dismissed H-1B Case: Retail

U.S. Citizenship 
and Immigration 
Services 
In Re: 17402424 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 19, 2021 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonimmigrant 
classification for specialty occupations. 1 The H-lB program allows a U.S. employer to temporarily 
employ a qualified foreign worker in a position that requires both : (a) the theoretical and practical 
application of a body of highly specialized knowledge; and (b) the attainment of a bachelor's or higher 
degree in the specific specialty ( or its equivalent) as a minimum prerequisite for entry into the position. 
The Vermont Service Center Director denied the petition, concluding the Petitioner had not established 
that the proffered position is a specialty occupation. On appeal, the Petitioner contends that the petition 
should be approved . 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. 2 Upon de nova review , we will dismiss the appeal. 3 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... " ( emphasis added). Section 214(i)(l) of the Act, 8 U.S .C. § ll 84(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(l) of the Act, but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position .4 Lastly, 
1 See Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b) , 8 U.S.C. § l 10l(a)(15)(H)(i)(b). 
2 See section 291 of the Act; Matter ofChawath e, 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
4 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions ofa specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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. 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"). 
8 C.F.R. § 214.2(h)(4)(i)(A)(J) states that an H-IB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (1) the normal 
minimum educational requirement for entry into the particular position, which is the focus of criterion 
l; (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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 5 In addition, a petitioner must establish 
eligibility at the time of filing the petition and must continue to be eligible through adjudication. 6 
II. ANALYSIS 
For the reasons set out below, we determine that the proffered position does not qualify as a specialty 
occupation. Specifically, the record provides insufficient probative evidence regarding the proffered 
position, which in tum precludes us from understanding the position's substantive nature and 
determining whether the proffered position qualifies as a specialty occupation under sections 
101 (a)(l 5)(H)(i)(b ), 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)( 4)(i)(A)(l ), 8 C.F.R. § 214.2(h)( 4)(ii) and 
(iii)(A). 7 When determining whether a position is a specialty occupation, we look at the nature of the 
business offering the employment and the description of the specific duties of the position as it relates 
to the performance of those duties within the context of that particular employer's business operations. 
The Petitioner states on the Form 1-129, Petition for a Nonimmigrant Worker, that it is in the 
"Consumer Electronics & Appliances Stores Industry," that it has 20 employees, that it intends to 
employ the Beneficiary as a management analyst, and that it had a gross annual income of $2,371,236, 
when the petition was filed. On the labor condition application (LCA)8 submitted in support of the H-lB 
5 See 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
6 See 8 C.F.R. § 103.2(b)(l). 
7 The Petitioner submitted documentation in the underlying record to support the H-lB petition, including evidence 
regarding the proffered position and its business operations. Although we may not discuss every document submitted, we 
have reviewed and considered each one. 
8 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services (USCIS) to demonstrate 
that it will pay the Beneficiary the higher of either the prevailing wage for the occupational classification in the "area of 
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petition, the Petitioner designates the proffered position under the occupational category "Management 
Analysts" corresponding to the standard occupational classification (SOC) code 13-1111, at a level I 
wage. 
A. Petitioner's Business Operations 
In its letter in support of the petitio~ t~e Petitirer stated it is a Kenhlcky limited liability company 
established in 2015 with an address i Kentucky, the location of the Beneficiary's proposed 
work. The Petitioner claimed that it is a Authorized Retailer connecting clients and customers 
withl I solutions for their wireless needs. The Petitioner provided its federal employer 
identification number and its lease for the Beneficiary's proposed work location which indicated the 
premises are to be used only for a retail I I sales facility. The Kentucky Secretary of 
State website shows that the Petitioner is currently active but identifies its address as iJ I I I Michigan, 9 an address different than the proposed work location. A review of the proposed 
work location via the Internet on August 19, 2021 shows that l I currently occupies 
the leased space. From this information, it appears that the Petitioner, ~ ~ 
is a general retail~-----~ sales facility. This information appears inconsistent with the 
claimed duties of the proffered position and raises questions regarding the actual services the 
Beneficiary will perform within the context of the Petitioner's retail business operations. 
We note other inconsistencies in the record regarding the Petitioner's business. For example, the 
letterhead on the Petitioner's letter in support of the petition and the letter offering employment to the 
Beneficiary identifies the business entity as i } although they are both signed by the 
Petitioner's manager. It is not clear if an entity, other than the Petitionerj will employ the Beneficiary. 
The record does not include probative evidence thatl is the same as or is legally 
affiliated with the Petitioner. 10 The record does not include corporate documents or contracts 
establishing the relationship between the Petitioner and ~-----~ The nature of the 
Petitioner's business operations directly impacts an understanding of the duties the Petitioner claims 
the Beneficiary will be expected to perform. The lack of consistent evidence in the record 
corroborating the nature of the business operations undermines the Petitioner's claims regarding the 
duties of the proffered position. Without the context of the Petitioner's business operations, we cannot 
ascertain the substantive nature of the proposed position which precludes a determination that the 
proffered position qualifies as a specialty occupation. 
The record also does not include evidence of the Petitioner's operational structure which delineates 
the staffing hierarchy, the duties or titles of the different positions, and the roles and levels of 
responsibility of the claimed 20 employees in the Petitioner's retail sales facility. Thus, we cannot 
review how the Beneficiary's position fits within the business structure. The record does not include 
probative evidence corroborating the nature of the Petitioner's ongoing business operations, its number 
employment" or the actual wage paid by the employer to other employees with similar experience and qualifications who 
are performing the same services. Section 212(n)(l) of the Act; 20 C.F.R. § 655.731 (a). 
9 See https://web.sos.ky.gov/ftsearch/ last accessed Aug. 19, 2021). 
10 We note that an Internet search for I reveals that this company was incorporated in Southern California in 
1995, has a oartnershio with l and has over 650 stores coast to coast. See 
https:/1 _ (last visited Aug. 19, 2021). The record, here, however, does not include evidence 
of the Petitioner's relationship, if any, with this California company. 
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of employees, and its income. Again, without such evidence illustrating the nature and scope of the 
Beneficiary's employment in relation to the Petitioner's particular business interests, the Petitioner 
cannot establish that the position meets any of the requirements for a specialty occupation set forth at 
8 C.F.R. § 214.2(h)(4)(iii)(A) and the statutory and regulatory definitions of a specialty occupation 
under section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
B. Nature of the Proffered Position 
Although the Petitioner claims that it has accumulated vast amounts of data and needs policies to 
address the handling of that data, the record does not sufficiently integrate and explain the 
Beneficiary's proposed duties within the framework of the Petitioner's 20-employee retail sales 
facility. Turning to the Petitioner's description of the proposed position, the Petitioner provides vague 
descriptions, such as: 
Critical evaluation and assessment of testing performance to verify the new component 
of company's identity and access management portal in order to propose ways to 
improve organization efficiency and profitability through reduced costs and increased 
revenues through supply chain management method and human resource management; 
identify and eliminate tasks and activities that do not add value to the company or 
customer; formulate technology-based solutions that will address data handling; 
including but not limited to Privilege Access Management (PAM), which is a 
BeyondTrust tool regarding privilege identify management and vulnerability 
solutions[.] 
This broad category does not include sufficiently clear detail to understand what the Beneficiary will 
do and the Petitioner does not provide the context in which the Beneficiary will perform the vaguely 
outlined duties. It also does not include elements that convey an understanding of the Beneficiary's 
role and level of responsibility within the Petitioner's business operations. The Petitioner also adds 
tasks that fall under this category that appear to correspond more closely to a technology occupation. 
For example, the Beneficiary will be expected to integrate PAM with IDM, verify normalization 
process of UIDs against UNIX hosts, verify the PAM tool organization, including password 
management, target solutions management, secure storage management, auto onboarding and manual 
onboarding, as well as other verification procedures and processes, and provide technical evaluation 
of automation script, using SQL, VB Script in order to facilitate transition from manual, paper-based 
purchasing to lower cost, higher control automated purchasing, among other things. Not only are 
these tasks jargon-laden, the tasks do not effectively describe a management analyst occupation, but 
rather describe someone who will perform technological tasks. 11 
11 The duties, as described, appear to incorporate performing technological functions such as quality assurance tasks and 
computer systems analysts' duties. We are not required to identity the occupation that most closely corresponds to the 
proffered position's duties. We do not note, however, that these occupations, as do other technology occupations, require 
significantly higher wages than the occupation designated on the LCA. Such a wage disparity highlights the difference 
between the occupational categories generally, and more specific to this case, the significance of the Petitioner's choice of 
the lower paying occupational category on the certified LCA. In addition to failing to demonstrate the proffered position 
is a specialty occupation, the lack of clarity regarding the substantive nature of the position also raises questions regarding 
whether the Petitioner properly designated the occupation on the certified LCA. 
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The description also includes tasks such as "[ c ]ritical analysis of system and procedure for End to End 
defect management such as real time inventory visibility, in order to provide detailed visibility into 
key inventory control and supply chain management measures, including inventory trends, stock on 
order and supplier on time performance, strategize with management to formulate data management 
solutions to address realized and potential shortfalls." The sub-category of tasks for this confusing 
synopsis refers to identifying defects, during the level phase, optimization of assignment of the defects 
to different releases and phases and to different stakeholders to perform the necessary tasks before it 
can be tested, verified, and closed, and strategize plan with management prior to dissemination to other 
team members, among other things. Again, the Petitioner has not provided the context of the position 
within its business enterprise, such as information regarding its staffing hierarchy, its stakeholders, its 
data, inventory, and supply chain. Thus, we cannot ascertain who is in the management the 
Beneficiary reports to, who the other team members are within the business, who the stakeholders and 
customers are, and the complexity, scope, and nature of any collected data, and how the data is 
pertinent to inventory and supply chain. In other words, the Petitioner does not provide adequate 
information to delineate how the ambiguous job description translates to specific duties and 
responsibilities of a management analyst and how such work will be conducted within the Petitioner's 
business operations. 
We will not quote the description in full; however, we have closely reviewed and considered the duties. 
Upon such review, we conclude that the description of duties is insufficient to demonstrate the 
substantive application of knowledge involved or any particular educational requirement associated 
with such duties. It is not possible to ascertain the nature and level of responsibility of the proposed 
position, including whether the duties as generally described correspond to the occupation designated 
on the LCA, from the descriptions. The vague and confusing descriptions do not establish the 
substantive nature of the proffered position's duties or demonstrate that performing such duties would 
require the theoretical and practical application of highly specialized knowledge and attainment of at 
least a bachelor's degree in a specific specialty or its equivalent. 
C. Minimum Wage 
The record includes further inconsistencies regarding the wage to be paid for the proposed position. 
As noted above, the Petitioner designates the position as a level I wage "Management Analysts" 
occupation on the LCA. The Petitioner identifies the prevailing wage for this occupation in the area 
of the Beneficiary's employment at the time the LCA was filed as $38,210 and also indicates on the 
certified LCA that it will pay the Beneficiary $38,210. However, on the Form 1-29, and in the offer 
letter to the Beneficiary, the Petitioner claims the proffered wage is $47,000. The Petitioner must 
resolve this inconsistency in the record with independent, objective evidence pointing to where the 
truth lies. 12 
III. CONCLUSION 
When considered collectively, we conclude that the inconsistencies, discrepancies, and lack of 
probative documentation in the record raise questions as to the substantive nature of the proffered 
12 Matter o/Ho. 19 I&N Dec. 582, 591-592 (BIA 1988). 
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position. 13 The Petitioner has not submitted consistent and corroborative evidence to adequately 
communicate (1) the nature of the actual work that the Beneficiary would perform, (2) the complexity, 
uniqueness, or specialization of the tasks, and (3) the correlation between that work and a need for a 
particular level education of highly specialized knowledge in a specific specialty. Accordingly, the 
Petitioner has not established that the proffered position is a specialty occupation. 14 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. 15 The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
13 Chavvathe, 25 I&N Dec. at 376. 
14 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal. 
15 Section 291 of the Act, 8 U.S.C. § 1361. 
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