dismissed H-1B Case: Real Estate Development

identifying data deleted to 
prevent clear:, unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 196 50631 Office: CALIFORNIA SERVICE CENTER Date: JUN 2 9 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
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, Chief 
Administrative Appeals Office 
WAC 04 196 5063 1 
Page 2 
DISCUSSION: The service center director 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 construction and real estate development business that seeks to employ the beneficiary as a 
systems analyst. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty 
occupation pursuant to 5 10 1 (a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief and additional evidence, including the business card of a software sales representative 
and copies of software-related pamphlets. 
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. 
Pursuant to 8 C.F.R. 
 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 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. 
Citizenship and Immigration Services (CIS) 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. 
The record of proceeding before the AAO contains: (I) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
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The petitioner is seeking the beneficiary's services as a systems analyst. Evidence of the beneficiary's duties 
includes: the 1-129 petition; the petitioner's June 18, 2004 letter in support of the petition; and the petitioner's 
response to the director's request for evidence. According to this evidence, the beneficiary would perform 
duties that entail: planning, designing, and developing new computer systems or updating existing computer 
systems; solving computer problems and providing technical assistance to computer users; coordinating 
changes to, testing, and implementing the computer database; and preparing cost-benefit and 
return-on-investment analysis to help management determine whether the proposed system is financially 
feasible. The petitioner indicated that a qualified candidate for the job would possess a bachelor's degree in 
computer science, computer information systems, or an equivalent thereof. 
The director found that the proffered position was not a specialty occupation because the job is not a systems 
analyst position; it is a computer support specialist and systems administrator position. Citing to the 
Department of Labor's Occupational Outlook Handbook (Handbook), the director noted that the minimum 
requirement for entry into the position was not a baccalaureate degree or its equivalent in a specific specialty. 
The director found further that the petitioner failed to establish any of the criteria found at 
8 C.F.R. $ 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the petitioner needs the services of a part-time, in-house systems 
analyst to perform market evaluation and analysis, prepare cost-benefit and return-on-investment analysis "to 
help the petitioner to make decisions on buying and selling of properties," and to install, maintain, and update 
the ESRI Business Information Solutions (ESRI BIS) software system. Counsel submits the business card of 
the senior sales representative of ESRI, asserting that this representative highly recommends that the 
petitioner hire a part-time, in-house systems analyst to utilize the ESRI BIS software system. Counsel also 
submits software pamphlets related to ESRI BIS, website information, and previously submitted documents 
as supporting documentation. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. $ 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; 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 often considered by CIS when determining these criteria include: whether the Handbook 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 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 COT. v. Suva, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AAO does not concur with counsel that the proffered position is that of a systems 
analyst. The beneficiary's job duties do not entail the level of responsibility of that occupation. The business card 
of the senior sales representative of ESRI is noted. Although counsel asserts that this representative highly 
recommends that the petitioner hire a part-time, in-house systems analyst to utilize the ESRI BIS software 
system, the record contains no evidence of this recommendation. Without documentary evidence to support 
WAC 04 196 5063 1 
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the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); 
Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). Further, even if the senior sales representative of ESRI were to submit his recommendation, it would 
have to be supported by documentary evidence in order to demonstrate that the proffered position qualifies as 
a specialty occupation. Counsel's expansion of the proposed duties on appeal to include market evaluation 
and analysis, and cost-benefit and return-on-investment analysis to help the petitioner to make decisions on 
buying and selling of properties, is noted. On appeal, however, 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 managerial or executive position. Matter of Michelin 
Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not make material changes to a 
petition in an effort to make a deficient petition conform to CIS requirements. See Matter of Izummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm. 1998). In this case, information on the petition indicates that the petitioner is a 
construction and real estate investment business with three employees and a gross annual income of $8.5 
million. A review of the Computer Support Specialists and Systems Administrators category in the Handbook, 
2006-2007 edition, finds that the proffered position is primarily that of a network administrator or computer 
systems administrator. No evidence in the Handbook indicates that a baccalaureate or hlgher degree, or its 
equivalent, is required for these jobs. 
Regarding parallel positions in the petitioner's industry, the petitioner submitted a letter from a broker, who 
states that his company is an associate of the petitioner. He also asserts: "[Alny size of company such as [the 
petitioner] must hire a Systems Analyst . . ." His opinion, however, is not supported by any evidence that 
would establish his authority to speak to industry-wide hiring practices. Simply going on record without 
supporting documentary evidence is not sufficient for the purpose of meeting the burden of proof in these 
proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The record also does not include any evidence from firms, individuals, or professional associations regarding 
an industry standard, or documentation to support the complexity or uniqueness of the proffered position. 
The petitioner, therefore, has not established the criteria set forth at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. As the record indicates that the proffered position is a new position, the 
petitioner, therefore, has not established the criterion set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
Finally, the AAO turns to the criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(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. 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. 3 214.2(h)(4)(iii)(A)(4). 
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As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. 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. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.