dismissed H-1B Case: Software Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re: 10907513 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 14, 2020 
The Petitioner, a software consulting and development firm, seeks to temporarily employ the 
Beneficiary as a "digital solutions sales representative" under the H-1B 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-1B 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 evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. The matter is 
now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate el igibi I ity by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), 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: 
(1) 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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). 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"). 
11. THE PROFFERED POSITION 
The Petitioner states that it is a software consulting and development firm and seeks to employ the 
Beneficiary as a "digital solutions sales representative." In a letter submitted in support of the petition, 
the Petitioner described the duties and responsibilities of the proffered position as follows: 
I Analyze the business model and future growth plan of targeted new clients. 
I Understand the current pain points of potential customers, their business priorities, 
and mapping it to [Petitioner's] proprietary! I and0platforms 
and solutions. 
I Systematically identify new perspective clients as well as identify additional 
partnership opportunities with existing clients. 
I Design and prepare value proposition from [Petitioner's] IT perspective for its 
clients 
I Prepare customized plans for customers providing holistic business perspective. 
I Engage the client by showcasing business benefits via implementation of 
[Petitioner's] solutions. 
I Present demonstrations of the proposed solutions to client. 
I Gather client focused solution requirements and prepare detailed solutions in 
collaboration with pre-sales and solution architecture team. 
I Present the final proposal to the client. 
I Follow up with client on project delivery plan. 
I Maintain relationship after potential client converted into current client. 
2 
Ill. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation.1 In particular, we conclude that three separate 
factors independently bar approval of this petition: (1) inconsistencies in the record of proceeding 
regarding the Petitioner's minimum entry requirements for this position; (2) the Petitioner's lack of a 
requirement for a bachelor's degree in a specific specialty, or the equivalent; and (3) the Petitioner's 
failure to satisfy at least one of the four regulatory specialty-occupation criteria enumerated at 8 C.F.R. 
§ 214.2(h)( 4)(i i i)(A)(l)-( 4). 
A. Inconsistencies 
We first observe that the initial petition provided for two separate, and conflicting, statements of the 
proffered position's minimum requirements. Counsel's brief notably states that "The Proffered Role's 
technical duties could only be performed by an individual who understand and is able to effectively 
apply a theoretical and practical body of highly specialized knowledge in Computer Science, 
Computer Engineering, Information Systems, or a field related to the specialty occupation or have the 
equivalent education and experience." The Petitioner's support letter, however, dropped these fields 
and instead stated that the position's minimum requirements were a bachelor's degree in business, 
management, or a directly related field. 
In its response to the Director's request for evidence (RFE), the Petitioner stated again that "the 
proffered position's technical duties could only be performed by an individual who understands and 
is apply to effectively apply a theoretical and practical body of highly specialized knowledge in 
computer science, information technology, or a related field." However in this same response letter 
the Petitioner stated that "the position of Digital Solutions Sales Representative at [Petitioner] requires 
the theoretical and practical application of sophisticated technologies and principles that can only be 
gained through the attainment of at least a bachelor's degree or its equivalent in Business, 
Management, or a directly related field." In other words, the Petitioner at some points states that an 
individual with a bachelor's degree in business, with no additional specialization, could perform the 
duties of the proffered position and at other points it does not. At some points the Petitioner focuses 
on computer science, computer engineering, or information systems, and at some points it does not. 
On appeal the Petitioner repeatedly states that the proffered position requires the theoretical understand 
and practical application of technologies and principles that can only be gained through the attainment 
of at least a bachelor's degree or its equivalent in a specialty field directly related to the position. 
Notably, however, the Petitioner no longer asserts that any specific type of bachelor's degree is 
required. This lack of specificity on appeal, considered in tandem with the wide range of acceptable 
degrees identified by the Petitioner both in the initial petition filing and in response to the RFE (e.g., 
business, management, computer science, computer engineering, information technology, or a related 
1 The Petitioner submitted documentation to support the H-lB petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
3 
field), casts doubt upon the Petitioner's claim that the proffered position is a specialty occupation 
requiring a specific degree. 
For this reason alone, we cannot conclude that the proffered position is a specialty occupation. 
B. Lack of Requirement for a Bachelor's Degree in a Specific Specialty 
In addition to the problem created by the wide range of degrees that the Petitioner would accept, its 
claim that a bachelor's degree in business, with no further specialization, would adequately prepare a 
candidate to perform the duties of the proffered position is further problematic, and alone precludes a 
determination that the position involves a "body of highly specialized knowledge" or that it requires 
the attainment of a bachelor's degree in a "specific specialty." The First Circuit Court of Appeals 
explained in Royal Siam, 484 F.3d at 147, that: 
The courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not 
justify the granting of a petition for an H-1B specialty occupation visa. See, e.g., Tapis 
lnt'I v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. Supp. 2d at 1164-
66; cf. Matter of Michael Hertz Assocs., 19 I & &N Dec. 558, 560 ([Comm'r] 1988) 
(providing frequently cited analysis in connection with a conceptually similar 
provision). This is as it should be: elsewise, an employer could ensure the granting of 
a specialty occupation visa petition by the simple expedient of creating a generic (and 
essentially artificial) degree requirement. 2 
2 Id. But see India House, Inc. v. McAleenan, 449 F. Supp. 3d 4 (D.R.I. 2020). In India House the court distinguished 
Royal Siam on factual grounds but did not dispute its central reasoning: that a position whose duties can be fulfilled by an 
individual with a general-purpose bachelor's degree in business, or business administration, is not a specialty occupation. 
Instead, it distinguished Royal Siam on factual grounds. Here, the Petitioner specifically recognizes an unspecialized 
bachelor's degree in business administration as being one of the degrees it considers as providing an adequate preparation 
to perform the duties of the proffered position. 
The agency has longstanding concerns regarding general-purpose bachelor's degrees in business, or business 
administration, with no additional specialization. For example, in Matter of Ling, 13 I. & N. Dec. 35 (Reg'I Comm'r 
1968), the agency stated that attainment of a bachelor's degree in business administration alone was insufficient to qualify 
a foreign national as a member of the professions pursuant to section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32). Twenty 
years later, the agency looked to the nature of the position itself and clarified that a requirement for a degree with a 
generalized title, such as business administration, without further specification, was insufficient to qualify the position as 
one that is professional pursuant to section 101(a)(32) of the Act. Michael Hertz Assocs., 19 l&N Dec. at 560. See also 
Matter of Caron lnt'I, Inc., 19 l&N Dec. 791 (Comm'r 1988) (vice president for manufacturing in a textile company was 
not a professional position because individual holding general degree in business, engineering or science could perform its 
duties). 
Congress created the modern H-lB program as part of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978. 
In doing so, it pivoted away from the prior H-1 standard of whether a position was "professional." Instead, petitioners 
were now required to demonstrate that a proffered position qualified as a "specialty occupation." Section 
101(a)(15)(H)(i)(b) of the Act. In the final rule setting forth the requirements for the revamped H-1B program, the agency, 
responding to commenters suggesting that the proposed regulatory "specific specialty" requirement "was too severe and 
would exclude certain occupations from classifications as specialty occupations," stated that "[t]he definition of specialty 
4 
For this reason alone, the record satisfies neither the statutory nor the regulatory definitions of the term 
"specialty occupation," and we could end our analysis here and dismiss the appeal on this basis as 
well. But we will not do so, because even if we were to set these two preliminary issues aside we 
would still dismiss the appeal because the evidence of record does not satisfy any of the four specialty­
occupation criteria. 
C. The Specialty-Occupation Criteria Enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4) 
As indicated, even if we were to set these two issues aside we would still conclude that the proffered 
position is not a specialty occupation because the evidence of record does not satisfy at least one of 
the criteria set forth at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). For this additional reason, the petition 
cannot be approved. 
1. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we will consider the information contained 
in the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the 
duties and educational requirements of the wide variety of occupations it addresses. 3 
In the labor condition application (LCA), the Petitioner classified the proffered position under the 
occupational title "Sales Representatives, Wholesale and Manufacturing, Technical and Scientific 
Products," corresponding to the Standard Occupational Classification (SOC) code 41-4011.4 
occupation contained in the statute contains this requirement." Temporary Alien Workers Seeking Classification Under 
the Immigration and Nationality Act, 56 Fed. Reg. 61111, 61112 (Dec. 2, 1991). 
The agency's concerns regarding a general-purpose, non-specific bachelor's degree in business, or business administration, 
continued under the revamped H-1B program. See, e.g., Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151 (D. Minn. 1999); Royal 
Siam, 484 F.3d at 147; 2233 Paradise Road, LLC v. Cissna, No. 17-cv-01018-APG-VCF , 2018 WL 3312967 (D. Nev., 
July 3, 2018); XiaoTong Liu v. Baran, No. 18-00376-JVS, 2018 WL 7348851 (C.D. Cal., Dec. 21, 2018); Parzenn Partners 
v. Baran, No. 19-cv-11515-ADB, 2019 WL 6130678 (D. Mass., Nov. 19, 2019); Vision Builders, LLC v. USCIS, No. 19-
3159, 20 WL 5891546, at *4 (D.D.C., Oct. 5, 2020). 
To the extent the Petitioner is arguing that a bachelor's degree in business, or business administration, with no further 
specialization (or the equivalent), is a bachelor's degree in a specific specialty, then consistent with agency history and 
federal case law, we must disagree. 
3 All of our references to the Handbook may be accessed at the Internet site http://www.bls.gov/ooh/. We consider the 
information in the Handbook regarding the duties and educational requirements of the wide variety of occupations that it 
addresses. We do not, however, maintain that the Handbook is the exclusive source of relevant information. That is, the 
occupational category designated by the Petitioner is considered as an aspect in establishing the general tasks and 
responsibilities of a proffered position, and we regularly review the Handbook on the duties and educational requirements 
of the wide variety of occupations that it addresses. However, the burden of proof remains on the Petitioner to submit 
sufficient evidence to establish that the proffered position qualifies as a specialty occupation. 
4 A petitioner submits the LCA to the Department of Labor (DOL) to demonstrate that it will pay an H-1B worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.731(a). 
5 
With regard to "Wholesale and Manufacturing Sales Representatives," the Handbook specifically 
states that "[a] high school diploma is typically sufficient for many positions, primarily those selling 
nontechnical or scientific products."5 The Handbook does report that for positions involving the sale 
of scientific and technical products, a bachelor's degree is "usually" required. With regard to the 
particular type of bachelor's degree required for such positions, the Handbook reports that a degree in 
a field related to the product sold, is "sometimes required."6 
On appeal the Petitioner seizes upon the Handbook's statements regarding degree requirements for 
positions involving the sale of scientific and technical products, indicating his belief that this language 
satisfies the regulation. We do not agree. Even if we were to accept the Petitioner's assertion that the 
terms "typical" and "normally" are interchangeable, the Petitioner's burden would still not be satisfied, 
as a bachelor's degree requirement, alone, is not sufficient. The bachelor's degree must be in a specific 
specialty, and the Handbook states only that when a bachelor's degree is required, a bachelor's degree 
"in a field related to the product sold" (i.e., in a specific specialty) is only "sometimes required." Id. 
In other words, the Handbook does not support the claim that a bachelor's degree in a specific specialty 
or the equivalent is normally required for these positions. 
The narrative of the Handbook further reports that many employees obtain professional certification 
to demonstrate a level of professional competency. It continues by outlining the requirements for 
wholesale and manufacturing sales representatives to achieve Certified Professional Manufacturers' 
Representative (CPMR) and Certified Sales Professional (CSP) certifications. According to the 
Handbook, these credentials are granted by the Manufacturers' Representatives Educational Research 
Foundation (MRERF) for those who take the technical training and who also pass an exam and that 
continuing education is also required. Additionally, many companies have formal training programs 
of their own. The Petitioner did not indicate that such certification or training is required for this 
position. 
The Handbook, therefore, does not support the Petitioner's assertion that the proffered position is a 
specialty occupation. 
The Petitioner also referenced DOL's Occupational Information Network (O*NET) summary report 
for "Sales Representatives, Wholesale and Manufacturing, Technical and Scientific Products" listed 
as SOC code 41-4011.00. Though relevant, the information from O*NET does not establish the 
Petitioner's eligibility under the first criterion, as it does not establish that a bachelor's degree in a 
specific specialty, or the equivalent, is normally required. The O*NET Summary Report provides 
general information regarding the occupation, but it does not support a conclusion that the proffered 
position requires a bachelor's degree in a specific specialty, or the equivalent. Instead, O*NET assigns 
these positions a "Job Zone Four" rating, which states "most of these occupations require a four-year 
bachelor's degree, but some do not." Moreover, the Job Zone Four designation does not indicate that 
any academic credentials for Job Zone Four occupations must be directly related to the duties 
performed. In addition, the specialized vocational preparation (SVP) rating designates this occupation 
as 7 < 8. An SVP rating of 7 to less than ("<") 8 indicates that the occupation requires "over 2 years 
5 See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, 
Wholesale and Manufacturing Sales Representatives, http://www.bls.gov/ooh/sales/wholesale-and-manufacturing-sales­
representatives.htm#tab-4 (last visited Nov. 6, 2020). 
6 Id. 
6 
up to and including 4 years" of training. While the SVP rating indicates the total number of years of 
vocational preparation required for a particular position, it is important to note that it does not describe 
how those years are to be divided among training, experience, and formal education. The SVP rating 
also does not specify the particular type of degree, if any, that a position would require. 7 
The record lacks sufficient evidence to support a finding that the proffered position is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. For the aforementioned reasons, the Petitioner has not met its burden to 
establish that the particular position offered in this matter requires a bachelor's or higher degree in a 
specific specialty, or its equivalent, directly related to its duties in order to perform those tasks. Thus, 
the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1). 
2. Second Criterion 
The second criterion presents two, alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong contemplates 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. The Petitioner does not assert, nor does the record demonstrate, eligibility under the first 
prong of this criterion. Accordingly, we will not address this prong. 
The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) is satisfied if the Petitioner shows 
that its particular position is so complex or unique that it can be performed only by an individual with 
at least a bachelor's degree in a specific specialty, or its equivalent. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the Petitioner 
described the proffered position and its business operations. However, the Petitioner has not 
sufficiently developed relative complexity or uniqueness as an aspect of the proffered position. In 
other words, the Petitioner has not demonstrated how the duties of the proffered position require the 
theoretical and practical application of a body of highly specialized knowledge such that a bachelor's 
or higher degree in a specific specialty, or its equivalent, is required to perform them. 
For example, the Petitioner stated that the Beneficiary will be working within the Digital Platform 
Sales team. The Petitioner stated that the team is tasked with "ensuring that [Petitioner] continuously 
engage existing and new clients with their digital platform and services" and they "work independently 
to sell [Petitioner's] D and I I solutions as well as t~ I services to new customers" 
and "collaborate with other sales teams across the U.S. to sel andl !solutions as well 
as the I O I services to existing customers." Although the record of proceeding contains a 
rudimentary organizational chart depicting a Digital Platform Sales team comprised of three positions 
and two identified individuals including the Beneficiary, this chart does not show the operational 
structure within the Petitioner's business operations in a manner that would establish the Beneficiary's 
relative role therein. The Petitioner has not adequately evidenced the scope of the Beneficiary's 
responsibilities within the context of its business operations. 
7 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/ 
help/online/svp. 
7 
Moreover, the record does not contain a sufficiently detailed description of the Beneficiary's duties to 
establish that the position 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, 
or its equivalent. For example, the Petitioner stated that the Beneficiary's duties include "analyz[ing] 
the business model and future growth plan of targeted new clients." However, the general description 
of the duties does not illuminate the substantive application of knowledge involved or any particular 
educational requirement associated with analyzing business models or growth plans. The Petitioner 
further stated that the Beneficiary will "prepare customized business plans for customers providing 
holistic business perspective" but did not explain in detail what this actually entails, the extent of the 
Beneficiary's role in preparing customized business plans, and why these duties would require a 
bachelor's degree, or the equivalent, in a specific specialty. While the Petitioner submitted 
information about the Digital Platform Sales team, the documents provide little insight into how the 
Beneficiary utilizes the information contained in these documents. Nor do they reveal the extent of 
the Beneficiary's duties in relation to the information contained in them. 
Simply put, the duties as described do not illuminate the substantive application of knowledge 
involved or any particular educational requirement associated with such duties. With the broadly 
described duties, the record lacks sufficient information to understand the nature of the actual proffered 
position and to determine that the duties require the theoretical and practical application of a body of 
highly specialized knowledge attained by a bachelor's degree, or higher, in a specific discipline. For 
example, as the record currently stands, we question why an individual with an unrelated bachelor's 
degree and a few information technology courses could not perform these duties. 8 
Finally, we turn to the Petitioner's assertions regarding the wage level it designated for the position 
on the LCA. As the Petitioner emphasizes, it designated the proffered position as requiring a wage 
level 11. However, in this case, that level 11 designation when read in combination with the evidence 
presented actually indicates that this particular position is likely not so specialized and complex or 
unique that the duties could only be performed by an individual with a bachelor's degree or higher in 
a specific specialty, or its equivalent. 
The wage level 11 designation suggests that the position will be doing the basic functions of jobs 
located within this occupational category, which would seem to be at odds with the claims made by 
the Petitioner that the duties of the proffered position are "complex or unique" as well as "specialized 
and complex" as compared to such positions.9 In general, if a position is located within an 
occupational category that does not contain a normal requirement for a bachelor's degree in a specific 
8 That the Petitioner would accept an individual with a bachelor's degree in business, with no further specialization, 
compounds these doubts. 
9A wage level 11 position is for an employee who has a good understanding of the occupation but who will only perform 
moderately complex tasks that require limited judgment. See 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. Therefore, it does not appear 
that, relative to other positions located within the occupational category, this is one with specialized and complex, or unique 
duties, as such a higher-level position would likely be classified as a Level 111 or Level IV position, requiring a significantly 
higher prevailing wage. While not dispositive, a salary that is beneath the median wage for the occupational category in 
the area of intended employment (which is the case with a Level 11 wage) is certainly not evidence that the proffered 
position is particularly specialized, complex or unique relative to other positions within the occupational category. 
8 
specialty, or the equivalent, as is the case here, a petitioner must distinguish its proffered position from 
others within the same occupation through the proper wage level designation to indicate factors such 
as the relative complexity of the job duties, the level of judgment, the amount and level of supervision, 
and the level of understanding required to perform the job duties in order to establish eligibility under 
this prong.10 In other words, if typical positions located within the occupational category do not require 
a bachelor's degree in a specific specialty, or the equivalent, then it is unclear how a position with level 
II characteristics would, regardless of the Petitioner's assertions. The record lacks sufficiently detailed 
and unambiguous information to distinguish the proffered position as unique from or more specialized 
and complex than other closely related positions that can be performed by persons without at least a 
bachelor's degree in a specific specialty, or its equivalent. 
The Petitioner discussed the Beneficiary's previous coursework for the purpose of correlating the need 
for the Beneficiary's education with the associated job duties of the position. While a few related 
courses and skills may be beneficial in performing certain duties of the position, the Petitioner has not 
demonstrated how an established curriculum of such courses leading to a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is required to perform the duties of the proffered 
position. The Petitioner repeatedly claims that the Beneficiary is well qualified for the position and 
references his qualifications. However, the test to establish a position as a specialty occupation is not 
the education or experience of a proposed beneficiary, but whether the position itself requires at least 
a bachelor's degree in a specific specialty, or its equivalent. We are required to follow long-standing 
legal standards and determine first, whether the proffered position qualifies for classification as a 
specialty occupation, and second, whether the Beneficiary was qualified for the position at the time 
the nonimmigrant visa petition was filed. Cf. Matter of Michael Hertz Assocs., 19 l&N Dec. at 560 
("The facts of a beneficiary's background only come at issue after it is found that the position in which 
the petitioner intends to employ him falls within [a specialty occupation]."). 
The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the 
position. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(i i i)(A)(2). 
3. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally 
requires a bachelor's degree in a specific specialty, or its equivalent, for the position. The Petitioner 
does not assert, nor does the record demonstrate, eligibility under this criterion. 
4. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that 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 in a specific specialty, or its 
equivalent. 
For reasons similar to those discussed under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), we 
conclude that the Petitioner has not demonstrated in the record that its proffered position is one with duties 
io Id. 
9 
sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). We hereby incorporate 
our earlier discussion and analysis on this matter. 
Consequently, the Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
IV. CONCLUSION 
As set forth above, we conclude that the evidence of record does not establish, more likely than not, 
that the proffered position qualifies for classification as a specialty occupation. Accordingly, the 
appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the petitioner's 
burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
10