dismissed H-1B Case: Procurement

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
CENTER Date: =% 3 11 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b) 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The director of the California Service Center denied the nonimmigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The 
petition will be denied. 
The petitioner is a supplier of goods and services to the Federal Government, with 35 employees. It seeks to 
employ the beneficiary as a bidding analyst pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 llOl(a)(lS)(H)(i)(b). The director denied the petition based on his 
determination that the proffered position was not a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's notice of intent to deny; (3) the petitio~er's response to the director's notice; (3) the director's 
denial letter; and (4) Form I-290B, with former counsel's statement. The AAO reviewed the record in its 
entirety before reaching its decision. 
The issue before the AAO is whether the petitioner's proffered position qualifies as a specialty occupation. 
To meet its burden of proof in this regard, a petitioner must establish that the job it is offering to the 
beneficiary meets the following statutory and regulatory 'requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1184(i)(l) defines the term 
"specialty occupation" as one 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 occbRation in the United States. 
The term "specialty occupation" is further defined at 8 C.F.R. 5 214.2(h)(4)(ii) as: 
An occupation which 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 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. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the parhcular 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 
Page 3 
(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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
To determine whether a particular job qualifies as a specialty occupation, CIS 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. CIS must examine the ultimate employment of the 
alien, and determine whether the position qualifies as a specialty occupation. C$ Defensor v. Meissner, 201 
F. 3d 384 (5th Cir. 2000). 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. 
The petitioner states that it is seeking the beneficiary's services as a bidding analyst. Evidence of the 
beneficiary's duties includes: the Form 1-129; a ~anuary 20, 2003 letter of support from the petitioner 
submitted at the time of filing; and the petitioner's July 10, 2003 response to the director's notice of intent to 
deny. 
As described by the petitioner in response to the director's notice of intent to deny, the beneficiary would be 
required to: 
Automate its operations, following an' analysis of its business needs; and negotiate with 
suppliers, manufacturers, traders and producers to meet the requirements of U.S. government 
agencies, scrutinizing the quantity, quality, size and dimensions, make, model, price and 
other specifications of ordered materials; 
Electronically search for federal agency orders (through CBDisk) and research prospective 
suppliers of materials or services requiredhy current or future contracts; 
Review and analyze federal agency orders and identify opportunities to bid; evaluate, assess 
and clarify existing or projected bids to ensure they are mutually beneficial to the petitioner 
and the government, that the terms and conditions are in order, profit margins acceptable and 
supply of materials available and feasible; 
Search the Thomas Register, Internet arid directories to coordinate and match orderslbids 
from customers against suppliers to maintain exact specifications; and maintain good 
relationships with the manufacturers for repeat orders and future references; 
Contact and negotiate with manufacturers/suppliers to confirm availability, reliability and 
capacity to deliver orders; obtain the performance bond of manufacturers/suppliers as security 
in case of delivery failure; communicate with VIPs, presidents, department heads, and 
business owners for completion of transactions and fulfillment of contract commitments; 
Review and complete all pertinent documents and other federal requirements before 
submitting bids; prepare reports for management concerning current developments in the 
market, including innovative business strategies and competitors' movements; and make 
recommendations to improve company's investment options and business operations; 
Page 4 
Determine cost of purchase orders and prepare itemized expenses before the items are 
delivered and received by federal agencies; and 
Prepare documents for collection of payments; and assist in the coordination of such 
functions as bidding procedures, budgeting, order processing, delivery of goods and other 
contract-related functions. 
To determine whether the duties just described are those of a specialty occupation, the AAO first considers 
the criteria at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher degree or its equivalent is 
the normal minimum requirement for entry into the pa~ticular position; and a degree requirement is common 
to the industry in parallel positions among similar organizations or a particular position is so complex or 
unique that it can be performed only by an individual with a degree. Factors considered by the AAO when 
determining these criteria include: whether the Department of Labor's (DOL) Occupational Outlook 
Handbook (Handbook), on which the AAO routinely relies for the educational requirements of particular 
occupations, reports that the industry requires a degree; whether the industry's professional association has 
made a degree a minimum entry requirement; and whether letters or affidavits from finns 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 HirdIBlaker Corp. v. Suva, 712 F. Supp. 1095, 
1102 (S.D.N.Y. 1989)). 
In his denial, the director identified the proffered position as reflecting the employment of procurement clerks, 
as described in the 2002-2003 edition of the DOL'Handbook. The AAO agrees that certain aspects of the 
proffered position - the preparation of itemized expenses related to purchase orders, the paperwork related to 
payment collection, the processing of orders - could be performed by procurement clerks. However, it 
concludes that the proffered position is more closely aligned to the occupation of purchasing managers, 
buyers, and purchasing agents, as discussed at pages 61-62 of the Handbook's 2004-2005 edition: 
Purchasing managers, buyers, and purchasing agents seek to obtain the highest quality 
merchandise at the lowest purchase cost for their employers. In general, purchasers 
buy goods and services for use by their companytor organization, whereas buyers typically 
buy items for resale. Purchasers and buyers determine which commodities or services are 
best, choose the suppliers of the product or service, negotiate the lowest price, and award 
contracts that ensure that the correct amount of the product or services is received at the 
appropriate time . . . . 
Purchasing managers, buyers, and purchasing agents evaluate suppliers on the basis of price, 
quality, service support, availability, reliability, and selection. To assist them in their search 
for the right suppliers, they review catalogs, industry and company publications, directories 
and trade journals. Much of this information is now available on the Internet . . . . Once all 
of the necessary information on suppliers is gathered, orders are placed and contracts are 
awarded to those suppliers who meet the purchaser's needs . . . . 
Purchasing specialists who buy finished goods for resale are employed by wholesale and 
retail establishments, where they commonly are known as buyers or merchandise managers . . 
. . Wholesale buyers purchase goods directly from manufacturers or from other wholesale 
firms for resale to retail firms, commercial establishments, institutions, and other 
organizations . . . . 
The AAO finds the above description of the work performed by purchasing specialists who buy goods for 
resale by their employers to be closely aligned to the duties of the proffered position. Like a purchasing 
specialist, the beneficiary would be required to analyze and compare the products and services provided by a 
range of suppliers, as well as their costs, to determine which should be purchased by the petitioner to meet its 
contractual obligations to the U.S. Government. 
However, while the AAO finds the proffered position generally to fall within the occupation of purchasing 
managers, buyers and purchasing agents, it notes an anomaly within the duties described by the petitioner - 
the automation of its operations. In response to the director's notice of intent to deny, the petitioner indicated 
that 20 percent of the beneficiary's time would be required to analyze the specific needs of its purchasing 
business and to design the customized programs and databases necessary to automate its operations. This 
responsibility falls outside the work of purchasing specialists. Instead, it appears more in line with the 
employment of computer systems analysts who are described at page 106 of the Handbook under the 
occupation of computer systems analysts, database administrators, and computer scientists: 
Systems analysts solve computer problems and apply computer technology to meet the 
individual needs of an organization. They help an organization to realize the maximum 
benefit from its investment in equipment, personnel, and business processes. Systems 
analysts may plan and develop new computer systems or devise ways to apply existing 
systems' resources to additional operations. They may design new systems, including both 
hardware and software, or add a new software application to harness more of the computer's 
power. 
As the beneficiary's responsibility for the automation of the petitioner's business operations appears to 
require her to perform in a limited capacity as a systems analyst, the AAO finds the proffered position to 
combine the duties of a purchasing specialist with those of $/systems analyst. Accordingly, it turns to the 
Handbook for its discussion of the educational requirements imposed on these occupations. 
At pages 61-62, the Handbook states the following with regard to the education required for employment as a 
purchasing specialist or buyer: 
Qualified persons may begin as trainees, purchasing clerks, expediters, junior buyers, or 
assistant buyers. Retail and wholesale firms prefer to hire applicants who have a college 
degree and who are familiar with the merchandise they sell and with wholesaling and 
retailing practices. Some retail firms promote qualified employees to assistant buyer 
positions; others recruit and train college graduates as assistant buyers. Most employers use a 
combination of methods. 
Educational requirements tend to vary with the size of the organization. Large stores and 
distributors, especially those in wholesale and retail trade, prefer applicants who have 
completed a bachelor's degree program with a business emphasis. Many manufacturing 
firms put yet a greater emphasis on formal training, preferring applicants with a bachelor's or 
master's degree in engineering, business, economics, or one of the applied sciences . . . . 
The Handbook discusses educational requirements for computer systems analysts at page 107: 
[Wlhile there is no universally accepted way to prepare for a job as a systems analyst . . . 
most employers place a premium on some formal college education. A bachelor's degree is a 
prerequisite for many jobs; however, some jobs may require only a 2-year degree . . . . 
Despite employers' preference for those with technical degrees, persons with degrees in a 
variety of majors find employment in these computer occupations. The level of education 
and type of training that employers require depend on their needs . . . . 
Most community colleges and many independent technical institutes and proprietary schools 
offer an associate's degree in computer science or a related information technology field . . . . 
In response to the director's notice of intent to deny, the petitioner contended that the Handbook's discussion 
of employers' preference for purchasing specialists/buyers with baccalaureate degrees establishes the 
proffered position's degree requirement. The AAO does not agree. While the Handbook indicates that 
employers hiring both purchasing specialists and systems analysts may prefer to hire applicants who have 
college degrees, employer preference is not synonymous with the normally required language of the first 
criterion. Employer preference indicates only that employers find degrees desirable. It is, therefore, 
insufficient to establish that a baccalaureate or its equivalent is "normally the minimum requirement for entry 
into the particular position." 
In that the Handbook states that individuals seeking work as purchasing managers, buyers and purchasing 
agents may be hired on the basis of experience and also indicates no specific degree requirement for computer 
systems analysts, the AAO concludes that the proffered position does not constitute employment that 
normally requires job applicants to hold a baccalaureate or higher degree, or its equivalent. Accordingly, the 
AAO finds that the position does not qualify as a specialty occupation under the first criterion at 8 C.F.R. 
5 214.2(h)(4)(iii)(A). d 
On appeal, former counsel expands upon the beneficiary's role within the petitioner's business. He asserts 
that the petitioner not only seeks to hire a professional who would be responsible for the smooth 
implementation of different aspects of its bidding and contracting operations, but that the beneficiary would 
also be relied upon to set up effective and efficient systems to implement others services like billing and 
collections, and budget planning and control. As described by counsel, the beneficiary would have "a direct 
hand in managing the operations of the business, and all its future branches, and in participating actively in 
the establishment of brand-new short and long range programs geared towards achieving targeted production, 
future capital outlays, and aggressive business ventures in general." 
The AAO will not, however, consider former counsel's assertions regarding the beneficiary's managerial role 
within the petitioner's operations, as these responsibilities materially alter the nature of the employment 
described by the petitioner at the time of filing. On appeal, a petitioner cannot offer a new position to the 
beneficiary, or materially change a position's title, its level of authority within the organizational hierarchy, or 
the associated job responsibilities. The petitioner must establish that the position offered to the beneficiary 
when the petition was filed merits classification as a specialty occupation. See Matter of Michelin Tire Corp., 
17 I&N Dec. 248,249 (Reg. Comrn. 1978). 
The AAO now turns to a consideration of whether the proffered position may qualify as a specialty 
occupation under either of the prongs of the second criterion at 8 C.F.R. 5 214.2(h)(4) - a degree requirement 
is common to the industry in parallel positions among similar organizations, or the proffered position is so 
complex or unique that it can be performed only by an individual with a degree. It finds the petitioner to have 
submitted no evidence to establish either that a baccalaureate degree is the norm for a bidding analyst within 
its industry or that the position itself is so complex that its performance requires a degreed individual. 
Accordingly, the proffered position cannot be established as a specialty occupation under the second criterion. 
The AAO next considers the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(3) and (4): the employer normally requires 
a degree or its equivalent for the position; and 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. 
To determine a petitioner's ability to meet the third criterion, the AAO normally reviews the petitioner's past 
employment practices, as well as the histories, including names and dates of employment, of those employees 
with degrees who previously held the position, and copies of those employees' diplomas. In response to the 
director's notice of intent to deny, the petitioner stated that it is its practice to hire degreed individuals and 
listed three employees who hold baccalaureate degrees, two with degrees in business administration and the 
third with a bachelor of science degree in pharmacy. The petitioner's statements do not, however, satisfy the 
requirements of the third criterion. 
Although the petitioner has asserted it has a practice of employing degreed individuals, it has submitted no 
evidence to support its claims, i.e., payroll documents or tax forms identifying these individuals as its 
employees andfor an organizational chart establishing their roles within its organization. Further, the record 
contains no documentation of the undergraduate degrees awarded to the three employees, e.g., diplomas or 
letters of confirmation issued by the academic institution each attended. Simply going on record without 
supporting documentary evidence is not sufficient for the purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Cornm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Cornm. 1972)). The AAO also notes the disparate nature of the degrees, 
in pharmacy and in business administration, would not prove a degree requirement in a specialty. 
The fourth criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) requires that a petitioner establish that the nature of the 
specific duties of the position 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 response to the director's notice 
of intent to deny, the petitioner claimed that the duties of the proffered position were "so intricate and 
sensitive that the candidate who should perform them should be equipped with the necessary academic 
preparedness." It further stated that the ''rock bottom results of the beneficiary's functions would serve as the 
basis for our business survival, investment decisions and for the realization of [its] planned expansion of 
operations to more U.S. government Federal Agencies in the future. In which case, even the smallest 
misrepresentation of essential information could mislead us into taking erroneous investment priorities." 
However, the petitioner offered no discussion of how the duties of the proffered position of purchasing 
specialist/systems analyst, were related to its investment decisions or its operational expansion, nor did it 
offer any documentation to establish the proffered position's complexity beyond that provided by its listing of 
the position's duties. Based on the record before it, the AAO does not find the duties of the proffered position 
to require the beneficiary to have a higher degree of knowledge and skill than would normally be expected of 
purchasing agents or computer systems analysts who work in a range of complex and technical businesses. 
As a result, the proffered position is not characterized by the specialization and complexity that would satisfy 
the requirements at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(4). 
On appeal, counsel contends that, in denying the instant petition, the director erred when he failed to consider 
the requirements of the petitioner with regard to the proffered position. He cites the findings of Young China 
Daily v. Chappell, 742 F. Supp. 552 (N.D. Cal. 1989) and the unpublished decision in Matter of Unico 
American Cop v. Watson - F. Supp. - CV No. 896958 (C.D. March 19, 1991) in support of his 
position. 
While the AAO acknowledges the petitioner's desire to hire a degreed individual to perform the duties of the 
proffered position, it is not the petitioner that dictates whether a position qualifies as a specialty occupation 
under Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(l). Were CIS limited solely to reviewing a petitioner's 
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 employer required the individual to have a baccalaureate or higher 
degree. See Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000). Further, counsel's claims regarding the 
findings of the cases he references are not supported by the record. Counsel has furnished no evidence to 
establish that the facts of the instant petition are analogous to those addressed in these decisions. Moreover, in 
contrast to the broad precedential authority of the case law of a U.S. circuit court, the AAO is not bound to 
follow the public decision of a U.S. district court in cases arising within the same district. See Matter of K-S-, 
20 I&N Dec. 715 (BIA 1993). The reasoning underlying a district judge's decision will be given due 
consideration when it is properly before the AAO; however, the analysis does not have to be followed as a 
matter of law. Id. At 719. In addition, as the published decisions of the district courts are not binding on the 
AAO outside of that particular proceeding, the unpublished decision of a district court would necessarily have 
even less persuasive value. 
Therefore, for the reasons related in the preceding discussion, the petitioner has failed to establish that the 
proffered position meets the requirements for a specialty occupation set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
$ 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.