dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-E-S-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 10,2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology services firm, seeks to employ the Beneficiary as a 
computer systems analyst and to classify him as a nonimmigrant worker in a specialty occupation. 
See Immigration and Nationality Act (the Act) § 10l(a)(l5)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 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. 
The Director denied the petition, finding the evidence insufficient to establish that (1) the proffered 
position qualifies as a specialty occupation; and (2) the Petitioner will have an employer-employee 
relationship with the Beneficiary. On appeal, the Petitioner states that the Director's basis for denial 
was erroneous and contends that it satisfied all evidentiary requirements. 
The record of proceeding before us contains: (1) the Form I-129 and the supporting documentation; 
(2) the service center's request for additional evidence (RFE); (3) the Petitioner's response to the 
RFE; (4) the service center's notice of intent to deny (NOID); (5) the Petitioner's response to the 
NOID; (6) the Director's denial letter; and (7) the Form I-290B, Notice of Appeal or Motion, and the 
Petitioner's submissions on appeal. We reviewed the record in its entirety before issuing our 
decision. 1 
I. THE PROFFERED POSITION 
In the Labor Condition Application (LCA) submitted to support the visa petition, the Petitioner 
indicated that the proffered position corresponds to the occupational category "Computer Systems 
Analysts" with SOC (ONET/OES) code 15-1121, at a Level I (entry level) wage. 
In an employment offer letter dated February 3, 2014, the Petitioner provided the duties of the 
proffered position as follows: 
Job duties: As a Business Systems Analyst, [the Beneficiary] will be required to plan, 
design, develop, test, implement, and support custom proprietary software 
1 
We conduct appellate review on a de novo basis. See Soltane v. DO), 381 F.3d 143, 145 (3d Cir. 2004). 
(b)(6)
Matter ofN-E-S-, LLC 
applications['] research, design, implement, document, and test system software in 
accordance with the firm's development process. [The Beneficiary] will provide 
technical support to project team members; contribute to company's intellectual 
property development; evaluate user requests for new or modified programs; consult 
with user to identify current operating procedures to clarify program objectives; 
formulate plans outlining steps required to develop programs, using structured 
analysis and design; prepare flowcharts and diagrams to illustrate sequence of steps, 
program must follow and to describe logical operations involved; write 
documentation to describe program development, logic, coding and corrections, 
oversee installation of hardware and software, monitor performance of program after 
implementation; conduct user training, perform periodic system updates, interact with 
users for future enhancements; and resolve software application problems. 
In the letter of support dated March 31, 2014, the Petitioner stated that it offers cutting edge database 
administration (DBA) expertise encompassing a "complete range of DBA solutions, including onsite 
DBA support and Remote DBA support .... " The Petitioner also stated that the Beneficiary will 
perform the following duties: 
:Y Interact with management to determine system requirements; 
:Y Analyze software requirements to determine design feasibility; 
:Y Evaluate interface between hardware & software and performance 
requirements of overall system; 
:Y Design software system, using design tools to predict outcome; 
:Y Develop software systems programming, including documentation and testing 
procedures; 
:Y Advise concerning maintenance of system; [and] 
:Y Coordinate installation of software system. 
The Petitioner further stated that the educational requirements for the position is a Bachelor's degree 
or its equivalent in Engineering, Computer Science, Computer Information Systems, Business with a 
specialization in Information Systems, or a closely related field. The Petitioner also indicated that 
the Beneficiary will be working as at its office location at 
California 
II. SPECIALTY OCCUPATION 
We will first address the specialty occupation basis of denial. The issue is whether the evidence of 
record establishes that the Petitioner will employ the Beneficiary in a specialty occupation position. 
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: 
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Matter of N-E-S-, LLC 
(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 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 m1rnmum 
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. See K Mart Corp. v. Cartier, 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. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW­
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 
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Matter of N-E-S-, LLC 
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)(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. Cherto.ff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H -1 B 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-1B 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. users 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 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will now discuss the proffered position in relation 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. 
We recognize the U.S. Department of Labor (DOL)'s Occupational Outlook Handbook (Handbook) as 
an authoritative source on the duties and educational requirements of the wide variety of occupations 
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Matter of N-E-S-, LLC 
that it addresses.2 The Handbook's section titled "How to Become a Computer Systems Analyst" 
states: 
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. 
Education 
Most computer systems analysts have a bachelor's degree in a computer-related field. 
Because these analysts also are heavily involved in the business side of a company, it 
may be helpful to take business courses or major in management information 
systems. 
Some employers prefer applicants who have a master's degree in business 
administration (MBA) with a concentration in information systems. For more 
technically complex jobs, a master's degree in computer science may be more 
appropriate. 
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. 
Many systems analysts continue to take classes throughout their careers so that they 
can learn about new and innovative technologies and keep their skills competitive. 
Technological advances come so rapidly in the computer field that continual study is 
necessary to remain competitive. 
Systems analysts must understand the business field they are working in. For 
example, a hospital may want an analyst with a background or coursework in health 
management, and an analyst working for a bank may need to understand finance. 
U.S. Department of Labor (DOL), Bureau of Labor Statistics, Occupational Outlook Handbook, 
2014-15 ed., Computer Systems Analyst, available on the Internet at 
http://www. bls. gov I oohl computer-and- information- technology/ computer-systems-analysts .htm (last 
viewed September 8, 2015). 
The Handbook does not indicate that a bachelor's or higher degree in a specific specialty, or its 
equivalent, is not normally the minimum requirement for entry into the particular position. Rather, 
the occupation accommodates a wide spectrum of educational credentials. While the Handbook 
reports that a bachelor's degree in a computer or information science field is common, it also states 
The Handbook, which is available in printed form, may also be accessed online at 
http://www.bls.gov/ooh. The references to the Handbook are from the 2014-15 edition available online. 
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Matter of N-E-S-, LLC 
that it is not always a requirement. The Handbook reports that some firms hire analysts with 
business or liberal arts degrees who have skills in information technology or computer programming. 
The Handbook continues by stating that many computer systems analysts have technical degrees (it 
does not specify the level of such degrees, i.e., associate's, baccalaureate, master's), but the 
Handbook does not report that it is normally the minimum requirement for entry. According to the 
Handbook, many analysts have liberal arts degrees and have gained programming or technical 
expertise elsewhere. 
On appeal, the Petitioner states that the job description and other documentation provided as well as 
the section regarding Computer Systems Analysts in Occupational Information Network(O*NET) On­
line Summary Report is sufficient to demonstrate that the proffered position is a specialty 
occupation. 3 Contrary to the Petitioner's claim, we find that O*NET does not state a requirement for a 
bachelor's degree for Computer Systems Analysts. Rather, it assigns "Computer Systems Analysts" a 
Job Zone Four rating, which groups them among occupations of which "most," but not all, "require a 
four-year bachelor's degree." Further, O*NET does not indicate that four-year bachelor's degrees 
required by Job Zone Four occupations must be in a specific specialty closely related to the 
requirements of that occupation. As was noted previously, we interpret 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. Therefore, O*NET information 
is not probative of the proffered position being a specialty occupation. 
As the evidence of record does not indicate that this petition's particular position is one that 
normally requires at least a bachelor's degree in a specific specialty, or its equivalent, the Petitioner 
has not satisfied the criterion at 8 C.F .R. § 214.2(h)( 4 )(iii)(A)( 1 ). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we find that the Petitioner has not satisfied the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions that 
are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered position, and also 
(3) located in organizations that are similar to the petitioner. 
Again, in determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ and 
recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d at 1165 (quoting 
Hird/Blaker Corp. v. Sava, 712 F. Supp. at 1102). 
3 
See http://www.onetonline.org/linklsummary/15-1121.00 (last visited September 8, 20 15). 
Matter of N-E-S-, LLC 
As already discussed, the Petitioner has not established that its proffered position is one for which the 
Handbook (or any other independent, authoritative source) reports an industry-wide 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. 
There are no submissions from the industry's professional association indicating that it has made a 
degree a minimum entry requirement and no submission of letters or affidavits from firms or 
individuals that attest that such firms routinely employ only individuals with a degree in a specific 
specialty. 
In support of the assertion that the degree requirement is common to the Petitioner's industry in 
parallel positions among similar organizations, the Petitioner submitted copies of job advertisements. 
However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements is misplaced. 
The Petitioner stated that it is an information technology services business established in 2005 with 
16 employees. The Petitioner further stated that it had $1.7 million in gross income and $200,000 in 
net income. The Petitioner designated its business operations under the North American Industry 
Classification System (NAICS) code 541519, which corresponds to "Other Computer Related 
Services."4 The U.S. Department of Commerce, Census Bureau website describes this NAICS code 
by stating the following: 
This U.S. industry comprises establishments primarily engaged in providing 
computer related services (except custom programming, systems integration design, 
and facilities management services). Establishments providing computer disaster 
recovery services or software installation services are included in this industry. 
U.S. Dep't of Commerce, U.S Census Bureau, 2012 NAICS Definition, 541519- Other Computer 
Related Services, on the Internet 
http://www.census.gov/econ/isp/sampler.php?naicscode=44619&naicslevel=5# (last visited 
September 8, 20 15). 
For the petitioner to establish that an organization is similar, it must demonstrate that it shares the 
same general characteristics. Without such evidence, documentation submitted by a petitioner is 
generally outside the scope of consideration for this criterion, which encompasses only organizations 
that are similar to the petitioner. When determining whether the petitioner and the organization 
share the same general characteristics, such factors may include information regarding the nature or 
4 
According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used to classify 
business establishments according to type of economic activity and each establishment is classified to an industry 
according to the primary business activity taking place there. See http://www.census.gov/eos/www/naics/ (last visited 
September 8, 20 15). 
(b)(6)
Matter of N-E-S-, LLC 
type of organization, and, when pertinent, the particular scope of operations, as well as the level of 
revenue and staffing (to list just a few elements that may be considered). Notably, it is not sufficient 
for the petitioner to claim that an organization is similar and in the same industry without providing 
a legitimate basis for such an assertion. 
Upon review of the documentation, the Petitioner did not establish that a requirement of a bachelor's 
or higher degree in a specific specialty, or its equivalent, is common for positions that are 
identifiable as being (1) in the Petitioner's industry, (2) parallel to the proffered position, and also (3) 
located in organizations that are similar to the Petitioner. 
For instance, the advertisements include a maJor supplier of 
weather information and geospatial intelligence; an engineering services 
business; and , a business in government and military industry. Without further 
information, these advertisements appear to be for organizations that are not similar to the Petitioner. 
While the advertisements also include and International, which describe their 
industry as computer/IT services, the Petitioner did not supplement the record to establish that the 
advertising organizations are similar to it. The Petitioner also submitted a confidential posting and 
also a posting from neither of which provides information regarding the employers. 
Consequently, the record does not contain sufficient information regarding the employers to conduct 
a legitimate comparison of the organizations to the Petitioner. 
Moreover, some of the advertisements do not appear to be for parallel positions. More specifically, 
requires a B.S. degree in computer science, computer engineering, business or 
communications plus five years of experience. Similarly, requires a bachelor's degree in 
related field or equivalent experience, without defining what a related field or equivalent experience 
means. Moreover, the Petitioner has not sufficiently established which primary duties of the 
advertised positions are parallel to the duties of the proffered position. 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. That is, not every deficit of every job posting has been addressed. The evidence does not 
establish that similar organizations in the same industry routinely require at least a bachelor's degree 
in a specific specialty or its equivalent for parallel positions. 5 
5 Although the size of the relevant study population is unknown, the Petitioner does not demonstrate what statistically 
valid inferences, if any, can be drawn from these advertisements with regard to determining the common educational 
requirements for entry into parallel positions in similar companies. See generally Earl Babbie, The Practice of Social 
Research 186-228 ( 1995). Moreover, given that there is no indication that the advertisements were randomly selected, 
the validity of any such inferences could not be accurately determined even if the sampling unit were sufficiently large. 
See id. at 195-196 (explaining that "[r]andom selection is the key to [the] process [of probability sampling]" and that 
"random selection offers access to the body of probability theory, which provides the basis for estimates of population 
parameters and estimates of error.") 
As such, even if the job announcements supported the finding that the position of computer systems analysts for 
companies that are similar to the Petitioner requires a bachelor's or higher degree in a specific specialty, or its equivalent, 
Matter of N-E-S-, LLC 
On appeal, the Petitioner refers to an article titled Careers in the Growing Field of Information 
Technology Services, published by U.S. Bureau of Labor Statistics to assert that "this industry 
requires technical workers who have at least a Bachelor's degree. We note that this article describes 
computer systems analysts generally, along with other IT -related positions, including software 
developers, computer programmers, and computer support specialists. The petitioner indicates that 
according to the article "[ c] omputer support specialist is the only computer occupation that does not 
typically require a bachelor's degree for entry." However, we find that the article also states 
"[a]lthough employers may prefer a degree for more technical support positions, many help desk and 
call center positions only require an associate's degree or some postsecondary classes ... " We 
further note that the article includes a table, that lists computer systems analyst positions as typically 
requiring a bachelor's degree for entry, but nowhere does the article state that a bachelor's degree in 
a specific specialty or its equivalent is required. 
As explained previously, we interpret the supplemental degree requirement at 8 C.P.R. § 
214.2(h)( 4 )(iii)(A) as requiring a degree in a specific specialty that is directly related to the proposed 
position. USCIS has consistently stated that, although a general-purpose bachelor's degree may be a 
legitimate prerequisite for a particular position, requiring such a degree, without more, will not 
justify a finding that a particular position qualifies for classification as a specialty occupation. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007). 
Therefore, the Petitioner has not established that a requirement of a bachelor's or higher degree in a 
specific specialty, or its equivalent, is common to the Petitioner's industry in positions that are (1) in 
the Petitioner's industry, (2) parallel to the proffered position, and also (3) located in organizations 
that are similar to the Petitioner. For the reasons discussed above, the Petitioner has not satisfied the 
first alternative prong of 8 C.F .R. § 214.2(h)( 4 )(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
We will next consider the second alternative prong of 8 C.P.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
As discussed previously, the evidence of record does not develop relative complexity or uniqueness 
as an aspect of the position. In fact, the Petitioner's statement in response to the NOID that the 
Beneficiary would serve in a secondary role to a more senior employee, "similar to how an Attorney 
it cannot be found that such a limited number of postings that appear to have been consciously selected could credibly 
refute the findings of the Handbook published by the Bureau of Labor Statistics that such a position does not require at 
least a baccalaureate degree in a specific specialty, or its equivalent, for entry into the occupation in the United States. 
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Matter of N-E-S-, LLC 
represents clients in on the record and in Court but may have paralegals and other administrative 
staff that draft documents, file pleadings and do things behind the scenes to assist the Attorney in 
providing service to a client. .. " indicates that the proffered duties are routine and do not entail 
complexity or uniqueness. The Petitioner further indicated that the Beneficiary's "work is subject to 
review by the Primary role to ensure compliance with client requirements and project scop[e]." 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four assignable 
wage levels. 6 Without further evidence, the record of proceeding does not indicate that the proffered 
position is complex or unique as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a significantly higher prevailing wage.7 For example, a Level IV (fully 
competent) position is designated by DOL for employees who "use advanced skills and diversified 
knowledge to solve unusual and complex problems." 8 The evidence of record does not establish that 
The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Levell wage rate is 
described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These employees perform routine tasks that require limited, if 
any, exercise of judgment. The tasks provide experience and familiarization with the employer's 
methods, practices, and programs. The employees may perform higher level work for training and 
developmental purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored and reviewed for 
accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Levell wage should be considered. 
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. flcdatacenter.corn/download/NPWHC _Guidance_ Revised _II_ 2009 .pdf. 
Thus, in accordance with the relevant DOL explanatory information on wage levels, this wage rate indicates that the 
beneficiary is only required to have a basic understanding of the occupation and carries expectations that the beneficiary 
perform routine tasks that require limited, if any, exercise of judgment; that he would be closely supervised; that his 
work would be closely monitored and reviewed for accuracy; and that he would receive specific instructions on required 
tasks and expected results. DOL guidance indicates that a Level I designation should be considered for positions in 
which the employee will serve as a research fellow, worker in training, or an intern. 
7 
The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its claim 
that the position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an 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 qualifies as a specialty 
occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific 
specialty or its equivalent. That is, a position's wage level designation may be a consideration but is not a substitute for a 
determination of whether a proffered position meets the requirements of section 214(i)( I) ofthe Act. 
8 
For additional information regarding wage levels as defined by DOL, see 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.flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf 
10 
Matter of N-E-S-, LLC 
this position is significantly different from other positions in the occupational category such that it 
refutes the Handbook's information that a bachelor's degree in a specific specialty or its equivalent is 
not required for the proffered position. 
Upon review, we find that the Petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. For instance, the Petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform the duties it may believe are so complex and 
unique. While a few related courses may be beneficial, or even required, in performing certain 
duties of the position, 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 proffered position. The description of the duties does not 
specifically identify any tasks that are so complex or unique that only a specifically degreed 
individual could perform them. The record lacks sufficiently detailed information to distinguish the 
proffered position as more complex or unique from other positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. 
The Petitioner did not establish that its particular position is so complex or unique that it can only be 
performed by an individual with at least a bachelor's degree in a specific specialty, or its equivalent. 
Therefore, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could be 
brought to the United States to perform any occupation as long as the petitioner artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor v. Meissner, 
201 F.3d at 388. In other words, if a petitioner's stated degree requirement is only designed to 
II 
Matter ofN-E-S-, LLC 
artificially meet the standards for an H -1 B visa and/or to underemploy an individual in a position for 
which he or she is overqualified and if the proffered position does not in fact require such a specialty 
degree or its equivalent, to perform its duties, the occupation would not meet the statutory or 
regulatory definition of a specialty occupation. See§ 214(i)(l) ofthe Act; 8 CF.R. § 214.2(h)(4)(ii) 
(defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. USCIS must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of 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. 
The record has not established a prior history of hiring for the proffered position only persons with at 
least a bachelor's degree in a specific specialty. Although the Petitioner stated that it only hires 
people who have a bachelor's degree in a specific specialty to work in the proffered position, no 
evidence regarding these other employees or petitioner's advertisements for this or any similar 
positions was provided. As such, the Petitioner has not asserted that it has a history of recruiting and 
hiring only persons with at least a bachelor's degree in a specific specialty, or its equivalent, for the 
proffered position. Additionally, we have reviewed the record and find no evidence that the 
Petitioner normally requires a baccalaureate or higher degree in a specific specialty, or its equivalent, 
for the proffered position. Therefore, the Petitioner has not satisfied the third criterion of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
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 in a specific specialty, or its equivalent 
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. 
Upon review of the record of the proceeding, we note that the Petitioner has not provided sufficient 
evidence to satisfy this criterion of the regulations. In the instant case, relative specialization and 
complexity have not been credibly developed by the Petitioner as an aspect of the proffered position. 
That is, the proposed duties have not been described with sufficient specificity to establish that they 
are more specialized and complex than positions that are not usually associated with at least a 
bachelor's degree in a specific specialty, or its equivalent. 
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Matter of N-E-S-, LLC 
We further 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 (the lowest of 
four assignable wage-levels) relative to others within the occupational category. Without more, the 
position is one not likely distinguishable by relatively specialized and complex duties. That is, 
without further evidence, the Petitioner has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a substantially higher prevailing wage.9 
The Petitioner has submitted insufficient evidence to satisfy this criterion of the regulations. We, 
therefore, conclude that the Petitioner did not satisfy the criterion at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)( 4). 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. 
III. EMPLOYER-EMPLOYEE ISSUE 
Since our decision on the specialty occupation basis is dispositive of the Petitioner's appeal, we need 
not address the additional ground upon which the Director denied the appeal, namely, the Director's 
conclusion that the Petitioner had not established the employer-employee relationship with the 
Beneficiary that is necessary for standing to file an H-lB petition as a "United States employer" as 
defined at 8 C.F.R. § 214.2(h)(4)(ii). 
In our consideration of the specialty occupation issue we assumed for the sake of adjudication that 
the Petitioner intended to employ the Beneficiary exclusively in-house as described in the record. 
However, we find that there are inconsistencies in the record that undermine the Petitioner's claims 
regarding the nature of its business and the proffered position, and whether, in fact, the Petitioner has 
sufficient work for the duration of the employment. Specifically, as noted that in the offer letter 
dated February 3, 2014, the Petitioner indicated that the Beneficiary will "plan, design, develop, test, 
implement and support custom proprietary software applications" and "contribute to company's 
intellectual property development." However, the Petitioner did not submit sufficient regarding its 
proprietary software applications or intellectual property development. Further, the Statement of 
Work that describes the Beneficiary's role and service requirements and an information booklet that 
indicates that the Petitioner provides remote or in-house database administration services to its 
clients both contain sections that appear to be verbatim from other Internet sources. Moreover, the 
record of proceeding contains a lease agreement to establish availability of work space for the 
9 
As previously discussed, a Level IV (fully competent) position is designated by DOL for employees who "use 
advanced skills and diversified knowledge to solve unusual and complex problems" and requires a significantly higher 
wage. 
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Matter of N-E-S-, LLC 
Beneficiary; however, the lease is valid only until April 30, 2015 and so does not cover the entire 
employment period. 
In addition, the record of proceeding does not contain work orders valid for the requested period of 
employment for the beneficiary. While the Petitioner asserts that the Beneficiary will be employed 
in-house, the Petitioner does not appear to develop its own software and its work appears to be 
dependent on contracts with clients. The Petitioner submitted a few existing contracts; however, 
none of the contracts are valid for the duration of the Beneficiary's requested employment period. 
The Petitioner asserts that the Beneficiary will only serve in a secondary-role and therefore is not 
named in the contracts. However, without further information regarding specific projects to which 
the Beneficiary would be assigned that covers the duration of the period of employment requested, 
we are not able to ascertain what the Beneficiary would do, where the Beneficiary would work, as 
well as how this would impact circumstances of his relationship with the Petitioner. USCIS 
regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the 
time the petition is filed. See 8 C.F.R. 103.2(b)(l). A visa petition may not be approved based on 
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set 
of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978).10 
The above is not meant to be a comprehensive and conclusive analysis of the U.S. employer issue. 
We reserve the option to provide such an analysis, if needed in the future. It serves, however, to 
place the Petitioner on notice that it has not submitted sufficient evidence to establish that the 
Petitioner and the Beneficiary would have the requisite employer-employee relationship. 
10 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. A 1998 proposed 
rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). While a petitioner is certainly permitted to change its intent with 
regard to non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a 
material change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
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IV. CONCLUSION 
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). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-E-S-, LLC, ID# 13279 (AAO Sept. 10, 2015) 
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