dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 7859355 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 23, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as an 
"associate sales consultant" 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 Director of the California Service Center denied the petition, concluding that the proffered 
position does not qualify as a specialty occupation. On appeal, the Petitioner submits additional 
evidence and asserts that the Director erred . 
Upon de nova review, we will dismiss the appeal. 1 
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, 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 : 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010) . 
( 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 construe the term "degree" 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) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). 
II. PROFFERED POSITION 
The Petitioner described the duties of the proffered "associate sales consultant" position, and the 
percentage of the Beneficiary's time required to perform them, as follows: 
• Provide technical/functional support to sales teams as well as customers on 
demonstrating [ the Petitioner's product] capabilities through [p ]roof of [ c ]oncepts, 
[d]emos, and [w]orkshops [25%]; 
• Deliver proof of concept by bringing in deep knowledge in [ d]atabase, [ d]ata 
management, [ d]ata [ m ]ining, [b Jig [ d]ata, [ m ]achine [!]earning, predictive 
analytics, ETL, and data warehousing [20%]; 
• Architect an end to end solution using platforms around the [Petitioner's product] 
stack using programming languages like JavaScript, Python, Java, Angular, SQL, 
HTML, and CSS [30%]; 
• Develop competitive analyses of capabilities relative to public cloud vendos like 
AWS, Azure, Google and IBM to help differentiate [the Petitioner's] public cloud 
and position it as a better alternative to solve customer's [sic] business challenges 
[5%]; 
• Build innovative solutions leveraging transformational technologies like AI/ML, 
Blockchain, IoT, chat bots, etc., to showcase the art of the possible with the 
[Petitioner's] public cloud [10%]; 
• Manage all technical/project management aspects of engagements with customers, 
ensuring a good customer experience and success with [the Petitioner's] products 
and services [5%]; and 
• Collaborate with other parts of the [Petitioner's] ecosystem including field 
organizations, support, product management, development and customer success 
2 
managers to ensure customers' needs are serviced appropriately so as to drive 
customer success [ 5 % ]. 2 
According to the Petitioner, the position requires "a Bachelor's degree in Computer Science, Computer 
Engineering, or a related field, or equivalent." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 3 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 4 
A. First Criterion 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I) 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. To inform this inquiry, we will consider the information contained in the U.S. Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the duties and educational 
requirements of the wide variety of occupations that it addresses. 5 
On the labor condition application (LCA) 6 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Sales Engineers," corresponding 
to the Standard Occupational Classification code 41-9031. The subchapter of the Handbook titled 
"How to Become a Sales Engineer" states, in relevant part: 
A bachelor's degree is typically required to become a sales engineer. . . . Sales 
engineers typically need a bachelor's degree in engineering or a related field. However, 
a worker without a degree, but with previous sales experience as well as technical 
experience or training, may become a sales engineer. Workers who have a degree in a 
science, such as chemistry, or in business with little or no previous sales experience, 
also may become sales engineers. 
2 The Petitioner provided expanded duty descriptions. Although we omit the expanded duty descriptions for brevity, we 
have reviewed them in their entirety. 
3 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
4 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. 
5 We do not maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category 
designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered 
position, and we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. Nevertheless, to satisty the first criterion, the burden of proof remains on the Petitioner to 
submit sufficient evidence to support a finding that its particular position would normally have a minimum, specialty 
degree requirement, or its equivalent, for entry. 
6 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-lB worker the higher of either the prevailing 
wage for the occupational classification in the area of employment or the actual wage paid by the employer to other 
employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). 
3 
Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Sales Engineers, 
https://www.bls.gov/ooh/sales/sales-engineers.htm#tab-4 (last visited Apr. 22, 2020). 
The Handbook does not establish that a bachelor's or higher degree in a specific specialty, or its 
equivalent is normally the minimum requirement for entry into sales engineer positions. Specifically, 
although the Handbook states that "[a] bachelor's degree is typically required to become a sales 
engineer," it then observes that "a worker without a degree, but with previous sales experience as well 
as technical experience or training, may become a sales engineer." Id. The Handbook does not 
establish that the "previous sales experience as well as technical experience or training" in lieu of a 
bachelor's or higher degree is equivalent to a qualifying degree. The Handbook does not elaborate on 
the circumstances when a bachelor's degree "is typically required" and when "a worker without a 
degree" with some unspecified level of sales experience and technical training "may become a sales 
engineer." 
Further, the Handbook's observation that workers with a bachelor's or higher degree in disparate fields 
such as chemistry or business are qualified to become sales engineers does not establish that a 
bachelor's or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry into the particular position's occupational category. 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 214(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. 7 Section 214(i)(l)(B) of the Act (emphasis added). 
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, without further 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). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its equivalent. 
As discussed supra, we interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a 
degree in a specific specialty that is directly related to the proposed position. Although a general­
purpose bachelor's degree, such as a degree in business, may be a legitimate prerequisite for a 
particular position, requiring such a degree, without more, will not justify a conclusion that a particular 
7 Whether read with the statutory "the" or the regulatory "a," both readings denote a singular "specialty." Section 
214(i)(l )(B) of the Act; 8 C.F.R. ~ 214.2(h)(4)(ii). Still, 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. As noted, 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. 
4 
pos1t10n qualifies for classification as a specialty occupation. Royal Siam Corp., 484 F.3d at 
147. Therefore, the Handbook's recognition that a general, non-specialty "background" in business is 
sufficient for entry into the occupation strongly suggests that a bachelor's degree in a spec[fic specialty 
is not a standard, minimum entry requirement for this occupation. 
On appeal, the Petitioner characterizes the information from the Handbook quoted above as 
"conveniently ignoring and deemphasizing the aspects that favor the [P]etitioner." Instead, the 
Petitioner urges us to consider the Handbook's observation that "[a] bachelor's degree is typically 
required to become a sales engineer. . . . Sales engineers typically need a bachelor's degree in 
engineering or a related field." Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook 
Handbook, Sales Engineers, https://www.bls.gov/ooh/sales/sales-engineers.htm#tab-4 (last visited 
Apr. 22, 2020). However, a review of the entire information observed in the Handbook regarding 
"How to Become a Sales Engineer" does not establish that a bachelor's or higher degree in a specific 
specialty is normally the minimum requirement for entry into sales engineer positions, for the reasons 
discussed above. 
The Petitioner also cites a district court case, Next Generation Tech., Inc. v. Johnson, (S.D.N.Y. Sept. 
29, 2017), as relevant here. We first note that we are not bound to follow the published decision of a 
United States district court. See Matter of K-S-, 20 I&N Dec. 715, 719-20 (BIA 1993). Nevertheless, 
even if we considered the logic underlying the matter, we conclude that the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
As recognized by another court, while the Handbook may establish the first regulatory criterion for 
certain professions, many occupations are not described in such a categorical manner. 8 See Innova 
Sols., Inc. v. Baran, 2019 WL 3753334, at *8 (N.D. Cal. Aug. 8, 2019) (declining to follow Next 
Generation Tech., Inc.). For example, "[the Handbook's] description for the Computer Programmer 
occupation does not describe the normal minimum educational requirements of the occupation in a 
categorical fashion." Id.; see also Xiaotong Liu v. Baran, 2018 WL 7348851 (C.D. Cal. Dec. 21, 
2018). "Accordingly, [the Petitioner] could not simply rely on [the Handbook] profile, and instead 
had the burden to show that the particular position offered to [the Beneficiary] was among the 
Computer Programmer positions for which a bachelor's degree was normally required." See Innova 
Sols., Inc. 2019 WL 3753334, at *8. 
Moreover, the court in Next Generation Tech., Inc. relied in part on a USCIS policy memorandum 
regarding "Computer Programmers" indicating generally preferential treatment toward computer 
programmers, and "especially" toward companies in that particular petitioner's industry. However, 
USCIS rescinded the policy memorandum cited by the court in Next Generation Tech. Inc. 9 
Here, the Handbook does not describe the normal minimum educational requirement for the 
occupation in a categorical manner. Moreover, as we will discuss farther, the Petitioner has not 
8 Such professions would include surgeons or attorneys, which indisputably require at least a bachelor's degree for entry 
into the occupation. 
9 See USCIS Policy Memorandum PM-602-0142, Rescission of the December 22, 2000 ''Guidance memo on HJB 
computer related positions" (Mar. 31, 2017), https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-
0142-H- l BComputerRelatedPositionsRecission.pdf. 
5 
sufficiently established that a bachelor's degree in a specific specialty, or its equivalent, is normally 
the minimum requirement for entry into the particular position. 
The Petitioner also asserts on ap~eal that an opinion letter written by Dr. .... I ____ __.l a professor of 
computer science at I ]University, satisfies the first criterion. 
As a matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. Matter 
o_f Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we may give an opinion less 
weight if it is not in accord with other information in the record or if it is in any way questionable. 
Id. We are ultimately responsible for making the final determination regarding an individual's 
eligibility for the benefit sought; the submission of expert opinion letters is not presumptive evidence 
of eligibility. Id.; see also Matter o_f V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion 
testimony, while undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but 
rather is admissible only if 'it will assist the trier of fact to understand the evidence or to determine a 
fact in issue."'). 
In his opinion letter, Dr. I I states that he reviewed the Handbook, the Occupational Information 
Network, a description of the job dutiel providled by the Petitioner, and the Beneficiary's academic 
degree certificates and transcripts. Dr. opines that "the Associate Sales Consultant position 
... requires a Bachelor's Degree in Computer Science, Computer Engineering, or a related area, or 
the equivalent." We note that Dr. I !discusses his "research[] [into] the specific labor market and 
commerce standards for California, in which [ the Petitioner] is headquartered." As a result, Dr I I 
concludes that "the Associate Sales Consultant position with [the Petitioner] as a Sales Engineer 
□ion is typical and increasingly common within [California's] job market." The result of Dr. 
s research is learning that "[t]he [California] state website references federal level resources 
such as [the Handbook] ... to organize, inform, and reinforce information, statistics, and resources." 
As noted above, the Handbook observes that disparate fields such as chemistry and business may 
qualify applicants, contrary to Dr.I Is opinion. Although Drj I observes that "labor market 
projections . . . [are] filtered through a state-specific lens," he does not report that his research 
discovered "state-specific" educational requirements for "associate sales consultant" positions. 
Moreover, the record establishes the Beneficiary would work in Texas, not California, raising 
questions regarding the~ of Dr.I Is research into California's job market, and regarding 
the extent to which Dr-L___J is familiar with the position for which he opines. Given that Dr. 
I Is opinion is not substantiated by objective research or studies relevant to the proffered position, 
and the extent to which his opinion is not in accord with other information in the record, it bears 
minimal probative value. See Matter of Caron Int'!, Inc., 19 I&N Dec. at 795. 
In summation, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. 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). The first prong contemplates common industry 
practice, while the alternative prong narrows its focus to the Petitioner's specific position. 
6 
1. First Prong 
To satisfy the first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
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." 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)). 
As noted above, the Handbook does not indicate that a bachelor's or higher degree in a specific 
specialty, or its equivalent, is a common requirement within the industry for parallel positions among 
similar organizations. Furthermore, the record does not establish that a professional association for 
sales engineers has made a qualifying degree a minimum entry requirement. 
On appeal, the Petitioner asserts that nine job postings submitted in response to the Director's request 
for evidence (RFE) satisfy the first prong of the second criterion. 10 The positions' titles and reported 
degree requirements are as follows: 
• Cloud specialist; "Bachelor's degree: Required (Computer Science, similar 
information technology-related discipline or Business Administration)"; 
• Sales engineer; "BA/BS degree in Computer Science or equivalent practical 
experience"; 
• Sales engineer; "Bachelor's degree in Computer Science or a related technical field, 
or equivalent practical experience"; 
• Senior solutions architect; "A technical degree in computer science, MIS, 
engineering or related discipline - or equivalent certifications/experience"; 
• Technical sales representative; "Technical degree (Computer Science or 
Engineering) or equivalent experience"; 
• Inside sales application engineer; "Bachelor's degree or Master [sic] degree in 
Electronic Engineering, Computer Engineering, Computer Science or related 
technical experience"; 
• Field sales engineer; "Bachelor's in Electrical Engineering, Computer Science or 
any related field"; 
• Sales operations system specialist; "Bachelor's degree in Computer Science, 
Systems Engineering, Information Technology, Business Administration or 
closely-related field"; 
10 The Petitioner asserts on appeal that it submitted 10 job postings in response to the RFE; however, the record contains 
only nine job postings. Moreover. although the Petitioner summarizes degree requirements in those job postings. it lists 
only nine sets of degree requirements. 
7 
• Technical solutions architect; "Bachelor's degree in computer science or related 
field or equivalent". 
We first note that two of the nine job postings do not require a bachelor's or higher degree in a specific 
specialty, or its equivalent. Instead, they simply require a "technical degree" in computer science, 
engineering, or a related field, without specifying a particular level, i.e. associate's, bachelor's, 
master's, or doctorate. Two other job postings specifically include "business administration" among 
the qualifying academic specialties, which is consistent with the Handbook's observation that 
disparate degree fields of business and engineering-when a bachelor's or higher degree, or its 
equivalent, is even required-may qualify an applicant to become a sales engineer, as discussed above. 
Additionally, one of the positions bears a title indicating an advanced, supervisory nature: "senior 
solutions architect." In addition to the degree requirement, indicated above, the job posting requires 
"5+ years of hands-on experience in the design and implementation of Virtual Desktop Infrastructure 
(VDI) systems," and "7+ years of experience in the design and implementation of complex, Microsoft 
Windows-based IT systems." That information raises questions regarding the extent to which the 
position is parallel to the proffered "associate sales consultant" position, limiting its probative value. 
Moreover, three of the remaining job postings do not establish the extent to which the employers are 
similar to the Petitioner. 11 
Even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty 
is common to the industry in parallel positions among similar organizations (which they do not), the 
Petitioner does not demonstrate what statistically valid inferences, if any, can be drawn from the job 
postings with regard to the common educational requirements for entry into parallel positions in 
similar organizations. See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 
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 195-96 (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"). 
In summation, the job postings do not establish that a bachelor's or higher degree in a specific 
specialty, or its equivalent, is common to the industry in parallel positions among similar 
organizations. 
On appeal, the Petitioner also asserts that "there is no legal requirement that the field of study is limited 
to a singular discipline." As noted, 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 
11 We acknowledge that the various job posting employers and the Petitioner are information technology companies. The 
Petitioner states that it "specializes in the niche area of enterprise application software designed to satisfy the very unique 
and specific needs of ceitain organizations." However, common knowledge about the employers for the sixth, seventh, 
and ninth job postings is that they primarily produce information technology hardware. The record does not establish that 
the "enterprise application software" Petitioner and the information technology hardware employers are sufficiently similar 
organizations. Although the record contains a summary from D&B Hoovers indicating that one of the other employers is 
among the Petitioner's top "competitors," the summary does not refer to the employers of the positions in question as 
similar to the Petitioner, or even among its "competitors." 
8 
section 214(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 disparate fields, such as business, chemistry, 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 214(i)(l)(B) of the Act (emphasis added). In this matter, the Petitioner does not establish how 
the other employers' stated degree requirements including the fields of business and engineering 
directly relate to the duties and responsibilities of the particular position, in order to establish whether 
a bachelor's or higher degree in a specific specialty, or its equivalent, is common to the industry among 
organizations similar to the Petitioner for positions parallel to the proffered position. 
The Petitioner also asserts on appeal that Dr. I ts opinion letter, discussed above, satisfies the 
first prong of the second criterion. Specifically, the Petitioner quotes Dr.I Is opinion that "the 
industry standard for a position such as Associate Sales Consultant for [the Petitioner] is to be filled 
through recruiting a college graduate with the minimum of a Bachelor's Degree in Computer Science, 
or a related area, or the equivalent." However, as noted above, there is no indication that Dr.I I 
has conducted any research or studies pertinent to the educational requirements for such positions, and 
no indication of recognition by professional organizations that he is an authority on those specific 
requirements. Additionally, as noted above, the Handbook observes that a bachelor's degree is not 
necessarily required for entry into the occupational category and, even when it is, degrees in disparate 
fields such as chemistry and business may qualify applicants. Furthermore, the job postings discussed 
indicate that employers often either do not require a bachelor's or higher degree, or deem disparate 
degree fields such as business administration to qualify applicants for "sales operations system 
specialist" positions. Given that Dd ~ opinion is not substantiated by objective research or 
studies relevant to the proffered position, and the extent to which his opinion is not in accord with 
other information in the record, it bears minimal probative value. See Matter of Caron Int'l, Inc., 
19 I&N Dec. at 795. 
In summation, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
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. 
On appeal, the Petitioner asserts that it "does not offer off-the-shelf 'one size fits all' software"; 
instead, its "enterprise application software [is] designed to satisfy the very unique and specific needs 
of certain organizations of differing sizes and in a variety of industries." However, the Petitioner 
concedes that "[t]he common complaint about the enterprise software is that it lacks flexibility and 
agility." Accordingly, the Petitioner's statements that its software lacks flexibility and is designed to 
satisfy organizations of differing sizes undermines its statement that its software is not "one size fits 
all." The contradiction obscures our understanding of how complex the software an "associate sales 
consultant" must sell and consult about is, and the extent to which an "associate sales consultant" must 
9 
understand how the enterprise software that "lacks flexibility" could be customized to "satisfy the very 
unique and specific needs of certain organizations of differing sizes in a variety of industries." 
The Petitioner focuses on two specific expanded duty descriptions on appeal, to assert that the 
proffered position is sufficiently complex or unique: 
• Visualize data and build machine learning algorithms on [the Petitioner's m]achine 
learning notebook using Zeppelin notebook; and 
• Architect an end-to-end solution to create assets with a complete CI/CD setup and 
development cycle with the utilization of set of programming languages and 
platforms around [the Petitioner's] stack. 
The record does not establish how the proffered position is so complex or unique that it can be 
performed only by an individual with a bachelor's or higher degree in a specific specialty, or its 
equivalent. For example, the record does not establish what is required for the Beneficiary to 
"visualize" algorithms and how visualization is so complex or unique that only an individual with a 
bachelor's or higher degree in a specific specialty, or its equivalent, can do so. The Petitioner 
elaborates that, in performing that expanded duty, the Beneficiary would "[ d]evelop demonstrations, 
presentations, and other required technical artifacts like white papers, slide decks, workshops, 
recorded demos, and notional architectures to help showcase [the Petitioner's product]." However, 
the record does not establish the complexity or uniqueness of the demonstrations, presentations, white 
papers, slide decks, workshops, and so forth, beyond simply stating that the Beneficiary would develop 
them. Moreover, the Petitioner does not establish the methodology the Beneficiary would use in order 
to develop them. As another example, the record does not establish how the Beneficiary would 
"architect" solutions and how architecting is so complex or unique that only an individual with a 
bachelor's or higher degree in a specific specialty, or its equivalent, can do so. Similarly, the record 
does not establish the extent to which the remainder of the similarly described expanded duties-and 
the primary duties-are so complex or unique that they can be performed only by an individual with 
a bachelor's or higher degree in a specific specialty, or its equivalent. 
Furthermore, several of the duties and expanded duties state that the Beneficiary would "[ c ]ollaborate 
with other parts of the [Petitioner's] ecosystem including field organizations, support, product 
management, development and customer success managers," "work with Platform Specialist and 
Enterprise Cloud Architect teams," "work with team members on brainstorming ideas to showcase 
innovation," and "collaborat[ e] with other teams including product management, development, and 
customer success managers" for a combined total of approximately 40% of the time. The record does 
not establish the other individuals in the various teams with which the Beneficiary would "collaborate" 
or "work," or include details about what is involved in collaborating or otherwise working with those 
teams and the relative responsibilities of the participants. Considering that a substantial portion of the 
Beneficiary's duties overlap with teams of other workers, the record raises questions regarding how 
unique the Beneficiary's duties within the Petitioner's organization are. Furthermore, the record does 
not establish how the collaborative duties are so complex or unique that only an individual with a 
bachelor's or higher degree in a specific specialty, or its equivalent, can do so. 
The Petitioner also asserts on appeal that Dr.I ts opinion letter, discussed a~tisfies the 
second prong of the second criterion. The Petitioner specifically emphasizes Dr.L__Js opinion 
10 
that "a candidate must have completed course work [sic] and training in Computer Science, Computer 
Engineering, or a related area at the undergraduate level at a minimum to competently handle the 
duties required by the Associate Sales Consultant position." However, as noted above, there is no 
indication that Dr. I I has conducted any research or studies pertinent to the educational 
requirements for such positions, and no indication of recognition by professional organizations that he 
is an authority on those specific requirements. Additionally, as noted above, the Handbook observes 
that a bachelor's degree is not necessarily required for entry into the particular position and, even when 
it is, derrees in disparate fields such as chemistry and business may qualify applicants. Given that Dr. 
I s opinion is not substantiated by objective research or studies relevant to the proffered position, 
and the extent to which his opinion is not in accord with other information in the record, it bears 
minimal probative value. See Matter of Caron Int'l, Inc., 19 I&N Dec. at 795. 
The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the duties 
of the position, and it did not identify any tasks that are so complex or unique that only a specifically 
degreed individual 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). 
C. Third Criterion 
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. 
On appeal, the Petitioner asserts that five job announcements for "Sales Engineer positions similar or 
parallel to the proffered position" satisfy the third criterion. However, the job announcements state in 
sections titled "Detailed Description and Job Requirements" the following: 
• BS degree or equivalent; 
• BA/BS degree or equivalent; 
• BA/BS degree or equivalent; 
• BS degree or equivalent; and 
• BS degree or equivalent. 
Although the job announcements provide other academic requirements, they uniformly state that a 
"BS degree," without a specific specialty, satisfies the hiring requirements; moreover, 40% of them 
permit a generalized "BA." We note that this is consistent with the Handbook's observation that 
workers with degrees in disparate and even generalized fields may qualify for positions in the "Sales 
Engineers" occupational category. We farther note that two of the five job announcements are for 
positions titled "master principal sales consultant," both describing the roles as "[ acting] as a leader of 
large-scale company initiatives" and being"[ v ]iewed by peers as a leader," raising questions regarding 
the extent to which the positions are "similar or parallel to" the proffered "associate sales consultant" 
position. 
Additionally, the job announcements are undated, raising questions regarding whether they establish 
the Petitioner's hiring history at the time of filing the petition. A petitioner must 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 
11 
becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 
(Reg'l Comm'r 1978). Furthermore, beyond the job announcements-which vary in the extent to 
which they are parallel to the proffered position-the record does not contain documentary evidence 
of whether the Petitioner actually limits its hiring selections to candidates with a bachelor's or higher 
degree in a specific specialty, or its equivalent, despite its job announcements permitting a broad 
"BA/BS degree or equivalent" to qualify. 
The Petitioner again asserts on appeal that Dr. I I opinion letter satisfies the third criterion. 
Specifically, the Petitioner emphasizes Dr] Is conclusion that "[the Petitioner] would naturally 
seek out only a Sales Engineer for a position such as Associate Sales Consultant among the majority 
of such professionals as described by [the Handbook] and O*NET who hold a Bachelor's Degree." 12 
However, contrary to Dr.I b opinion, the job announcements discussed above establish that the 
Petitioner does not seek out only workers with a bachelor's or higher degree in a specific specialty, or 
its equivalent, for "Associate Sales Consultant positions similar or parallel to the proffered position." 
Again, given the extent to which Dr.I Is opinion is not in accord with other information in the 
record, it bears minimal probative value. See Matter of Caron Int'!, Inc., 19 I&N Dec. at 795. 
In summation, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
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. 
The Petitioner's assertions on appeal regarding the fourth criterion are identical to its assertions 
regarding the second prong of the second criterion. 13 However, for the reasons stated above in the 
analysis regarding the second prong of the second criterion, we are unpersuaded 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 bachelor's or higher degree in a specific specialty, or its equivalent. 
Again, we note that, given that Dr. I Is opinion is not substantiated by objective research or 
studies relevant to the proffered position, and the extent to which his opinion is not in accord with 
other information in the record, it bears minimal probative value. See Matter of Caron Int'!, Inc., 19 
I&N Dec. at 795. 
In summation, the Petitioner has not demonstrated in the record that its proffered position is one with 
duties sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
12 The O*NET summary report for "Sales Engineers" does not state a requirement for a bachelor's degree for this 
occupation. Rather, it 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." O*NET OnLine Summary Report for "41-9031.00 -
Sales Engineers," http://www.onetonline.org/link/summary/41-9031.00 (last visited Apr. 22, 2020). The summary report 
does not indicate that the bachelor's or higher degree must be in a specific specialty, or its equivalent. 
13 The Petitioner addresses both criteria in the same section under a heading that addressed both the second prong of the 
second criterion and the fourth criterion. Although the two criteria are similar, they are distinct. 
12 
IV. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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