dismissed H-1B Case: Neurotherapy

(b)(6)
DATE: JUN 1 9 2015 
INRE : Petitioner : 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service: 
Administrative Appeals Office 
20 Massachusetts Ave. , N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(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 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision· and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal 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 requirements. Please do not mail any motions directly to the AAO. 
\')>;~~ ; R~s:·~~~;g -
,)( Chief, Administrative Appeals Office 
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www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form 1-129) to the California 
Service Center. In the Form I-129 visa petition, the petitioner describes itself as a provider of 
neurotherapy, counseling and neurodevelopmental assessments established in In order to 
employ the beneficiary in what it designates as a neurotherapist position, the petitioner seeks to 
classify him as a nonjmmigrant worker m 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 reviewed the information and determined that the petitiOner had not established 
eligibility for the benefit sought. The Director denied the petition, concluding that the petitioner did 
not establish that the proffered position qualifies as a specialty occupation in accordance with the 
applicable statutory and regulatory provisions. 
The record of proceeding contains: (1) the petitioner's Form I-129 and supporting documentation; 
(2) the Director's request for evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the 
Director 's decision; and (5) the Notice of Appeal or Motion (Form I-290B) and supporting 
documentation. We reviewed the record in its entirety before issuing our decision.
1 
For the reasons that will be discussed below , we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. SPECIALTY OCCUPATION 
The primary issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. 
A Legal Framework 
For an H-1B petition to be granted, the petitioner must provide sufficient evidence to establish that 
it will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable 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 : 
1 We conduct appellat e review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
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(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) 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 pos1t1ons 
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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.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.F.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 wonld result in particular positions meeting a condition under 8 C.F.R. 
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§ 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), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 proffered 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"). Applying this standard, USCIS regularly approves H-1B 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-1B 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 
ultin1ate 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. 
In ascertaining the intent of a petitioner, USCIS looks to the Form I-129 and the documents filed in 
support of the petition. It is only in this manner that the agency can determine the exact position 
offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 C.P.R. 
§ 214.2(h)(9)(i), the Director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or she may independently require to assist his or her 
adjudication. Further, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-1B petition 
involving a specialty occupation shall be accompanied by [ d]ocumentation ... or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." 
B. Proffered Position 
In the support letter, the petitioner stated that the beneficiary will perform the following job duties 
in the proffered position: 
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[The beneficiary] will perform quantitative electroencephalographies (EEGs) on 
clients to obtain neuro-biofeedback. [The beneficiary] will be responsible for 
analyzing the EEG results, documenting client progress and arranging and 
determining future client needs. He will also prepare training materials for interns 
and apprenticeship training academy students, as well as researching and developing 
the technology and methodology for [the petitioner's] project 
implementation. 
The minimum educational requirement for this position is a bachelor['s] degree [in] 
physical therapy, occupational therapy, exercise physiology, sports medicine or a 
related health care field. 
In response to the Director's RFE, the petitioner also provided the following information about the 
proffered position: 
[The beneficiary} will also prepare clients for electrode cap placement and gather, 
record and analyze QEEG - (quantitative EEG data) as well implement 
protocol and surface eeg neuro-biofeedback sessions according to QEEG analysis. 
He will track client progress ranging from objective empirical data to subjective 
reports and communicate all data with supervising clinician. 
* * 
Daily Duties: 
1. 20% of time: Perform QEEG's on clients when appropriate. 
2. 50% of time: Run hour long Neuro-biofeedback sessions - up to 10 clients per 
day. 
3. 20% oftime: Document protocols and client progress. 
4. 10% of time: Arrange and determine follow:-up schedule. 
C. Material Finding --Beyond the Director's Decision 
As previously noted, the issue before us is whether the petitioner has provided sufficient evidence to 
establish that it would employ the beneficiary in a specialty occupation position. We will first make 
a preliminary finding that is material to this decision's application of the H-lB statutory and 
regulatory framework to the proffered position as described in the record of proceeding. 
In support of the petition, the petitioner submitted a Labor Condition Application (LCA) stating that 
the proffered position falls .under the occupational category "Health Diagnosing and Treating 
Practitioners, All Other" -SOC (ONET/OES) code 29-1199. The petitioner also stated in the LCA 
that the wage level for the proffered position was a Level I (entry level/ and claimed that the 
2 The wage levels are defined in the U.S. Department of Labor's (DOL) "Prevailing Wage Determination 
Policy Guidance." A Level I wage rate is describes as follows: 
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prevailing wage in , California) for the proffered position was 
$29,245 per year. The LCA was certified on March 21, 2014 and signed by the petitioner on March 
28,2014. 
In the appeal, for the first time, the petitioner states that it "would like to propose that the position 
be realigned with that of Occupational or Physical Therapist which requires a Master level degree." 3 
While the "Occupational Therapist," "Physical Therapist" and "Health Diagnosing and Treating 
Practitioners, All Other" occupational categories may have some general duties in common, they 
are distinct and separate occupational categories. When the duties of the proffered position involve 
more than one occupational category, DOL provides guidance for selecting the most relevant 
Occupational Information Network (O*NET) code classification. 
The "Prevailing Wage DeterminationPolicy Guidance" by DOL states the fol1owing: 
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 [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 [ detenniner] shall use the education, 
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 cons~dered. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available al 
http://www.foreigrrlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised _11_2009.pdf. 
3 It must be noted that when responding to a request for evidence (or when submitting an appeal), a petitioner 
cannot offer a new position to the beneficiary, materially change a position's associated job responsibilities, 
or alter the claimed occupational category of a position. The petitioner must establish that the position 
offered to the beneficiary when the petition was filed merits classification for the benefit sought. Matter of 
Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm'r 1978). If significant changes are made to the initial 
request for approval, the petitioner must file a new petition rather than seek approval of a petition that is not 
supported by the facts in the record. 
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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. 
Thus, if the petitioner believed its position falls under more than one occupational category, then 
according to DOL guidance the petitioner should have chosen the relevant occupational code for the 
highest paying occupation. The "Occupational Therapists" and "Physical Therapists" occupational 
categories have significantly higher prevailing wages than the occupational category "Health 
Diagnosing and Treating Practitioners, All Other." More specifically, the prevailing wage for 
"Occupational Therapists" was $78,354 per year and for "Physical Therapists" was $70,346 per year 
for a Level I position in the area of intended employment. Thus, the petitioner's offered wage to the 
beneficiary of $35,000 per year is significantly below the prevailing wage for the occupational 
categories "Occupational Therapists" and "Physical Therapists." 
Under the H-1B 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)(1)(A) of the Act, 
8 U.S.C. § 1182(n)(1)(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 his work, as required under the Act, if the petition were 
granted. Thus, for this reason also, the H-lB cannot be approved. 
D. Analysis 
In the instant case, the petitioner has provided inconsistent information regarding the occupational 
category for the proffered position and, consequently, the nature of the position. As the petitioner 
has not established the substantive nature of the work to be performed by the beneficiary, this 
precludes a 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. Thus, the petitioner has not 
established that the proffered position satisfies any of the applicable provisions. 
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A baccalaureate or higher degree in a specij[c specialty, or its equivalent, is normally the minimum 
requirement for entry into the particular position 
Nevertheless, we will continue our evaluation and analysis of the evidence provided by the 
petitioner. To that end, we will first discuss the record of proceeding in relation 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. 
USCIS recognizes DOL's Occupational Outlook Handbook (Handbook) as an authoritative source 
on the duties and educational requirements of the wide variety of occupations that it addresses. 4 As 
previously discussed, the petitioner asserted in the LCA that the proffered position corresponds to 
the occupational classification "Health Diagnosing and Treating Practitioners, All Other" - SOC 
(ONET/OES) code 29-1199. 
We reviewed the Handbook regarding the occupational category "Health Diagnosing and Treating 
Practitioners, All Other." However, the Handbook simply states, "All health diagnosing and 
treating practitioners not listed separately." The Handbook does not provide a detailed narrative 
account nor does it provide summary data for this occupational category. There is no information 
regarding the typical duties and responsibilities or on "the academic and/or professional 
requirements for these positions." Thus, the Handbook does not support the claim that the 
occupational category is one for which normally the minimum requirement for entry is a 
baccalaureate degree (or higher) in a specific specialty, or its equivalent. 
We note that there are occupational categories which are not covered in detail by the Handbook, as 
well as occupations for which the Handbook does not provide any information. The Handbook 
states the following about these occupations: 
Although employment for hundreds of occupations are covered in detail in the 
Occupational Outlook Handbook, this page presents summary data on additional 
occupations for which employment projections are prepared but detailed 
occupational infomiation is not developed. For each occupation, the Occupational 
Information Network (O*NET) code, the occupational definition, 2012 employment, 
the May 2012 median annual wage, the projected employment change and growth 
rate from 2012 to 2022, and education and training categories are presented. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Data for Occupations Not Covered in Detail," available at http://www.bls.gov/ooh/About/Data-for­
Occupations-Not-Covered-in-Detail.htm (last visited June 10, 2015)_ 
4 
All references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet site 
http://www. bls.gov lOCO/. 
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Thus, the narrative of the Handbook indicates that there are many occupations for which only brief 
summaries are presented and that detailed occupational profiles for these occupations are not 
developed. 5 The Handbook suggests that for at least some of the occupations, little meaningful 
information could be developed. 
Accordingly, in certain instances , the Handbook is not determinative. 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 the statutory and regulatory 
provisions, including 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 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. 6 
Upon review of the record, we find that the petitioner has not done so in the instant case. That is, 
the petitioner has not submitted probative evidence that normally the minimum requirement for 
positions falling under the occupational category "Health Diagnosing and Treating Practitioners, All 
Other" is at least a bachelor's degree in a specific specialty, or its equivalent. Even if it did, the 
record lacks sufficient evidence to support a finding that the particular position proffered here 
would nonnally have such a minimum, specialty degree requirement or its equivalent. 
In the instant case, the duties and requirements of the position as described in the record of 
proceeding do not indicate that this particular position 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.P.R . 
§ 214.2(h)(4)(iii)(A)(l). 
5 
We note that occupational categories for which the Handbook only includes summary data includes a range 
of occupations, including for example, postmasters and mail superintendents; agents and business managers 
of artists, performers, and athletes; farm and home management advisors; audio visual and multimedia 
collections specialists; clergy; merchandise displayers and window trimmers; radio operators; first-line 
supervisors of police and detectives; crossing guards; travel guides; agricultural inspectors, as well as others. 
6 
The printouts from the Biofeedback Certification International Alliance (BCIA) website are acknowledged; 
however , as discussed below , these docum ents indicate that a bachelor's degree in disparate fields would be 
acceptable. 
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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 in a specific specialty, or its equivalent 
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 petiboner 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 professiomtl 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 independent, authoritative source) reports a standard 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, the petitioner did not submit 
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 support of the assertion that the proffered position qualifies as a specialty occupation under this 
criterion of the regulations, the petitioner submitted printouts from the Biofeedback Certification 
International Alliance (BCIA) website. Notably, BCIA indicates the following: 
Requirements for Neurofeedback Certification 
Prerequisite Education 
Candidates· are required to hold a bachelor degree or higher from a regionally 
accredited academic institution, in a BCIA approved health care field. Licensed RNs 
are accepted with an AA degree. BCIA approved health care fields include: 
psychology, nursing, (including two-year registered nurses with license, not LVNs or 
LPNs), physical therapy, occupational therapy, social work, counseling, 
rehabilitation, chiropractic, recreational therapy, physician's assistant (with 
certification or license), exercise physiology, speech pathology, and sports medicine. 
The printout indicates that a bachelor's degree in disparate fields is acceptable for candidates 
applying for certification, and that in some instances, an associate's degree is sufficient. 7 The 
7 In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum of a 
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evidence does not support the assertion that at least a bachelor's degree in a specific specialty, or its 
equivalent is required. 
In addition, the petitioner submitted articles from the 
However, the documents do not indicate that 
a bachelor's degree in a specific specialty, or its equivalent, is required for entry into the occupation. 
Thus, based upon a complete review of the record, the petitioner has not established that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common to 
the petitioner's industry in positions that are (1) in the petitioner's industry, (2) parallel to the 
proffered position, and also (3) located in organiza6ons that are similar to the petitioner. For the 
reasons discussed above, the petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
We \Vill 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. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
petitioner described the proffered position and its business operations. In addition, the petitioner 
bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in the specific 
speciaJty (or its equivalent)" requirement of section 214(i)(l)(B) of the Act. In such a case, the required 
"body of highly specialized knowledge" would essentially be the same. Since there must be a close 
correlation between the required "body of highly specialized knowledge" and the position, however, a 
minimum entry requirement of a degree in disparate fields, such as philosophy and engineering, would not 
meet the statutory requirement that the degree be "in the specific specialty (or its equivalent)," unless the 
petitioner establishes how each field is directly related to the duties and responsibilities of the particular 
position such that the required "body of highly specialized knowledge" is essentially an amalgamation of 
these different specialties. Section 214(i)(l)(B) of the Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," we do not 
so narrowly interpret these provisions to exclude positions from qualifying as specialty occupations if they 
permit, as a minimum entry requirement, degrees in more than one closely related specialty. See section 
214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes even seemingly disparate specialties 
providing, again, the evidence of record establishes how each acceptable, specific field of study is directly 
related to the duties and responsibilities of the particular position. 
Again, the petitioner provided a printout regarding certification indicating that an associate's or a bachelor's 
degree is sufficient, and that a range of disciplines is acceptable for candidates, including psychology, 
nursing, physical therapy, occupational therapy, social work, counseling, rehabilitation, chiropractic, 
recreational therapy, physician's assistant, exercise physiology, speech pathology, and sports medicine. 
Without more, it is not readily apparent that these fields of study are closely related or that all of these fields 
are directly related to the duties and responsibilities of the particular position proffered in this matter. 
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submitted its financial documents, abusiness proposal, and a " 
' regarding its biofeedback sessions. 
Upon review, we find that the petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. For instance, 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 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 does not establish which of the duties, if any, of the proffered position would be so 
complex or unique as to be distinguishable from those of similar but non-degreed or non-specialty 
de greed employment. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
As previously mentioned, the LCA indicates a wage level at a Level I (entry) wage, which is the 
lowest of four assignable wage levels. The wage-level of the proffered position indicates that 
(relative to other positions falling under this occupational category) the beneficiary is only required 
to have a basic understanding of the occupation; that he will be expected to perform routine tasks 
that require limited, if any, exercise of judgment; that he will be closely supervised and his work 
closely monitored and reviewed for accuracy; and that he will receive specific instructions on 
required tasks and expected results. DOL guidance indicates that a Level I designation is 
appropriate for a research fellow, a worker in training, or an internship. This designation suggests 
that the beneficiary will serve in a low-level position relative to others within the occupational 
category. 
Without further evidence, it is not credible that the petitioner's proffered position is complex or 
unique as such a position falling under this occupational category would likely be classified at a 
higher-level, such as a Level III (experienced) or Level IV (fully competent) position, requiring a 
significantly higher prevailing wage. 8 For example, a Level IV (fully competent) position is 
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. 
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designated by DOL for employees who "use advanced skills and diversified knowledge to solve 
unusual and complex problems. "9 
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. 
The petitioner claims that the beneficiary is well qualified for the position, and references his 
qualifications. However, the test to ~stablish 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 satisfied the 
second alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
The employer normally requires a degree in a specific specialty, 
or its equivalent, for the position 
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. To 
this end, we review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of t~e regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely 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 a 
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 artificially 
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 equ~valent. See Defensor 
v. Meissner, 201 F.3d at 388. In other words, if a petitioner's stated degree requirement is only 
designed to artificially meet the standards for an H-lB visa and/or to underemploy an individual1in 
a position for whkh he or she is overqualified and if the proffered position do.es not in fact require 
such a specialty degree or its equivalent, to perform its duties, the occupatioh would not meet the 
9 For additional information regarding wage levels as defined by DOL, 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. 
(b)(6)
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statutory or regulatory definition of a specialty occupation. See § 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show 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 F. 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 as the minimum for entry into the occupation as required by the Act. To interpret 
the regulations any other way would lead to absurd results: 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. at 388. 
The petitioner stated in the Form I-129 petition that it has two employees and was established in 
2013 (approximately one year prior to the filing of the H-lB petition). However, upon review of 
the record, the petitioner did not provide documentary evidence regarding current or past 
recruitment efforts for this position. Furthermore, the petitioner did not submit any information 
regarding employees who currently or previously held the position. The record does not establish a 
prior history of recruiting and hiring for the proffered position only persons with at least a 
bachelor's degree in a specific specialty, or its equivalent. 
Upon review of the record, the petitioner has not provided probative evidence to establish that it 
normally requires at least a bachelor's degree in a specific specialty, or its equivalent, for the 
proffered position. Thus, the petitioner has not satisfied the third criterion of 8 C.P.R. 
§ 214.2(h)( 4 )(iii)(A). 
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.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. 
The petitioner claims that the nature of the specific duties of the position in the context of its 
business operations is so specialized and complex that the knowledge required to perform them is 
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usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. Vt/e reviewed the petitioner's statements and documentation regarding the proffered 
position and its business operations. However, relative specialization and complexity have not been 
sufficiently developed by the petitioner as an aspect of the proffered position. That is, the proposed 
duties have not been described with sufficient specificity to establish that they are more specialized 
and complex than positions that are not usually associated with at least a bachelor's degree in a 
specific specialty, or its equivalent. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (out of four 
assignable wage-levels) relative to others within the occupational category. Hence, without more, 
the position is one not likely distinguishable by relatively specialized and complex duties. That is, 
without further evidence, the petitioner has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position would likely be classified at a higher-level, such 
as a Level III (ex~erienced) or Level IV (fully competent) position, requiring a substantially higher 
prevailing wage. 1 
Although the petitioner asserts that the nature of the specific duties. is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the petitioner has submitted inadequate 
probative evidence to satisfy the criterion of the regulations at 8 C.P.R.§ 214.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the petitioner has not established that it bas 
satisfied 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 as a specialty occupation. The appeal will be dismissed and the 
petition denied. 
III. . CONCLUSION AND ORDER 
An application or petition that does not comply·with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345· F.3d 683 (9th· Cir. 2003); see also Soltane v. DO.J, 381 F.3d 143, 145 (3d Cir. 
2004) (noting thatthe AAO conducts appellate review on a de novo basis). 
Moreover, \vhen we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, affd. 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Cornm'n, 351 F.3d 1177, 1183 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
10 As previously discussed, a Level IV (fully competent) position is designated by DOL for employees who 
"use advanced skills and diversified knowledge to solve unusual and complex problems" and requires a 
significantly higher wage. 
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NON-PRECEDENT DECISION 
Page 16 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
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 of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 11 
ORDER: The appeal is dismissed. 
11 As the identified ground for denial is dispositive of the petitioner's continued eligibility, we need not 
address any additional issues in the record of proceeding.