novo .3 Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonirnmigrant as a foreign national ''who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... " (emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l) , defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized know ledge, and 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 section 214(i)(l) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F .R. § 214 .2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position . 4 Lastly, 
1 Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b ), 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
2 Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369,375 (AAO 2010). 
3 See Matter ofChristo's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
4 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions ofa specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe the term "degree" to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position . See Royal 
Siam Corp. v. Chertojf, 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"). 
8 C.F.R. § 214.2(h)(4)(i)(A)(l) states that an H-lB classification may be granted to a foreign national 
who "will pe1:form services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiaiy will perfmm in the position dete1mine: (1) the nmmal 
minimum educational requirement for entry into 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 nmmally 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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C .F .R. § 103 .2(b )(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(6)(1). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the services in a specialty occupation that the Beneficia1y would perform during the requested period 
of employment, which precludes a determination of whether the proffered position qualifies as a 
specialty occupation under sections 10l(a)(l5)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 5 Specifically, the record (1) does not 
describe the position's duties with sufficient detail; and (2) does not establish that the job duties require 
an educational background, or its equivalent, commensurate with a specialty occupation. 
The Petitioner stated that the Beneficiary will be employed as a "customer success engineer" and that 
a minimum of a bachelor's degree in computer science, business/data science, or a related field is 
required for entry into the position. The Petitioner provided an initial list of duties, which it expanded 
upon in response to the Director's request for evidence (RFE). While we will not list each duty here, 
we have reviewed and considered each one. 
5 The Petitioner submitted documentation to support the H-1B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 
The Petitioner designated the proffered pos1t1on on the labor condition application (LCA) as a 
Standard Occupation Classification (SOC) code 15-1199 "Computer Occupations, All Other" 
occupation. 6 In its RFE response, the Petitioner asserted that the duties of the proffered position are 
consistent with the duties of "Computer Systems Engineers/ Architects," corresponding to SOC code 
15-1199.02. 7 To inform this inquiry, we would normally consider the information contained in the 
U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the duties 
and educational requirements of the wide variety of occupations it addresses. Though the Handbook 
is a career resource offering information on hundreds of occupations, there are occupational categories 
the Handbook does not cover in detail and instead provides only summary data. 8 The subchapter of the 
Handbook titled "Data for Occupations Not Covered in Detail" states, in relevant part, that the "[t]ypical 
entry-level education" for a variety of occupations within the category of"[ c ]omputer and mathematical 
occupations" is a "Bachelor's degree," without indicating that the bachelor's degree must be in a specific 
specialty.9 Thus, the Handbook is not probative in establishing that these positions comprise an 
occupational group for which the nmmal minimum requirement for entry is at least a bachelor's degree 
in a specific specialty, or its equivalent. 
The Petitioner also references the DOL's O*NET summary report for "Computer Systems 
Engineers/Architects." The O*NET Summary Report does not establish that a bachelor's degree in a 
specific specialty, or the equivalent, is normally required. It provides general information regarding the 
occupation, but it does not support a conclusion that the proffered position requires a bachelor's degree 
in a specific specialty, or the equivalent. 
O*NET assigns these positions a "Job Zone Four" rating, which states "most of these occupations require 
a four-year bachelor's degree, but some do not." Moreover, the Job Zone Four designation does not 
indicate that any academic credentials for Job Zone Four occupations must be directly related to the duties 
performed. In addition, the specialized vocational preparation (SVP) rating designates tl1is occupation as 
7 < 8. 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 particular position, it is important to note that it does not describe how those 
years are to be divided among training, experience, and formal education. The SVP rating also does not 
specify the particular type of degree, if any, that a position would require. 1° Further, although the 
6 A petitioner submits the LCA to DOL to demonstrate that it will pay an H- lB worker the higher of either the prevailing 
wage for the occupational classification in the area of employment or the actual wage paid by the employer to other 
employees with similar duties, expenence, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.73 l(a). 
7 The Petitioner classified the proffered position at a Level I wage. A wage dete1mination starts with an entry-level wage 
(Level I) and progresses to a higher wage level (up to Level TV) after 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 Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
g Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Data for Occupations Not Covered in 
Detail, https://www.bls.gov/ooh/about/data-for-occupations-not-covered-in-detail.htm (last visited Jul. 29, 2020). Here, 
the Handbook does not provide specific infcnmation for various occupations which might be classified within the occupational 
categcny. 
9 The Handbook also indicates that this occupation does not require work experience in a related occupation or typical 
on-the-job training. Id. 
1° For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/ 
help/online/svp. 
3 
summary reports provide the educational requirements of "respondents," it does not account for I 00% of 
the "respondents." Moreover, the respondents' positions within the occupation are not distinguished by 
career level ( e.g., entry-level, mid-level, senior-level). Furthermore, the graph in the summary report does 
not indicate that the "education level" for the respondents must be in a specific specialty. For all of these 
reasons, O*NET does not establish the proffered position as a specialty occupation. 
As the foregoing demonstrates, the Petitioner has not provided documentation from a probative source 
to substantiate its assertion regarding the minimum requirement for entry into its particular position. 
Nevertheless, the burden of proofremains 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. That is, to determine whether a particular job qualifies as a specialty 
occupation, USCIS does not simply rely on a position's title or designated occupational category. The 
specific duties of the proffered position, combined with the nature of the petitioning entity's business 
operations, are factors to be considered. 
A crucial aspect of this matter is whether the duties of the proffered position are described in such a 
way that we may discern the actual, substantive nature of the position. The Petitioner describes its 
product as "an end-to-end Release Management Suite for accelerating the development and release of 
Salesforce applications." It further offers an overview of the proffered position, stating that it "is 
responsible for executing the customers' technical success during presales, sales, onboarding and 
implementation phase of [the Petitioner's product] for long-term support and internal salesforce (sic) 
CRM deployments." From these descriptions and in conjunction with the list of duties, it is not 
apparent whether the proffered position primarily involves developing and selling the Petitioner's in­
house product, Salesforce implementation for clients, or the implementation of the Petitioner's product 
in Salesforce for clients. The position appears to involve some combination of all these 
responsibilities. 
While the Petitioner provides a chart comparing the O*NET duties with some of the proffered position 
duties in order to demonstrate that the Petitioner selected the correct occupational category for its 
position, we conclude that another occupational category appears relevant as well. To the extent that 
we have sufficient information concerning the duties of the proffered position, we question whether 
the proffered position should be properly categorized as falling within the "Sales Engineers" 
occupational category. 11 For example, the proffered position involves gathering and understanding 
the requirements of the customer; trying to solve customer issues using the Petitioner's product; 
perf mming comparative studies of other entities' products in order to provide the sales team with a 
competitive edge; providing feedback gathered from the customers; training customers in use of the 
product; providing upgrades and performance enhancements to customers; and learning about 
products through Salesforce conferences. These paraphrased duties appear similar to the duties listed 
in the Handbook and O*NET for "Sales Engineers." 
Specifically, the Handbook mentions the following sales engineer duties that appear to be similar to 
the duties of the proffered position: 
11 For more information, v1s1t the O*NET Summa1y Report for "Sales Engineers" at 
https://www.onetonline.org/link/summaiy/41-9031.00 and the Handbook section for "What Sales Engineers Do" at 
https://www.bls.gov/ooh/sales/sales-engineers.htm#tab-2 (last visited Jul. 29, 2020). 
4 
• Talk with customers and engineers to assess equipment needs and to determine system 
requirements; 
• Collaborate with sales teams to understand customer requirements and provide sales support; 
• Prepare and deliver technical presentations explaining products or services to existing and 
prospective customers; 
• Plan and modify products to meet customer needs; and 
• Help clients solve problems with installed equipment. 
Moreover, this non-exhaustive sampling ofO*NET sales engineer duties also coincides with the duties 
of the proffered position: 
• Collaborate with sales teams to understand customer requirements, to promote the sale of 
company products, and to provide sales support; 
• Plan and modify product configurations to meet customer needs; 
• Confer with customers and engineers to assess equipment needs and to determine system 
requirements; 
• Prepare and deliver technical presentations that explain products or services to customers and 
prospective customers; and 
• Keep informed on industry news and trends, products, services, competitors, relevant 
information about legacy, existing, and emerging technologies, and the latest product-line 
developments. 
It is well established that if the proffered position has requirements described in a combination of 
O*NET occupations, the Petitioner should select the occupational categmy with the highest prevailing 
wage, which in this case is "sales engineers." 12 This therefore raises questions as to whether the LCA 
cmresponds to the petition as required. 13 
Additional LCA concerns arise when exammmg the job advertisements submitted for our 
consideration under the first prong of criterion two and the criterion three. We first address the job 
postings submitted for our consideration of an industry standard under the first prong of criterion two. 
Many of the positions require a bachelor's degree along with years of experience ranging from two, 
to three, to five, and even eight years of experience. At least one of the employers offers a salary of 
nearly $50,000 more than the salary the Petitioner states that it will pay the Beneficiary. 14 The 
Petitioner also submitted a job adve1iisement for the position of a sales engineer, which, if parallel to 
the proffered position as claimed, raises further concerns about the occupational category selected by 
the Petitioner. 
The Petitioner's own internal job postings, which it submitted under criterion three to establish that 
the Petitioner normally requires a degree for the position, also require a bachelor's degree along with 
12 See https://www.flcdatacenter.com/OesQuickResults.aspx?code=41-9031&area~year=19&source=1 (last 
visited Jul. 29, 2020). 
13 See 20 C.F.R. § 655.705(b) 
14 Even accounting for va1iation in pay due to locality, this level of pay disparity suggests that the position is not parallel 
to the proffered position, or if parallel as the Petitioner contends, suggests that the LCA does not correspond to and support 
the petition. 
5 
two or two to four years of additional experience. One internal announcement is for a "pre-sales 
engineer," which again raises the previously articulated concerns as to the correct occupational 
category for the proffered position. In examining the Linkedin profiles of several individuals the 
Petitioner contends are employees in parallel positions, we see roles with advanced titles like 
"director" and "senior customer success manager." The Petitioner did not provide a list of duties 
associated with these positions. Though we cannot determine whether these positions parallel the 
proffered position based on a title alone, the titles do raise questions as to the substantive nature of the 
proffered position. 
As a whole, the Petitioner contends that these positions are parallel to the proffered position, despite 
information within the announcements that suggests these are more senior positions. If these are 
parallel positions as claimed, then the Petitioner has not resolved how payment of a Level I wage to 
the Beneficiary correlates to the experience the position requires. If alternatively, the positions are not 
parallel, but rather represent a different or more specialized position than the proffered position, then 
the postings have no relevance in establishing an industry standard for positions located within the 
occupational category or for a normal hiring and recruitment practice for the proffered position. In 
either instance, these postings suggest that the LCA may be inconsistent with the Petitioner's claims 
and the evidence within the record, which further obfuscates the substantive nature of the position. If 
we cannot ascertain the proffered position's substantive nature, then we cannot determine whether it 
is a specialty occupation. 
Lastly, we tum to the position evaluation provided byl I Professor of Computer Science at 
.__ ____ ___.!University. I Is overarching conclusion is that the proffered position 
requires a bachelor's degree in computer science, business science, data science or a related field. 
However, other conclusions within I ~ s letter lead to confusion concerning the 
substantive nature of the proffered position. Specially, in less explicit terms,I I appears 
to conclude that the proffered position requires a bachelor's degree in mathematics and statistics in 
order to construct useful models. If I I means to suggest that a bachelor's degree in 
mathematics and statistics is an additional field that would qualify a person to enter into the proffered 
position, such a conclusion raises additional questions as to whether the Petitioner has accurately 
portrayed the substantive nature of the work that the Beneficiary will perform. 
Furthe1more, I I almost exclusively discusses duties related to data, modeling, and 
coding, while largely ignoring the expanded duties the Petitioner provided that relate to customer 
training, Salesforce, and the Petitioner's product. N eithd._ _____ _.lnor the Petitioner has clearly 
explained the nature of the position or how the various duties and responsibilities fit together. Finally, 
I I references the work of an operations research analyst, an entirely different 
occupational categmy. This suggests that the letter was prepared for another Beneficiary or that the 
proffered position may have duties appropriately characterized as falling within an additional 
occupational category. Overall, this opinion letter offers little probative value in ascertaining the 
nature of the proffered position. 
The Petitioner has not established the substantive nature of the work that the Beneficiary will perform. 
The failure to establish the substantive nature of the position precludes us from determining whether 
it satisfies any of the regulatory specialty-occupation criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
6 
III. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
The appeal will be dismissed for the above stated reason. In visa petition proceedings, It IS a 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
7