dismissed H-1B Case: Law

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-M-, LLP 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 22, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an immigration law firm, seeks to temporarily employ the Beneficiary as a "law 
clerk" under the H-lB 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 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, Vermont Service Center, denied the petltton. 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 submits additional evidence and 
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 M-M-, LLP 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). 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. 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-18 petition, the Petitioner stated that the Beneficiary will serve as a "law clerk." In 
response to the Director's request for evidence (RFE), the Petitioner provided the following job 
duties for the position (verbatim): 
• Research legal immigration issues affecting clients (25% of time) 
• Draft memos for attorney review for filing (20%) 
• Prepare immigration applications under attorney supervision (20%) 
• Draft memos on various legal issues for internal firm use (15%) 
• Analyze U.S. immigration laws and Chinese laws (10%) 
• Attend Immigration Team and general staff meetings (l 0%) 
According to the Petitioner, the position requires a juris doctorate degree or a master of laws degree. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position satisfies any of the criteria at 8 C.F .R. 
§ 214.2(h)( 4)(iii)(A) and, therefore, qualifies as a specialty occupation. Specifically, the record (I) 
provides inconsistent information regarding the position; and (2) does not establish that the job 
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Matter of M-M-, LLP 
duties require an educational background, or its equivalent, commensurate with a specialty 
. I 
occupatron. 
On the labor condition application (LCA) submitted in support of the H-IB petition, the Petitioner 
designated the proffered position under the occupational category "Judicial Law Clerks" 
corresponding to the. Standard Occupational Classification code 23-1012 2 The U.S. 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· (23-1 011) and 
'Paralegals and Legal Assistants' (23-2011)." 3 However, the evidence of record does not support the 
assertion that the Beneficiary will be assisting a judge. Rather, the Beneficiary will be employed to 
assist attorneys and other legal staff at a law firm. Further, while the Petitioner states on appeal that 
"the proffered Law Clerk position is more sophisticated and complex than a Paralegal and Legal 
Assistant position and more closely resembles a Lawyer position"; however, attorneys and 
paralegals/legal assistants are specifically excluded from the "Judicial Law Clerks" occupational 
category. 4 
Moreover, if the duties of the proffered position involve more than one occupational category (i.e., 
"Paralegals and Legal Assistants" and "Lawyers"), the U.S. Department of Labor (DOL) provides 
guidance for selecting the most relevant category. More specifically, the "Prevailing Wage 
Determination Policy Guidance" by DOL 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. 
1 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position. While we may not discuss every document submitted, we have reviewed and considered each one. 
2 The Petitioner classified the proffered position at a Levell wage (the lowest of four assignable wage levels). We will 
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 perfonn 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 II 2009.pdf 
3 For additional inf~rmation regarding the occupational category "Judicial Clerks," see U.S. Dep't of Labor, Bureau of 
Labor Statistics, Occupational Outlook Handbook, 2016-2017 ed., Judicial Clerks, available at 
http://www.bls.gov/oes/current/oes231 012.htm (last visited July 21, 20 16). 
4 The occupational categories "Judicial Law Clerks," "Paralegals and Legal Assistants," and "Lawyers" are distinct and 
separate occupational categories. On appeal, the Petitioner cannot offer a new position to the Beneficiary, or materially 
change a position's level of authority within the organizational hierarchy, the associated job responsibilities, or the 
requirements of the position. The Petitioner must establish that the position offered to the Beneficiary when the petition 
was filed merits classification for the benefit sought. See Matter of Michelin Tire Corp., 17 !&N Dec. 248, 249 (Reg'! 
Comm'r 1978). A petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USC!S requirements. See Matter of!zummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
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(b)(6)
Matter of M-M-, LLP 
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 [determiner] 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 [determiner] shall use the education, skill and 
experience levels for the higher paying occupation when making the wage level 
determination. 
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. 
If the Petitioner believed its position falls under more than one occupational category, it should have 
chosen the relevant occupational code for the highest paying occupation. For example, at the time 
the Petitioner's LCA was certified, the Level I prevailing wage for "Lawyers" in the area of intended 
employment was $73,466 per year, which is significantly higher than the prevailing wage for 
"Paralegals and Legal Assistants"- and for "Judicial Law Clerks."5 
Under the H-lB program, a petitioner must offer a beneficiary wages that are at least the actual wage 
level paid by a 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 
offiling the application. See section 212(n)(l)(A) ofthe Act, 8 U.S.C. § 1182(n)(l)(A). 
As such, the Petitioner has not established (1) that it submitted a certified LCA that properly 
corresponds to the claimed occupation and duties of the proffered position; and (2) that it would pay 
the Beneficiary an adequate salary for her work, as required under the Act, if the petition were 
granted. These issues preclude the approval of the petition. 
Moreover, the description of the Beneficiary's duties, as provided by the Petitioner, lack the 
specificity and detail necessary to support the Petitioner's contention that the position is a specialty 
occupation. While a generalized description may be appropriate when defining the range of duties 
that are performed within an occupation, such generic descriptions generally cannot be relied upon 
by the Petitioner when discussing the duties attached to specific employment for H -18 approval. In 
establishing such a position as a specialty occupation, the description of the proffered position must 
include sufficient details to substantiate that the Petitioner has H-1 B caliber work for the 
5 For more infonnation regarding the wages for "Lawyers" 
Metropolitan Statistical Area for the 
http://www.flcdatacenter.com/OesQuickResults.aspx?code~ 
21,20 16). 
4 
- SOC (ONET/OES Code) 23-1011, in the NY 
period 7/2014 6/2015, see 
&year= 15&source=l (last visited July 
····-····-··--·--··---·····-·····---·-----------------------------------
Matter of M-M-, LLP 
Beneficiary. Here, the job description does not communicate (I) the actual work that the 
Beneficiary would perform on a day-to-day basis; (2) the complexity, uniqueness and/or 
specialization of the tasks; and/or (3) the correlation between that work and a need for a particular 
level education of highly specialized knowledge in a specific specialty. 
The Petitioner, thus, has not established the substantive nature of the work to be performed by the 
Beneficiary. We are therefore precluded from finding that the proffered position satisfies any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 
2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization 
and complexity of the specific duties, which is the focus of criterion 4. Considering all of the 
evidence, we cannot conclude that the petition and LCA accurately reflect the substantive nature of 
the work to be performed by the Beneficiary. 
IV. CONCLUSION 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. The burden is on the Petitioner to show eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter M-M-, LLP, ID# 17198 (AAO July 22, 2016) 
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