dismissed H-1B Case: Information Technology

(b)(6)
DATE: 
JUL 1 o 2015 
IN RE: Petitioner : 
Benefici ary: 
PETITION RECEIPT#: 
U.S. Departm ent of Homeland Security 
U.S. Citizen ship and Immi gra tion Servi ce 
Administrativ e Appeals Office 
20 Massachu setts Ave .. N.W .. MS 2090 
Washingto n, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmi gra nt Worker Pursuant to Section I 0 I (a)( 15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
NO REPRESENTATIVE OF RECORD 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requ esting us to recon sider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 1 03.5 . 
Motion s must be filed on a Notice of Appe al or Motion (Form I-290B) within 33 days of the date of this 
decision . The Form l-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
locati on, and other requirements. Please do not mail any motions directly to the AAO . 
Thank yo u, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the noninunigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. INTRODUCTION 
On the Form I-129 visa petitiOn, the petitioner describes itself as a IS-employee restaurant 
established in In order to employ the beneficiary in what it designates as an "IT Specialist" 
position at a salary of $323.10 per week, the petitioner seeks to classify him as a nonimmigrant 
worker in a specialty occupation pursuant to section 101 (a)( 15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). 
The director denied the petition, concluding that the evidence of record did not establish that (1) 
· the proffered position qualifies as a specialty occupation ; and (2) the beneficiary qualifies to perfom1 
the duties of a specialty occupation. 
The record of proceeding before us contains the following: (1) the Form I-129 and suppmiing 
documentation ; (2) the director's request for additional evidence (RFE); (3) the petitioner's 
response to the RFE ; ( 4) the director 's letter denying the petition ; and (5) Forms I-290B, Notice of 
Appeal or Motion, and supporting documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record does not 
overcome the director's bases for denying this petition. Accordingly, the appeal will be dismissed.' 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
To meet the petitioner's burden of proof in establishing the proffered positiOn as a specialty 
occupation, the evidence of record must establish that the employment the petitioner is offering to 
the beneficiary meets the following statutory and regulatory requirements. 
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 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir . 2004). 
Further , we follow the preponderance of the evidence stand ard as specified in the controlling precedent 
decision , Matter of Chawathe, 25 l&N Dec. 369 (AAO 20 I 0). The " preponderance of the evidence" 
standard requir es that the evidence demonstrate that the applicant's claim is " probably true ," where the 
determination of"truth" is made based on the factual circumstances of each individual case. !d. at 376. 
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NON-PRECEDENT DECISION 
(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 
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: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions an1ong 
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. See K 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. Federal 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, 
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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)(l) 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 aliens 
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-lB 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 alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the 
title of the position nor an employer 's self-imposed standards, but whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge, and 
the attainment of a baccalaureate or higher degree in the specific specialty as the minimum for 
entry into the occupation, as required by the Act. 
B. Analysis 
The petitioner is a restaurant, and in its support letter, states that the beneficiary will work on a 
part-time basis "designing custom point-of-sale, online ordering, and inventory systems for [its] 
restaurants, including testing and documentation of these systems. "2 In its RFE response letter, the 
petitioner states that the beneficiary's "duties will include design and development of custom 
systems and applications to fulfill [its] expansion goals." The petitioner further states that 
2 The petitioner stated on the Form I-129 that it is located at 
Pennsylvania, and that the beneficiary will work in-house. However, on the LCA, the petitioner stated that 
the employment location is Pennsylvania. The record of 
proceeding indicates that is located at Although the petitioner 
claims that this restaurant is associated with the petitioner, the record of proceeding contains insufficient 
evidence to demonstrate the petitioner and the are the same company or that one is a 
subsidiary of the other. 
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" [ 
c ]omputer software and systems design is a highly specialized field of knowledge regardless of 
the end use ofthe application." 
The petitioner describes the proposed duties in terms of generalized and generic functions that fail 
to convey sufficient substantive information to establish the relative complexity, uniqueness 
and/or specialization of the proffered position or its duties. For example, the duties as stated do 
not provide details for the "custom systems and application" that the beneficiary would develop. 
Similarly, the above duties do not provide details regarding the beneficiary's specific role in the 
testing and documentation of these systems. This type of generalized description may be 
appropriate when defining the range of duties that may be performed within an occupational 
category, but it does not adequately convey the substantive work that the beneficiary will perform 
within the petitioner's business operations. 
The duties provided by the petitioner do not establish the substantive nature of the work to be 
performed by the beneficiary, which therefore precludes a finding that the protiered 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 protTered 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 altemate 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 c1iterion 4. 
The petitioner's citation to the Specific Vocational Preparation (SVP) does not resolve this 
shortcoming. In its support letter, the petitioner states that "O*Net classifies the position [of a 
software developer] as a professional one with an SVP range of 7.0 <8.0, i.e. requiring at least a 
bachelor's degree." The petitioner further states that the proffered position "requires specialized 
knowledge of software engineering and systems analysis that can only be learned in a col!egiate 
setting" and therefore, it is a "specialty occupation." However, the Dictionary of Occupational 
Titles (hereinafter the DOl) does not support the assertion that proffered position is a specialty 
occupation position. This conclusion is apparent upon reading Section II of the DOTs Appendix 
C, Components of the Definition Trailer, which addresses the Specific Vocational Preparation 
(SVP) rating system. 3 The section reads: 
II. SPECIFIC VOCATIONAL PREPARATION (SVP) 
Specific Vocational Preparation is defined as the amount of lapsed time required by 
a typical worker to learn the techniques , acquire the information, and develop the 
facility needed for average performance in a specific job-worker situation. 
The Appendix can be found at the following website: http://www .oalj .dol.gov/PUBLIC/DOT / 
REFERENCES/DOT APPC. HTM. 
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NON-PRECEDENT DECISION 
This trammg may be acquired in a school, work, military, institutional, or 
vocational environment. It does not include the orientation time required of a fully 
qualified worker to become accustomed to the special conditions of any new job. 
Specific vocational training includes: vocational education, apprenticeship training, 
in-plant training, on-the-job training, and essential experience in other jobs. 
Specific vocational training includes training given in any of the following 
circumstances: 
a. Vocational education (high school; commercial or shop trammg; technical 
school; art school; and that part of college training which is organized around a 
specific vocational objective); 
b. Apprenticeship training (for apprenticeable jobs only); 
c. In-plant training (organized classroom study provided by an employer); 
d. On-the-job training (serving as learner or trainee on the job under the instruction 
of a qualified worker); 
e. Essential experience in other jobs (serving in less responsible jobs which lead to 
the higher grade job or serving in other jobs which qualify). 
The following is an explanation of the various levels of specific vocational 
preparation: 
Level 
1 
2 
3 
4 
5 
6 
7 
8 
9 
Time 
Short demonstration only 
Anything beyond short demonstration up to and including 1 month 
Over 1 month up to and including 3 months 
Over 3 months up to and including 6 months 
Over 6 months up to and including 1 year 
Over 1 year up to and including 2 years 
Over 2 years up to and including 4 years 
Over 4 years up to and including 10 years 
Over 1 0 years 
Note: The levels of this scale are mutually exclusive and do not overlap. 
Thus, an SVP rating of 7 does not indicate that at least a four-year bachelor's degree is required, or 
more importantly, that such a degree must be in a specific specialty closely related to the 
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occupation to which this rating is assigned. Therefore, the O*Net Online information Is not 
probative of the proffered position being a specialty occupation. 
The supporting documents submitted by the petitioner do not overcome the deficiencies either. In 
her letter dated August 9, 2015, , an Adjunct Professor of Computer Information 
Systems at states that the petitioner "does not develop a 
great deal of its software, it purchases and merges existing software packages." Ms. 
further states that according to the petitioner's owner, the beneficiary's "broad role" includes: 
• Management of a "cloud" database for data collection and data mining[;] 
• Interactive map and route planning applications, including an interface with 
an existing point-of-sale (POS) system[; and] 
• Smart phone front end (web) application software interface to back end 
(database management system). 
On appeal, the petitioner's 
president states that he does not know who Ms. is and does not 
know why she is "qualified" to provide her opinion as she is not experienced in "running a food 
and service business." Ms. . letter therefore carries little probative value. 
On appeal, the petitioner provides an expert opinion from another professor at 
In his letter, dated November 17, 2014, Mr. 
states that the beneficiary's "substantial skills in technology and awareness of the impact 
of economic conditions on product development and marketing make him uniquely qualified to 
provide essential services to any employer." However, Mr. provides no opinion 
regarding the proffered position itself, and the test to establish a position as a specialty occupation 
is not the skill set or education of a proposed beneficiary, but whether the position itself requires 
the theoretical and practical application of a body of highly specialized knowledge obtained by at 
least baccalaureate-level knowledge in a specialized area. 
Neither of these letters suppmis the petitioner's assertion that the proffered position qualifies as a 
specialty occupation. We may, in our discretion, use advisory opinion statements submitted by the 
petitioner as expert testimony. Matter of Caron International, 19 I&N Dec. 791 (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. 
Accordingly, as the evidence of record did not establish that the petitioner 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. For this reason, the appeal will be dismissed and the petition denied. 
III. BENEFICIARY QUALIFICATIONS 
The director also concluded that the beneficiary did not qualify to perform the duties of a specialty 
occupation. We do not need to examine the issue of the beneficiary's qualifications, because the 
petitioner has not provided sufficient evidence to demonstrate that the proffered position is a 
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specialty occupation. In other words, as noted previously, the beneficiary's credentials to perform 
a particular job are relevant only when the job is found to be a specialty occupation. 
IV. CONCLUSION AND ORDER 
The petition will be denied and the appeal dismissed for the above stated reasons.4 In visa petition 
proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied. 
4 
As the grounds discussed above are dispositive of the petitioner's eligibility for the benefit sought in this 
matter, we will not address and will instead reserve our determination on the additional issues and 
deficiencies that we observe in the record of proceeding with regard to the approval of the H-1 B petition.