dismissed H-1B Case: It Advisory

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 16, 2024 In Re: 33405164 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b) . The H-lB program allows a U.S. employer to 
file a petition with U.S. Citizenship and Immigration Services (USCIS) to temporarily employ a 
qualified foreign worker in a position that requires both: (a) the theoretical and practical application 
of a body of highly specialized knowledge; and (b) the attainment of a bachelor's or higher degree in 
the specific specialty ( or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish that the proffered position is a specialty occupation. The matter is now before us on appeal 
pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
The Act at Section 214(i)(l) , 8 
U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) the 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) is a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) adds a non-exhaustive list of fields of endeavor to the 
statutory definition. In addition, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires that the 
proffered position must also meet one of the following criteria to qualify as a specialty occupation 1: 
(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. 
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 proffered position supporting the statutory definition of 
specialty occupation. See also Royal Siam Corp. v. Chertojf, 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"). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
II. ANALYSIS 
The Petitioner seeks to employ the Beneficiary in the position of "advisory manager." The Petitioner 
designated the proffered position on the certified labor condition application (LCA) as "Management 
Analysts" with Standard Occupation Classification (SOC) code 13-1111. The Petitioner states that 
the position requires a bachelor's degree or higher in computer science, computer information systems, 
management information systems, software engineering, or a related field. The Petitioner states that 
in this proffered position the Beneficiary will: 
1 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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 Co1p. 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"). 
2 
... [G]uide clients with development and execution of internal audit plans, including 
addressing the requirements of SOX;2 plan and manage internal audit reviews/projects 
of business including financial, operational, and compliance; IT processes and 
infrastructure; and SOX readiness reviews and testing; plan audit approach and scope, 
prepare audit program, determine auditing procedures to be used, and identify 
specialists required; review working papers prepared by team; prepare project reports 
and deliverables and present project results to clients' senior management; apply 
internal audit standards in planning and executing internal audit reviews/projects; 
coordinate other engagement activities as necessary, including status reporting to client 
and issue tracking; build and nurture positive working relationship with client; and 
identify opportunities to improve engagement profitability. 
The Director concluded that the position does not qualify as a specialty occupation under any of the 
four regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). The Petitioner asserts on appeal that the 
position qualifies as a specialty occupation under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) 
and under 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
Upon review of the entire record, and for the reasons set out below, we conclude that the Petitioner 
has not established that the services the Beneficiary will perform qualify as a specialty occupation 
under sections 101(a)(15)(H)(i)(b) and 214(i)(l) of the Act or 8 C.F.R. § 214.2(h)(4)(i)(A)(]), (4)(ii), 
and (4)(iii)(A). Specifically, the record does not sufficiently establish how the stated educational 
requirement for the position relates to the job duties. 
The Petitioner does not assert on appeal that the position qualifies as a specialty occupation under the 
first criterion, first prong of the second criterion, or the third criterion of 8 C.F .R. § 2 l 4.2(h)( 4)(iii)(A). 
We therefore consider the claim that the position qualifies under any of those criteria to be waived, 
and consider only the second prong of the second criterion and the fourth criterion below. See, e.g., 
Matter ofO-R-E-, 28 l&N Dec. 330,336 n.5 (BIA 2021) (citing Matter ofR-A-M-, 25 l&N Dec. 657, 
658 n.2 (BIA 2012)). 
The second criterion presents two, alternative prongs: "[t]he 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 concentrates upon the 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. The second alternative of the prong is satisfied if a petitioner establishes 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 fourth criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(4) 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. 
2 The Petitioner uses "SOX" to refer to the Sarbanes-Oxley Act of 2002, which relates to financial disclosures and 
combatting corporate and accounting fraud in public companies. 
3 
The Petitioner states that this is a highly complex position located within its "Accounting & Internal 
- IT & Specialized Assurance" division. The Petitioner contends that it has outlined the intricate, 
complex duties and responsibilities of the position with its initial position description, expanded 
position description, and the opinion letter submitted. Additionally, the Petitioner submits new 
evidence on appeal that it asserts establishes that the position is a specialty occupation under these 
criteria. 
Upon review of the totality of the record, we conclude that the record does not sufficiently establish 
that the position or its constituent duties are so "complex or unique" or "specialized and complex" that 
a bachelor's degree in computer science, computer information systems, management information 
systems, software engineering, or a related field, is required. When determining whether a position is 
a specialty occupation, we look to the record to see if the proffered position requires the theoretical 
and practical application of a body of highly specialized knowledge attained through at least a 
bachelor's degree in a specific specialty. 
First, we conclude that the opinion letter that the Petitioner discusses on appeal is not sufficiently 
persuasive. The opinion letter is authored by Professor _____ a professor of computer and 
information science at ______ In this letter, the professor (1) describes the credentials 
that the professor asserts qualifies them to opine on the nature of the proffered position and (2) states 
the opinion that the position qualifies as a specialty occupation. However, the professor does not 
establish why the job duties are "complex or unique" or "specialized and complex" such that they 
require at least a bachelor's degree in computer science, information systems, information technology, 
or a related field. Although the professor states the conclusion that the position's duties are "technical 
and quantitative" and that the responsibilities of the position are "highly specific, technical, and 
quantitative," the professor does not sufficiently establish that the position is so specialized and 
complex as to require a bachelor's or higher degree in one of the listed fields. 
For example, the professor characterizes the position several times as involving or relating to "business 
and sales development, IT assessment and management, auditing and assurance, risk analysis and 
mitigation, controls analysis and regulatory compliance, audit reporting, and project and team 
management" and asserts that this is the basis for the degree requirement. However, the professor 
does not explain how the fields of computer science, computer information systems, or information 
technology, relate to business and sales development, auditing and assurance, regulatory compliance, 
or project and team management. We also note that, while the Petitioner does describe the position as 
involving auditing and assurance, it does not describe the position as relating to "business and sales 
development." 
The professor states that the fields of computer science, information systems, information technology, 
or a related field are required for the proffered position because in these fields, students complete 
coursework in "business analytics, operations management, data analysis, technology management, 
strategic planning, data modeling, predictive analytics, solution development, organizational 
leadership, project management, systems design, and related subjects." However, even if this is 
knowledge that may be gained through one of these degree programs, the professor does not 
sufficiently relate this knowledge to the Petitioner's proffered position which appears to primarily 
involve such duties as providing audit, assurance, and advisory services, delivering SOC reports for 
4 
financial audits, and planning and executing internal audits related to "financial, operational, and 
compliance" issues. 
Additionally, opinion letter does not sufficiently establish that the duties that include the use of 
technology tools is so specialized and complex or unique as to require at least a bachelor's degree in 
a specific specialty or its equivalent. Although the job description states, for example, that one of the 
job duties requires using "project quality management tools" such as "Microsoft Project, Excel Macro 
and VB," and another job duty includes the use of "Oracle, SQL, Windows, and UNIX," the professor 
does not explain why the skills needed to use these tools could not be gained through certifications or 
other trainings, and would require at least a bachelor's degree in a specific specialty or its equivalent. 
The Petitioner also makes little effort to explain why the use of these technologies makes the position 
"complex or unique" or "specialized and complex." 
The same is true for the many duties which relate to specific areas of regulatory compliance. For 
example, the position's duties relate to advising clients on "SOX Readiness Analysis" and using and 
applying knowledge of PCAOB guidance, SEC regulations, and AICP A assurance frameworks. 3 The 
Petitioner has not demonstrated that a degree in a field such as computer science or information 
technology would be required to attain the knowledge needed to perform duties related to advising 
clients on these types of auditing and financial compliance issues. The opinion letter also does not 
address this issue. 
As a matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. 
MatterofCaronint'l, Inc., 19 I&N Dec. 791,795 (Comm'r 1988). However, wewillrejectanopinion 
or give it 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. Here, because the professor's opinions are not sufficiently 
supported and not in accord with the other information in the record, we conclude the opinion letter is 
of little probative value. 
Next, as stated above, the Petitioner has also submitted additional evidence for the first time on appeal. 
Specifically, the Petitioner submits a new credential equivalency evaluation for the Beneficiary, a new 
opinion letter regarding the position, evidence of the Beneficiary's work product, and another 
expanded position description. In most cases, our decision is limited to the evidence in the record at 
the time of the decision. When new evidence is submitted on appeal, we apply the framework under 
Matter of Soriano, 19 I&N Dec. 764 (BIA 1988) and Matter of Obaigbena, 19 I&N Dec. 
533 (BIA 1988) to determine whether we will consider the evidence in our decision. Under this 
framework, we consider whether the affected party was put on notice of an evidentiary requirement, 
whether the affected party was given a reasonable opportunity to provide the evidence, and whether 
the evidence was reasonably available to the affected party at the time it was supposed to have been 
submitted. See id. Here, the Petitioner was put on notice of the evidentiary requirement, was given a 
reasonable opportunity to provide the evidence, and has not demonstrated that any of the new evidence 
3 Although the Petitioner does not define the acronyms used in its job description, we note that "AICPA" stands for the 
American Institute of Certified Public Accountants and "PCAOB" stands for the Public Company Accounting Oversight 
Board, a non-profit corporation created by the Sarbanes-Oxley Act of 2002. 
5 
was previously unavailable. Under Matter ofSoriano and Matter ofObaigbena, we therefore will not 
consider the Petitioner's additional evidence submitted for the first time on appeal. 4 
Considering the above, the Petitioner did not sufficiently develop relative specialization and 
complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks 
that are so specialized and complex or unique to require a bachelor's or higher degree in computer 
science, computer information systems, management information systems, software engineering, or a 
related field. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2) or 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position is a specialty occupation. Moreover, the record does not 
establish that the Petitioner satisfied the statutory and regulatory definitions of specialty occupation. 
III. CONCLUSION 
As set forth above, we conclude that the evidence of record does not establish, more likely than not, 
that the proffered position qualifies for classification as a specialty occupation. Accordingly, the 
appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is a petitioner's 
burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
4 We also note that the new credential equivalency evaluation submitted is not relevant to the issue on appeal of whether 
the position qualifies as a specialty occupation. Additionally, were we to consider the Petitioner's expanded position 
description submitted on appeal, we would conclude that it detracts from its claim that the position is a specialty 
occupation. The expanded position description lists the Beneficiary's specific training and experience that corresponds to 
specific position duties. However, generally, whether a particular beneficiary's education, training, or experience relates 
to a proffered position does not necessarily demonstrate that the duties of the proffered position actually require the 
theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor's degree 
or higher in a specific specialty. But moreover, in this instance, the document shows that the Beneficiary's primary 
preparation for the position is possessing a "Certified Information Systems Auditor" (CISA) certification, a "Certified 
Payment Industry Security Implementer" (CPISI) certification, and work experience. Therefore, the document is not 
helpful in demonstrating that a bachelor's or higher degree in a specific specialty is required for the position. 
6