dismissed H-1B Case: Information Technology

MATTER OF K-NY;INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 31,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
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The Petitioner, a website design and search engine optimization business, seeks to temporarily employ 
the Beneficiary as a "project manager" under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-1B 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. The Petitioner appealed the denial, 
which we dismissed on the basis that: (1) the position offered to the Beneficiary does not qualify as 
a specialty occupation; and (2) the Beneficiary does not qualify for a specialty 6ccupation. 
The matter is before us on a combined motion to reopen and motion to reconsider. In its combined 
motion, the Petitioner submits additional evidence and asserts that our decision was erroneous. We 
will deny the motions. 
I. MOTION REQUIREMENTS 
A motion to reopen is based on documentary evidence of new facts, and a motion to reconsider is 
based on an incorrect application of law or policy. The requirements of a motion to reopen are 
located at 8 C.F.R. § 1 03.5(a)(2), and the requirements of a motion to reconsider are located at 
8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies these requirements and demonstrates 
eligibility for the requested immigration benefit. 
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II. ANALYSIS 
A. Motion to Reopen 
On motion the Petitioner presents a new statement of the Beneficiary's qualifications for the 
proffered position. This statement explains how five of the Beneficiary's courses from his bachelor's 
degree in mechanical engineering "are in direct relation to the job responsibilities of a project 
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Matter of K-NY Inc. 
manager." According to the Petitioner, the proffered position requires at least a bachelor's degree in 
management, or its equivalent. 
To the extent that the Petitioner implies the Beneficiary's degree in mechanical engineering is 
equivalent to a degree in management based on academic coursework alone (a claim not previously 
made), we are not persuaded. While a few related courses may be beneficial in performing certain 
duties of the position, the Petitioner has not demonstrated how these courses (e.g., Engineering 
Principles and Introduction to Mechanical Engineering Practice) are reflective of an established 
curriculum of courses leading to a bachelor's degree in management. 
The Petitioner's new statement also references an evaluation from concluding 
that the combination of the Beneficiary's education and work experience is equivalent to a bachelor's 
degree in management. Because this evaluation was previously submitted and considered, we will 
address it further in our discussion ofthe motion to reconsider. 
The Petitioner additionally submits a new affidavit which largely reiterates previously stated 
information. The only new information this affidavit presents is the statement that the "Beneficiary 
has no [i]nvolvement in any of company finances or [payroll] decisions." Because this statement 
relates to concerns about the Petitioner's job descriptions which we addressed in our prior decision, 
we will also address this claimed aspect of the proffered position in our discussion of the motion to 
reconsider. 
The rest of the Petitioner's motion consists of copies of previously submitted and considered 
evidence. We find that the Petitioner has not met the requirements of a motion to reopen. 
B. Motion to Reconsider 
Nor has the Petitioner met the requirements of a motion to reconsider by demonstrating that our prior 
decision to dismiss the appeal was incorrect. 
The Petitioner disagrees with our finding that the job descriptions materially changed in response to 
the Director's request for evidence (RFE). With this motion the Petitioner presents a chart "showing 
the duties side-by-side ... to prove that [the RFE job duties] were an extension of the original job 
duties." However, the Petitioner's chart does not show any corresponding RFE job duties for 
approximately half of the initially listed job duties. To illustrate, the initially listed job duties of 
·"[ensuring] workers have the resources to complete their work" and "[performing] human resource 
activities, such as performance evaluations, hiring and discipline" have no counterpart according to 
the Petitioner's chart. The record does not demonstrate how job duties such as those involving the 
Petitioner's human resources functions, for example, are consistent with the later stated job duties 
which were copied verbatim from the Occupational Information Network (O*NET) Online Summary 
Report for "Information Technology Project Managers." 
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Matter of K-NY Inc. 
As indicated above, on motion the Petitioner submits a new affidavit stating that the Beneficiary "has 
no [i]nvolvement in any of company finances or [payroll] decisions." But as also discussed above, 
the Petitioner initially stated that the Beneficiary will perform 
human resource activities, including 
hiring and disciplinary activities. These statements appear inconsistent with each other. 
Further on motion, the Petitioner claims 
that the initially stated job duties of assisting the company's 
goals and objectives related to sales, productivity, and profitability have not changed. It states: 
"Sales correlate to budget, schedule and scope of a project lend itself to calculating productivity and 
profitability." Yet the Petitioner also states that the Beneficiary has no involvement in any of 
company's financial or marketing decisions. The Petitioner has not reconciled these apparently 
inconsistent statements about the Beneficiary's role and responsibilities for the Petitioner, either. 
Rather than clarifying the substantive nature of the Beneficiary's job duties, we find that the 
Petitioner's statements on motion further cloud our understanding of the proffered position. 
With respect to our analysis under the first specialty occupation criterion of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A), the Petitioner points out that the proffered position falls under the occupational 
sub-code and sub-category of 15-1199.09, "Information Technology Project Managers" (under the 
broader occupational code and category of 15-1199, "Computer Occupations, All Other"), which has 
a Job Zone Level 4 rating in O*NET. This Job Zone rating indicates that most, but not all, of these 
occupations require a four-year bachelor's degree. 
But we find that O*NET's Job Zone ratings are not particularly useful in determining whether a 
baccalaureate degree in a specific specialty, or its equivalent, is normally required for entry into a 
position. That is, O*NET's Job Zone designations make no mention of any specific field of study 
from which a degree must come. 1 As we said in our previous decision, 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 proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007); Defensor v. Meissner. 201 F.3d 384, 387 
(5th Cir. 2000). Accordingly, even if we assume that the "Information Technology Project 
Managers" classification and its Job Zone 4 rating are appropriate for the proffered position, this 
information is still insufficient to demonstrate the position's eligibility under 8 
C.F.R. 
§ 214.2(h)(4)(iii)(A)(l) (or any other specialty occupation criteria). 
With respect to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) and (2), the Petitioner disagrees with 
our analysis of evaluation. Citing to Matter of Sea Inc .. 19 I&N Dec. 817, 820 
(Comm'r 1988) and Button Depot, Inc. v. US. Dept. of Homeland Sec., 386 F. Supp. 2d 1140 (C.D. 
Cal. 2005), the Petitioner contends that we should have considered an "expert ," 
notwithstanding "his lack of presenting that he has researched, run surveys or engaged in any deeper 
understanding of the minimum education required for the project manager position." 
1 
For more information , see O*NET OnLine Help - Job Zones , https://www .onetonline .org/help/online /zones (last 
visited July 31 , 20 17). 
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Matter of K-NY Inc. 
We are not persuaded. To start, Matter of Sea and Button Depot relate to a beneficiary's 
qualifications for a proffered position, not a position's qualification as a specialty occupation under 
one of the criteria at 8 C .P.R. § 214.2(h)(4)(iii)(A). Moreover, while we agree that the regulations 
and case law do not necessarily require to have conducted research or surveys 
into this particular position's job requirements, . we do not agree with the Petitioner's general 
proposition that any university professor should be considered "[a ]n expert in the field" and should 
be "accepted as an authority for H-1 B specialty occupation." See Matter of Caron Inti.. Inc., 19 l&N 
Dec. 791, 795 (BIA 1988) (we are not required to accept or may give less weight to advisory opinion 
statements, including those from universities, when those opinions are not in accord with other 
information or is in any way questionable). In order for us to give an "expert" opinion due weight in 
this matter, the Petitioner must demonstrate that the writer possessed a sufficient understanding of 
the actual position being offered, whether gained through research, surveys, or other empirical 
methods. The Petitioner has not done so here. 
For example, we explained in our prior decision that did not address an 
important aspect of this position: its Level II wage rate designation . This wage rate designation 
undermines statements about this position's "specialized and complex" duties, 
and raises questions as to his level of understanding about this position. The Petitioner 's motion 
does not address this deficiency. Also, we now observe that evaluation appears 
to have been based solely on the Petitioner 's initially stated job description. As we discussed above 
and in our prior decision, the Petitioner's job descriptions materially changed over the course of 
these proceedings. As such, evaluation appears to have been based on an 
incomplete or inaccurate review of this position, thus constituting a faulty factual basis for his 
ultimate conclusions. The Petitioner has not demonstrated that we erred in not accepting 
evaluation as probative evidence under 8 C.P.R.§ 214.2(h)(4)(iii)(A)(l) and (2) . 
The instant motion does not address our analysis under any other specialty occupation criteria at 
8 C.P.R. § 214.2(h)(4)(iii)(A). Accordingly, the Petitioner has not demonstrated that we erred in 
dismissing the appeal on the basis that the position offered to the Beneficiary does not qualify as a 
specialty occupation . 
Finally, the Petitioner has not demonstrated that we erred in dismissing the appeal on the basis of th~ 
Beneficiary's qualifications. 
In this respect, the Petitioner again relies on 
relies on a previously submitted letter regarding 
credits through 
evaluation. The Petitioner also 
authority to grant ' 
degree completion program offered through the 
This letter states that "[m]ore information about the can be 
found at www. and following the link to " The Petitioner claims 
that we erred by not considering these documents under 8 C.P.R.§ 214.2(h)(4)(iii)(D)(l). 
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Matter of K-NY Inc. 
However, the Petitioner has not provided additional information about the " credits 
that is purportedly authorized to grant. We were unable to locate a direct link 
to the' 'on website, and the Petitioner has not submitted 
print-outs from the university's website for the record. 
While we located information on the university's website about the "Accelerated Degree Completion 
Program" which offers students the chance to "build upon [their] current education, work expe(ience 
and life accomplishments to complete [their] undergraduate degree,"2 this information: (1) is not 
described within the context of the ' ; (2) does not indicate that " 
credits are granted based solely on an individual's "training and/or work experience"; and (3) does 
not indicate that 
students may a obtain a bachelor's degree specifically in the field of management 
through this accelerated program. 3 The Petitioner has not overcome our finding that the record does 
not demonstrate authority to grant college-level credit according to the terms 
of 8 C.F.R. § 214.2(h)(4)(iii)(D)(J). 
The Petitioner's motion does not address other aspects of our discussion regarding the Beneficiary 's 
qualifications for the proffered position. We find that the Petitioner has not met the requirements of 
a motion to reconsider. 
III. CONCLUSION 
The Petitioner has not met the requirements for a motion to reopen or a motion to reconsider. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of K-NY Inc., ID# 499617 (AAO July 31, 2017) 
Accelerated Degree Completion Program Options , http://www . 
(last visited July 31, 20 17). 
J See id. 
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