dismissed H-1B Case: Information Technology

MATTER OF T-B-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 18,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as 
a "computer programmer" under the H-lB 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)(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 Petitioner did 
not establish, as required, that: (1) the proffered position is a specialty occupation; and (2) the 
Beneficiary is qualified to perform the duties of a specialty occupation. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. 
Upon de novo 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 ofthe evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
.
Matter ofT~B-S-, Inc. 
f" 
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: 
~ 'J 
(1) 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 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 Corp. v. Cherto.ff, 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
The Petitioner stated in the H-lB petition that the Beneficiary would serve as a "computer 
programmer." The Petitioner explained that the Beneficiary would perform his duties at an offsite 
location for the (end-client) pursuant to contracts it executed with 
the end-client and with (vendor). The contractual path of succession appears to be as 
follows: Petitioner ~ Vendor ~ End-client. 
On the labor condition application (LCA)2 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Computer Programmers" 
corresponding to the Standard Occupational Classification code 15-1131.3 
2 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services to demonstrate that it 
will pay an H-1 B worker the higher of either the o prevailing wage for the occupational classification in the "area of 
employment" or the actual wage paid by the employer to other employees with similar experience and qualifications who 
are performing the same services. See Matter ofSimeio Solutions, LLC, 26 l&N Dec. 542, 545-546 (AAO 20 15). 
3 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position . Th,e "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding . of-the occupation . This wage rate indicates: (I) that 
2 
Matter ofT-B-S-, Inc. 
The Petitioner described the proffered position as follows in its support letter: 
The duties of our Computer Programmer position include the following: code and 
develop enterprise level applications and custom integration solutions including 
major enhancements and interfaces, functions, and features. Responsible for 
producing top quality code that utilizes technologies to 'implement high performing 
Web/Cloud based applications. Determine specifications, then plans and codes 
business critical software solutions. Understands and consistently applies the 
attributes and processes of current application development methodologies. 
Researches and maintains knowledge in emerging technologies and possible 
application to the business. 
According to the Petitioner, the position requires a bachelor's degree in a related field. 
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. 
Specifically, the record does not establish that (1) the Petitioner has secured definite, non-speculative 
specialty occupation work for the Beneficiary for the entire validity period requested; and (2) the job 
duties require an educational background, or its equivalent, commensurate with a specialty 
. 4 occupatiOn. 
As noted, the Petitioner indicated that the Beneficiary will be assigned to an end-client for the 
duration of the requested employment. The record contains a master services agreement (MSA) 
executed between the Petitioner and the vendor. However, the MSA is a general contract to provide 
services and does not include information relevant to this petition such as the name of the personnel, 
scope of work or dates of services. While the MSA is followed by exhibits including a temporary 
worker agreement (TWA) that outlines contractual obligations regarding the individual assigned to 
the end-client, it was not signed, and it does not reference the Beneficiary. Further, while the 
Petitioner submitted a letter from the end-client dated five months after the filing of the petition, the 
record contains neither a copy of the agreement nor a TWA, purchase order, or similar document 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC _Guidance _Revised_!!_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
4 The Petitioner submitted documentation to support the H-1 B 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. 
3 
Matter ofT-B-S-, Inc. 
implementing the terms of the agreement on behalf of the Beneficiary.5 Moreover, the letter 
indicates that the Beneficiary will work on the project until June 30, 2018. However, the Petitioner 
indicated that the Beneficiary will be employed from October 2016 to September 2019. The 
Petitioner did not submit evidence of additional projects or other assignments. While the end-client 
letter states that extensions are possible, without full disclosure of contractual terms, we are unable 
to conclude that the Beneficiary will be employed for the duration of the requested employment 
period. 
The Petitioner is required to 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)(1). A visa 
petition may not be approved at a future date afte:t; the Petitioner or the Beneficiary becomes eligible 
under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 
1978). As such, eligibility for the benefit sought must be assessed and weighed based on the facts as 
they existed at the time the instant petition was filed and not based on what were merely speculative 
facts not then in existence. 6 
5 The end-client states that the service agreement with the Petitioner is confidential and will not be disclosed to a third 
party. While a petitioner should disclose when a submission contains confidential commercial information, the claim 
does not provide a blanket excuse for a petitioner not providing such a document if that document is material to the 
requested benefit. Although a petitioner may alWays refuse to submit confidential commercial information if it is 
deemed too sensitive, the Petitioner must also meet its burden of proof and runs the risk of a denial. cy Matter of 
Marques, 16 I&N Dec. 314 (BlA 1977) (holding the "respondent had every right to assert his claim under the Fifth 
Amendment[; however], in so doing he runs the risk that he may fail to carry his burden of persuasion with respect to his 
application."). 
6 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted , H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential busines.s expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 8 nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) ofthe Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 8 classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be.codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to petition for H-18 classification on 
the basis of facts not in existence at the time the instant petition was filed, it must nonetheless file a new petition to have 
these facts considered in any eligibility determination requested, as we may not consider them in this proceeding 
pursuant to the law and legal precedent cited, supra. 
4 
Matter ofT-B-S-, Inc. 
Further, the Petitioner has not established that the educational requirements for the proffered position 
qualify as a specialty occupation. As recognized by the court in Defensor, where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. See Defensor, 201 F.3d at 387-88. The court held that the former Immigration and 
Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis of the requirements imposed by the entities using the beneficiary's services. !d. Such evidence 
must be sufficiently detailed to demonstrate the type and educational level of highly specialized 
knowledge in a specific discipline that is necessary to perform that particular work. 
According to the end-client, the position requires, at minimum, a master's degree, or other advanced 
degree, in data flow processes, as well as analytical thinking skills or experience in a related field. 
However, these statements do not adequately establish the end-client's minimum educational 
requirements for the position. While the end-client identifies a degree in data flow processes as well 
as analytical thinking skills, the end-client has not demonstrated how an established curriculum of 
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. Further, while the end-client states that 
experience in a related field is acceptable, it does not identify the related field. 
Moreover, it is not clear that the end-client was referring to the position proffered here. The end­
client stated that the Beneficiary would be a software developer. As noted, the Petitioner 
characterized the proffered position as that of a computer programmer, and submitted an LCA 
certified for a position located within the "Computer Programmers" occupational category. A 
"Computer programmer" and a "software developer" may have some general duties in common, but 
they are distinct and separate occupational categories. 7 The end-client's characterization of the 
proffered position as a software developer conflicts with the Petitioner's statements and attestations 
that the proffered position is an entry-level computer programmer position. It is therefore not clear 
that the end-client was actually referring to the proffered position when it made its statements 
regarding the position's minimum educational requirement~. 
Further, the end-client states that the Beneficiary's duties include "responsible for handling the most 
complex Data Analysis, Environment and Data Setup problems and issues" and "[l]ead the creation, 
preparation and conduct of problem analysis and coming up with multiple solutions for a problem." 
The Petitioner's designation ofthe profferyd position at a Level I wage (the lowest of four assignable 
wage levels) is inconsistent with the Beneficiary's claimed levels ofresponsibility. The "Prevailing 
Wage Determination Policy Guidance" states that this entry-level wage rate is generally appropriate 
7 For purposes of the LCA, when a position in~olves duties of more than one occupational classification, the employer 
should choose the occupational classification of the relevant, highest-paying occupation. See Prevailing Wage 
Determination Policy Guidance. At minimum, if the proffered position is actually a software developer position, then 
the H-18 petition would be denied because the LCA would not correspond to and support the petition. See 20 C.F.R. 
§ 655.705(b). Because the proffered position is not a specialty occupation we will not address this issue further, except 
to note that the Petitioner should be prepared to address it in any future filings. 
5 
Matter ofT-B-S-, Inc. 
for positions for which the Petitioner expects the Beneficiary to have only a basic understanding of 
the occupation. 
Overall, the deficiencies and inconsistencies in the record preclude us from finding that the proffered 
position qualifies as a specialty occupation under any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), 
because it is the substantive nature of that work that determines (1) the normal minimum educational 
requirement for the particular position, which is the focus of criterion 1; (2) industry positions which 
are parallel to the proffered , position and thus appropriate for review for a common degree 
requirement, under the first alternate prong of criterion 2; (3) th,e level of complexity or uniqueness 
of the proffered position, which is the focus of the second alternate prong of criterion 2; ( 4) the 
factual justification for a petitioner normally requiring a degree or its equivalent, when that is an 
issue under criterion 3; and (5) the degree of specialization and complexity of the specific duties, 
which is the focus of criterion 4. 
This issue precludes the approval of the petition. Nevertheless, for the purpose of performing a more 
comprehensive analysis, we will continue to assess the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), 
assuming arguendo that the Beneficiary will be assigned to the client in the capacity claimed on the 
LCA, i.e., a Level I position located within the "Computer Programmers" occupational 
classification. 8 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), 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. To inform this inquiry, 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.9 
As noted, the Petitioner characterized the proffered position as a computer programmer and submitted 
an LCA certified for a position located within that occupational category. The Handbook states, in 
pertinent part: "Most computer programmers have a bachelor's degree; however, some employers 
hire workers who have an associate's degree. Most programmers get a degree in computer science 
or a related subject." Bureau of Labor Statistics,' U.S. Dep't of Labor, Occupational Outlook 
Handbook, Computer Programmers (2016-17 ed.). 
8 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
9 
All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, 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 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 
.
Matter ofT-B-S-, Inc. 
According to the Handbook, this occupational category accommodates a wide spectrum of 
educational credentials, including less than a bachelor's degree in a specific specialty. For example, 
the Handbook states that some employers hire workers who have an associate's degree. Moreover, 
while the Handbook's narrative indicates that most computer programmers obtain a degree - which 
could be either a bachelor's degree or an associate's degree - in computer science or a related field, 
the Handbook does not report that at least a bachelor's degree in this field, or its equivalent, is 
normally required. Thus, the Handbook does not support the claim that the occupational category is 
one for which normally the minimum requirement for entry is a baccalaureate degree (or higher) in a 
specific specialty, or its equivalent. 
In addition, when comparing the duties of the proffered position to those of other positions located 
within this occupational category, we again note that the Petitioner designated this position as a 
Level I, an entry-level position .. Given the Handbook's implication that a bachelor's degree in a 
specific specialty, or the equivalent, is not normally required for positions located within this 
occupational category, it seems unlikely that an entry-level position would have such a 
. 10 reqmrement. 
The information from O*NET Online (O*NET) does not establish the proffered position as a 
specialty occupation, either. First, O*NET assigns these positions a "Job Zone Four" rating, which 
groups it among occupations for which "most ... require a four-year bachelor's degree, but some do 
not." It is therefore not clear that a bachelor's degree is even required, which is consistent with the 
Handbook. Further, as indicated above, a requirement for a bachelor's degree alone is not sufficient. 
Instead, 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 Corp., 484 F.3d at 147; Defensor, 201 F.3d at 387. O*NET does notindicate that when 
a four-year bachelor's 
degree is required, that it must be in a specific specialty directly related to the 
occupation, or the equivalent. For both reasons, this information does not establish the proffered 
position as a specialty occupation. 
Nor do the two position evaluations satisfy this criterion. While we acknowledge the conclusions of 
and we find neither persuasive. As a preliminary 
matter, we observe that neither author discusses the Petitioner's business operations in meaningful 
detail. The record does not indicate that they visited the Petitioner's premises or the end-client's 
worksite, or spoke with anyone affiliated with the Petitioner or the end-client so as to ascertain, and 
base their opinions upon, the substantive nature and educational requirements of the proposed duties as 
they would be actually performed. 
10 A recent policy memorandum supports this interpretation of the Handbook. USC IS 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/fi les/files/nativedocuments/PM -6002-0 142-H -1 BComputerRelatedPositions 
Recission.pdf. 
7 
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Matter ofT-B-S- , Inc. 
In addition, we observe that neither author references the planned assignment of the Beneficiary to the 
end-client's worksite nor the Petitioner's Level I wage-level designation. Both individuals indicate 
they received their information regarding the position's duties based primarily upon the generalized 
bullet-pointed duties contained in the Petitioner's support letter. However, given that the support 
letter references neither of these factors, we question whether either author was aware of either one. 
Regardless, we consider the lack of discussion of either factor significant omissions, as they indicate 
an incomplete review ofthe position by both individuals. 
Finally, we observe that although Professor references the Handbook, he does not 
acknowledge its finding that an individual with an associate's degree could fulfill the responsibilities 
of some computer programmer positions. 
Considered collectively, we find that these shortcomings indicate an incomplete review of the 
position by both individuals. We may, in our discretion, use opinion statements submitted by the 
Petitioner as advisory. Matter of Caron Jnt '!, 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. !d. We find that these 
evaluations do not satisfy 8 C.P.R. § 214.2(h)(4)(iii)(A)(J) and, for the sake of efficiency, hereby 
incorporate this finding into our analysis of the remaining three specialty-occupation criteria. · 
For all ofthese reasons, the evidence of record does not support a finding that the particular position 
proffered here, an entry-level position located within the computer programmers occupational 
category, would normally have such a minimum specialty degree requirement, or the equivalent. 
The Petitioner therefore has not satisfied the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(J). 
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) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the · 
Petitioner's specific position. 
1. 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 
8 
Matter ofT-B-S-, Inc. 
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 previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a 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 to establish that 
such firms "routinely employ and recruit only degreed individuals." 
The record contains six job vacancy announcements and a printout of a "results list" from an online 
job search. To be relevant for consideration under this prong, these job vacancy announcements 
must discuss "parallel positions," and the announcements must have been placed by organizations 
that conduct business in the Petitioner's "industry" and are also otherwise "similar" to the Petitioner. 
Upon review, we find that none of this evidence meets that threshold. 
We will first consider whether any of the advertised job opportunities could be considered "parallel 
positions." As noted, the Petitioner attested to DOL that the proffered position is a Level I, entry­
level position. However, five of the six advertised positions require work experience, and most of 
the job opportunities contained in the "results list" contain the words "lead," "senior," or "mid-level" 
in their titles. These factors indicate that the advertised positions are not entry-level positions, and 
they are not "parallel" to the position proffered here. 
Nor does the record establish that any of these positons were placed by companies that conduct 
business in the Petitioner's industry, or that they are otherwise "similar" to the Petitioner. 
For all of these reasons, the Petitioner has not established that any of these job vacancy 
announcements or the "results list" are relevant. Even if that threshold had been met, we would 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. 11 To the contrary, only two of the six job vacancy announcements -
11 
In addition, the Petitioner does not demonstrate what statistically valid inferences, if any, could 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 I 95-96 (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"). 
9 
Matter ojT-B-S-, Inc. 
and none of the positions on the "results list" - specify a requirement for a bachelor's degree in a 
specific specialty. Further, we observe that one of the employers specifically states that it would 
accept a candidate with an associate's degree. 
Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F .R. § 214.2(h)( 4 )(iii)(A)(2). 
2. 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. 
We discussed findings of the Handbook and O*NET regarding the occupational category into which 
the Petitioner placed the proffered position. Again, neither resource indicates that a bachelor's 
degree in a specific specialty, or the equivalent, is normally required. · We acknowledge the 
Petitioner's implications that the knowledge and associated entry requirements associated with the 
proffered position exceed those of other positions located within the occupational category. 
However, the Petitioner's Level I wage designation undercuts any claim that it satisfies this· 
criterion. 12 In other words, if typical positions located within the occupational category do not 
require a bachelor's degree in a specific specialty, or the equivalent, then it is unclear how a position 
with the Level I characteristics described above would, regardless of the Petitioner's assertions. 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references his 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires 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, and it did not identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. 
As such, even if the job vacancy announcements supported the finding that the position requires a bachelor's or higher 
degree in a specific specialty, or its equivalent, it cannot be found that such a limited number of postings that appear to 
have been consciously selected could credibly refute the findings of the Handbook published by the Bureau of Labor 
Statistics that such a position does not normally require at least a baccalaureate degree in a specific specialty, or its 
equivalent, for entry into the occupation in the United States. 
12 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, 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 ifthat 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)( I) of the Act. 
10 
Matter ofT-B-S-, Inc. 
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. The 
record must establish that a petitioner's stated degree requirement is not a matter of preference for 
high-caliber candidates,- but is necessitated by performance requirements of the position. See 
Defensor, 201 F.3d at 387-88. If we were solely limited to reviewing the Petitioner's claimed self­
imposed requirements, then any" individual with a bachelor's degree could be brought to the United 
States to perform any occupation as long as the Petitioner 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 submitted job postings it claims to have placed advertising this position. However, it 
is not apparent that these postings actually advertise the same position proffered here. Because the 
"BI consultant," "systems developer," "process manager," and the three "senior software engineer" 
positions all require work experience - some as much as five years - it is not apparent that any of 
these positions are the type of entry-level position proffered in this petition. While the other posting 
- the one advertising a "computer programmer/business analyst" - may be similar, it does not state 
educational requirement, and therefore, it does not establish that the Petitioner normally requires a 
bachelor's degree in a specific specialty, or the equivalent. 
The Petitioner submitted foreign diplomas to establish the qualifications of its other employees. 
However, the Petitioner does not explain by what objective measure it has determined that these 
foreign degrees are equivalent to a U.S. bachelor's degree in a specific specialty, or the equivalent. 
More importantly, it has not established that any of these individuals hold the position proffered here 
-an entry-level computer programmer position with the Level I characteristics outlined above. 
Without more, the Petitioner has not provided sufficient evidence to establish that it normally 
requires at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered 
position. Therefore, it has not satisfied the third criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
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. 
II 
Matter ofT-B-S-, Inc. 
We acknowledge the Petitioner's assertions regarding the specialization and complexity of the 
position's duties. However, as above, those claims are undermined by the Petitioner's Level I wage 
designation. Again, in classifying the proffered position at a Level I (entry-level) wage, the 
Petitioner effectively attested to DOL that the Beneficiary would perform routine tasks that require 
limited, if any, exercise of judgment, that he would be closely supervised and his work closely 
monitored and reviewed for accuracy, and that he would receive specific instructions on required 
tasks and expected results. 13 The DOL guidance referenced above states that an employer should 
consider a Level I wage designation when the job offer is for a research fellow, a worker in training, 
or an internship. 
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). 
Because the Petitioner has not satisfied one ofthe criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
IV. BENEFICIARY QUALIFICATIONS 
The Director also found that the Beneficiary would not be qualified to perform the duties of the 
proffered position if the job had been determined to be a specialty occupation. However, a 
beneficiary's credentials to perform a particular job are relevant only when the job is found to be a 
specialty occupation. As discussed in this decision, the proffered position does not require a 
baccalaureate or higher degree in a specific specialty, or its equivalent. Therefore, we will not 
address the Beneficiary's qualifications further. 
V. CONCLUSION 
We find that the Petitioner has not established that the proffered position is a specialty occupation.
14 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-B-S-, Inc., ID# 373349 (AAO July 18, 2017) 
13 Again, the Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same occupation. 
14 
Because this issue precludes approval of the petition we will not address any of the additional issues we have observed 
in our de novo review of this matter. 
12