dismissed H-1B Case: Medical Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8584677 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 29, 2020 
The Petitioner, a medical technology company, seeks to temporarily employ the Beneficiary as an 
"endoscope design engineer" under the H- IB nonimmigrant classification for specialty occupations. 1 
The H-IB 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 Vermont Service Center Director denied the petition, concluding that the Petitioner had not 
established that the proffered position is a specialty occupation. The AAO dismissed a subsequent appeal 
as moot, and the Petitioner filed a timely motion to reopen and reconsider. We will grant the motion and 
adjudicate the Petitioner's appeal on its merits. As we conclude that the proffered position is not a 
specialty occupation, the matter will be dismissed. 2 
I. SPECIALTY OCCUPATION 
Upon review of the record in its totality and for the reasons set out below, we conclude that the Petitioner 
has not demonstrated that the proffered position qualifies as a specialty occupation. The Petitioner has 
not established the substantive nature of the work to be performed by the Beneficiary, which precludes 
us from determining that the proffered position satisfies any of the regulatory specialty-occupation 
criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 3 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 110l(a)(l5)(H)(i)(b). 
2 A petitioner must establish that it meets each eligibility requirement of the benefit sought by a preponderance of the 
evidence. Matter of Chawathe, 25 I& N Dec. 369, 375-76 (AAO 2010) . 
3 The Petitioner submitted documentation to support the H- lB petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss evety document submitted, we have reviewed and considered each 
one. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutmy 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: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. 4 
B. Analysis 
On the labor condition application (LCA )5 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered "endoscope design engineer" position 6 under the occupational category 
4 See Royal Siam Corp. v. Cherto.ff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific 
specialty" as "one that relates directly to the duties and responsibilities of a particular position"). 
5 A petitioner submits the LCA to DOL to demonstrate that it will pay an H- lB worker the higher of either the prevailing 
wage for the occupational classification in the area of employment or the actual wage paid by the employer to other 
employees with similar duties, expenence, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.731(a). 
6 The Petitioner classified the proffered position at a Level I wage. A wage determination starts with an entty-level wage 
(Level I) and progresses to a higher wage level (up to Level IV) after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance. Nonagric. Immigration Programs (rev. Nov. 2009), available at 
2 
"Electronics Engineers, Except Computer" corresponding to the Standard Occupational Classification 
code 17-2072. 7 As the below discussion indicates, we conclude that the Petitioner has not established 
the substantive nature of the work that the Beneficiary will perform due to material inconsistencies in 
its description of the duties. The uncertain nature of the proffered position also raises doubts as to 
whether the LCA corresponds to and supports the petition as required. 
The Petitioner's position summary states, in verbatim: 
[The Beneficiary] will analyze the performance, conduct inspection, troubleshooting, 
modification and maintenance actlv1t1es of [ the Petitioner's] proprietary 
..._ ______ ____. endoscopes. He will also conduct analysis based on performance 
inspections and tests of the existing endoscopes and provide technical feedback to the 
team of medical scientists and senior engineers in conducting applied research inD 
endoscope engineering. 
The Petitioner stated that the minimum qualifications in order to perform the duties of the position 
require "a combination of Bachelor's degree or higher in Electronics Technology or equivalent 
combination of Academics and Professional Experience in electronics technology or biomedical 
engineering, including technical service, troubleshooting, repair and maintenance of biomedical 
imaging systems and their components, preferably D endoscopes." 
In its initial filing, the Petitioner provided an eight-bullet list of duties which may be paraphrased as: 
endoscope component performance care, including repair, modification, maintenance, and 
replacement; determining project feasibility based upon inspection test results; endoscope calibration; 
software and firmware updates and maintenance; preparing maintenance schedules; preparing 
operation and repair reports; discussing projects with engineers; and training other engineers on the 
maintenance, repair, and technical specifications of endoscopes. 
As described, these duties appear to require skills that could be learned in a vocational school or in 
on-the-job training. Therefore, the Director requested additional evidence to establish why duties such 
as inspect, test, analyze, maintain, repair, and calibrate, for example, required the services of someone 
with the Petitioner's stated minimum qualifications. The Director further requested additional 
evidence with which to establish that the primary duties of the proffered position fell within the 
"Electi·onics Engineers, Except Computer" category. In its response, the Petitioner provided 
additional information including the following percentage breakdown of the Beneficiary's time. 
35% - Design and Modify 
50% - Manufacture and [A]ssembly 
15% - Quality Assurance 
In its explanation of these percentages, the Petitioner provided new duties which were not 
previously articulated at the initial filing of the petition, including: 
http:/ /t1cdatacenter.com/download/NPWHC _Guidance_ Revised_ I I_ 2009 .pdf 
7 The Petitioner wrote "17-2075" on the LCA, however, we assume that this was a typographical error. 
3 
• [R]esearch development, manufacture, and evaluation of [the Petitioner's] endoscopes; 
• [D]esign of electrical components for medical applications; 
• [D]esign improvements; 
• [0]verseeing the manufacture and assembly of the specific □ endoscope component 
parts and subassemblies they are responsible for; 
• Streamlining manufacturing, assembly and procurement of components, parts and 
subassemblies and systems of the Oendoscopes; and 
• Design and development of assembly fixtures and tools. 
We note that none of the Beneficiary's duties as articulated in the original filing of the petition included 
design, assembly, procurement, or manufacturing. As such, the addition of these duties, marks a 
significant departure from that which the Petitioner initially stated. Though the Petitioner attempts to 
classify these new duties as additional detail on duties that were already articulated, we cannot agree 
with the Petitioner's reasoning. For example, the Petitioner states that the newly articulated design 
and modification responsibilities comprise the feasibility projects referenced at the initial filing. We 
conclude that this explanation is not credible. The significant design and modification responsibilities 
articulated in response to the RFE are clearly beyond the scope of general statements concerning 
determining project feasibility or discussing projects with engineers. As described, it appears that 
more than fifty percent of the Beneficiary's time will be spent on a series of distinctly new activities 
that were not captured at the initial filing of the petition. These inconsistencies in the description of 
the duties to be performed raise questions as to the substantive nature of the work that the Beneficiary 
will perform. 
Furthermore, it is well established that a petitioner may not make material changes to a petition in an 
effort to make a deficient petition confmm to users requirements. 8 Because a petitioner must 
establish that all eligibility requirements for the immigration benefit have been satisfied from the time 
of the filing and continuing through adjudication,9 a visa petition may not be approved at a future date 
after a petitioner or beneficiary becomes eligible under a new set of facts. 10 As such, eligibility for 
the benefit sought must be assessed and weighed based on the facts as they existed at the time the 
instant petition was filed. In order for a petitioner to comply with 8 e.F.R. § 103.2(b)(l) and users 
to perform its regulatory duties under 20 e.F.R. § 655. 705(b ), a petitioner must file an amended or 
new petition, along with a new LeA certified by D0L, in order to capture any material changes in 
terms or conditions of employment or the beneficiary's eligibility. 
In explaining the percentages above, the Petitioner extensively quoted the duties listed in the 
Department of Labor's (D0L) Occupational Outlook Handbook (Handbook}11 corresponding to the 
occupational category "Electrical and Electronics Engineers." The Petitioner repeatedly stated that 
the Beneficiary's duties are clearly those of an electronics engineer as described in the Handbook. 
8 See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
9 8 C.F.R. § 103.2(b)(l). 
10 See Matter of Michelin Tire C01p., 17 I&N Dec. 248 (Reg'l Comm'r 1978). 
11 We do not, however. maintain that the Handbook is the exclusive source of relevant information. The Handbook may 
be accessed at https://www.bls.gov. Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook. 
Electrical and Electronics Engineers, https://www.bis.gov/ ooh/ architecture-and-engineering/ electrical-and-electronics­
engineers. htm#tab-1 (last visited July 27. 2020). 
4 
However, in its RFE response, the Petitioner also repeatedly referenced the Handbook chapter on 
"What Biomedical Engineers Do," which is a separate occupational category. This raises questions 
as to whether the Petitioner classifies its position as falling within the category of biomedical engineers 
or of electrical and electronics engineers. Moreover, many of the duties as originally articulated appear 
to be similar to those of electrical and electronics engineering technicians 12 which are generally not 
specialty occupation positions. At minimum, this inconsistent information suggests that the Petitioner 
has not clearly defined its position, which prevents us from dete1mining its substantive nature. 
On appeal, the Petitioner argues that the Director failed to consider that the Petitioner filed the LCA 
under the category of "Electronic Engineer, Except Computer." Here, the Petitioner confuses the 
general category of occupations that encompass a variety of positions within the Handbook subchapter 
of "Electronics and Electrical Engineers" and the Department of Labor's Occupational Information 
Network (O*NET) summary report for "Electronic Engineer, Except Computer" under SOC code 17-
2072. 13 While the Handbook is an authoritative source on the duties and educational requirements of 
the wide variety of occupations that it addresses, O*NET is used to provide a framework for 
occupational information used in the labor certification process through its SOC code classifications. 14 
While the Handbook and O*NET both provide helpful information on duties, education, experience, 
and training, the Petitioner must nevertheless define its proffered position in a clear and consistent 
manner so that a proper determination can be made concerning the minimum qualifications for entry 
into the position, as well as the prevailing wage that would be associated with the proffered position. 
As such, in this case, the Petitioner cannot rely on either the Handbook or O*NET exclusively. 
Notwithstanding the confusion between these two sources of information, the Petitioner's statements 
on appeal appear to contradict that which it claimed in its RFE response. Specifically, the Petitioner 
stated in its RFE response that the proffered position's duties are clearly those of an electronics 
engineer as described in the Handbook, while the Petitioner states on appeal that the proffered position 
is not an electronics and electrical engineer. In other parts of the appeal, the Petitioner states that the 
proffered position has "aspects" of an electronics and electrical engineer position, but that a candidate 
in the proffered position "does not work as an Electronics and Electrical Engineer on a foll time basis." 
This language suggests that at least part of the time the proffered position's duties are within the 
electronics and electrical engineer occupational category. Taken together, however, these statements 
undermine our understanding of the nature of the proffered position. The Petitioner fails to define if 
and to what degree the proffered position falls within the designated occupational category, or whether 
it primarily fits within another category, or a combination of categories. 15 As we cannot ascertain 
what occupational categmy best captures the proffered position, we question whether the LCA 
corresponds to and supports the petition, as required. 
12 For more information, see https://www.bls.gov/ ooh/ architecture-and-engineering/ electrical-and-electronics­
engineering-technicians. htm#tab-1. 
13 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/ 
help/online/svp. 
14 Id. at Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _ Guidance_ Revised_ I I_ 2009.pdf 
15 The Petitioner must resolve this ambiguity in the record with independent, objective evidence pointing to where the trnth 
lies. MatterofHo, 19T&NDec.582,591-92(BTA 1988). 
5 
The uncertainty over whether the submitted LCA actually corresponds to and supports the H-lB 
petition does not end there, and this uncertainty further impedes our determination of the substantive 
nature of the position. As noted, the Petitioner selected the Level I wage as consonant with the job 
requirements, necessary experience, education, special skills/other requirements, and duties of the 
proffered position. 16 However, additional questions arise when examining the job postings submitted 
by the Petitioner on appeal and as part of its RFE response. While the Petitioner contends that these 
positions are parallel to the proffered position, all of the positions require experience beyond a 
bachelor's degree, including a minimum of two years, three years, three to five years, and six years, 
respectively. If these are parallel positions as claimed, then the Petitioner has not resolved how 
payment of a Level I wage to the Beneficiary correlates to the experience the position requires. 
In summary, the Petitioner has submitted inconsistent descriptions and evidence concerning the 
proposed position. These deficiencies obfuscate the actual substantive nature of the work to be 
perfmmed by the Beneficiary, which therefore precludes a conclusion that the proffered position 
satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). This is material because it is the substantive 
nature of that work that determines (1) the normal minimum educational requirement for entry into 
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. 
Upon review of the totality of the record, we cannot ascertain the Beneficiary's actual day-to-day 
duties or whether those duties encompass specialty occupation work. Accordingly, the record does 
not establish that the duties of the proposed position satisfy the statutory and regulatory definitions of 
a specialty occupation. 
II. BENEFICIARY QUALIFICATIONS 
Beyond the Director's decision, we further conclude that the record does not contain sufficient 
documentation to establish the Beneficiary's qualifications to perfmm services in a specialty 
occupation under section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2). 
A. Legal Framework 
The statutory and regulatory framework that we must apply in our consideration of the evidence of the 
Beneficiary's qualification to serve in a specialty occupation follows below. 
16 The employer's requirements for experience, education, training, and special skills shall be compared to those generally 
required for an occupation as described in O*NET. lfthere are any requirements above those generally required for an 
occupation, then one or more points should be added to the appropriate wage column(s). Id. at Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
https://flcdatacenter.com/download/NPWHC _Guidance_ Revised_ 11 _ 2009.pdf ( emphasis added). 
6 
Section 214(i)(2) of the Act, 8 U.S.C. § l 184(i)(2), states that an individual applying for classification 
as an H-lB nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (l)(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
In implementing section 214(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C) states that 
a beneficiary must also meet one of the following criteria in order to qualify to perform services in a 
specialty occupation: 
(J) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate 
or higher degree required by the specialty occupation from an accredited college 
or university; 
(3) Hold an unrestricted State license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately engaged 
in that specialty in the state of intended employment; or 
(4) Have education, specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree 
in the specialty occupation, and have recognition of expertise in the specialty 
through progressively responsible positions directly related to the specialty. 
In addition, 8 C.F.R. § 214.2(h)(4)(v)(A) states: 
General. If an occupation requires a state or local license for an individual to folly 
perform the duties of the occupation, an alien ( except an H-1 C nurse) seeking H 
classification in that occupation must have that license prior to approval of the petition 
to be found qualified to enter the United States and immediately engage in employment 
in the occupation. 
Therefore, to qualify a beneficiary for classification as an H-lB nonimmigrant worker under the Act, 
the petitioner must establish that the beneficiary possesses the requisite license or, if none is required, 
that the beneficiary has completed a degree in the specialty that the occupation requires. Alternatively, 
if a license is not required and if the beneficiary does not possess the required U.S. degree or its foreign 
degree equivalent, the petitioner must show that the beneficiary possesses both ( 1) education, 
7 
specialized training, and/or progressively responsible experience in the specialty equivalent to the 
completion of such degree, and (2) recognition of expertise in the specialty through progressively 
responsible positions relating to the specialty. 
In order to equate the Beneficiary's education, specialized training, and/or progressively responsible 
experience as equivalent to the completion of a to a U.S. baccalaureate or higher degree, the provisions 
at 8 C.F.R. § 214.2(h)(4)(iii)(D) require one or more of the following: 
(I) An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
which has a program for granting such credit based on an individual's training 
and/or work experience; 
(2) The results ofrecognized college-level equivalency examinations or special credit 
programs, such as the College Level Examination Program (CLEP), or Program 
on Noncollegiate Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 
( 4) Evidence of certification or registration from a nationally-recognized professional 
association or society for the specialty that is known to grant certification or 
registration to persons in the occupational specialty who have achieved a certain 
level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and 
that the alien has achieved recognition of expertise in the specialty occupation as 
a result of such training and experience .... 
Finally, in accordance with 8 C.F.R. § 214.2(h)(4)(iii)(D)(5): 
For purposes of determining equivalency to a baccalaureate degree in the specialty, 
three years of specialized training and/or work experience must be demonstrated 
for each year of college-level training the alien lacks ... It must be clearly 
demonstrated that the alien's training and/or work experience included the 
theoretical and practical application of specialized knowledge required by the 
specialty occupation; that the alien's experience was gained while working with 
peers, supervisors, or subordinates who have a degree or its equivalent in the 
specialty occupation; and that the alien has recognition of expertise in the specialty 
evidenced by at least one type of documentation such as: 
(i) Recognition of expertise in the specialty occupation by at least two 
8 
recognized authorities in the same specialty occupation; 17 
(ii) Membership in a recognized foreign or United States association or society 
in the specialty occupation; 
(iii) Published material by or about the alien in professional publications, trade 
journals, books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation in a foreign 
country; or 
(v) Achievements which a recognized authority has determined to be 
significant contributions to the field of the specialty occupation. 
By its very terms, 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) is a matter strictly for our application and 
determination, and that, also by the clear terms of the rule, experience will merit a positive 
determination only to the extent that the record of proceedings establishes all of the qualifying 
elements at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), including, but not limited to, a type of recognition of 
expertise in the specialty occupation. 
B. Analysis 
We conclude that the record does not sufficiently establish the Beneficiary's qualifications for the 
proffered position as the evidence does not satisfy any of the regulatory criteria set forth above. The 
record contains a foreign diploma in electronic and computer engineering awarded in May 2014 and 
an accompanying transcript to evidence three years of studfi towards this diploma. With these 
documents is an equivalency evaluation fro~~--~~- .......... Professor of Electrical Engineering at 
I I University. The record also contains a letter from the Beneficiary's supervisor at 
I I referencing work experience gained during the period of September 2014 to August 2017, 
as well as several certificates of training earned during this period. The Petitioner also submitted a 
letter froml I to evidence the Beneficiary's internship 
performing backend infrastructure for network visualization from March to August 2013. 
Although the academic equivalency evaluation states that the Beneficiary attended a bachelor's degree 
program afl 1University18 and completed his studies in 2015, 19 receiving a 
17 The term "recognized authority" means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. 8 C.F.R. § 214.2(h)(4)(ii). A recognized 
authority's opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such opinions, 
citing specific instances where past opinions have been accepted as authoritative and by whom; (3) how the conclusions 
were reached; and (4) the basis for the conclusions supported by copies or citations of any research material used. Id. 
18 A private, non-profit U.S. university according to the National Center for Education Statistics, College Navigator, 
https://nces.ed.gov/collegenavigator/?q~ l&s=all (last visited July 27, 2020) 
1~ t states in his evaluation that the Beneficiaty completed two years of academic study at ~I----~ 
University and was awarded his degree in 2015. As the Beneficiaiy earned his foreign diploma in May 2014, we question 
the accuracy ofl f's statements as to the duration of education at! l Furthermore, the Beneficiary's 
resume states that he achieved "Senior Standing" but it does not indicate that he graduated. 
9 
bachelor's of science degree, the record contains no diploma or transcript to evidence this education. 
Moreover, even if the record contained such evidence, this alone would not satisfy the requirements 
as the studies appear to be in the area of aeronautics, which does not appear to relate to the Petitioner's 
stated minimum requirements for entry into the proffered positon. 20 As such, the record contains 
insufficient evidence that the Beneficiary possesses a U.S. degree. Therefore, the record does not 
satisfy 8 C.F.R. § 214.2(h)(4)(iii)(C)(l). 
The record contains evidence that the Beneficiary holds a foreign diploma awarded in May 2014. We 
note that a foreign diploma is also not the equivalent to a foreign bachelor's degree. Furthermore, the 
academic equivalency evaluation accompanying this diploma and its corresponding transcript state 
that the Beneficiary completed the U.S. equivalent of three years of university-level academic studies 
in the area of electronic and computer engineering. As three years of university-level academic study 
is not equivalent to a United States baccalaureate 21 or higher degree required by the specialty 
occupation, the diploma does not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(C)(2). The record does not satisfy 
8 C.F.R. § 214.2(h)(4)(iii)(C)(3) because there is no indication that the Beneficiaiy holds an 
unrestricted State license, registration or certification which authorizes him to fully practice the 
specialty occupation and be immediately engaged in that specialty in the state of intended employment. 
This leaves 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) as the Petitioner's remaining path to satisfying the 
statutory and regulatory criteria. There are five alternative methods by which to satisfy 8 C.F.R. 
§ 214.2(h)(4)(iii)(C)(4), and those methods are set forth at 8 C.F.R. §§ 214.2(h)(4)(iii)(D)(l)-(5). The 
record, however, satisfies none of them. 
In examining criterion 8 C.F.R. §§ 214.2(h)(4)(iii)(D)(l), we read that I I "reviews" foreign 
credentials and transfer credit, that he "evaluate[s] such credentials and determine[s] whether! I D University is to award or recognize credit," as well as that he "has evaluated" experience and 
academic equivalence in order "to authorize awarding of credit byl O I University." Taken 
together, the information in the letter states that I I reviews and evaluates experience and 
education to authorize the university's awarding of credit. Thoug~ I may provide important 
input into the awarding of credit process on behalf of the university, the letter does not clearly state 
tha~ I himself authorizes the credit or that he has the authority to grant the credit. Moreover, 
the referenced program for awarding credit generally applies to matriculated students utilizing a work 
study program. The Petitioner has provided no evidence that the Beneficiary has matriculated at 
I I University or that his exprieoce and education fall within a work study program. 22 
Therefore, it cannot be stated that even ii lhad the authority to grant credit, that the training, 
experience, and education possessed by the Beneficiary would qualify for such credit. Regardless, the 
20 As previously stated, the Petitioner's minimum qualifications in order to perform the duties of the proffered position 
require "a combination ofBachelor's degree or higher in Electronics Technology or equivalent combination of Academics 
and Professional Experience in electronics technology or biomedical enginee1ing, including t~ical service, 
troubleshooting, repair and maintenance of biomedical imaging systems and their components, preferabl}l_Jendoscopes." 
21 U.S. bachelor's degrees are generally awarded following four years of full-time study. 
22 We acknowledge the information submitted concerning the "life-learning credit" awarded as pati ofl 
University's Adult Degree Program, however this program appears to be for matriculatedl 6 luniver .... s1-·ty-s-tu-d-en-ts_.· 
as well. As such, this method of awarding credit appears to be irrelevant for the purposes of awarding credit for the 
experience and education earned by the Beneficiary. 
10 
lack of analysis of the Beneficiary's work experience within the context in which ~I ----~ 
University actually issues college-level credit for work experience significantly diminishes the 
probative value o~ I's evaluation. For all of these reasons, we find his evaluation insufficient. 
We may, in our discretion, discount or give less weight to an evaluation of a person's foreign education 
where that opinion is not in accord with other information or is in any way questionable. 23 We exercise 
that discretion here and find that this evaluation does not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(D)(l). 
Nor is there sufficient evidence in the record to satisfy 8 C.F.R. §§ 214.2(h)(4)(iii)(D)(2), (3), or (4). 
We will therefore tum to 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) which, as noted above, grants us the 
authority to make our own determination on the Beneficiary's qualifications. The record is not 
sufficient to satisfy that criterion either, as neither the evaluations, the documents accompanying them, 
nor any other part of the record of proceedings provides sufficient work-experience evidence for us to 
reasonably conclude that the Petitioner has satisfied one of the requirements of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(D)(5)(i)-(v). 
It must be clearly demonstrated that the Beneficiary's training and/or work experience included the 
theoretical and practical application of specialized knowledge required by the specialty occupation 
and that the experience was gained while working with peers, supervisors, or subordinates who have 
a degree or its equivalent in the specialty occupation. Neither thd I letter, the accompanyin
9 training certificates, nor the letter evidencing a six-month internship with I J 
I I sufficiently establish that the work experience a._n_d_t_ra_i_n-in_g_m_e_e_t_s -th_t ...... s 
threshold. Moreover, the Petitioner has not provided sufficient evidence to establish that any of this 
experience satisfies one of the requirements of 8 C.F.R. § 214.2(h)(4)(iii)(D)(5)(i)-(v). 
Accordingly, we cannot conclude that the evidence of the Beneficiary's work experience qualifies for 
recognition of any years of college-level credit by correct application of the H-1 B beneficiary­
qualification regulations' "three-for-one" standard. Therefore, based upon the findings articulated 
above, we conclude that the totality of the evidence regarding the Beneficiary's foreign education and 
work experience does not satisfy any criterion at 8 C.F.R. §§ 214.2(h)(4)(iii)(C) and (h)(4)(iii)(D). 
III. CONCLUSION 
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. Further, the record does 
not sufficiently demonstrate that the Beneficiary is qualified to perform the duties of a specialty 
occupation position. 
The motion will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The motion is dismissed. 
23 Matter of Sea, Inc., 19 I&N Dec. 817, 820 (Comm'r 1988). 
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