dismissed H-1B Case: Service Engineering

MATTER OF K-E-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 13,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which describes itself as a service engineering firm, seeks to temporarily employ the 
Beneficiary as a "service engineer" under the H -1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-IB 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 Director of the California Service Center denied the petition, concluding that the Petitioner had 
not demonstrated that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits a brief and asserts that the Director erred in her decision. 
Upon de novo review, we will dismiss the appeal 
I. LEGAL FRAMEWORK 
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. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
i 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
Matter of K-E-, Inc. 
(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. 
8 C.F .R. § 214.2(h)( 4 )(iii)(A). We have consistently interpreted 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
The Petitioner described itself as a wholly owned subsidiary of its parent company (located in the 
United Kingdom) of which the Beneficiary was a founding member. The Petitioner was established 
in 2003 "when the Directors of [the parent company] found that there was an unmet need in the US 
for the work done by [the parent company's] Service Engineers." The Petitioner's business consists 
of providing "Service Engineers to large factories, who sell, install, maintain, provide replacement 
parts and repair CNC profiling machines." The Petitioner states that it has "maintenance contracts 
for CNC profiling machines" with various U.S. corporations, and "currently has no US employe"es 
available to fulfill these contracts, and requires [the Beneficiary's] presence in the United States to 
provide the necessary services to its customers." 
According to the Petitioner, the Beneficiary will be employed on a part-time basis. He will be the 
Petitioner's only U.S. employee. The Petitioner submitted two charts "showing that each and every 
task that [the Beneficiary] is required to perform during the course of his work is comparable to a 
task normally completed by either Electrical Engineers or Sales Engineers, and uses the knowledge 
obtained during a Bachelors in Electrical Engineering program." We have consolidated the job 
descriptions found in those charts, as follows: 1 
1 
One of the Petitioner's charts also contained a column listing the courses required to complete each task. We have not 
included that column. 
2 
Matter of K-E-, Inc. 
TASK COMPARABLE O*NET TIME TO REQUIRES %OF 
TASK LEARN SPEC. TIME2 
KNOW-
LEDGE? 
Installing and providing Direct or coordinate 3-5 years Yes 40 
service on proprietary manufacturing, construction, 
product lines as well as installation, maintenance, 
on integration of outside support, documentation, or 
equipment testing activities to ensure 
compliance with specifications, 
codes, or customer requirements 
(Electrical Engineers) 
Training customers and Supervise or train project team 1 year Yes 5 
manufacturing personnel members as necessary (Electrical 
in all aspects of Engineers) 
equipment maintenance 
and in-house inspection 
Troubleshooting Investigate customer or public 2 years Yes 5 or 15 
customers' mechanical, complaints to determine the 
electronic and software nature and extent of problems 
problems with the (Electrical Engineers) 
product and its software 
in a timely and cost 
effective manner 
Assisting in service Assist in developing capital 3 months No 2 or 1 
buyoff procedures project programs for new 
equipment or major repairs 
(Electrical Engineers) 
Preparing proprietary Write technical documentation 3 months Yes 2 
company documentation for products (Sales Engineers) 
and conducting follow-
up with appropriate 
departments on all 
product problems and 
inquiries 
Complying with Oversee project production 6 months Yes 10 or 5 
company specific efforts to assure projects are 
technical strategies and completed on time and within 
service policies to be budget (Electrical Engineers) 
2 
Where two numbers appear in this column, this indicates that the Petitioner listed different percentages of time for the 
same job duty. For example, "I 0 or 5" means that the Petitioner listed I 0% in one chart, and 5% in the other chart, as 
the percentage of time the Beneficiary will spend on that particular duty. 
3 
Matter of K-E-, Inc. 
used to achieve 
maximum profit 
Assisting sales and Recommend improved materials 2 years Yes 1 or 5 
service staff with the or machinery to customers, 
procurement of any documenting how such changes 
equipment or parts will lower costs or increase 
required by customers production (Sales Engineers) 
Supervising field service Provide technical and non- 2 years Yes 10 or 5 
engineers as required technical support and services to 
both on site and via clients or other staff members 
telephone, fax and e- regarding the use, operation and 
mail maintenance of equipment (Sales 
Engineers) 
Developing systems for Perform detailed calculations to 1 year Yes 3 
improving the efficiency compute and establish 
and effectiveness of manufacturing, construction, or 
[parent company's] installation standards or 
service to end users specifications. (Electrical 
Engineers) 
Developing company Develop sales plans to introduce 2-3 months No 3 or 1 
programs, products and products in new markets; 
strategies to attract more Identify resale opportunities and 
service revenue, part support therri to achieve sales 
sales and ancillary plans (Sales Engineers) 
mcome 
Developing a system to Document account activities, 1 month No 3 or 1 
record [parent generate reports, and keep 
company's] customer records of business transactions 
feedback and with customers and suppliers 
satisfaction in [parent (Sales Engineers) 
company's] products 
and services and 
develop appropriate 
response strategies 
Preparing and updating Write technical documentation 2-3 years Yes 5 
proprietary service for products (Sales Engineers) 
manuals, providing 
technical support 
Assisting with technical Oversee project production 2 years Yes 2or3 
aspects of contract efforts to assure projects are 
management through the completed on time and within 
time of order to budget (Electrical Engineers) 
completion of 
4 
Matter of K-E-, Inc. 
--
installation 
Overseeing sales Document account activities, 6 months No 1 
application support; generate reports, and keep 
preparing proprietary records of business transactions 
time studies with customers and suppliers 
(Sales Engineers) 
Organizing and Arrange for demonstrations or 3 months Yes 2 or 1 
overseeing performance trial installations of equipment 
of software demos (Sales Engineers) 
Managing the technical Oversee project production 2 years Yes 2 or 5 
aspects of contract efforts to assure projects are 
management between completed on time and within 
the time of order and the budget r(Electrical Engineers) 
completion of 
installation 
·.Preparation of time Compile data and write reports 3 months No 1 
studies regarding existing or potential 
electrical engineering studies or 
projects (Electrical Engineers) 
Preparing sample parts Visit prospective buyers at 2-3 years Yes 3 or 1 
for customers commercial, industrial, or other 
establishments to show samples 
or catalogs, and to inform them 
about product pricing, 
availability, and advantages 
(Sales Engineers) ' 
According to the Petitioner, the proffered pos1t10n requires a bachelor's degree in electrical 
engineering. In the certified labor condition application (LCA) submitted in support of the petition, 
the Petitioner designated the position under the Standard Occupational Classification (SOC) code 
and title 17-2199, "Engineers, All Other," at a Level II wage rate. 
III. ANALYSIS 
Based on ambiguities and inconsistencies in the record, we find that the Petitioner has not 
sufficiently demonstrated the substantive nature of the proffered position. Accordingly, we cannot 
find that the proffered position quali,fies as a specialty occupation. 3 
3 
The Petitioner submitted documentation to support the petition, including evidence regarding the position and its 
business operations. While we may not discuss every document submitted, we have reviewed and considered each one. 
5 
.
Matter of K-E-, Inc. 
As indicated above, the Petitioner submitted an LCA for a position falling under the "Engineers, All 
Other" occupational category. At the same time, the Petitioner claimed that each of the proffered 
duties corresponds to either the "Electrical Engineers" or "Sales Engineers" occupational category, 
as described in the Occupational Information Network (O*NET). The Petitioner did not explain 
which aspects of the proffered duties do not correspond to the "Electrical Engineers" or "Sales 
Engineers" occupational category. In other words, the Petitioner did not explain why i't chose to 
classify the proffered position under the "Engineers, All Other" category rather than the "Electrical 
Engineers" or "Sales 
Engineers" occupational category. 
With respect to the LCA, if a job offer has requirements described in a combination of O*NET 
occupations, the petitioner "should default directly to the relevant O*NET-SOC occupational code 
for the highest paying occupation (emphasis added)."4 As indicated on the LCA, the prevailing 
wage for a Level II position under the "Engineers, All Other" category in the time and area of 
intended employment is $37.38, which is exactly what the Beneficiary will be paid. However, the 
prevailing wage for the same level position under the "Electrical Engineers" category is $39.79 per 
hour, and $39.61 for the "Sales Engineers" occupational category.5 Both ofthes~ prevailing wages 
are higher than the prevailing wage for "Engineers, All Other." The Petitioner has not explained 
why it did not default directly to the highest-paying occupation of"Electrical Engineers," or even the 
higher-paying occupation of "Sales Engineers," despite its claim that the proffered position 
combines elements of both occupations. 6 
A close look at the proffered job duties, as described, reveals additional concerns. Between its two 
job descriptions, the Petitioner listed all of the same job duties but assigned different percentages of 
time to many of them. For instance, the Petitioner alternatively stated that the Beneficiary will spend 
5% of his time or 15% of his time on the same job duty of troubleshooting customers' technical 
problems. 
Other job duties, as described, are duplicative in nature. To illustrate, the Petitioner indicated that 
the Beneficiary will spend a portion of his time on the duty of"[ a ]ssisting with technical aspects of 
contract management through the time of order to completion of installation," and a separate portion 
of time on the duty of "[m]anaging the technical aspects of contract management between the time 
of order and completion of installation." But since the Beneficiary will be the company's only U.S. 
4 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 ' 
5 
For more information regarding wages for "Electrical Engineers" (SOC code 17-2071) and "Sales Engineers" (SOC 
code 41-9031) in the I L MSA for the period 7/2015 - 6/20 16, see generally the Foreign Labor 
Certification Data Center Online Wage Library, http://www.flcdatacenter.com/OESWizardStart.aspx (last visited Jun.· 
13, 2017). 
6 This raises questions as to whether the LCA corresponds to.and supports the A~ I B petition. While the Department of 
Labor is the agency that certifies LCA applications; its own regulations provide that the Department of Homeland 
Security (i.e., its immigration benefits branch, U.S. Citizenship and Immigration Services) is the department responsible 
for determining whether, the content of an LCA filed for a particular H-1 B petition actually supports that petition. See 
20 C.F.R. § 655.705(b). 
Matter of K-E-, Inc. 
employee, it appears he will be wholly responsible for all aspects of contract performance, not just 
the technical aspects. It is not apparent why or how these duties were delineated, and who he will be 
assisting and managing as the company's sole employee. 
As the Petitioner's sole U.S. employee, the record does not demonstrate how the Beneficiary will be 
relieved from performing other duties necessary to the daily operations of the U.S. operations that 
are not of H-1B caliber. While we do not limit our review to a petitioner's size, we must consider 
the duties and responsibilities ofthe proffered position as it will be performed within the petitioner's 
actual operations. It is reasonable to assume that the size of an employer's business has or could 
have an impact on the claimed duties of a particular position. See EG Enters., Inc. v. Dep 't of 
Homeland Sec., 467 F. Supp. 2d 728 (E.D. Mich. 2006). The size of a petitioner may be considered 
as a component of the nature of the petitioner's business, as the size impacts upon the actual duties 
of a particular position. 
Although the Petitioner has referenced its parent company's operations abroad, it has not described 
in detail the parent company's size, staffing, organizational structure, or other aspects of its 
operations which could potentially support the Beneficiary's employment in the United States in the 
claimed capacity. Indeed, the Petitioner has even assigned a portion of the Beneficiary's time to 
performing duties directly for its parent company abroad. Without more, we find the record 
insufficient to explain all of the Beneficiary's actual job duties and responsibilities in the United 
States. 
Notably, the record also identifies the Beneficiary as the Petitioner's president. Some of the stated 
job duties appear more appropriate for the Beneficiary's position as president rather than service 
engineer. For example, we are not persuaded by the Petitioner's comparison of the proffered duty of 
"[d]eveloping systems for improving the efficiency and effectiveness of [parent company's] service 
to end users" to the job duty of "[performing] detailed calculations to develop manufacturing, 
construction, and installation standards and specifications" typically performed by electrical 
engineers. The duty of "[ d]eveloping systems for improving the efficiency and effectiveness of 
[parent company's] service to end users" is so broadly stated that it could encompass high-level 
executive or managerial duties more appropriate for the Beneficiary's role as the Petitioner's 
president. For the same reason, we are not persuaded that the Beneficiary's job duty of 
"[ d]eveloping company programs, products and strategies to attract more service revenue, part sales 
and ancillary income" is limited to the typical duties performed by sales engineers. Based on the 
above, it appears that the Beneficiary will be also perform other, unstated duties related to the daily 
operations and management of the Petitioner (and its parent company). 
Accordingly, we find the record insufficient to establish the substantive nature of the work to be 
performed by the Beneficiary. We are therefore precluded from 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 ofthat work 
that determines (1) the normal minimum educational requirement for entry into 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 
Matter of K-E-, Inc. 
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 eq~ivalent, 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. As the Petitioner has not 
established that it has satisfied any ofthe criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A), it cannot be found 
that the proffered position qualifies for classification as a specialty occupation. 
Lastly, we consider the Petitioner's own statements that several of the Beneficiary's job duties do 
not require any specialized knowledge. · These job duties not requiring specialized knowledge 
comprise a substantial, set amount of the Beneficiary's time. 
There is no provision in the law relevant to H-lB nonimmigrants that permits the performance of 
non-qualifying, non-specialty occupation caliber duties. To qualify for classification as a specialty 
occupation, the Petitioner must establish, among other things, that the duties of the proffered 
position require a bachelor's or higher degree in a specific specialty, or its equivalent. See section 
214(i)(l )(B) of the Act and 8 C.F .R. § 214.2(h)( 4 )(ii) (defining the terril "specialty occupation"). 7 
While we may view the performance of duties that are incidental8 to the primary duties of the 
proffered position as acceptable when they are unpredictable, intermittent, and of a minor nature, 
anything beyond such incidental duties, e.g., predictable, recurring, and substantive job 
responsibilities, must be specialty occupation duties or the proffered position as a whole cannot be 
approved as a specialty occupation. Because the Beneficiary's duties which do not require the 
application of specialized knowledge are not incidental, they are not allowed for H -1 B purposes. 
For this additional reason, the proffered position as a whole cannot be recognized as a specialty 
occupation. 
IV. UNITED STATES EMPLOYER 
As the record is insufficient to demonstrate that the offered position is a specialty occupation, we 
need not fully address other issues evident in the record. That said, we will briefly identify an 
additional ground of ineligibility to inform the Petitioner that this issue should be addressed in future 
proceedings. 
7 
The H-1 8 classification is not intended for employers to bring in temporary foreign workers to meet possible workforce 
needs arising from potential business expansions or the expectation of potential new customers or contracts. Petitioning 
Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998) (to be 
codified at 8 C.F.R. pt. 214); but cf 8 C.F.R. § 214.2(1)(3)(v)(C) (permitting L-1A managers or executives that are 
coming to the United States to open a "new office" in the United States to perform some non-qualifying duties during the 
first year). 
8 The two definitions of "incidental" in Webster's New College Dictionary are "1. Occurring or apt to occur as an 
unpredictable or minor concomitant ... [and] 2. Of a minor, casual, or subordinate nature .... " Incidental, Webster's 
New College Dictionary (3rd ed. 2008). 
8 
Matter of K-E-, Inc. 
The evidence in the record is insufficient to demonstrate that the Petitioner qualifies as the 
Beneficiary's U.S. employer having an employer-employee relationship with him. 8 C.F.R. 
§ 214.2(h)(4)(ii). As indicated above, the Beneficiary is the Petitioner's president and will be the 
sole employee in the United States. The Petitioner claims to be a wholly owned subsidiary of its 
parent company abroad, of which the Beneficiary is a founding member. Simultaneously, the 
Petitioner's tax returns reflect that the Beneficiary owns 50% of the company's voting stocks, along 
with another 50% shareholder who is the Petitioner's secretary.9 Considering all of these factors, it 
is not evident how the Petitioner will have and maintain an employer-employee relationship with the 
Beneficiary, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control his 
work. Id. 
V. CONCLUSION 
The record is insufficient to demonstrate that the proffered position the proffered qualifies as a 
specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-E-, Inc., ID# 394007 (AAO June 13, 2017) 
9 The Petitioner's tax returns list the number of shareholders as "I." It is not clear whether the Petitioner is a wholly 
owned subsidiary, or is equally owned by the Beneficiary and the other shareholder. The Petitioner has not explained or 
documented the ownership of its parent company. 
9