dismissed H-1B Case: It Support Services

(b)(6)
DATE : JUL 0 1 2015 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Depa rtm ent of Hom eland Security 
U.S . Citize nship a nd Im migration Service 
Ad ministra ti ve Appe a ls Office 
20 Massachusetts Ave., N. W., .MS 2090 
Washin gto n, DC 2052 9-2090 
U.S. Citize nship 
and Immigratio n 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
NO REPRESENTATIVE OF RECORD 
Encl osed is the non-precedent decision of the Administrati ve Appeals Office (AAO) for your case. 
If you believ e we incorrectly decided your case, you may file a motion requesting us to recon sider our 
decision and/or reopen the proceeding. The requirem ents for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a 
Notice of Appe al or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis .gov/i-290b) contains the latest information on fee, 
filing location , and other requir ements. Please do not mail any motions directly to the AAO . 
n Rosenberg 
Chief, Administr ative Appeal s Office 
www .uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition, 
and the matter is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
I. PROCEDURALBACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
one-employee "IT support services" business established in In order to employ the 
beneficiary in a position it designates as a "Network Specialist" position, the petitioner seeks to 
classify her as a nonimmigrant worker in a specialty occupation pursuant to section 
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The Director denied the petition, determining that the record of evidence did not establish that the 
proffered position qualifies for classification as a specialty occupation. 1 On appeal, the 
petitioner asserts that the Director's basis for denial of the petition was erroneous and contends 
that the petitioner satisfied all evidentiary 
requirements. 
The record of proceeding includes the following: (1) the Form I-129 and supporting 
documentation; (2) the service center's request for evidence (RFE); (3) the petitioner's response 
to the RFE; (4) the notice of decision; and (5) the Notice of Appeal or Motion (Form I-290B), 
the petitioner's brief and additional documentation. We reviewed the record in its entirety before 
issuing our decision. 2 
Upon review of the entire record of proceeding, we find that the evidence of record does not 
overcome the Director's grounds for denying this petition. Accordingly, the appeal will be 
dismissed and the petition will be denied. 
II. THE PROFFERED POSITION 
The petitioner identified the proffered position as a "Network Specialist" on the Form 1-129, and 
attested on the required Labor Condition Application (LCA) that the occupational classification 
1 The Director also noted that the beneficiary's degree in statistics does not appear to be related to the 
proffered position. Although the Director did not deny the petition on this basis, we will briefly address 
this issue in our decision. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
Also, in light of the petitioner's references, in response to the service center's RFE, to the requirement that 
U.S. Citizenship and Immigration Services (USCIS) apply the "preponderance of the evidence'' standard, 
we affirm that, in the exercise of our appellate review in this matter, as in all matters that come within our 
purview, we follow the preponderance of the evidence standard as specified in the controlling precedent 
decision, Matter of Chawathe, 25 l&N Dec. 369, 375-376 (AAO 2010). 
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for the position is "Computer Network Support Specialists," SOC (ONET/OES) Code 15-1152, 
at a Level I wage. 
In the petitioner's letter in support of the petition, dated March 31, 2014, the petitioner stated that 
it "provides complete , outsourced IT services for small business and local governments who do 
not have their own full-time IT staff, or whose IT staff requires augmentation with additional 
expertise." The petitioner added that "[f]or each client organization, [the petitioner] designs, 
implements, maintains, and troubleshoots each and every computer resource they have , from 
common PCs and PC applications to specialized, complex vertical market applications, such as 
those used in police cars." The petitioner also stated that it "expects that a qualified applicant for 
the position must possess at least a Bachelor's degree in Mathematics, Statistics, or a related 
field." 
In a response to the RFE, dated August 20, 2014, the petitioner provided the following version of 
the proffered position's duties: 
1. Evaluate the technology needs and requirements of organizations and 
design solutions to meet those requirements. (25%) 
• Design both wired and wireless network infrastructures using firewalls, 
routers, switches, VPN hosts, wireless access points and bridges, fiber 
optics, and "the cloud". 
• Design IP based network configurations to maximize availability and 
speed while minimizing complexity, including Internet access, remote 
access, VPNs, and mobility. 
• Design Microsoft Windows Active directory topologies to balance the 
security and workload of proposed servers with the cost and 
complexity. 
• Design Microsoft Exchange and/or other Email structures that best 
meet the communications and collaboration needs of the organization. 
• Implement the ideal SQL environment to support company's software 
while controlling the cost. 
• Design the ideal strategy for threat protection and business continuity, 
including: continuous secure credentialing of all network resources, 
parasite protection, spam reduction and management, backup, disaster 
recovery and temporary relocation. 
• Organize applications and information across servers and within 
folders, especially determine what should be physical and what should 
be virtualized, and what should be onsite vs. what should be cloud 
based. 
• Determine the ideal specifications and configurations for all computer 
resources . 
• Define the computer resources upgrade and replacement schedule 
which fits with the organization's goals, priorities, and budget. 
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• Develop itemized budgets for specific projects and for fiscal years. 
2. Troubleshoot (40%) 
• Get networks and network resources up and runnmg ASAP when 
problems occur. 
• Quickly determine the possible causes for each problem, evaluate each 
option in order of which is most likely to be true. Requires an in depth 
knowledge of all aspects of network servers, hardware, and 
communications, plus IBM iSeries servers, Microsoft Windows Server 
(all versions) and server products (Exchange, SQL, etc.); VMware; 
Symantec Backup Exec, Endpoint Protection and System Recovery 
Server; Microsoft Windows and Office (all versions); EASEUS ToDo 
Backup and data recovery tools; dozens of different specialized 
software packages; and all of the other products used by our customers. 
• Gather evidence , and research and develop solutions. Be able to 
determine which solutions are safe and might be applicable, and which 
are not. 
• Identify incompatibilities between hardware and/or software, and work 
with vendors to find solutions to fix their products in order to work 
properly in our customers' environments. 
• Prove to third party vendors that the problem in [sic] theirs when they 
are unwilling to take responsibility for the problem. 
3. Configuring and Implementing (17%) 
• Expert level configuration and implementation of all aspects of 
networks, network servers, network infrastructure, and complex sever 
hardware and applications. 
4. Programming (5%) 
• Write scripts and batch files in DOS, SOL, and other script languages 
to streamline and/or automate reoccurring procedures. 
5. Continuous learning (10%) 
• Remain current with knowledge of new hardware and software 
• Remain current on other technological advances needed to advise 
clients on what fits their needs. 
6. Technical writing (3%) 
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• Develop detailed written instructions and procedures for organizations 
to keep and use concerning their IT resources. 
III. SPECIALTY OCCUPATION 
The pnmary 1ssue m this matter is whether the proffered position qualifies as a specialty 
occupation. 
A. Legal Framework 
To meet its burden of proof, the petitioner must establish that the employment it is offering to the 
beneficiary meets the following statutory and regulatory requirements. 
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
1
S or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United 
States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its 
equivalent, as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(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 
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(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. 
As a threshold issue, it is noted that 8 C.P.R.§ 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the 
statute as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that 
construction of language which takes into account the design of the statute as a whole is 
preferred); see also COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 
489 U.S. 561 (1989); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated 
in 8 C.P.R. § 214.2(h)( 4)(iii)(A) should logically be read as being necessary but not necessarily 
sufficient to meet the statutory and regulatory definition of specialty occupation. To otherwise 
interpret this section as stating the necessary and sufficient conditions for meeting the definition 
of specialty occupation would result in particular positions meeting a condition under 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.P.R. § 214.2(h)(4)(iii)(A) must 
therefore be read as providing supplemental criteria that must be met in accordance with, and not 
as alternatives to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.P.R. 
§ 214.2(h)(4)(ii), USCIS consistently interprets the term "degree" in the criteria at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific 
specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 
484 P.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"). Applying 
this standard, USCIS regularly approves H-lB petitions for qualified aliens who are to be 
employed as engineers, computer scientists, certified public accountants, college professors, and 
other such occupations. These professions, for which petitioners have regularly been able to 
establish a minimum entry requirement in the United States of a baccalaureate or higher degree 
in a specific specialty or its equivalent directly related to the duties and responsibilities of the 
particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature 
of the petitioning entity's business operations, are factors to be considered. USCIS must examine 
the ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the 
title of the position nor an employer's self-imposed standards, but whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge, and 
the attainment of a baccalaureate or higher degree in the specific specialty as the minimum for 
entry into the occupation, as required by the Act. 
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B. Analysis 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will first address the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). This criterion 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 Department of 
Labor's Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.3 The petitioner 
attested on the LCA that the occupational classification most closely corresponding to its proffered 
position is "Computer Network Support Specialists," SOC (ONET/OES) Code 15-1152, at a 
Level I (entry) wage. 
We reviewed the chapter of the Handbook entitled "Computer Support Specialists" which 
includes the occupational classification of Computer Network Support Specialists as a 
sub-category. 4 As the petitioner noted, this broad category includes generally the duties it 
ascribes to the proffered position. 
The Handbook, however, does not indicate that "Computer Network Support Specialists" 
comprise an occupational group for which at least a bachelor's degree in a specific specialty, or 
its equivalent, is normally the minimum requirement for entry. The subchapter of the Handbook 
entitled "How to Become a Computer Support Specialist" states the following about this 
occupational category, in pertinent part: 
Because of the wide range of skills used in different computer support jobs, there 
are many paths into the occupation. A bachelor's degree is required for some 
computer support specialist positions, but an associate's degree or postsecondary 
classes may be enough for others. 
Education 
Education requirements for computer support specialists vary. Computer user 
support specialist jobs require some computer knowledge, but not necessarily a 
postsecondary degree. Applicants who have taken some computer-related classes 
are often qualified. For computer network support specialists, many employers 
3 All of the references are to the 2014-2015 edition of the Handbook, which may be accessed at the 
Internet site http://www.bls.gov/OCO/. The excerpt of the Handbook regarding the duties and 
requirements of the referenced occupational category is hereby incorporated into the record of 
proceeding. 
4 
For additional information regarding the occupational category "Computer Network Support 
Specialists,'' see U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-
15 ed., Computer Support Specialists, http://www.bls.gov/ooh/computer-and-information­
technology/computer-support-specialists.htm (last visited June 25, 2015). 
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accept applicants with an associate's degree, although some prefer applicants to 
have a bachelor's degree. 
Large software companies that provide support to business users who buy their 
products or services often require a bachelor's degree. More technical positions 
are likely to require a degree in a field such as computer science, engineering, or 
information science, but for others, the applicant's field of study is less important. 
To keep up with changes in technology, many computer support specialists 
continue their education throughout their careers. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Computer Support Specialists, http://www.bls.gov/ooh/computer-and-information­
technology/computer-support-specialists.htm#tab-4 (last visited June 25, 2015). 
The Handbook does not support the assertion that at least a bachelor's degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for these positions. Rather, the 
Handbook indicates that an associate's degree or some postsecondary classes are also acceptable 
avenues to attain a position as a computer support specialist. Although the Handbook reports 
that some employers may prefer applications to have a bachelor's degree, preference is not 
synonymous with a normal minimum requirement. 
When reviewing the Handbook, it also must be noted that the petitioner designated the proffered 
position as a Level I (entry level) position on the LCA. The wage levels are defined in DOL's 
"Prevailing Wage Determination Policy Guidance." A Level I wage rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level 
employees who have only a basic understanding of the occupation. These 
employees perform routine tasks that require limited, if any, exercise of judgment. 
The tasks provide experience and familiarization with the employer's methods, 
practices, and programs. The employees may perform higher level work for 
training and developmental purposes. These employees work under close 
supervision and receive specific instructions on required tasks and results 
expected. Their work is closely monitored and reviewed for accuracy. Statements 
that the job offer is for a research fellow, a worker in training, or an internship are 
indicators that a Level I wage should be considered. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www .foreignlaborcert.doleta.gov /pdf/NPWHC _Guidance_ Revised _11_ 2009. pdf. 
Thus, in designating the proffered position at a Level I wage, the petitioner has indicated that the 
proffered position is a comparatively low, entry-level position relative to others within the 
occupation. That is, in accordance with the relevant DOL explanatory information on wage 
levels, this wage rate indicates that the beneficiary is only required to have a basic understanding 
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of the occupation and carries expectations that the beneficiary perform routine tasks that require 
limited, if any, exercise of judgment; that she would be closely supervised; that her work would 
be closely monitored and reviewed for accuracy; and that she would receive specific instructions 
on required tasks and expected results. As noted above, according to DOL guidance, a statement 
that the job offer is for a research fellow, worker in training or an internship is indicative that a 
Level I wage should be considered. Although the petitioner asserts on appeal, that its proffered 
position is a "more technical position" due to its depth and scope, the Level I designation on the 
LCA does not comport with that assertion. Further, the evidence of record does not sufficiently 
demonstrate that the proffered position is a "more technical position." 
When the Handbook does not support the proposition that a proffered position is one that meets 
the statutory and regulatory provisions of a specialty occupation, it is incumbent upon the 
petitioner to provide persuasive evidence that the proffered position more likely than not satisfies 
this or one of the other three criteria, notwithstanding the absence of the Handbook's support on 
the issue. In such case, it is the petitioner's responsibility to provide probative evidence (e.g., 
documentation from other objective, authoritative sources) that supports a finding that the 
particular position in question qualifies as a specialty occupation. Whenever more than one 
authoritative source exists, an adjudicator will consider and weigh all of the evidence presented 
to determine whether the particular position qualifies as a specialty occupation. 
We have reviewed the letters from the petitioner's customers that the petitioner submitted on appeal. 
We observe that the majority of the petitioner's customers (seven out of nine) indicated that the 
petitioner's requirement of a bachelor's degree without any indication that the degree be in a 
specific specialty, is sufficient to perform the duties of the position. We reiterate that to 
demonstrate that a job requires the theoretical and practical application of a body of highly 
specialized knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that 
the position requires the attainment of a bachelor's or higher degree in a specialized field of study 
or its equivalent. As discussed supra, USCIS interprets the degree requirement at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the 
proposed position. Although a general-purpose bachelor's degree may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a 
finding that a particular position qualifies for classification as a specialty occupation. See Royal 
Siam Corp. v. Chertofj; 484 F.3d 139, 147 (1st Cir. 2007). 
The Handbook does not support the claim that the occupational category of computer network 
support specialists is one for which normally the minimum requirement for entry is a 
baccalaureate degree (or higher) in a specific specialty, or its equivalent. Even if it did (which it 
does not), the record lacks sufficient evidence to support a finding that the particular position 
proffered here, an entry-level computer network support specialist position (as indicated on the 
LCA), would normally have such a minimum, spec:ialty degree requirement or its 
equivalent. 5 The duties and requirements of the position as described in the record of proceeding 
5 
As the petitioner attested on the certified LCA that the proffered position is a computer network support 
specialist, the Handbook's report on other occupations will not be discussed here. The petitioner's 
assertion that the proffered position encompasses duties that correspond to a variety of other occupations 
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Page 10 
do not indicate that this particular pos1t10n proffered by the petitioner is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common 
for positions that are identifiable as being (1) in the petitioner's industry, (2) parallel to the 
proffered position, and also (3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: 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)). 
As previously discussed, the petitioner has not established that its proffered position is one for 
which the Handbook, or other authoritative source, reports a standard, industry-wide requirement 
of at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. 
On the Form I-129, the petitioner stated that it is an IT support services company with one 
employee. The petitioner stated its gross annual income as approximately $209,178 and its net 
annual income as $127,368. The petitioner designated its business operations under the North 
American Industry Classification System (NAICS) code 541519. According to the U.S. Census 
Bureau, NAICS is used to classify business establishments according to type of economic 
activity and each establishment is classified to an industry according to the primary business 
activity taking place there. See http://www.census.gov/eos/www/naics/ (last visited June 25, 
2015). The NAICS code specified by the petitioner is designated for "Other Computer Related 
Services," and is defined by the U.S. Department of Commerce, Census Bureau as follows: 
This U.S. industry comprises establishments primarily engaged in providing 
computer related services (except custom programming, systems integration 
design, and facilities management services). Establishments providing computer 
disaster recovery services or software installation services are included in this 
industry. 
is discussed below. 
~~~---------~~-------------------------
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U.S. Dep't of Commerce, U.S Census Bureau, 2012 NAICS Definition, 541519 - Other 
Computer Related Services, http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last visited June 
25, 2015). 
The record in 
this matter includes a number of job postings, submitted in response to the service 
center's RFE and on appeal. The petitioner did not, however, provide any independent evidence of 
how representative these job advertisements are of the particular advertising employers' 
recruiting histories for the types of jobs advertised. Further, as they are only solicitations for 
hire, they are not evidence of the employers' actual hiring practices. 
For the petitioner to establish that an organization is similar, it must demonstrate that it shares 
the same general characteristics with the advertising organization. Without such evidence, 
documentation submitted by a petitioner is generally outside the scope of consideration for this 
criterion, which encompasses only organizations that are similar to the petitioner. When 
determining whether the petitioner and the advertising 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. 
Of the seven job postings submitted in response to the service center's RFE, six of the postings 
are for companies that do not appear to be in the petitioner's industry. Specifically, they are 
consultants, a large provider of products and services, a truck dealership, a creator and publisher 
of entertainment for consoles, a meal distributor, and a personnel services company. Moreover, 
these job postings provide a variety of paths to enter into the positions advertised, including a 
bachelor's degree or five years of experience, a bachelor's degree in MIS, Computer Science or 
related technical discipline and two years of experience or six years applicable work experience, 
a BA or BS in Computer Science, Information Systems or equivalent and a minimum of 3 years 
of IT-related experience, a bachelor's degree in Information Systems or equivalent experience, a 
bachelor's degree and 1-2 years of experience, and a bachelor's degree. The seventh job posting 
is from a company that the petitioner asserts is its competitor, and that company requires a 
bachelor's degree in Computer Science or related and 3-5 years of network administration work 
experience. 
The advertisements submitted do not establish an industry-wide standard for the various 
positions posted. First, for those job postings that require a degree OR experience, the record 
does not include information on how the advertising organizations evaluate experience, training, 
or education in related fields. Accordingly, it is not possible to conclude that the advertising 
organizations routinely employ individuals with at least a bachelor's degree in a specific 
specialty, or its equivalent, for the positions advertised. Second, for those advertising 
organizations that require a degree and experience, it appears that the positions advertised are 
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Page 12 
more senior positions than the petitioner's position, as the petitioner has designated the proffered 
position as a Level I wage position and does not appear to require work experience. 6 
On appeal, the petitioner submitted copies of three job postings from its customers, which are 
involved in county and local government. The requirements for the three positions advertised 
include a college· degree in computer science or related field and 2-3 years of IT management 
experience or experience in lieu of education, an associate's degree in information technology, 
public relations, marketing, communications or closely related field and 2-5 years of experience, 
and graduation from a four year college plus four years of relevant experience or a combination 
of education, training and experience. Again, the advertising organizations are not in the 
petitioner's industry and, for the same reasons discussed above, do not include sufficient 
information to establish that the advertising organizations routinely employ individuals with at 
least a bachelor's degree in a specific specialty, or its equivalent, for the positions advertised. 
The petitioner also included job postings from its competitors in Iowa, five from a national 
company and one from a small company. The five postings from the national company, all 
require a bachelor's degree in information technology plus a varying amount of experience. The 
remaining posting is a duplicative copy of the posting submitted in response to the service 
center's RFE. We note that the petitioner's competitors routinely require experience in addition to 
the required bachelor's degree in information technology or computer science, which again 
indicates that the advertised positions are for more senior positions than the position proffered 
here, as the petitioner designated the proffered position as a Level I (entry) position on the LCA.7 
Thus, the evidence of record does not establish that a requirement of a bachelor's or higher 
degree in a specific specialty, or its equivalent, is common to positions that are (1) in the 
petitioner's industry, (2) parallel to the proffered position, and also (3) located in organizations 
that are similar to the petitioner. 
6 The petitioner's "Job Opening" posting does not list a requirement for experience. 
7 
Although the size of the relevant study population is unknown, the petitioner does not demonstrate what 
statistically valid inferences, if any, can be drawn from the job postings with regard to the common 
educational requirements for entry into parallel positions in similar organizations. See generally Earl 
Babbie, The Practice of Social Research 186-228 (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 error"). 
As such, even if the job 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 require at least a baccalaureate 
degree in a specific specialty for entry into the occupation in the United States. 
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The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
The evidence of record also does not satisfy the second alternative prong of 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(2), which provides that "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." A review 
of the record of proceeding indicates that the petitioner has not credibly demonstrated that the 
duties the beneficiary will be responsible for or perform on a day-to-day basis constitute a 
position so complex or unique that it can only be performed by a person with at least a bachelor's 
degree in a specific specialty, or its equivalent. Even when considering the petitioner's assertion 
that the beneficiary will provide a myriad number of IT support duties, the evidence of record 
does not establish that the proffered position is so complex or unique that it can be performed 
only by an individual with a bachelor's or higher degree in a specific specialty, or its equivalent. 
While a few related courses may be beneficial, or even required, 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 description of the duties does not specifically 
identify any tasks that are so complex or unique that only a specifically degreed individual could 
perform them. The record lacks sufficiently detailed information to distinguish the proffered 
position as more complex or unique from other positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant 
petition. As noted above, the petitioner attested on the submitted LCA that the wage level for the 
proffered position is a Level I (entry) wage. Such a wage level which only requires a basic 
understanding of the occupation; the performance of routine tasks that require limited, if any, 
exercise of judgment; close supervision and work closely monitored and reviewed for accuracy; 
and the receipt of specific instructions on required tasks and expected results, is contrary to a 
position that requires the performance of complex duties. 8 
The petitioner's assertion that combining all the different aspects of the proffered position only 
intensifies the requirement of a bachelor's degree is not supported in the record. That is, a 
8 The issue here is that 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, it is important to note that a Level I 
wage-designation does not preclude a proffered position from classification as a specialty occupation. In 
certain occupations (doctors or lawyers, for example), an 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 consideration but is not a 
substitute for a determination of whether a proffered position meets the requirements of section 214(i)(l) 
of the Act. 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
variety of duties within a position does not, in and of itself, raise the educational requirements for 
a position. Performing the different duties of the position does not make the position unique or 
complex. Here, the petitioner must provide probative evidence and substantiating analysis that 
the duties as described require a bachelor's degree in a specific discipline. The record does not 
include sufficient evidence or analysis demonstrating that the proffered position is so unique or 
complex that it can only be performed by an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent. Consequently, it cannot be concluded that the petitioner has 
satisfied the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
The third criterion of 8 C.P.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. 
To this end, USCIS reviews the petitioner's past recruiting and hiring practices, information 
regarding employees who previously held the position, as well as any other documentation 
submitted by a petitioner in support of this criterion of the regulations. 
To satisfy this criterion, the record must establish that the specific performance requirements of 
the position generated the recruiting and hiring history. A petitioner's perfunctory declaration of 
a particular educational requirement will not mask the fact that the position is not a specialty 
occupation. USCIS must examine the actual employment requirements and, on the basis of that 
examination, determine whether the position qualifies as a specialty occupation. See generally 
Defensor v. Meissner, 201 P.3d 384. In this pursuit, the critical element is not the title of the 
position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of 
a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree 
in the specific specialty, or its equivalent, as the minimum for entry into the occupation as 
required by section 214(i)(l) of the Act. According to the Court in Defensor, "To interpret the 
regulations any other way would lead to an absurd result." !d. at 388. If USCIS were constrained 
to recognize a specialty occupation merely because the petitioner has an established practice of 
demanding certain educational requirements for the proffered position - and without 
consideration of how a beneficiary is to be specifically employed - then any alien with a 
bachelor's degree in a specific specialty could be brought into the United States to perform non­
specialty occupations, so long as the employer required all such employees to have baccalaureate 
or higher degrees. See id. 
The petitioner has not submitted evidence that it has previously employed anyone in the 
proffered position. While a first-time hiring for a position is certainly not a basis for precluding 
a position from recognition as a specialty occupation, it is unclear how an employer that has 
never recruited and hired for the position would be able to satisfy the criterion at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(3), which requires a demonstration that it normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the position. Upon review of the 
totality of the record, the petitioner has not satisfied the third criterion of 8 C.P.R. 
§ 214.2(h)( 4 )(iii)( A). 
(b)(6)
Page 15 
NON-PRECEDENT DECISION 
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 in a specific specialty, or its equivalent 
The fourth criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the 
nature of the specific duties is so specialized and complex that the knowledge required to 
perform them is usually associated with the attainment of a baccalaureate or higher degree in a 
specific specialty, or its equivalent. 
The record does not include evidence that the proffered position satisfies this criterion of the 
regulations. More specifically, in the instant case, relative specialization and complexity have 
not been sufficient! y developed by the petitioner as an aspect of the proffered position. 
Furthermore, we also reiterate our earlier comments and findings with regard to the implication 
of the petitioner's designation of the proffered position in the LCA as a Level I (the lowest of 
four assignable levels) wage. That is, the Level I wage designation is indicative of a low, 
entry-level position relative to others within the occupational category, and hence one not likely 
distinguishable by relatively specialized and complex duties. 
The evidence of record does not establish that the nature of the specific duties is so specialized 
and complex that the knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent. For the 
reasons discussed above, the evidence of record does not satisfy the fourth criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
The evidence of record does not satisfy any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, 
therefore, it cannot be found that the proffered position qualifies for classification as a specialty 
occupation. The appeal will be dismissed and the petition denied for this reason. 
IV. LCA 
Since the specialty occupation basis for denial is dispositive of the petitioner's appeal, we need 
not address another ground of ineligibility we observe in the record of proceeding. Nevertheless, 
we will briefly note and summarize it here with the hope and intention that, if the petitioner seeks 
again to employ the beneficiary or another individual as an H-lB employee in the proffered 
position, it will submit sufficient independent objective evidence to address and overcome this 
additional ground in any future filing. Here the petitioner asserts that the position proffered 
encompasses elements of different occupational categories such as "Computer and Network 
Systems Administrator," "Computer Network Architect," "Computer Systems Analyst," 
"Database Administrator," "Information Security Analyst," "Computer and Information Systems 
Manager," "Computer Programmer," and "Computer Support Specialist." 9 It appears from the 
9 Although we recognize that a particular position may include overlapping duties, the petitioner here has 
not identified the primary duties so that we may analyze the actual position proffered and the level of 
responsibility expected of the beneficiary. To further elaborate, the problem associated with identifying a 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
petitioner's list of particular duties and the petitioner's designation of the corresponding 
Handbook occupational category, that the beneficiary will spend a significant portion of her time 
on systems analysis, network administration, and network architecture. These are distinct 
occupations and require varying wages. 10 
number of occupations with duties that will engage the beneficiary, is that the petitioner must submit an 
LCA that corresponds to the petition. That is the LCA serves as the critical mechanism for enforcing 
section 212(n)(1) of the Act, 8 U.S.C. § 1182(n)(1). See 65 Fed. Reg. 80110, 80110-80111 (indicating 
that the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic 
incentive or advantage in hiring temporary foreign workers" and that this "process of protecting U.S. 
workers begins with [the filing of an LCA] with [DOL]."). According to section 212(n)(1)(A) of the Act, 
an employer must attest that it will pay a holder of an H-1B visa the higher of the prevailing wage in the 
"area of employment" or the amount paid to other employees with similar experience and qualifications 
who are performing the same services. See 20 C.F.R. § 655.731(a); Venkatraman v. REI Sys., Inc., 417 
F.3d 418, 422 & n.3 (4th Cir. 2005); Patel v. Boghra, 369 Fed.Appx. 722, 723 (7th Cir. 2010); Michal 
Vojtisek-Lom & Adm'r Wage & Hour Div. v. Clean Air Tech. Int'l, Inc., No. 07-97, 2009 WL 2371236, at 
*8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
Where a petitioner seeks to employ a beneficiary in two or more distinct occupations, the petitioner 
should file separate petitions for each occupation, requesting concurrent, part-time employment for each 
occupation. While it is not the case here, if a petitioner does not file separate petitions and if only one 
aspect of a combined position qualifies as a specialty occupation, USCIS would be required to deny the 
entire petition as the pertinent regulations do not permit the partial approval of only a portion of a 
proffered position and/or the limiting of the approval of a petition to perform only certain duties. See 
generally 8 C.F.R. § 214.2(h). Furthermore and as is the case here, the petitioner would need to ensure 
that it separately meets all requirements relevant to each occupation and the payment of wages 
commensurate with the higher paying occupation. See generally 8 C.F.R. § 214.2(h); U.S. Dep't of 
Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www .foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ll_ 2009.pdf. Thus, filing 
separate petitions would help ensure that the petitioner 
submits the requisite evidence pertinent to each 
occupation and would help eliminate confusion with regard to the proper classification of the position 
being offered. 
10 
To further explain, if the position proffered here is actually a computer network support specialist, the 
wage offered on the Form I-129 and the LCA of $36,400 would comply with DOL regulations. For more 
information regarding the prevailing wage for computer network architects in Iowa, 
see the All Industries Database for 7/2013- 6/2014 for Computer Network Support Specialists, Foreign 
Labor Certification Data Center, http://www.flcdatacenter.com/OesQuickResults.aspx? 
year=14&source=1 (last visited June 25, 2015). However, if the proffered position in 
this matter actually encompasses the duties of any of the occupations listed, except computer programmer 
which only accounts for five percent of the beneficiary's time, the petitioner's proffered wage of $36,400 
does not comply with the prevailing wage in the Iowa geographical region. That is, 
if the occupational classification is for a computer systems analyst at a Level I wage in 
Iowa, Missouri, the prevailing wage, when the petition was filed is $55,099 annually. For more 
information regarding the prevailing wage for computer systems analysts in , Iowa, 
see the All Industries Database for 7/2013 - 6/2014 for Computer Systems Analysts, Foreign Labor 
Certification Data Center, http://www.flcdatacenter.com/OesQuickResults.aspx? 
cyear=14&source=1 (last visited June 25, 2015). If the occupational classification is 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
If the petitioner believes the proffered position encompasses a combination of occupations, it 
should have chosen the relevant occupational code for the highest paying occupation, in this case 
"Computer Systems Analyst. "11 However, the petitioner chose the occupational category 
"Computer Network Support Specialists" for the proffered position. Thus, the petitioner was 
able to obtain an LCA certified for an occupation at a much lower rate of pay, then turn to 
users and claim that the position is for any number of occupations that require a much higher 
prevailing wage in an attempt to qualify the proffered position as a specialty occupation. 
To permit this would result in a petitioner paying a wage lower than that required by section 
212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(l)(A), by allowing the petitioner to simply submit 
an LCA for a different occupation and at a lower prevailing wage than the one being petitioned 
for. Under the H-lB program, a petitioner must offer a beneficiary wages that are at least the 
actual wage level paid by the petitioner to all other individuals with similar experience and 
qualifications for the specific employment in question, or the prevailing wage level for the 
occupational classification in the area of employment, whichever is greater, based on the best 
information available as of the time of filing the application. See section 212(n)(l)(A) of the 
Act, 8 U.S.C. § 1182(n)(l)(A). 
The regulation at 20 C.F.R. § 655.705(b) requires that USCrS ensure that an LCA actually 
supports the H-lB petition filed on behalf of the beneficiary. While DOL is the agency that 
certifies LCA applications before they are submitted to USCrS, DOL regulations note that the 
Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS, is the 
department responsible for determining whether the content of an LCA filed for a particular 
Form r-129 actually supports that petition. See 20 C.F.R. § 655.705(b), which states, in pertinent 
part (emphasis added): 
for a network and computer systems administrator at a Level I wage in Iowa, the 
prevailing wage, when the petition was filed is $44,366 annually. For more information regarding the 
prevailing wage for network and computer systems administrators in Iowa, see the 
All Industries Database for 7/2013-6/2014 for Network and Computer Systems Administrators, Foreign 
Labor Certification Data Center, http://www.flcdatacenter.com/OesQuickResults.aspx?· 
year=14&source=1 (last visited June 25, 2015). If the occupational classification is 
for a computer network architect at a Level I wage in _ _ Iowa, the prevailing wage, 
when the petition was filed is $53,893 annually. For more information regarding the prevailing wage for 
computer network architects in Iowa, see the All Industries Database for 7/2013 -
6/2014 for Computer Network Architects, Foreign Labor Certification Data Center, 
http://www .flcdatacenter .com/OesQuickResults.aspx? ~year==14&source== 1 
(last visited June 25, 2015). Thus, the petitioner's proffer of an annual salary of $36,400 would fall well 
below the required prevailing wage for these different distinct occupations. Accordingly, the LCA 
submitted in support of the petition does not actually correspond to the petition in terms of the 
occupational classification and the associated prevailing wage if the beneficiary is expected to perform 
the work of occupations other than that of a computer network support specialist. 
11 
We reiterate, however, when a petitioner chooses to file only one petition, the petitioner must establish 
that the beneficiary would primarily perform the duties of that occupation. 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
For H-lB visas ... DHS accepts the employer's petition (DHS Form 1-129) with 
the DOL certified LCA attached. In doing so, the DHS determines whether the 
petition is supported by an LCA which corresponds with the petition, whether the 
occupation named in the [LCA] is a specialty occupation ... and whether the 
qualifications of the nonimmigrant meet the statutory requirements of H-lB visa 
classification. 
With respect to the LCA, DOL provides clear guidance for selecting the most relevant O*NET 
occupational code classification. 12 The "Prevailing Wage Determination Policy Guidance" states 
the following: 
In determining the nature of the job offer, the first order is to review the 
requirements of the employer's job offer and determine the appropriate 
occupational classification. The O*NET description that corresponds to the 
employer's job offer shall be used to identify the appropriate occupational 
classification . . . . If the employer's job opportunity has worker requirements 
described in a combination of O*NET occupations, the SWA should default 
directly to the relevant O*NET-SOC occupational code for the highest paying 
occupation. For example, if 
the employer's job offer is for an engineer-pilot, the 
SWA shall use the education, skill and experience levels for the higher paying 
occupation when making the wage level determination. 
The instructions that accompany the LCA indicate that, when completing Section D, "Period of 
Employment and Occupation Information," the employer should enter the occupational code that 
most clearly describes the occupation "to be performed." The petitioner should, at the very least, 
specifically identify which tasks will primarily engage the beneficiary. Based on the petitioner's 
characterization of the proffered position, and the petitioner's task list and corresponding 
Handbook occupational classifications submitted on appeal, the LCA could include the 
occupational codes for "Computer Systems Analyst," "Computer and Network Systems 
Administrator," or "Computer Network Architect," among others. The petitioner, however, as 
discussed above, designated the occupational classification on the LCA as a "Computer Network 
Support Specialist," a lower paying occupational classification. The result is that the LCA 
submitted in support of the petition does not correspond to the petitioner's assertions that the 
duties of the proffered position encompass the duties of the higher paying occupations. 
V. BENEFICIARY'S QUALIFICATIONS 
In the instant matter, the Director found that the beneficiary would not be qualified to perform 
the duties of the proffered position. We do not, however, need to examine the issue of the 
12 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www .foreignlaborcert.doleta.gov /pdf/NPWHC _Guidance_ Revised _11_ 2009. pdf. 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
beneficiary's qualifications, because the petitioner has not provided sufficient evidence to 
demonstrate that the position is a specialty occupation. In other words, the beneficiary's 
credentials to perform a particular job are relevant only when the job is found to be a specialty 
occupation. 
Nevertheless, we agree with the Director's determination regarding the beneficiary's 
qualifications. We find that the evidence of record does not adequately demonstrate that the 
beneficiary's bachelor's degree in statistics qualifies her to perform the services of a specialty 
occupation and that the academic courses pursued and knowledge gained is a realistic 
prerequisite to the particular position. The petitioner must demonstrate that the beneficiary 
obtained knowledge of the particular occupation in which he or she will be employed. See e.g., 
Matter of Ling, 13 I&N Dec. 35 (Reg. Comm'r 1968). Here, the petitioner did not submit 
sufficient evidence regarding the nature of the proffered position to make an assessment of 
whether the beneficiary obtained knowledge equivalent to at least a bachelor's degree in a 
specific specialty required by the particular occupation in which she would be employed. We 
acknowledge the letter from _ _ Associate Professor of Computer Science, 
dated December 1, 2014, which states that "both Mathematics and Statistics are 
indeed closely-related fields to Computer Science." However, the professor did not explain his 
statement and his letter does not adequately demonstrate a sound factual basis for his conclusion. 
In any event, as discussed in this decision, the petitioner did not submit sufficient evidence 
regarding the proffered position to determine that it is a specialty occupation and, therefore, the 
issue of whether it will require a baccalaureate or higher degree in a specific specialty, or its 
equivalent, also cannot be determined. 
VI. CONCLUSION 
As set forth above, we find that the evidence of record does not sufficiently establish that the 
proffered position qualifies for classification as a specialty occupation. Accordingly, the appeal 
will be dismissed and the petition denied. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the 
immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 
Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.