dismissed H-1B Case: Semiconductor Retail

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US. Department of Ifomeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: SRC 05 003 5 1685 Office: TEXAS SERVICE CENTER Date: JUN 0 6 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 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 
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DISCUSSION: The director of the 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 retailer of semi-conductor and other related electrical and electronic products and services. 
It seeks to employ the beneficiary as a sales engineer. The petitioner, therefore, endeavors to classify the 
beneficiary as a nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1 10 1 (a)(l 5)(H)(i)(b). 
The director denied the petition finding that the proffered position is not a specialty occupation, and that the 
beneficiary is not qualified to perform a specialty occupation. Counsel submits a timely appeal. 
The AAO will first address the director's conclusion that the proposed position is not a specialty occupation. 
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. 8 214.2(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. 
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The record of proceeding before the AAO contains: (1) 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. 
The petitioner is seeking the beneficiary's services as a sales engineer. Evidence of the beneficiary's duties 
includes: the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's support letter; and 
the petitioner's response to the director's request for evidence. According to this evidence, the beneficiary 
would perform duties that entail: selling semiconductor and related electrical and electronic products and 
providing technical services to clients who require knowledge of engineering and cost effectiveness; calling 
on management representatives such as engineers and technical personnel at commercial and industrial 
establishments in order to convince prospective clients of the desirability of products or services offered; 
reviewing plans and customer documents to develop and prepare cost estimates or projected increases in 
production based on a clients' use of proposed products or services; drawing up or proposing changes in 
equipment, processes, or services which would result in a cost reduction or improvement in operations; 
providing technical services to clients relating to use, operation, and maintenance of semiconductor and 
related electrical and electronic products; and providing technical training to employees of clients. For the 
proposed position, the petitioner asserts that it requires a bachelor's degree or equivalent experience. The 
petitioner seeks to employ the beneficiary who holds the educational equivalent of a baccalaureate degree in 
engineering. 
The director stated that the Department of Labor's Occupational Outlook Handbook (the Handbook) reveals 
that a sales engineer usually requires a bachelor's degree. However, the director concluded that the proposed 
position would not require a bachelor's degree as it more closely resembles a salesman-technician. The 
director disagreed with the educational evaluator's conclusion that the beneficiary holds the equivalent of a 
bachelor's degree in engineering. 
On appeal, counsel states that the director did not support his finding that the offered position is not a 
specialty occupation. Counsel references Young China Daily vs. Chappell, 742 F. Supp. 552 (N.D. Cal. 1989) 
to establish that the size of the employer is irrelevant in determining whether an employer needs the services 
of a professional. Counsel asserts that the petitioner sells semiconductor and related electrical and electronic 
products, and that a sales engineer is directly related to its business operations. Counsel discusses technicians 
and sales engineers as those occupations are depicted in the Handbook and the Dictionary of Occupational 
Title's (DOT). Counsel states that the offered position is similar to the beneficiary's prior position with DNS 
Korea Co., Ltd. The Texas Workforce Commission (TWC), counsel asserts, determined that the offered 
position is that of a sales engineer. Counsel asserts that the educational evaluation reflects that the beneficiary 
holds the equivalent of a bachelor's degree in engineering. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. 5 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
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The AAO first considers the criteria at 8 C.F.R. $8 214.2(h)(4)(iii)(A)(l) 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 2006-2007 edition of 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 1 15 1, 
1 165 (D.Minn. 1999)(quoting HirdBlaker Corp. v. Suva, 7 12 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determines, from a review of the duties of the position and any supporting evidence, whether the 
position actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate degree in a specific specialty as the minimum for entry into the 
occupation as required by the Act. The AAO routinely consults the Handbook for its information about the 
duties and educational requirements of particular occupations. 
The evidence of record (the company profile, product list, and semiconductor process description; tax records; 
product brochure; and financial statement) does not support counsel's assertion that the proposed position is 
analogous to a sales engineer as that occupation is portrayed in the Handbook. The Handbook describes a 
sales engineer as follows: 
Many products and services, especially those purchased by large companies and institutions, 
are highly complex. Sales engineers-who also may be called manufacturers ' agents, sales 
representatives, or technical sales support workers-work with the production, engineering, 
or research and development departments of their companies, or with independent sales 
firms, to determine how products and services could be designed or modified to suit 
customers' needs. They also may advise customers on how best to use the products or 
services provided. 
Selling, of course, is an important part of the job. Sales engineers use their technical skills to 
demonstrate to potential customers how and why the products or services they are selling 
would suit the customer better than competitors' products. Often, there may not be a directly 
competitive product. In these cases, the job of the sales engineer is to demonstrate to the 
customer the usefulness of the product or service--for example, how much money new 
production machinery would save. 
Most sales engineers have a bachelor's degree in engineering, and many have previous work 
experience in an engineering specialty. Engineers apply the theories and principles of science 
and mathematics to technical problems. Their work is the link between scientific discoveries 
and commercial applications. Many sales engineers specialize in an area related to an 
engineering specialty. For example, sales engineers selling chemical products may have 
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chemical engineering backgrounds, while those selling business software or information 
systems may have degrees in computer engineering. Information on engineers, including 17 
engineering specialties, appears elsewhere in the Handbook. 
Many of the duties of sales engineers are similar to those of other salespersons. They must 
interest the client in purchasing their products, many of which are durable manufactured 
products such as turbines. Sales engineers often are teamed with other salespersons who 
concentrate on the marketing and sales, enabling the sales engineer to concentrate on the 
technical aspects of the job. By working on a sales team, each member is able to focus on his 
or her strengths and knowledge. . . . 
Sales engineers tend to employ selling techniques that are different from those used by most 
other sales workers. They generally use a "consultative" style; that is, they focus on the 
client's problem and show how it could be solved or mitigated with their product or service. 
This selling style differs from the "benefits and features" method, whereby the salesperson 
describes the product and leaves the customer to decide how it would be useful. 
In addition to maintaining current clients and attracting new ones, sales engineers help clients 
solve any problems that arise when the product is installed. Afterward, they may continue to 
serve as a liaison between the client and their company. Increasingly, sales engineers are 
asked to undertake tasks related to sales, such as market research, because of their familiarity 
with clients' purchasing needs. Drawing on this same familiarity, sales engineers may help 
identify and develop new products. 
Sales engineers may work directly for manufacturers or service providers, or they may work 
in small independent sales firms. In an independent firm, they may sell complementary 
products from several different suppliers and be paid entirely on commission. 
The petitioner sells semiconductor and related electrical and electronic products to customers in the United 
States and Korea. The record contains the document entitled "Howlink Global Inc." This document conveys 
that the petitioner sells voice over the Internet telephony, which is used for system design and customer 
optimization, and IP Phone: CL-100 and Internet Telephony Gateway: CL-200, CL-400, CL-800, and 
semiconductor service (tools service provider and parts supply). The evidence in the record, however, is 
insufficient to show that the position will require a baccalaureate degree in electrical or electronics 
engineering in order to perform the duties. For example, the petitioner does not specifically describe what the 
review of plans and customer documents in order to develop and prepare cost estimates or project increases in 
production based on a clients' use of proposed products or services entails. Nor does the petitioner elaborate 
on what the drawing up or proposing changes in equipment, processes, or services which would result in a 
cost reduction or improvement in operations involves. Without such information, the AAO cannot conclude 
that the offered position would require a baccalaureate degree in a specific specialty such as electrical or 
electronics engineering. Thus, the AAO finds that the offered position is not a specialty occupation under the 
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criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I): a baccalaureate or higher degree or its equivalent in a specific 
specialty is the normal minimum requirement for entry into the particular position. 
To establish the first alternative prong at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2), the petitioner must show that a 
specific degree requirement is common to the industry in parallel positions among similar organizations. The 
letters from the president of KDNS American, Inc. and the president of SCT, L.L.C. state that their company 
and all of the companies that they deal with require a minimum of a bachelor's degree in engineering or the 
equivalent for sales engineering positions. However, the AAO finds that there is no evidence in the record 
substantiating that other companies have the same educational requirement as KDNS American, Inc. and 
SCT, L.L.C. Moreover, the petitioner has not demonstrated that the position that is offered here is that of a 
sales engineer. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Thus, the petitioner 
fails to establish the first alternative prong at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
The second alternative prong at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2) requires that the petitioner show that the 
proffered position is so complex or unique that it can be performed only by an individual with a baccalaureate 
degree in a specific specialty. The evidence fails to show that the offered position would require a bachelor's 
degree in a specific specialty. Consequently, the petitioner fails to establish the second alternative prong at 8 
C.F.R. 5 2 14,2(h)(4)(iii)(A)(2). 
To establish the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3), the petitioner must demonstrate that it normally 
requires a degree or its equivalent for the position. No evidence in the record demonstrates the criterion at 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
The criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is usually 
associated with the attainment of a baccalaureate or higher degree. Based on the discussion at 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(I), the evidence fails to establish that the offered position would require a 
bachelor's degree in a specific specialty. Consequently, the petitioner fails to establish the last criterion at 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
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 on this 
ground. 
The AAO will now address the director's determination that the beneficiary is not qualified to perform 
services in a specialty occupation. 
The submitted educational evaluation from Director of the - 
at the State Yniversity of New York, Stony Brook, states that the beneficiary has the equivalent of a 
degree in engineering based on the combination of his education, which is the equivalent of two 
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years of academic coursework from an accredited institution of higher education in the United States, and his 
seven years of employment and training. The record contains no corroborating letter from the State 
University of New York, Stony Brook, indicating that the university has a program for granting credit based 
on an individual's training and/or work experience. The AAO disagrees valuation in that 
the beneficiary's duties during the seven years of employment do not reflect baccalaureate-level work 
experience. The beneficiary is described as assembling, installing, modifying, and providing technical 
services on semiconductor and related products for customers. Those duties are analogous to the Handbook's 
depiction of electrical and electronics installers, which are positions that do not qualify as specialty 
occupations. The Handbook states: 
Electrical and electronics installers often fit older manufacturing equipment with new 
automated control devices. Older manufacturing machines are frequently in good working 
order but are limited by inefficient control systems for which replacement parts are no longer 
available. Installers replace old electronic control units with new PLCs. Setting up and 
installing a new PLC involves connecting it to different sensors and electrically powered 
devices (electric motors, switches, and pumps) and writing a computer program to operate the 
PLC. Electronics installers coordinate their efforts with those of other workers who are 
installing and maintaining equipment. . . . 
Thus, the beneficiary's duties during his seven years of employment in Korea would not have required 
baccalaureate-level knowledge. CIS uses an evaluation by a credentials evaluation organization of a person's 
foreign education as an advisory opinion only. Where an evaluation is not in accord with previous 
equivalencies or is in any way questionable, it may be discounted or given less weight. Matter of Sea, Inc., 
19 I&N Dec. 817 (Comm. 1988). For this reason, the beneficiary is not qualified to perform services in a 
specialty occupation. 
As related in the discussion above, the petitioner has failed to establish that the beneficiary is qualified to 
perform services in a specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the 
petition on this ground. 
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.