dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 11166944 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 25, 2021 
The Petitioner , a global digital marketing company , seeks to temporarily employ the Beneficiary as a 
"quality assurance analyst" under the H-lB nonimmigrant classification for specialty occupations . 
Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C. § l 10l(a)(15)(H)(i)(b) . 
The H-lB 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 Vermont Service Center denied the petition , concluding that the record did not 
establish that the proffered position was a specialty occupation. On appeal, the Petitioner submits a 
brief and asserts that the Director erred by denying the petition . The matter is now before us on appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence .1 We review the questions in this matter de nova. 2 Upon de nova 
review , we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § l 184(i)(l) , defines the term "specialty occupation" as an 
occupation that requires : 
(A) theoretical and practical application of a body of highly specialized knowledge , 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
1 Section 291 of the Act; Matter ofCh awathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
( I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We note as a threshold issue 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 COIT Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F .R. 
§ 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to meet 
the statutory and regulatory definition of a specialty occupation. To otherwise interpret this section as 
stating the necessary and sufficient conditions for meeting the definition of specialty occupation would 
result in particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the 
statutory or regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To 
avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental 
criteria that must be met in accordance with, and not as alternatives to, the statutory and regulatory 
definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), we construe 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. 3 
To determine whether a particular job qualifies as a specialty occupation, we do not rely simply upon 
a position's title or the broader occupational category within which a petitioner claims the position is 
located. 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 
3 See Royal Siam COip. v. Chertof(, 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"). 
2 
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 by the Act. 
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(b)(l). 
II. ANALYSIS 
The Petitioner states that the Beneficiary will be employed as a "quality assurance analyst" and that 
the minimum qualifications for the position are a bachelor's degree in computer science, computer 
engineering, information systems, or a closely related technology field. The Petitioner's initial letter 
of support provides a list of duties, which it updates in its response to the Director's request for 
additional evidence (RFE). 4 Upon review of the record in its totality and for the reasons set out below, 
we conclude that the Petitioner has not demonstrated that the proffered position qualifies as a specialty 
occupation. Specifically, the record does not include sufficient consistent, and probative evidence to 
establish that the job duties require an educational background, or its equivalent, commensurate with 
a specialty occupation. 5 
A. First Criterion 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]) 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'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. 6 The Petitioner designated the proffered position on the labor 
condition application (LCA) as a standard occupational classification (SOC) code 15-1199 "Computer 
Occupations, All Other" occupation. In response to the Director's RFE and on appeal, the Petitioner 
asserts that the duties of the proffered position are consistent with the duties of positions located within 
the "Software Quality Assurance Engineers and Testers" occupation corresponding to SOC code 
4 While we do not list the duties, we have reviewed and considered each one. 
5 The Petitioner submitted documentation to suppmt the H-lB petition, including evidence regarding the proffered position 
and the Beneficiary's educational background. While we may not discuss every document submitted, we have reviewed 
and considered each one. 
6 The Handbook is a career resource offering information on hundreds of occupations. There are occupational categories 
however, which the Handbook does not cover in detail, and instead provides only summary data. 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 occupations, all other" is a "Bachelor's degree," 
without indicating that the bachelor's degree must be in a specific specialty. As such, the Handbook cannot be relied on 
to establish that these positions comprise an occupational group for which the normal minimum requirement for entry is 
at least a bachelor's degree in a specific specialty, or its equivalent. See https://www.bls.gov/ooh/about/data-for­
occupations-not-covered-in-detail.htm (last visited March 12, 2021). 
3 
15-1199.01, as found in the Occupational Information Network (O*NET). 7 We agree that the duties 
of the proffered position are similar to the tasks associated with positions located within the occupation 
"Software Quality Assurance Engineers and Testers." 8 However, contrary to the Petitioner's 
assertions, O*NET does not establish the requirement of a bachelor's degree in a "specific specialty" 
for entry into this occupation. 9 Rather, O*NET assigns this occupation a Job Zone "Four" rating, 
which groups it among occupations for which "most ... require a four-year bachelor's degree, but 
some do not." 1° Furthermore, O*NET does not establish that the four-year bachelor's degrees required 
by Job Zone Four occupations must be in a specific specialty directly related to the occupation. As 
the Director points out, the specialized vocational preparation (SVP) rating cited within O*NET's Job 
Zone designates this occupation as 7 < 8 and a 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, we 
agree with the Director that the SVP does not describe how those years are to be divided among 
training, formal education, and experience - and it does not specify the particular type of degree, if 
any, that a position would require. 11 
The Petitioner argues that O*NET' s knowledge section provides the necessary information to find that 
the proffered position is a specialty occupation. However, O*NET's knowledge section for 15-
1199.01 lists computer, engineering, mathematics, and technology knowledge (as opposed to a 
bachelor-level of education, or its equivalent) as required for this type of position. Moreover, because 
O*NET's knowledge sections are" ... organized sets of principles and facts that apply to a wide range 
of situations," 12 O*NET does not establish the minimum educational qualifications for these positions 
because it does not describe the normal minimum educational requirements with sufficient specificity 
to be authoritative. As such, in determining whether a particular occupation requires a degree in a 
"specific specialty," we decline to accord O*NET authoritative weight in our adjudications. 13 
Therefore, O*NET does not establish that the proffered position is a specialty occupation as defined 
by section 214(i)(l) of the Act or under criterion one of 8 C.F.R. § 214.2(h)(4)(iii)(A). 
The Petitioner cites to the district court case Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 
252 (S.D.N.Y. Sept. 29, 2017) (Next Generation Tech., Inc.) to argue that our interpretation of the 
Handbook and O*NET could be seen as arbitrary and capricious in analogous cases. We first note that 
we are not bound to follow the published decisions of a United States district court. See Matter of K­
S-, 20 I&N Dec. 715, 719-20 (BIA 1993). Furthermore, the Petitioner cites to a portion of Next 
Generation Tech. Inc. 's opinion having to do with USCIS's treatment of the Handbook, where the 
7 On November 17, 2020, O*NET updated the occupation SOC 15-1199.01, Software Quality Assurance Engineers and 
Testers to SOC 15-1253.00, Software Quality Assurance Analysts and Testers. For the purposes of this decision, we will 
refer to the occupation's code and name at the time of the Director's decision, SOC 15-1199.01, Software Quality 
Assurance Engineers and Testers. See https://www.onetonline.org/link/summary/15-l253.00?redir=15-l l99.01 (last 
visited March 12, 2021 ). 
8 Id. 
9 As noted above, the Petitioner states that the minimum educational requirement for the proffered position is a bachelor's 
degree in computer science, computer engineering, information systems, or closely related technology field. 
10 O*NET OnLine Help - Job Zones, http://www.onetonline.org/help/online/zones (last visited March 12, 2021 ). 
11 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/online/svp 
(last visited March 12, 2021 ). 
12 https://www.onetonline.org/help/online/summary (last visited March 12, 2021). 
13 https://www.onetonline.org/link/summary/l5-1253.00?redir=15-l l 99.0l#Knowledge (last visited March 12, 2021). 
4 
court found there was no rational basis between the educational requirements in the Handbook for 
computer programmers and our determination that the Handbook did not support finding that a 
computer programmer position normally requires a bachelor's degree for entry into the field. 
However, we disagree with the Next Generation Tech. Inc. court's interpretation because it did not 
consider the statutory requirement that the degree be in a "specific specialty," which the Handbook 
does not establish. Additionally, since the Next Generation Tech. Inc. court was evaluating our 
treatment of the Handbook and here, the Handbook does not provide specific educational information 
for "Software Quality Assurance Engineers and Testers," the Petitioner's reliance on that court's 
reasoning is misplaced. 
We diverge from the Director's reasoning somewhat in that we do not take issue with the Petitioner's 
degree requirements and acknowledge the knowledge gained from this grouping of degree fields 
encompasses a similar "body of highly specialized knowledge." 14 However, a specialty occupation is 
not determined solely by the Petitioner's preference for a candidate with a specialized educational 
background and, here, the Petitioner has not provided an authoritative source to establish that a degree 
in a specific specialty is the normal minimum requirement for entry into the quality assurance analyst 
occupation. 
In its RFE response, the Petitioner contends that the Director erred in according too much weight to 
the Handbook and states that the Handbook "is not intended to establish the minimum requirements 
of an occupation. The [ Handbook] merely serves as a general industry-wide guidance like the O*NET. 
The [Handbook] disclaimer attached at Exhibit A, clearly states its purpose as guidance and not as a 
determinative occupation requirement source for specific establishments ... " 15 ( emphasis in original). 
While the Petitioner did not reiterate this argument on appeal, we note that the Director did not rely 
solely on the Handbook in her decision and furthermore, we agree with the Director's decision in as 
far as she declined to give the O*NET authoritative weight, for the reasons noted above. The Petitioner 
has the burden to submit evidence to establish that a bachelor's degree in a "specific specialty," or its 
equivalent, is normally the minimum requirement for entry into the particular position. We do not 
discern from the record that the Director did not either (1) folly and fairly consider and accord 
appropriate evidentiary weight to any of the countervailing evidence from any other source or (2) 
14 In general, provided the specialties are closely related, e.g., chemistry and biochemistry, 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 2 l 4(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 a degree in two disparate fields, such as 
philosophy and engineering, 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. Section 2 l 4(i)(l )(B) of the Act ( emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," we do not so narrowly 
interpret these provisions to exclude positions from qualifying as specialty occupations if they permit, as a minimum entry 
requirement, degrees in more than one closely related specialty. See section 214(i)( 1 )(B) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii). This also includes even seemingly disparate specialties provided the evidence of record establishes how 
each acceptable, specific field of study is directly related to the duties and responsibilities of the particular position. We 
find the Petitioner's stated degree-range (specifically, computer science, computer engineering, and information systems) 
sufficiently narrow to satisfy this analysis. 
15 U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, "Disclaimer," 
http://www.bls.gov/ooh/about/disclosimer.htm (last visited March 12, 2021). 
5 
properly determine the ultimate impact of the Handbook's information upon the issues for which the 
Handbook was considered. On the contrary, the Director's RFE put the Petitioner on notice that the 
Handbook did not establish the minimum educational qualifications for the proffered position, and 
given the opportunity to respond to those concerns, the Petitioner failed to present countervailing 
evidence to establish eligibility under criterion one of 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
Accordingly, the Petitioner has not provided sufficient documentation from a probative source to 
substantiate its assertion regarding the normal minimum requirement for entry into this particular 
position. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. First Prong of the 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 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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong contemplates 
common industry practice, while the second alternative prong narrows its focus to the Petitioner's 
specific position. 16 
To satisfy this first prong of the second criterion, we generally consider the following sources of 
evidence to determine if there is such a common degree requirement: 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 establish that such firms "routinely employ and recruit only degreed individuals." 17 As 
discussed above, the Handbook does not establish the industry standard for this position, and we 
incorporate by reference the previous discussion on the matter. 
The Petitioner provided a position evaluation froml I associate professor of computer 
applications and information systems at the University I l and contends the opinion 
establishes the industry standard for entry into the occupation of quality assurance analyst. We do not 
agree for several reasons. First, we note that the professor's opinion contains conflicting information 
as it refers to the title of the position accurately as a "quality assurance analyst" and also inaccurately 
as a "quality assurance manager." 18 Second, the professor's letter lacks objective support for an 
industry standard such as a citation to industry wide studies. His letter lists the Petitioner's description 
of the duties of the position, and then lists college-level courses that may be taken while earning a 
degree in computer science, computer engineering, or information systems. Finally, his letter 
identifies courses that could prepare an individual to perform the duties of this position. After stating 
16 We will discuss the second prong of the second criterion in section D below. 
17 See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 
1095, 1102 (S.D.N.Y. 1989) considering these "factors" to inform the commonality of a degree requirement. 
18 The Director noted this discrepancy as well, and on appeal, the Petitioner submitted a revised opinion letter that purp01ts 
to fix the title discrepancy. However, the professor's revised letter continues to inaccurately reference the title of the 
position stating "[e]mployers with openings for Quality Assurance Managers and similar professional positions have 
recrnited at our campus, always seeking graduates with the minimum of a Bachelor's degree" (emphasis added). The 
continued inaccurate reference to the title of the proffered position suggests the writer did not produce an individualized 
assessment of the proffered position as it relates to the industry as a whole. 
6 
the duties, the professor summarily concludes that the position is specialized and requires a bachelor's 
degree in computer science, computer engineering, information systems, or a related area of study. 
However, his evaluation includes little to no analysis of how he reached these conclusions. 
Moreover, we note several discrepancies between! f s evaluation and the evidence of 
record. Specifically, the professor highlights that to perform the duty of "conducting comprehensive 
software through the development of testing scenarios" and "to write moderately complex code," a 
candidate would have to have majored in computer science because the proffered position focuses on 
programming. We note here that the O*NET's tasks for "software quality assurance engineers and 
testers," do not include writing moderately complex code. 19 If the position requires writing 
"moderately complex code," we question the designation of this position as a Level I wage position 
on the LCA, as the duties appear to require special skills that are not those of a typical entry-level 
software and quality assurance analyst and tester (internally named a quality assurance analyst). 20 
19 https://www.onetonline.org/link/summary/15-1253.00#Tasks (last visited March 12, 2021 ). 
20 The labor condition application (LCA) serves as the critical mechanism for enforcing section 212(n)(l) of the Act. 8 
U.S.C. § l 182(n)(l). See, Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H­
lB Visas in Specialty Occupations and as Fashion Models; Labor Certification Process for Pe1manent Employment of 
Aliens in the United States, 65 Fed. Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-
56) (indicating that the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic 
incentive or advantage in hiring temporary foreign workers" and that this ·'process of protecting U.S. workers begins with 
[the filing ofan LCA] with [DOL]."). According to section 212(n)(l)(A) of the Act, an employer must attest that it will 
pay an H-1 B visa holder the higher of the prevailing wage in the "area of employment" or the amount paid to other 
employees with similar experience and qualifications who are performing the same services. 20 C.F.R. § 655.731 (a); 
Venkatraman v. REI S:vs., Inc., 417 F.3d 418, 422 & n.3 ( 4th Cir. 2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 
2010); Michal Vojtisek-Lom & Adm 'r Wage & Hour Div. v. Clean Air Tech. Int'/, Inc., No. 07-97, 2009 WL 2371236, at 
*8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL regulations note that 
the Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS) is the department responsible 
for determining whether the content of an LCA filed for a particular Form I-129 actually supports that petition. See 20 
C.F.R. § 655.705(b), which states, in pertinent part (emphasis added): 
For H-lB visas ... DHS accepts the employer's petition (DHS Form I-129) with the DOL-certified 
LCA attached. In doing so, the DHS determines whether the petition is supported by an LCA which 
corresponds with the petition, whether the occupation named in the [LCA] is a specialty occupation or 
whether the individual is a fashion model of distinguished merit and ability, and whether the 
qualifications of the nonimmigrant meet the statutory requirements for H-lB visa classification. 
The regulation at 20 C.F.R. § 655.705(6) requires that USCIS ensure that an LCA actually supports the H-lB petition filed 
on behalf of the Beneficiary. Under the DOL's guidance, a wage determination starts with an entry-level wage (Level I) 
and progresses to a higher wage level (up to Level IV) after considering the experience, education, and skill requirements 
by the Petitioner's job opportunity. The DOL provides a five-step process for determining the appropriate wage level for 
LCAs and step four focuses on "Special Skills and Other Requirements." Step 4 states "[i]n situations where the 
employer's requirements are not listed in the O*NET [Occupational Information Network] Tasks, Work Activities, 
Knowledge, and Job Zone Examples for the selected occupation, then the requirements should be evaluated to determine 
if they represent special skills." In other words, if the skills required for the job are generally encompassed by the O*NET 
position description, no wage level point should be added to the prevailing wage rate. The guidance continues "[h]owever, 
if it is dete1mined that the requirements are indicators of skills that are beyond those of an entry level worker, consider 
whether a point should be entered on the worksheet in the Wage Level Column." U.S. Dep't of Labor, Emp't & Training 
Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available 
at http://www.foreignlaborcert.doleta.gov/pdti'NPWHC_ Guidance_Revised_l 1_2009.pdf Here, the Petitioner's 
inclusion of the duty "writing moderating complex code" is beyond the O*NET tasks and would appear to require, at 
7 
Similarly, the professor highlights the role of the proffered position as a mentor and teacher to lower 
level employees, such as technologists, to argue that the position is complex and specialized. This too 
conflicts with the Level I wage chosen on the LCA as mentoring and teaching lower level employees 
are not tasks associated with an entry-level wage and would appear to require an additional wage-level 
increase. 21 It appears the professor was either unaware of (or failed to consider) the Petitioner's 
designation of the proffered position as a Level I position on the LCA when highlighting the additional 
skills and level of responsibility assigned to the position. The professor's focus on these job duties 
conflicts with the Level I position and his analysis does not explain or reflect his knowledge of the 
LCA' s Level I, entry-level designation. 22 We consider this a significant omission. As the professor 
does not include such analysis, we question whether he possesses the requisite information to adequately 
assess the nature of the position and appropriately determine an industry standard for parallel positions. 
We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of 
Caron Int 'l, Inc., 19 I&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. Id. Due to the discrepancies found in the professor's opinion letter and the 
lack of pertinent analysis, we decline to afford the professor's opinion significant weight and do not 
find his opinion establishes the industry standard for this position as required by the first alternative 
prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
Accordingly, the Petitioner has not provided sufficient probative evidence to establish that a bachelor's 
degree in a specific specialty, or its equivalent, is common to the industry in parallel positions among 
similar organizations and therefore, has not satisfied the first alternative prong of 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A)(2). 23 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) requires an employer to demonstrate that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
Evidence provided in this criterion may include, but is not limited to, an organizational chart showing 
the Petitioner's hierarchy and staffing levels with corresponding experience requirements for the 
positions, as well as documentary evidence of past employment practices for the position. However, 
even if a petitioner always requires a bachelor's degree in a specific specialty to perform the duties of 
minimum, a one-level increase on the LCA. 
21 Id. at 11-12. 
22 Id. 
23 The Petitioner submitted four job postings for the first time on appeal. These job postings are dated March 25, 2020, 
which postdates the filing of the petition and the Director's request for additional evidence (RFE) dated August 14, 2019. 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to 
respond to that deficiency, the AAO will not accept evidence offered for the first time on appeal. Matter of Soriano, 19 
T&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 T&N Dec. 533 (BIA 1988). Regardless, to be relevant for 
consideration under this prong, the descriptions on the job postings must describe positions that are parallel to the proffered 
position and the job postings must have been placed by organizations that (I) conduct business in a petitioner's industry 
and (2) are also "similar" to a petitioner. Absent such evidence, job postings submitted by a petitioner are generally outside 
the scope of consideration for this prong. Here, the Petitioner did not submit any evidence to support finding that the job 
postings were placed by "similar" businesses. As the job postings postdate the filing of the petition and the Director's 
RFE, and do not appear to be from similar businesses, the job postings submitted are given no probative weight towards 
establishing the Petitioner's burden. 
8 
the proffered position, the record must still establish that a petitioner's stated degree requirement is 
not a matter of preference for high-caliber candidates but is necessitated by performance requirements 
of the position. 24 
The Petitioner in this matter has not persuasively established that it normally requires at least a 
bachelor's degree in a specific specialty, or its equivalent, for the position proffered here. We 
examined the organizational chart provided in response to the Director's RFE. In it, the quality 
assurance department is shown to have five positions ( director, QA lead, QA manager, Senior QA 
analyst, and the proffered position). Only one individuaLI I holds the same position as 
that of the proffered position and the Petitioner did not submit evidence ofl ~ credentials. 
The Petitioner did submit educational background information for two individuals on the 
organizational chart, however these individuals do not hold the same position as the proffered position. 
Therefore, this information is not relevant to our evaluation of whether the Petitioner normally requires 
at least a bachelor's degree in a specific specialty for the proffered position. 25 Finally, the probative 
value of the educational credentials for only a two individuals, particularly as here, when the petitioner 
has been in the same business for over fifteen years, is low.26 As such, the Petitioner has not provided 
sufficient persuasive evidence to satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 27 
D. Second Prong of the Second Criterion and Fourth Criterion 
The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) 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 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. 
24 Defensor, 201 F.3d at 387-88. 
25 On appeal, the Petitioner submitted the educational background information for individuals who it has employed as 
"senior quality assurance analyst," "automation developer," and "director of quality assurance" which are not the same 
position as the proffered position. As stated above, evidence submitted after the Director's RFE will not be considered 
unless the Petitioner establishes that this evidence was not previously available. See Soriano, 19 T&N Dec. 764 (BIA 
1988); Obaigbena, 19 T&N Dec. 533 (BIA 1988) (standing for the proposition that where, as here, a petitioner has been 
put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, we will not 
accept evidence offered for the first time on appeal.) The Petitioner did submit the educational background information 
for two "senior quality assurance analysts" in response to the Director's RFE. However, the probative value of just two 
employees is not sufficient to meet the Petitioner's burden under 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). Furthermore, it is 
unclear from the record how the Petitioner distinguishes a "senior quality assurance analyst" from a "quality assurance 
analyst" given that the position descriptions are very similar. The Petitioner's failure to clearly distinguish between its 
various QA positions in terms of responsibility, wage level, and pay creates ambiguity about the actual educational 
requirements for the positions. 
26 The Petitioner's Form T-129 states that the Petitioner has been in business since 2000. 
27 We note too, that even if the Petitioner always requires a bachelor's degree in a specific specialty to perfonn the duties 
of the proffered position, which it has not corroborated in this record, this could possibly satisfy the regulatory requirement 
at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(3). However, the Petitioner must still satisfy the statutory requirement that the position 
itself requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a 
baccalaureate or higher degree in a specific specialty, or its equivalent, as the minimum for entry into the occupation. See 
section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"). The Petitioner has not 
established that here. 
9 
Upon review of the totality of the record, we conclude that the Petitioner has not sufficiently explained 
or documented why the duties are so "complex or unique" or "specialized and complex" that a 
bachelor's degree in a specific specialty, or the equivalent, is required. The Petitioner submitted 
expanded job duties in response to the Director's RFE, examples of the Beneficiary's work product, 
and.I l's opinion to establish relative uniqueness, complexity and/or specialization. Here, 
we incorporate our prior discussion of I ts evaluation. In addition, we observe that 
______ .... repeats the Petitioner's version of the proposed duties provided in response to the 
Director's RFE and opines that a bachelor's degree in computer science, computer engineering, 
information systems, or a related field, or the equivalent, 2rovides the student with the core competencies 
and skills needed for a quality assurance analyst position. I I also lists 13 courses that could 
be taken in these fields that would correspond to the duties and prepare a student for the responsibilities 
of the position. He later refers to three courses ( computer programming, computer organization and 
architecture, and database management system) as courses that, in particular, will prepare a student for 
the responsibilities of the position. However,[ I does not offer an analysis of why the 
position's duties are specialized and complex or unique, to support his conclusion that the position is a 
specialty occupation. 28 
We understand that an individual who takes one or several of these courses may be prepared to perform 
the duties of this position; however, 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 qualifies as a specialty 
occupation. Thus, whether or not the Beneficiary in this case has completed a specialized course of study 
directly related to the proffered position is irrelevant to the issue of whether the proffered position 
qualifies as a specialty occupation, i.e., whether the duties of the proffered position require the theoretical 
and practical application of a body of highly specialized knowledge and the attainment of a bachelor's 
degree or higher in a specific specialty, or its equivalent. Section 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii). Neither the Petitioner norl I have established the proffered position is a 
specialty occupation under the statutory or regulatory definition. 
The Petitioner employs individuals in the position of "senior QA analyst" ( as opposed to the proffered 
position of "quality assurance analyst"), which creates ambiguity in the record. The two positions 
present virtually identical duties and the candidates have the same educational credentials, yet the 
wage levels are different. 29 This discrepancy has at least two possible explanations, both of which 
28 - ____ _. appears to use a template (with the same language, organization, and similar conclusory statements 
regarding different occupations and also without supporting analysis) that has been submitted on behalf of other petitioners. 
The similarity in conclusions, without cogent analysis, strongly suggests that the authors of these opinions were asked to 
confirm a preconceived notion as to the required degrees, and that they did not objectively assess the proffered position in 
order to opine on the position's degree requirements. While we have reviewed the opinion presented, it has little probative 
value given its broad conclusory statements and because it does not include specific analysis of the duties of the pmiicular 
position. 
29 We note that the record reflects that the Petitioner's two senior QA analysts have a U.S. master's degree in information 
systems, which is the same degree held by the Beneficiary. The Petitioner's designation of this position as Level I 
undermines its claim that the position is particularly complex, specialized, or unique compared to other positions within 
the same occupation. Nevertheless, we point out that 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 occupations (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 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 
10 
render the same result in that the petition must be denied. The first explanation is that the LCA's 
Level I wage for this position is too low, and therefore, the petition must be denied because the 
Petitioner is not paying the Beneficiary the appropriate wage for the complex and/or specialized duties 
she performs. The second explanation is that this position is not as complex or specialized as the 
position of a senior QA analyst, in which case the proffered position is distinguishable from the 
Petitioner's senior QA position, and the duties are not "complex or unique" or "specialized and 
complex" to establish eligibility under the second prong of criterion two or criterion four. 
A review of the Beneficiary's work product does not show relative complexity, uniqueness, and/or 
specialization. Some of the work product is illegible or irrelevant and therefore, carries no probative 
weight. 30 Other work product does not reflect that the duties of the proffered position are complex, 
unique and/or specialized. For instance, we note the email dated May 25, 2018 from the Beneficiary 
to I I contains a chart showing where the mobile apps for several major rental car 
companies are most frequently used. Based on the information in the email, the Beneficiary's role 
does not match the Petitioner's description of the proffered position's duties but instead she appears 
to perform an administrative, data-collection (or support) role on the QA team. Another email dated 
April 30, 2019 from the Beneficiary to I -" 0 j, exhibits the same data collection ( or support) 
role when the Beneficiary writes: "I am done compiling example scenarios/ screen shorts o~ I 
of when we show the cred card numbers ... Could you help me ... ". This email demonstrates that the 
Beneficiary is not providing quality assurance analysis as much as she is assisting the senior QA team 
in collecting data and information. We note that the emails from the Beneficiary tol I" do show 
that she has completed quality assurance testing, however the email is insufficient to demonstrate the 
proffered position's relative complexity, uniqueness and/or specialization. 
In light of all the above, the Petitioner did not sufficiently develop relative specialization and 
complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks 
that are so complex, unique and/or specialized that only an individual with a bachelor's degree in a 
specific specialty 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) or 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
III. CONCLUSION 
As set forth above, we conclude that the evidence of record does not establish, more likely than not, 
that the proffered position qualifies for classification as a specialty occupation. 31 Accordingly, the 
appeal will be dismissed for the above stated reasons. 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. 
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)(l) of the Act. 
30 The I I Redesign Regression Test Suite" contains multiples pages of illegible and barely legible text. 
Another example of work product appears to have been included in error as the 11-page document shows it is owned by 
! t' not the Beneficiary, and therefore, is not relevant or probative to support the Petitioner's burden to 
establish the proffered position's relative uniqueness, complexity and/or specialization. 
31 Moreover, given the issues identified with the LCA, we question whether the LCA corresponds to and supports the H­
IB petition, as required. Though we will not explore that issue further because the proffered position is not a specialty 
occupation, the Petitioner should be prepared to address it in any future H-lB filings. 
11 
§ 1361. The Petitioner has not met that burden under section 214(i)(l) of the act or under any of the 
four criteria found in 8 C.F.R. § 214.2(h)(4)(iii)(A). 
ORDER: The appeal is dismissed. 
12