dismissed H-1B Case: Law

MATTER OF P-&A-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 8, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a creditor rights iaw firm, seeks to temporarily employ the Beneficiary as a "law 
clerk" under the H-1B nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 
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, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not established that the proffered position qualifies as a specialty occupation in 
accordance with the applicable statutory and regulatory provisions. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
her decision. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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. 
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: 
Matter of P-&A-, LLC 
(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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.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 proposed 
position. See Royal Siam Corp. v. Cherto,[f, 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 on the Form I-129, Petition for a Nonimmigrant Worker, that the Beneficiary 
will work full-time as a law clerk. In response to the Director's request for evidence (RFE), the 
Petitioner submitted a detailed description of the proffered position, as follows (verbatim): 
Researches, synthesizes, analyzes and applies primary, secondary and tertiary law 
sources such as statutes, recorded judicial decisions, legal articles, treaties, 
Constitutions, and authoritative legal codes. (20%) 
Prepares, drafts, proofs, reviews and timely files legal documents such as: Affidavits, 
briefs; pleadings; motions; discovery requests; appeals; contracts; agreements; 
memorandums; certificates of judgments; Entries; and, Orders for review, approval, 
and use by Lawyers and Courts. (15%) 
Appraises, examines and reviews debtors' assets, including real and personal 
property, for pre-suit review and post-judgment execution recommendations to the 
Lawyers. (1 0%) 
Investigates facts and applies the relevant law in a given case file to determine causes 
of action and to prepare a case filing accordingly. (1 0%) 
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Matter of P-&A-, LLC 
Directs the delivery of subpoenas to witnesses, 3rd parties and/or parties to an action. 
(8%) 
Timely communicates (within twenty-four (24) hours at a maximum) with clients and 
Lawyers in response to all queries and requests. (12%) 
Manages the Bankruptcy portfolio. Monitors and prepares necessary Bankruptcy 
filings, drafts responses to Objections and Lien Avoidances, drafts Complaints to 
determine dischargeability, reviews files to determine dischargeability and makes 
recommendations to the Lawyer. (2%) 
Makes recommendations for suit or closing to attorneys. Applies applicable statutes 
to fact to determine likelihood of litigation success and researches claimant's assets 
and liabilities to determine if collection is likely to be successful. ( 10%) 
Assists with the Workers Compensation portfolio. Analyze complex medical 
litigation files, prepare pleadings, research and draft complex legal briefs. (2%) 
Timely and accurately communicates with law firm clients and Courts. (10%) 
Other duties may be assigned. ( 1%) 
According to the Petitioner, the proffered position requires at a minimum a master's degree in law or 
a juris doctor (JD) degree. 
III. ANALYSIS 
On appeal, the Petitioner asserts that the Director erred in its decision concluding that that the 
Petitioner had not established eligibility for the H-1B petition to be approved. 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.
1 
Specifically, the record 
does not establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation? 
On the labor condition application (LCA) submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Judicial Law Clerks" 
corresponding to the Standard Occupational Classification (SOC) code 23-1012.
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The U.S. 
1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
2 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 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
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Matter of P-&A-, LLC 
Department of Labor's (DOL) Occupational Outlook Handbook states that judicial law clerks 
"[a]ssist judges in court or by conducting research or preparing legal documents. Excludes 
'Lawyers' (23-1011) and 'Paralegals and Legal Assistants' (23-2011)."4 However, the evidence of 
record does not support the assertion that the Beneficiary will be assisting a judge. In fact, the 
Petitioner states on appeal that the proffered position "is not for a Judicial Law Clerk," but for a law 
clerk position. The Petitioner further states that there is no corresponding SOC code for the position 
of "law clerk," and claims that the occupation of judicial law clerk as contemplated under SOC code 
23-1012 was the closest occupation to the proffered position. 
Upon review, we find that the Petitioner has not provided sufficient evidence to demonstrate that its 
law clerk position has the same or similar duties, tasks, knowledge, work activities, etc. that are 
generally associated with "Judicial Law Clerks." As the Petitioner has not demonstrated that the 
proffered position falls under the occupational category of "Judicial Law Clerks," we will not further 
address this occupational category as it is not relevant to this proceeding. 
We will now review the record of proceedings in its entirety to determine whether the proffered 
position as described otherwise qualifies a specialty occupation. 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), 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. 
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. 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. 
consider this selection in our analysis of the position. 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. 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 the Beneficiary will 
be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she will be closely 
supervised and her work closely monitored and reviewed for accuracy; and (3) that she 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://flcdatacenter.com/download/ 
NPWHC_Guidance_Revised_11_2009.pdf 
4 For additional information regarding the occupational category "Judicial Law Clerks," see U.S. Dep't of Labor, Bureau 
of Labor Statistics, Occupational Outlook Handbook, 2016-2017 ed., Judicial Law Clerks, available at 
http://www.bls.gov/oes/current/oes231012.htm (last visited Aug. 3, 2016). 
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(b)(6)
Matter~~ P-&A-, LLC 
We acknowledge the Petitioner's submission of the Occupational Information Network (O*NET) 
OnLine Summary Report for the "Judicial Law Clerks" occupational category in support of the 
assertion that the occupation, and the proffered position by extension, requires at least a bachelor's 
degree, or its equivalent, for entry into the occupation. However, as previously discussed, the 
Petitioner has not demonstrated that the proffered position is akin to that of a judicial law clerk as 
described by the O*NET summary report. Therefore, the O*NET information submitted by the 
Petitioner is not probative of the proffered position's being a specialty occupation. 
The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Thus, the Petitioner has 
not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
contemplates 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. 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative source) reports an industry-wide 
requirement for at least a bachelor's degree in a specific specialty or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. Also, there are no submissions 
indicating that any professional association of paralegal and legal assistants has made a degree a 
minimum entry requirement. Furthermore , the record of proceedings does not contain any letters or 
affidavits from similar firms or individuals in the Petitioner ' s industry attesting that such firms 
"routinely employ and recruit only degreed individuals" in parallel positions. 
In support of this criterion, the Petitioner submitted copies of job announcements placed by other 
employers. However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements is misplaced. First, we note that some of the job postings do not appear to involve 
organizations similar to the Petitioner. For example, the Petitioner is a 17-person law firm, whereas 
the advertising organizations include: 
• Illinois' Department of Law; 
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(b)(6)
Matter of P-&A-, LLC 
• 
• 
• 
and 
- an 
worldwide. 
company with and 
Furthermore , one of the postings appears to be for a staffing agency that provides no information 
regarding the hiring employer. The Petitioner did not supplement the record of proceedings to 
establish that the advertising organizations are similar to it. 
When determining whether the Petitioner and the organization share the same general 
characteristics, such factors may include information regarding the nature or type of organization, 
and, when pertinent, the particular scope of operations, as well as the level of revenue and staffing 
(to list just a few elements that may be considered). It is not sufficient for the Petitioner to claim that 
an organization is similar and in the same industry without providing a legitimate basis for such an 
assertion. 
Moreover, many of the advertisements do not appear to be for parallel positions. Furthermore, some 
of the postings do not include the duties and responsibilities for the advertised positions. Thus, it is 
not possible to detennine important aspects of the jobs, such as the day-to-day responsibilities, 
complexity of the job duties, supervisory duties (if any), independent judgment required or the 
amount of supervision received. Therefore, the Petitioner has not sufficiently established that the 
primary duties and responsibilities of the advertised positions are parallel to the proffered position. 
In addition, none of the postings indicate that at least a bachelor 's degree in a directly related 
specific specialty (or its equivalent) is required. 5 The job postings suggest, at best, that although a 
bachelor's degree is sometimes required for law clerk positions, a bachelor's degree in a specffic 
specialty (or its equivalent) is not. 6 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. That is, not every deficit of every job posting has been addressed. Thus , the Petitioner 
has not satisfied the first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
5 As discussed , the degree requirement set by the statutory and regulatory framework of the H-1 8 program is not just a 
bachelor's or higher degree , but a bachelor's degree in a specific specialty that is directly related to the duties of the 
position. See section 214(i)(l)(b) ofthe Act and 8 C.F.R . § 214.2(h)(4)(ii). 
6 lt must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a specific 
specialty is common to the industry in parallel positions among similar organizations (which they do not), the Petitioner 
has not demonstrated what statistically valid inferences , if any, can be drawn from the advertisements with regard to 
determining the common educational requirements for entry into parallel positions in similar organizations. See 
generally Earl Babbie , The Practice of Social Research 186-228 ( 1995) . Moreover , given that there is no indication that 
the advertisements were randomly selected, the validity of any such inferences could not be accurately determined even 
if the sampling unit were sufficiently large . See id. at 195-196 (explaining that "[r]andom selection is the key to [the] 
process [of probability sampling]" and that "random selection offers access to the body of probability theory, which 
provides the basis for estimates of population parameters and estimates of error "). 
Matter ofP-&A-, LLC 
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 reviewed the Petitioner's statements regarding the proffered position; however, in the appeal 
brief, the Petitioner does not assert that it satisfies this prong of the second criterion. Further, the 
Petitioner has not sufficiently developed relative complexity or uniqueness as an aspect of the 
proffered position. Thus, 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. 
Evidence provided in support of this criterion may include, but is not limited to, documentation 
regarding the Petitioner's past recruiting and hiring practices, as well as information regarding 
employees who previously held the position. 7 
Upon review of the record, we find that the Petitioner did not submit information regarding 
employees who currently or previously held the proffered position. The record does not establish 
that the Petitioner normally requires at least a bachelor's degree in a specific specialty, or its 
equivalent, directly related to the duties of the position. Thus, the Petitioner has not satisfied the 
third criterion of 8 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. 
7 To merit approval of the petition under this criterion, the record must establish that a petitioner's imposition of a degree 
requirement is not a matter of preference for high-caliber candidates but is necessitated by performance requirements of 
the position. While a petitioner may assert that a proffered position requires a specific degree, that statement alone 
without corroborating evidence cannot establish the position as a specialty occupation. Were USCIS limited solely 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, 
whereby all individuals employed in a particular position possessed a baccalaureate or higher degree in the specific 
specialty, or its equivalent. See Defensor v. Meissner, 20 I F.3d at 388. 
Matter of P-&A-, LLC 
In support of this criterion, the Petitioner provided descriptions of the duties of the proffered position 
and information regarding its business operations. The Petitioner asserts that the proffered position 
is a highly specialized and complex position. However, the evidence of record does not sufficiently 
establish that the duties of the proffered position are more specialized and complex than those not 
usually associated with at least a bachelor's degree in a specific specialty, or its equivalent. 
For instance, the Petitioner states that as a creditor rights law firm, it primarily handles collections 
and subrogation cases, and claims that the Beneficiary's legal education qualifies her to perform the 
complex duties associated with the Petitioner's line of work. Nevertheless, the Petitioner has not 
adequately explained how its particular operations distinguish and elevate the proffered position 
from other similar positions, particularly as the proffered position has been designated at a Level I 
wage rate. As discussed earlier, this designation indicates that the proffered position is a low-level, 
entry position relative to others within the occupational category.8 
In response to the RFE, the Petitioner highlighted several courses the Beneficiary completed, such as 
US Legal Writing, Patent Law, Copyright Law, US Contract Law, and Law of the Visual Arts, and 
notes that her "advanced legal education and classes she took" will enable her to perform the 
complex duties of the proffered position. The Petitioner, however, does not specifically identify and 
explain why these courses would be required to perform the duties of the proffered position. The 
Petitioner did not submit information relevant to a detailed course of study leading to a specialty 
degree and did not establish how such a curriculum is necessary to perform the duties it may believe 
are so complex and unique. While a few related courses may be beneficial in performing certain 
duties of the position, the Petitioner has not demonstrated how an established curriculum of such 
courses leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is 
required to perform the duties of the proffered position. The record lacks sufficiently detailed 
information to distinguish the level of judgment and understanding necessary to perform the duties 
as specialized and complex. 
In addition, the Petitioner claims that the Beneficiary is well qualified for the pos1t10n, and 
references her 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 has not 
8 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 if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
Matter of P-&A-, LLC 
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 of the 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. NON-CORRESPONDING LCA 
Beyond the decision of the Director, the petition cannot be approved because the Petitioner has not 
provided a certified LCA that corresponds to the petition. As previously noted, the LCA provided in 
support of the instant petition was certified for employment of a position described as a judicial law 
clerk under SOC code 23-1012 in O*NET. However, despite the Petitioner's assertions to the 
contrary, we have found that the proffered position is not such a position. The Petitioner was 
required to provide at the time of filing an LCA certified for the proper occupational category. 
USCIS 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 for H-1B visa classification. See 20 C.F.R. 
§ 655.705(b). Here, the Petitioner has not submitted a valid LCA that has been certified for the 
proper occupational classification, and the petition cannot be approved for this additional reason. 
V. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 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 o.fOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-&A-, LLC, ID# 17996 (AAO Aug. 8, 2016) 
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