dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 8991529 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 8, 2020 
The Petitioner, an information technology consulting firm, seeks to temporarily employ the Beneficiary 
as a "business system analyst" under the H-lB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S .C. § l 10l(a)(l5)(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 California Service Center Director denied the petition , concluding that the Petitioner had not 
established that the proffered position is a specialty occupation. On appeal, the Petitioner asserts that the 
Director erred and that the proffered position is a specialty occupation . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
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 . 
The regulation at 8 C.F .R. § 214 .2(h)(4)(ii) largely restates this statutory definition and adds a 
non-exhaustive list of fields of endeavor. 
II. ANALYSIS 
For the reasons discussed below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. 1 Specifically, as a result of the Petitioner's own 
requirements, the proffered position does not meet the statutory or regulatory definition of a specialty 
occupation. 
The record must establish that the performance of the duties of the proffered position requires both the 
theoretical and practical application of a body of highly specialized knowledge and the attainment of 
a baccalaureate or higher degree in a spec[fic 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"). In other words, a petitioner must demonstrate that the proffered position 
requires a precise and specific course of study that relates directly and closely to the position in 
question. Here, the Petitioner indicated in the initial filing and again in response to the Director's 
request for evidence (RFE), that the minimum education required for the proffered position is a 
"Bachelor's degree in Commerce and Post Graduate Diploma in Business Administration from India." 
The Petitioner also provides an opinion letter from.__ ________ __. who concludes that the 
proffered position "should essentially acquire (sic) a bachelor's degree in business or associated field 
of discipline." According to Service records, the professor has been employed by the Petitioner as an 
H-lB nonimmigrant since April of 2016.2 Furthermore, the professor's resume submitted with his 
letter indicates that he is employed as the Petitioner's CEO. As the professor appears to be employed 
as an officer of the petitioning entity, the evidence strongly suggests that the professor seeks to confirm 
the Petitioner's preconceived notion as to the requirement of business-related degrees, not objectively 
assess the proffered position and opine on the minimum bachelor's degree required, if any. While we 
will review the opinion presented, we conclude the analysis presented therein has little probative value. 
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. For the sake of brevity, we will not address other deficiencies within the 
professor's analyses of the proffered position. 
On appeal, the Petitioner reiterates its previously stated requirements that a "Bachelor's degree in 
Commerce and Post Graduate Diploma in Business Administration from India" is required to perform 
the duties of the proffered position, and emphasizes that the Beneficiary possesses such credentials. 3 
The Petitioner asserts on appeal: 
1 The Petitioner submitted documentation to suppmt the H-lB petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one.~-----~.--------, ~-----~ 
2 
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3 The Petitioner's CEO I I also provides another letter in which he evaluates the Beneficiary's foreign and 
United States education credentials, along with letters outlining her prior work experience, concluding that the 
Beneficiary's "level of expertise is at least comparable to that of a graduate of a domestic Management Information 
Systems." While the professor's letter identifies an area of study within the information technology field as part of his 
analysis, he does not specify the particular degree level ( e.g. associate' s, bachelor's, or master's) that he believes the 
2 
In the instant case, the minimum level of education required by [the Petitioner] and by 
the general current industry standards, to perform the duties of a Business System 
Analyst position with any degree of efficiency and cost-effectiveness, is at a minimum, 
a Bachelor's degree in Commerce and Post Graduate Diploma in Business 
Administration. The aforementioned background is required in order to research, 
analyze, communicate and recommend solutions in an efficient manner. 
Collectively considering the evidence of record, the Petitioner has not provided evidence to 
substantiate a legitimate business need for its requirements of the attainment of education gained 
through a combination of foreign education programs to perform the services of the proffered position 
within the United States. 4 The Petitioner must resolve these ambiguities in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). 
It is crucial that the record establish that a petitioner's stated degree requirement is not a matter of 
preference for high-caliber candidates but is necessitated instead by performance requirements of the 
position. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). Were we limited solely to 
reviewing a petitioner's claimed self-imposed requirements, an organization could bring any 
individual with a bachelor's degree to the United States to perform any occupation as long as the 
petitioning entity created a token degree requirement. Id. The Petitioner has not met its burden in 
this regard. It is the Petitioner's burden to prove by a preponderance of evidence that it is qualified 
for the benefit sought. Matter of Chawathe, 25 I&N Dec. at 3 7 6. In evaluating the evidence, eligibility 
is to be determined not by the quantity of evidence alone but by its quality. Id. 
The documentation provided is also not probative towards establishing that the Petitioner's foreign 
education requirements for the position are equivalent to a bachelor's degree obtained in the United 
States. Id. Nonetheless, even if for the purposes of our discussion we conclude, (as the Petitioner 
does on appeal), that its education requirements do constitute the equivalent of a United States 
bachelor's degree in business administration (which we do not) - such a requirement alone indicates 
that the proffered position is not in fact a specialty occupation. We determine the Petitioner's claim 
that a bachelor's degree such as business administration (or equivalent) is a sufficient minimum 
requirement for entry into the proffered position is inadequate to establish that the proposed position 
qualifies as a specialty occupation. Although such 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 conclusion that a particular position qualifies for classification as a specialty occupation. See Royal 
Beneficiary's education and experience would equate to. We also renew our concerns regarding the professor's objectivity 
in this matter, as he is employed as an officer of the petitioning entity. Id. 
Additionally, we are required to follow long-standing legal standards and determine first, whether the proffered position 
qualifies for classification as a specialty occupation, and second, whether the Beneficiary was qualified for the position at 
the time the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 T&N Dec. 558, 560 (Comm'r 
1988) ("The facts of a beneficiary's background only come at issue after it is found that the position in which the petitioner 
intends to employ him falls within [a specialty occupation]."). 
4 The Petitioner has also not provided documentary evidence to substantiate its claim that the attainment of a foreign 
"Bachelor's degree in Commerce and Post Graduate Diploma in Business Administration," is recognized as a "general 
industry standard" for the proffered position within its industry. 
3 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007). Specifically, the judge explained in Royal 
Siam, 484 F.3d at 147, that: 
The courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not 
justify the granting of a petition for an H-lB specialty occupation visa. See, e.g., Tapis 
Int'l v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. Supp. 2d at 1164-
66; cf Matter of Michael Hertz Assocs., 19 I & &N Dec. 558,560 ([Comm'r] 1988) 
(providing frequently cited analysis in connection with a conceptually similar 
provision). This is as it should be: elsewise, an employer could ensure the granting of 
a specialty occupation visa petition by the simple expedient of creating a generic ( and 
essentially artificial) degree requirement. 
Since there must be a close correlation between the required specialized studies and the position, the 
requirement of a degree with a generalized title, such as business administration, without farther 
specification, does not establish the position as a specialty occupation. Cf Matter of Michael Hertz 
Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). 
We acknowledge that in satisfying the specialty occupation requirements both the Act and the 
regulations require a bachelor's degree in a specific specialty, or its equivalent, and that this language 
indicates that the degree does not have to be a degree in a single specific specialty. However, in 
promulgating the H-1 B regulations, the former INS made clear that the definition of the term "specialty 
occupation" could not be expanded "to include those occupations which did not require a bachelor's 
degree in the specific specialty." Temporary Alien Workers Seeking Classification Under the 
Immigration and Nationality Act, 56 Fed. Reg. 61,111, 61,112 (Dec. 2, 1991) (to be codified at 8 
C.F.R. pt. 214). More specifically, in responding to comments that "the definition of specialty 
occupation was too severe and would exclude certain occupations from classification as specialty 
occupations," the former INS stated that "[t]he definition of specialty occupation contained in the 
statute contains this requirement [for a bachelor's degree in the specific specialty, or its equivalent]" 
and, therefore, "may not be amended in the final rule." Id. The requirement of a general bachelor's 
degree such as business administration for the proffered position, does not constitute a bachelor's in a 
specific specialty or its equivalent. 5 
For all of these reasons, the Petitioner has not demonstrated that the proffered position requires 
anything more than a general bachelor's degree (or less). As explained above, the statutory and 
regulatory definition of a specialty occupation requires a bachelor's degree in a specific specialty that 
is directly related to the proposed position. As a result, it is unnecessary to address the regulatory 
criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4). 6 However, even if the Petitioner were to demonstrate 
5 Section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). 
6 The regulations provide that the offered position must also 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; 
4 
that it satisfied one of the listed criteria, this would not result in this petition's approval, as it still has not 
shown that the proffered position satisfies the statutory or regulatory definition of a "specialty 
occupation." See section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). The statutory definition 
constitutes the primary requirement for a position to qualify as a specialty occupation. Only after this 
antecedent requirement has been met, may a petitioner move to demonstrate how it may satisfy one of 
the supplementary criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
III. CONCLUSION 
In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. In this matter, the Petitioner has not met that 
burden. 
ORDER: 
(2) 
(3) 
(4) 
The appeal is dismissed. 
The degree requirement is common to the industry in parallel pos1t10ns 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; 
The employer normally requires a degree or its equivalent for the position; or 
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. 
5