dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 05176229 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 12, 2020 
The Petitioner, a biometric access control security systems company, seeks to temporarily employ the 
Beneficiary as a "technical support specialist" under the H-1 B nonimmigrant classification for 
specialty occupations. Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(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 California Service Center denied the petition, concluding that the Petitioner did 
not establish: (1) that the proffered position qualifies as a specialty occupation; and (2) that the 
Beneficiary qualifies to perform the duties of a specialty occupation position. 
On appeal, the Petitioner submits a brief and asserts that the Director en-ed in denying the petition. 
Upon de nova review, we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l) , defines the term "specialty occupation" as an 
occupation that requires: 
(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 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 l&N Dec. 369, 375-76 
(AAO 2010). 
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 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 seeks to employ the Beneficiary as a "technical support specialist." The Petitioner 
described the job duties of the proffered position as follows: 
• Rely upon his computer information systems knowledge and extensive experience 
to handle complex day-to-day operational support of I I computer 
infrastructure in support of various teams and functions across our business 
operations (10%). 
o Work to enhance I I existing business processes and define new 
processes; 
o Understand existing infrastructure and work to identify weaknesses and 
enhancements, and; 
o Manage business stakeholders and plan changes and/or implementations. 
• Provide infrastructure support by quickly identifying and isolating software and 
hardware incidents while proactively identifying potential future problems and 
working with software engineering professionals to resolve them through 
appropriate software solutions ( 40%) 
o Investigate complex configuration issues without often knowing the foll 
extent of customers network setups and make recommendations to customer 
internal teams to help resolve configuration problems or conflicts; 
2 
o Work to reproduce specific customer issues whereby the individual error 
conditions have not previously been seen byl O ] and work with internal 
development (software and engineering) teams to resolve these errors; and 
o Work continuously with internal teams ( and sometimes with external 
customer teams) to understand the impact of potential changes both from a 
customer perspectte (i.e. ranging their servers to use only TLS 1.2 rather 
than TLS 1.0) and development efforts. 
• Continuously engage with vendors to identify software product defects and 
enhancements, and make expert recommendations for the development of new 
software and hardware upgrades as needed. (10%) 
o Ensure that our vital computer operations continue to be uninterrupted; 
o Investigate solutions which would enhance thel I offering and make 
such recommendations-this includes not only software development tools 
but also hardware components and connectivity; and; 
o Understand business requirements, investigate possible solutions, and make 
recommendations prior to the implementation of those solutions-i.e. new 
internal instant messaging solution. 
• Monitor logs, investigate operational issues, open and resolve technical support 
cases, and perform advanced operational tasks and software development as 
needed. (30%) 
o Identify and observe weaknesses in alerting and make recommendations 
and/or alterations to reduce the weaknesses i.e. tickets being logged directly 
to individuals within the organization, rather than prescribed methods, 
resulting in normal support mechanisms often being bypassed by end 
customers and protracted response times; 
o Optimize the ticketing platform so escalations occur in a more timely and 
effective manner which results in less friction with end customers, and; 
o Identify new features which can enhance! I service offering to 
customers and make recommendations for the implementation of those new 
features. 
• Help ensure that the firm's technical needs are continuously met in accordance with 
company standard and business needs (10%) 
o Identify and deploy new virtual servers as Microsoft makes new releases of 
its operating systems, SQL, and other platforms, so that we can proactively 
pre-test solutions that might be deployed at current or future customer sites: 
o Understand and plan the latest Enterprise antivirus offering from ~ I 
chosen partner, and deploy without impacting operational systems; 
o Identify weaknesses in backup strategies and make recommendations; and 
o Install test/trial solutions without impacting operational solutions. 
The Petitioner indicated that the minimum entry requirement for the proffered position is a bachelor's 
degree in Computer Information System or a closely related field or equivalent work experience. 
3 
III. ANALYSIS 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation. 2 Specifically, the record does not establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation. 3 In particular, 
we conclude that two separate factors independently preclude a determination that the proffered 
position is a specialty occupation: (1) the Petitioner's failure to consistently state a requirement for a 
bachelor's degree in a specific specialty, or the equivalent, and (2) its failure to satisfy at least one of 
the four regulatory specialty-occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4) 
A. Inconsistent Minimum Entry Requirements 
The Petitioner did state a minimum degree requirement when it filed this pet1t10n. Though the 
Petitioner stated in its March 2018 support letter that the Beneficiary possesses the equivalent of a 
bachelor's degree in computer information systems, it did not state whether that credential - or any 
other - was actually required for the position. Nor did Counsel address the issue in its March 2018 
support letter. 
After being questioned on the issue by the Director in her request for additional evidence (RFE), the 
Petitioner stated in its January 2019 letter that the position requires a bachelor's degree in computer 
information systems or a closely related field, or the equivalent. It also submitted an expert opinion 
letter reaching a similar conclusion. However, at this time the Petitioner also submitted a three-page 
document it identified as its offer letter. The third page of this document, which bears the heading 
"Introduction," describes the duties the Beneficiary will perform and the credentials necessary to 
perform them. As was the case with the Petitioner's initial submission, this document indicates that a 
bachelor's degree in a specific specialty, or the equivalent, is not necessarily required, as it contains a 
section entitled "Work Experience Requirements" stating that the proffered position requires "5+" 
years of work experience. It does not, however, state that a bachelor's degree is required in addition 
to these five years of work experience. 4 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
position. While we may not discuss every document submitted, we have reviewed and considered each one. 
4 This stated requirement for at least five years of work experience precludes approval of this H-lB petition regardless of 
whether or not a bachelor's degree -irrespective of specialty - is also required. If the Petitioner would accept five years 
of work experience in lieu of a bachelor's degree, as appears to be the case here, then the proffered position is not a 
specialty occupation since five years of work experience is not equivalent to a bachelor's degree, and therefore this petition 
could not be approved. 
On the other hand, if five years of work experience are required in addition to a bachelor's degree, then the labor condition 
application (LCA) would not correspond to and support the H-IB petition, as required, because that work experience 
requirement would have required the Petitioner to raise the LC A's wage level beyond the Level TT wage for which it was 
certified. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), http://www.foreignlaborcert.doleta.gov/pdti'NPWHC _Guidance_ Revised_ 
11_2009.pdf If the LCA did not correspond to and support the petition, the petition could not be approved. 
Simply put, this petition is not approvable either way. 
4 
The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Material inconsistencies 
may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. Id. Moreover, a petitioner must establish eligibility at the time of 
filing the nonimmigrant visa petition and must continue to be eligible for the benefit through 
adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date after the 
Petitioner or Beneficiary 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). For this reason alone, the petition may not be approved. 
B. The Regulatory Specialty-Occupation Criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4) 
Nor does the current record of proceedings satisfy any of the regulatory specialty-occupation criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4). As a preliminary matter we will address the Petitioner's 
mischaracterization of the Director's denial on appeal. 
1. First Criterion 
We tum next to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. We recognize the U.S. Department of Labor'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. 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 "Network and Computer Systems 
Administrators" corresponding to the Standard Occupational Classification (SOC) code 15-1142. 7 Thus, 
we reviewed the Handbook's subchapter entitled "How to Become a Network and Computer Systems 
Administrator," which states, in relevant part, that some employers require only a postsecondary 
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. To satisfy the first criterion, however, the burden ofproofremains 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-1 B 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). 
7 The Petitioner classified the proffered position at a Level TT wage. 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 of the Petitioner's job opportunity. Prevailing Wage Determination Policy Guidance, supra. 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 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)( 1) of the Act. 
5 
certificate or an associate' s degree, and that most require a bachelor's degree in a field related to computer 
or information science. 8 
The Director interpreted these statements as indicating that a bachelor's degree in a specific specialty, or 
the equivalent, is not required, and we agree. On appeal, the Petitioner contends that "[ o ]nits face ... the 
[Handbook] states that the normal requirements [(sic)] for the job classification is a Bachelor's degree. 
The [Handbook] recognizes limited exceptions to this rule, but the fact that exceptional workers may not 
have a degree does not change the fact that workers normally have a degree." We do not agree with this 
interpretation of DO L's statement in the Handbook that "some employers require only a postsecondary 
certificate or an associate's degree," particularly when that statement is read in conjunction with DOL's 
information in the Occupational Information Network (O*NET) indicating that twenty percent of 
individuals holding jobs within the "Network and Computer Systems Administrators" occupational 
category possess an associate' s degree, and another ten percent took some college coursework but did not 
graduate. 9 This undercuts the Petitioner's claim that it is only "exceptional workers" who not possess a 
bachelor's degree, since DOL indicates that at least thirty percent of these workers do not possess a 
bachelor's degree. 10 
As indicated, the Petitioner's citation to O*NET's summary report for "Network and Computer 
Systems Administrators" (SOC code 15-1142.00) does not aid its case, either. The O*NET Summary 
Report does not establish that a bachelor's degree in a specific specialty, or the equivalent, is normally 
required. 11 It provides general information regarding the occupation, but it does not support a 
conclusion that the proffered position requires a bachelor's degree in a specific specialty, or the 
equivalent. Instead, O*NET assigns these positions a "Job Zone Four" rating, which states "most of 
these occupations require a four-year bachelor's degree, but some do not." Moreover, the Job Zone 
Four designation does not indicate that any academic credentials for Job Zone Four occupations must 
be directly related to the duties performed. In addition, the specialized vocational preparation (SVP) 
rating designates this occupation as 7 < 8. An 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, it is 
important to note that it does not describe how those years are to be divided among training, 
experience, and formal education. The SVP rating also does not specify the particular type of degree, 
if any, that a position would require. 12 Further, although the summary reports provide the educational 
requirements of "respondents," it does not account for 100% of the "respondents." Moreover, the 
respondents' positions within the occupation are not distinguished by career level ( e.g., entry-level, 
8 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Network and Computer Systems 
Administrators, at https://www.bls.gov/ooh/computer-and-information-technology/network-and-computer-systems­
administrators.htm (last visited Mar. 11, 2020). 
9 U.S. Dep't of Labor, Occupational Information Network, Network and Computer Systems Administrators, at 
https://www.onetonline.org/link/summary/15-l 142.00 (last visited Mar. 11, 2020). 
10 That figure may actually be higher, as the survey O*NET cites accounts for only 82% of these workers. According to 
O*NET, 52% possess a bachelor's degree, 20% possess an associate's degree, and 10% took some college classes but did 
not graduate. It does not account for the remaining 18%. Id. 
11 As indicated above, a requirement for a bachelor's degree alone is not sufficient. We have consistently interpreted 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 Co1p., 484 F.3d at 147; Defensor, 201 F.3d at 387. 
12 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/ 
help/online/svp. 
6 
mid-level, senior-level). Furthermore, the graph in the summary report does not indicate that the 
"education level" for the respondents must be in a specific specialty. For all of these reasons, O*NET 
does not establish the proffered position as a specialty occupation. 
The Petitioner indicates on appeal a belief that the Director held that "a position must require a degree 
in a single field of study to qualify as a specialty occupation." The Petitioner, however, misreads the 
Director's decision. First, the phrase "specific specialty" to which the Petitioner appears to object was 
placed into the H-1B statute by Congress and we lack the authority to disregard or otherwise overlook 
it. That said, we agree with the Petitioner that "specific specialty" does not somehow equate to "single 
field of study only." In that vein, we tum to the case law cited by the Petitioner on appeal. 
The Petitioner cites to Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012) for 
the proposition that "[ t ]he knowledge and not the title of the degree is what is important. Diplomas 
rarely come bearing occupation-specific majors." While we agree with the aforementioned 
proposition, 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 such that the required body of highly specialized knowledge 
is essentially an amalgamation of these different specialties. Section 214(i)(l)(B) of the Act (emphasis 
added). 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. For 
the aforementioned reasons, however, the Petitioner has not met its burden to establish that the 
particular position offered in this matter requires a bachelor's or higher degree in a specific specialty, 
or its equivalent, directly related to its duties in order to perform those tasks. 13 
In any event, the Petitioner has famished no evidence to establish that the facts of the instant petition 
are analogous to those in Residential Finance. 14 We also note that, in contrast to the broad precedential 
authority of the case law of a United States circuit court, we are not bound to follow the published 
decision of a United States district court in matters arising even within the same district. See Matter 
of K-S-, 20 I&N Dec. 715, 719-20 (BIA 1993). Although the reasoning underlying a district judge's 
decision will be given due consideration when it is properly before us, the analysis does not have to 
be followed as a matter of law. Id. It is important to note that in a subsequent case reviewed in the 
same jurisdiction, the court agreed with our analysis of Residential Finance. See Health Carousel, 
LLC v. USCIS, No. 1:13-CV-23, 2014 WL 29591 (S.D. Ohio 2014). 
13 It is important to note that the judge in Residential Finance did not find the "specific specialty" requirement imposed by 
Congress irrelevant or nonexistent. Rather. the judge found that the petitioner in that case had satisfied the requirement. 
14 It is noted that the district judge's decision in this case appears to have been based largely on the many factual errors 
made by the Director in the decision denying the petition. We further note that the Director's decision was not appealed 
to us. Based on the district court's conclusions and description of the record, if that matter had first been appealed through 
the available administrative process, we may very well have remanded the matter to the service center for a new decision 
for many of the same reasons articulated by the district court if these errors could not have been remedied by us in our de 
nova review of the matter. 
7 
The Petitioner next contends that in concluding a bachelor's degree in a specific specialty, or the 
equivalent, is not normally the minimum requirement for the proffered position, the Director 
mischaracterized the Handbook and cites to Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 
252 (S.D.N.Y. 2017). 
Again, we are not bound to follow the published decision of a United States district court. See Matter 
of K-S-, 20 I&N Dec. at 719-20. However, even if we were to consider the logic underlying Next 
Generation Tech., Inc., we would still conclude that the Petitioner had not demonstrated that the 
proffered position qualifies as a specialty occupation. 
As recognized by another court, while the Handbook may satisfy the first regulatory criterion for some 
professions, it does not for other occupations in such a categorical manner. 15 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's] 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 positions 
located within that occupational category, and "especially" toward companies in that particular 
petitioner's industry. However, USCIS rescinded the policy memorandum cited in Next Generation 
Tech., Inc. 16 
The Handbook does not describe the normal minimum educational requirement for positions located 
within the "Network and Computer Systems Administrators" occupational category in a categorical 
manner since DOL specifically states that some positions require only an associate's degree, or less, 
and then indicates in O*NET that at least one-third of these positions do not require a bachelor's 
degree. 
Having found the case law cited by the Petitioner unpersuasive, we will tum next to the evaluation 
prepared b~ I a professor within the Department of Computer Systems Technology 
at the I I College of Technology. I I offers his opinion that the proffered 
position of "technical support specialist" is a type of Network and Computer Systems Administrator 
role and a specialty-caliber position which cannot be properly performed without a bachelor's degree 
( or the equivalent) in computer information systems or a related field. 
15 Such categorically-described professions would include, for example, surgeons or attorneys, which indisputably require 
at least a bachelor's degree for entry into the occupation. 
16 See USCIS Policy Memorandum PM-602-0142, Rescission of the December 22, 2000 "Guidance memo on HlB 
computer related positions" (Mar. 31, 2017), https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-
0142-H- l BComputerRelatedPositionsRecission.pdf. 
8 
We do not dispute I I's larger point that the proffered position is one located within the 
"Network and Computer Systems Administrators" occupational category. The issue is that the 
Handbook and O*NET, especially when considered in tandem indicate that a significant percentage 
of positions located within that occupational category do not require a bachelor's degree at all, let 
alone one in a specific specialty as mandated by Te statute je question whether the proffered 
position is in fact one of those positons and find that._ _______ _.'s letter does not aid the Petitioner 
in this regard. 
As noted above, this record of proceeding contains indicia that the Petitioner in fact does not require 
a bachelor's degree but would instead hire an individual with five years of work experience. Whether 
aware or not,I I does not address this issue. His conclusion that an individual without a 
bachelor's degree in computer information systems, or the equivalent "simply would be unable to 
perform the required duties of the position" does not appear to align with the Petitioner's actual 
requirements. This disconnect significant diminishes the probative value ofi ~s letter. 
Moreover, while we acknowledge! Is detailed description of the duties of the proffered 
position, and have considered his statement that he conducted online research into the Petitioner's 
products, services, and goods, we nonetheless find many of his assertions conclusory and based on 
readings of the Petitioner's own statements rather than on conclusions he reached on his own. In other 
words, we question his familiarity with the Beneficiary's duties as they would actually be performed. 
For example, we observe thatl ldiscussed the Beneficiary's work with the Petitioner's 
software team, its engineering team, and its internal client team. However, we note that that the 
Petitioner has only four employees and therefore question who actually comprises these "teams." 
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. Consistent with Caron Int'l, we decline to assign I Is letter 
any significant weight. 
The Petitioner has not established that the proffered position falls under an occupational category for 
which the Handbook, or another authoritative source, indicates that the normal minimum requirement for 
entry is at least a bachelor's degree in a specific specialty, or its equivalent. The record lacks sufficient 
evidence to support a finding that the particular position proffered here would normally have such a 
minimum, specialty degree requirement or its equivalent. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I). 
2. 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 the 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 
9 
a. First Prong 
To satisfy this 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 attest 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)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook ( or other independent, authoritative source) reports an industry-wide requirement 
for at least a bachelor's degree in a specific specialty or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. Also, there are no submissions from the industry's 
professional association indicating that it has made a degree a minimum entry requirement. Furthermore, 
the Petitioner did not submit any letters or affidavits from similar firms or individuals in the Petitioner's 
industry attesting that such firms "routinely employ and recruit only degreed individuals." 
The Petitioner submitted job vacancy announcements for our consideration under this prong. To be 
relevant for this consideration, the job vacancy announcements must advertise "parallel positions," 
and the announcements must have been placed by organizations that (1) conduct business in the 
Petitioner's industry and (2) are also "similar" to the Petitioner. The submitted job vacancy 
announcements do not satisfy that threshold. 
The job vacancy announcements do not include sufficient information about the duties and 
responsibilities for the advertised positions. Thus, it is not possible to determine important aspects of 
the job, such as the day-to-day responsibilities, complexity of the job duties, supervisory duties (if 
any), and independent judgment required or the amount of supervision received. Therefore, the 
Petitioner has not sufficiently established that the primary duties and responsibilities of the advertised 
positions parallel those of the proffered position. 
Nor does the record contain documentary evidence sufficient to establish that these job vacancy 
announcements were placed by companies that (1) conduct business in the Petitioner's industry and 
(2) are also "similar" to the Petitioner. When determining whether the Petitioner and the organization 
share the same general characteristics, such factors may include information regarding the nature or 
type of organization, and, when pertinent, the particular scope of operations, as well as the level of 
revenue and staffing (to list just a few elements that may be considered). It is not sufficient for the 
Petitioner to claim that an organization is similar and in the same industry without providing a 
legitimate basis for such an assertion. 
10 
For all of these reasons, the Petitioner has not established that these job vacancy announcements are 
relevant. Even if that threshold had been met, we would still find that they did not satisfy this prong 
of the second criterion, as they do not indicate that a bachelor's degree in a specific specialty, or the 
equivalent, is common to the industry in parallel positions among similar organizations. For example, 
one of the advertisers indicates it would hire an individual with a bachelor's degree in business 
administration. 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. 17 That is, not every deficit of every job posting has been addressed. 18 
Without more, the Petitioner has not provided sufficient 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. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
b. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
The Petitioner submitted a list of job duties and the percentage of time the Beneficiary would devote 
to certain tasks, along with the tools and technologies needed to complete each duty. However, the 
record does not demonstrate that the necessary knowledge for the proffered position is attained through 
an established curriculum of particular courses leading to a baccalaureate or higher degree in a specific 
specialty, or its equivalent. While a few related courses may be beneficial in performing certain duties 
of the position, the Petitioner has not demonstrated how an established curriculum of such courses 
leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is required to 
perform the duties of the proffered position. 
The Petitioner claims that the Beneficiary is well-qualified for the pos1t10n, and references his 
experience as evidence that the proffered position is a specialty occupation. However, the test to 
establish a position as a specialty occupation is not the education or experience of a proposed 
17 The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
18 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 has not demonstrated 
what statistically valid inferences. if any. can be drawn from the advertisements with regard to determining the common 
educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The Practice 
of Social Research 186-228 (1995). Moreover, given that there is no indication that the advertisements were randomly 
selected, the validity of any such inferences could not be accurately determined even if the sampling unit were sufficiently 
large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] process [of probability sampling]" and 
that "random selection offers access to the body of probability theory, which provides the basis for estimates of population 
parameters and estimates of enor"). 
11 
beneficiary, but whether the position itselfrequires at least a bachelor's degree in a specific specialty, 
or its equivalent. The Petitioner did not sufficiently develop relative complexity or uniqueness as an 
aspect of the duties of the position as a "technical support specialist", 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). 
3. 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. 
The record must 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, 201 F.3d at 387-88. 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. Evidence provided in support of this criterion may include, but is not limited to, 
documentation regarding the Petitioner's past recruitment and hiring practices, as well as information 
regarding employees who previously held the position. 
The Petitioner did not provide any information or evidence regarding its recruiting history for the 
position. Therefore, the Petitioner has thus not persuasively established that it normally requires at 
least a bachelor's degree in a specific specialty, or its equivalent, for the position. Therefore, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
4. 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. 
As discussed, the Handbook does not indicate that a bachelor's degree in a specific specialty, or the 
equivalent, is normally required for positions located within this occupational category. The 
Petitioner's designation of this position on the LCA as a Level II relative to others within the same 
occupational category also undermines the claims of record that the duties are particularly "specialized 
and complex" compared to other positions within the same occupation. 
While the position may require that the Beneficiary possess some skills and technical knowledge in order 
to perform these duties, the Petitioner has not sufficiently explained how these tasks require the theoretical 
and practical application of a body of highly specialized knowledge, and the attainment of a bachelor's 
or higher degree in the specific specialty ( or its equivalent) as a minimum for entry into the occupation. 
We conclude therefore that the Petitioner has not established 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). 
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IV. CONCLUSION 
The Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
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