dismissed H-1B Case: Software Development

(b)(6)
DATE: JUL 0 8 2015 PETITION RECEIPT#: 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 
U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent 
decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions 
must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
· osenberg 
hief, 
Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Vermont 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. 
On the Petition for a Nonimmigrant Worker (Form 1-129), the petitioner describes itself as a 
software development/consulting firm that was established in In order to employ the 
beneficiary in what it designates as a "Management Analyst" position, the petitioner seeks to classify 
the beneficiary as a nonimmigrant worker m a specialty occupation pursuant to section 
10l(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The Director denied the petition, concluding that the petitioner did not establish that the proffered 
position qualifies as a specialty occupation in accordance with the applicable statutory and 
regulatory provisions. The Director's decision hinged upon what the Director framed as a lack of 
documentary evidence to substantiate that the beneficiary would be employed in the project that the 
petitioner described as the basis for its need for a management analyst. On appeal, the petitioner 
asserts that the Director's ground for denial was erroneous and contends that it satisfied all 
evidentiary requirements. 
The record of proceeding before us contains: (1) the Form I-129 and supporting documentation; (2) 
the Director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the notice of 
decision; and (5) the Notice of Appeal or Motion (Form I-290B) and supporting materials. We 
reviewed the record in its entirety before issuing our decision. 
For the reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the appeal will be dismissed, and the 
petition will be denied. 
I. LEGAL FRAMEWORK 
The issue on appeal is whether the petitioner provided sufficient evidence to establish that it will 
employ 
the beneficiary in a specialty occupation position. To meet its burden of proof in this regard, 
the petitioner must establish that it is offering employment to the beneficiary that meets the 
applicable statutory and regulatory requirements. 1 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
1 We apply the "preponderance of evidence" standard of review as articulated in the controlling precedent 
decision, Matter of Chawathe, 25 l&N Dec. 369, 375-376 (AAO 2010). Accordingly, we have examined 
each piece of evidence for relevance, probative value, and credibility, both individually and within the context 
of the totality of the evidence. Also, we conduct appellate review on a de novo basis. See Soltane v. DOJ, 
381 F.3d 143, 145 (3d Cir. 2004). 
(b)(6)
Page 3 
NON-PRECEDENT DECISION 
(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.P.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.P.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(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. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient .conditions for meeting the definition of specialty occupation would result in 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently 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. See 
Royal Siam Corp. v. Chertojf, 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"). Applying this standard, USCIS regularly approves H-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty or its equivalent directly related to the duties and responsibilities of the 
particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-lB visa category. 
II. ANALYSIS 
According to petitioner, the beneficiary will be employed on an in-house project developing a 
particular software product for the petitioner, which is identified as " " The 
petitioner's letter in reply to the RFE provided the following outline of the proposed duties, which 
we quote verbatim: 
A detailed description of the duties: 
- Translating business requirements into data requirements and documenting the 
process in our mapping documents; 
- Translating data requirements into technical requirements and documents the 
same; 
- Analyze problems and procedures of information flow, operations, procedures 
and requirements of businesses using Organizational Analysis; 
- Observe unit functions, conduct work simplification studies, identify 
input/output requirements for the project; 
- Optimize methods and systems for management policy formulation; 
(b)(6)
Page 5 
NON-PRECEDENT DECISION 
- Design, develop, modify and update the automated processes involved based 
on business use and bugs in optimum functioning of the project; 
- Define data, systems and program functions to improve automated 
applications; 
- Create program to assist management in planning, resource allocation, 
performance measurement and effective operation and prepare 
recommendations for implementation of new systems, procedures, and 
organizational changes; 
- Study organizational change, communications, information flow, integrated 
production methods, inventory control, or cost analysis after implementation of 
application; 
- Prepare operations and procedural manuals for the project; 
- Develop, document and revise system design procedures, test procedures, and 
quality standards. 
The only way to assure that the applicant/candidate for the position will be able to 
perform all of these duties is to require that the individual have at least a Bachelor's 
degree in Computer Science, Engineering, Business Administration or a closely 
related field. 
A. Credibility of the Project 
The Director determined that the petitioner had not submitted sufficient evidence to establish the 
credibility of the application project as providing the management analyst work upon 
which the petitioner bases its specialty occupation claim. The Director summarized this conclusion in 
stating that "[t]he totality of the evidence does not demonstrate that you [i.e., the petitioner] will 
gainfully employ the beneficiary to work on an in-house project as a management analyst." 
The pertinent part of the Director's decision further states: 
You have submitted Internet content regarding the product, which you 
indicate is the platform for the product. A review of your internet website 
indicates that to be your product; however, publicly available information 
indicates that is shareware, which is available for free download, and that it 
was developed by The record does not demonstrate that you are in any 
way affiliated with this entity. 
This information cast[ s] doubt as to the veracity of your claim regarding the 
development of this product. 
(b)(6)
NON-PRECEDENTDEC~JON 
Page 6 
We observe that the evidence of record before the Director provided a sound factual basis for concern 
about the accuracy of the petitioner's claims. For example: 
• The last page of Exhibit 7 presents , as the petitioner's own product. This 
document, with the "Products" section at its menu-bar highlighted, introduces three 
"Screenshots of ' as follows: 
We are very happy to announce the release of our new product A 
component to make building Click here to 
know more. 
Screenshots of 
The features that demonstrate that the petitioner was presenting to USCIS 
as the petitioner's own product are the combination of (1) the document's 
identification of as the product of the entity producing that page through 
the description of as "our new product," (2) the Copyright tag at the 
bottom of the document, which reads: "Copyright © [the petitioner's name]. All 
rights reserved." The implication is that is a proprietary product 
developed and owned by the petitioner, and that, as such, the petitioner would have 
unrestricted use of as the platform upon which to build the 
application. 
After the Director's decision was issued, counsel's quotes the petitioner as stating, in part, that it had 
purchased "a more advanced version of [the] application." According to counsel, the 
petitioner's representations include the following statements: 
is an independent entity by itself and [the petitioner] does not have any 
ownership or partnership or any subsidiary relationship with But [the 
petitioner], to develop its own software application product called " " 
uses software as a platform (or a base) on which to build that application. 
* * * 
[T]his advanced version also has an array of API's (Application Programming 
Interfaces) provided solely for [the] developer community and other companies 
(such as the petitioner) that not only wants to enhance and/or the advanced features 
set, but also use this as a base platform to build and develop their own product( s) 
on, as a 'value added' software product offering. [We] are one such company that is 
using this product as a base to build its ' ' application on. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
The submissions on appeal include copies of three printouts from reflecting that 
the petitioner issued three checks to as follows: (1) for $625.00, on September 23, 2010; 
(2) for $1,680, on January 7, 2011; and (3) for $840.00, on February 4, 2011. While these documents 
indicate that the petitioner has made three payments to _ the printouts only list those amounts 
as "product fees." The record does not include any communication from that supports 
the petitioner's assertion that the advanced version that it purchased authorized the petitioner to use 
as a platform for developing its own time-planning application for it to market and sell as its 
own product. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 
1972)). 
Importantly, the " License Agreement" (hereinafter "the License Agreement"), submitted as 
part of Exhibit 9 of the RFE reply, suggests that has not authorized such use of any 
version. The terms of the License Agreement provides, inter alia: 
• Subparagraph (a) at part 2, "Ownership," reports that "Licensee acquires no title, 
right, or interest in the SOFTWARE other than the rights granted herein." 
• The statement, repeated with regard to each license described, that 
granting "a non-transferable" license. 
• The second paragraph of part 4, "Restrictions on Use and Transfer," which states: 
You may not a) use any part of the Software or Modifications or Your 
knowledge of the Software (or any information that you may learn as a result 
of your use of the Software) to create a product with the same or substantially 
the same functionality as the Software; b) transfer, rent, lease, or sublicense 
the Software or Modifications, or any portions thereof; c) change or remove 
the copyright notice from any of the files included in the Software 
Modifications. 
UNDER NO CIRCUMSTANCES MAY YOU USE THE SOFTWARE (OR 
WITHOUT LIMITATION) AS THE BASIS FOR OR IN CONNECTION 
WITH A PRODUCT THAT CONTAINS THE SAME, OR 
SUBSTANTIALLY THE SAME, FUNCTIONALITY AS THE 
SOFTWARE. 
lS 
• The bold-faced statement at part 5 "Intellectual Property Rights" that "You may not 
copy the Licensed Software, or decompile, disassemble, reverse engineer, or create a 
derivative work based upon the Licensed Software, or authorize anyone else to do 
so." 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). USCIS regulations affirmatively require a petitioner to establish 
eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F .R. I 03 .2(b )( 1 ). 
B. Application ofthe Criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 
As will be discussed, even ifthe petitioner had established the credibility of the project presented as 
the basis of the petition - which is not the case - the application of the criteria at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A) to the evidence ofrecord would not support approval of this petition. 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
The issue presented by the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) is whether the evidence in 
the record of proceeding has established that the particular position that is the subject of the petition 
is one for which the minimum requirement for entry is normally a baccalaureate or higher degree in 
a specific specialty, or its equivalent. . 
We recognize the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook (Handbook) as 
an authoritative source on the duties and educational requirements of the wide variety of occupations 
that it addresses.2 The Handbook states the following with regard to the educational requirements 
necessary for entrance into positions within this occupational category: 
Most management analysts have at least a bachelor's degree. The Certified 
Management Consultant (CMC) designation may improve job prospects. 
2 All of our references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet 
site http://www.bls.gov/OCO/. The occupational category designated by a petitioner is considered as 
an aspect in establishing the general tasks and responsibilities of a proffered position, and USCIS 
regularly reviews the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. However, to satisfy the first criterion, the burden of proof remains on the 
petitioner to submit sufficient evidence to support a finding that its particular position would 
normally have a minimum, specialty degree requirement or its equivalent for entry. That is, to 
determine whether a particular job qualifies as a specialty occupation, USCIS does not simply rely 
on a position's title or designated occupational category. The specific duties of the proffered 
position, combined with the nature of the petitioning entity's business operations, are factors to be 
considered. USCIS must examine the ultimate employment of the beneficiary, and determine 
whether the position qualifies as a specialty occupation. See generally Defensor v. Meissner, 201 
F.3d 384. 
(b)(6)
Page 9 
NON-PRECEDENT DECISION 
Education 
A bachelor's degree is the typical entry-level requirement for management analysts. 
However, some employers prefer to hire candidates who have a master's degree in 
business administration (MBA). 
Few colleges and universities offer formal programs in management consulting. 
However, many fields of study provide a suitable education because of the range of 
areas that management analysts address. Common fields of study include business, 
management, economics, political science and government, accounting, finance, 
marketing, psychology, computer and information science, and English. Analysts 
also routinely attend conferences to stay up to date on current developments in their 
field. 
Licenses, Certifications, and Registrations 
The Institute of Management Consultants USA (IMC USA) offers the Certified 
Management Consultant (CMC) designation to those who meet minimum levels of 
education and experience, submit client reviews, and pass an interview and exam 
covering the IMC USA's Code of Ethics. Management consultants with a CMC 
designation must be recertified every 3 years. Management analysts are not 
required to get certification, but it may give jobseekers a competitive advantage. 
Work Experience in a Related Occupation 
Many analysts enter the occupation with several years of work experience. 
Organizations that specialize in certain fields typically try to hire candidates who 
have experience in those areas. Typical work backgrounds include management, 
human resources, and information technology. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Management Analysts, on the Internet at http:// www.b1s.gov/ooh/business-and­
financial/management-analysts.htm#tab-4 (last visited June 24, 2015). 
The Handbook reports that management analysts are not required to obtain certification, but that it 
may give jobseekers a competitive advantage. According to the Handbook, the Institute of 
Management Consultants USA (IMC USA) offers the Certified Management Consultant (CMC) 
designation to those who meet minimum levels of education and experience, submit client reviews, 
and pass an interview and exam covering the IMC USA's Code of Ethics. We note that there is no 
indication that the petitioner requires the beneficiary to have obtained the CMC designation or any 
other professional designation to serve in the proffered position. 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
The Handbook's narrative indicates that common fields of study include business, management, 
economics, political science and government, accounting, finance, marketing, psychology, computer 
and information science, and English. According to the Handbook, a range of programs can help 
people prepare for jobs in this occupation. The Handbook states that many analysts enter the 
occupation with several years of work experience, and that typical work backgrounds include 
management, human resources, and information technology. The Handbook does not conclude that 
normally the minimum requirement for entry into these positions is at least a bachelor's degree in a 
specific specialty, or its equivalent. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty" requirement of section 214(i)(l)(B) of the Act. In such a case, the required 
"body of highly specialized knowledge" would essentially be· the same. Since there must be a close 
correlation between the required "body of highly specialized knowledge" and the position, however, 
a minimum entry requirement of a degree in disparate fields (such as business, management, 
economics, political science and government, accounting, finance, marketing, psychology, computer 
and information science, and English) would not meet the statutory requirement that the degree be 
"in the specific specialty," unless the petitioner establishes how each field is directly related to the 
duties and responsibilities of the particular position such that the required body of highly specialized 
knowledge is essentially an amalgamation of these different specialties. Section 214(i)(l)(B) of the 
Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular 
11
Specialty," we 
do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
occupations if they permit, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 214(i)(l)(B) ofthe Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
Also, the Handbook states that a degree in business is acceptable. 3 Although a general-purpose 
bachelor's degree, such as a degree in business, may be a legitimate prerequisite for a particular 
position, requiring such a degree, without more, will not justify a finding that a particular position 
qualifies for classification as a specialty occupation. See Royal Siam Corp. v. Chertojf, 484 F.3d at 
147.4 Therefore, the Handbook's recognition that a general, non-specialty degree in business is 
3 Further, the petitioner reports that a degree in business administration is acceptable for the proffered 
position. 
4 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
[t]he 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 
(b)(6)
NON-PRECEDENT DECISION 
Page 11 
sufficient for entry into the occupation strongly suggests that a bachelor's degree in a specific 
specialty is not normally the minimum requirement for entry into this occupation. 
Also, when reviewing the Handbook, we take into account that in the Labor Condition Application 
(LCA), the petitioner stated that the position corresponds to a Level I (entry level) position in 
comparison to other positions within the same occupational category.5 This designation is 
appropriate for a comparatively low, entry-level position relative to others within the occupation.6 
That is, in accordance with the relevant DOL explanatory information on wage levels, this wage rate 
indicates that the beneficiary is only required to have a basic understanding of the occupation and 
carries expectations that the beneficiary perform routine tasks that require limited, if any, exercise of 
I d. 
of a petition for an H-lB specialty occupation visa. See, e.g., Tapis Int'l 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. 
5 The petitioner's designation of this position as a Level I, entry-level position appears to indicate that the 
position is not particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a 
proffered position from classification as a specialty occupation. In certain occupations (doctors or lawyers, 
for example), an entry-level position would still require a minimum of a bachelor's degree in a specific 
specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that 
an occupation qualifies as a specialty occupation if that higher-level position does not have an entry 
requirement of at least a bachelor's degree in a specific specialty or its equivalent. That is, a position's wage 
level designation may be a consideration but is not a substitute for a determination of whether a proffered 
position meets the requirements of section 214( i)( 1) of the Act. 
6 
The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage 
rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have 
only a basic understanding of the occupation. These employees perform routine tasks that 
require limited, if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. The employees may 
perform higher level work for training and developmental purposes. These employees work 
under close supervision and receive specific instructions on required tasks and results 
expected. Their work is closely monitored and reviewed for accuracy. Statements that the job 
offer is for a research fellow, a worker in training, or an internship are indicators that a Level 
I wage should be considered. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), which is accessible on the Internet at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_2009 .pdf. 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
judgment; that she would be closely supervised; that her work would be closely monitored and 
reviewed for accuracy; and that she would receive specific instructions on required tasks and 
expected results. DOL guidance indicates that a Level I designation should be considered for 
positions in which the employee will serve as a research fellow, worker in training, or an intern. 
The documents submitted on appeal include the Occupational Information Network (O*NET) 
Online's Summary Report for the Management Analysts occupational group. The petitioner's letter 
on appeal refers to the O*NET's assignments of a Specific Vocational Range (SVP) of "from 7 to 
less than 8" (7.0 < 8.0) and a Job Zone of "Four." 
O*NET Online provides general information regarding the tasks and work activities associated with 
a particular occupation, as well as the education, training, and experience required to perform the 
duties of that occupation. An SVP rating is meant to indicate only the total number of years of 
vocational preparation required for a particular occupation. An SVP rating of 7 does not indicate 
that at least a four-year bachelor's degree is required for an occupational category that has been 
assigned such a rating or, more importantly, that such a degree must be in a specific specialty closely 
related to the occupation. Rather, the SVP rating simply indicates that the occupation requires 
between 2+ years 
and 4 years of training. It does not describe how those years are to be divided 
among training, formal education, and experience and it does not specify the particular type of 
degree, if any, that a particular position would require. Further, the petitioner's statement that "[t]he 
knowledge needed for such occupations are in the areas of Database Administration, Mathematics, 
Engineering, Business Administration and Design" is a conclusion drawn by the petitioner, which 
does not appear in the O*NET OnLine Summary Report. 
Moreover, O*NET OnLine assigns this occupation a Job Zone "Four" rating, which groups it among 
occupations of which "most," but not all, "require a four-year bachelor's degree." Further, O*NET 
OnLine does not indicate that the degree must be in a specific specialty directly related to the 
occupation. 
The Handbook and O*NET Summary Report do not support the claim that the occupational category 
is one for which normally the minimum requirement for entry is a baccalaureate degree (or higher) 
in a specific specialty, or its equivalent. Even if it did (which it does not), the record lacks sufficient 
evidence to support a finding that the particular position proffered here would normally have such a 
minimum, specialty degree requirement or its equivalent - as the petitioner has indicated that a range 
of fields of study are acceptable (i.e., computer science, engineering, business administration). The 
duties and requirements of the position as described in the record of proceeding do not indicate that 
this particular position proffered by the petitioner is one for which a baccalaureate or higher degree 
in a specific specialty, or its equivalent, is normally the minimum requirement for entry. Thus, the 
petitioner has not satisfied the criterion at 8 C.F .R. § 214.2(h)( 4)(iii)(A){l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
This prong alternatively calls for a petitioner to establish that a requirement of a bachelor's or higher 
degree in a specific specialty, or its equivalent, is common for positions that are identifiable as being 
(1) in the petitioner's industry, (2) parallel to the proffered position, and also (3) located in 
organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As already discussed, the petitioner has not established that its proffered position is 
one for which 
the Handbook (or other objective, authoritative source), reports a standard, industry-wide 
requirement of at least a bachelor's degree in a specific specialty, or its equivalent. Further, there is 
no evidence of a professional association for the industry making a degree a minimum entry 
requirement, and the record does not contain letters or affidavits from firms or individuals in the 
industry attesting that such firms "routinely employ and recruit only degreed individuals." 
The provided several job vacancy advertisements which are presented as printouts of "other 
Management Analyst positions from www.monster.com where the employers are looking for 
applicants with a Bachelor's Degree in Business Administration or a closely related field." The 
petitioner submitted this documentation in support of its assertion that the degree requirement is 
common to the petitioner's industry in parallel positions among similar organizations. However, as 
will be discussed, the petitioner's reliance on the job announcements is misplaced. 
More specifically, in the Form I-129, the petitioner stated that it is a software 
development/consulting company with 46 employees. The petitioner designated its business 
operations under the North American Industry Classification System (NAICS) code 541511.7 This 
NAICS code is designated for "Custom Computer Programming Services." The U.S. Department of 
Commerce, Census Bureau website describes this NAICS code by stating the following: 
This U.S. industry comprises establishments primarily engaged in writing, modifying, 
testing, and supporting software to meet the needs of a particular customer. 
U.S. Dep't of Commerce, U.S. Census Bureau, 2012 NAICS Definition, 541511- Custom Computer 
Programming Services, on the Internet at http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last 
viewed June 24, 2015). 
7 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used 
to classify business establishments according to type of economic activity and, each establishment is 
classified to an industry according to the primary business activity taking place there. See 
http://www.census.gov/eos/www/naics/ (last viewed June 24, 2015). 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
When determining whether the petitioner and the organization share the same general characteristics, 
such factors may include information regarding the nature or type of organization, and, when 
pertinent, the particular scope of operations, as well as the level of revenue and staffing (to list just a 
few elements that may be considered). It is not sufficient for the petitioner to claim that an 
organization is similar and in the same industry without providing a legitimate basis for such an 
assertion. 8 Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 165 (citing 
Matter ofTreasure Craft of California, 14 I&N Dec. 190). 
We note that not all of the job postings appear to be from organizations similar to the petitioner and 
in the same industry. The postings include the following: (1) a luxury transportation company; (2) a 
staffing company on behalf of a client in the travel, transportation and tourism industries; (3) a 
provider of contractor support services to the (4) a provider of project 
management and administrative support for a government infrastructure engineering office; and (5) a 
$40 billion aerospace company with 131 ,000+ employees in 100 countries around the world. 
Without more, it does not appear that the advertised positions are located in organizations that are 
similar to the petitioner and in the same industry. 
In addition, some of the advertisements do not appear to be for parallel positions. For example, the 
posting from states that the position is responsible for providing contract management for 
the The advertisement for ..... - - .. .... -
states that the incumbent will work for a government infrastructure engineering office focusing on 
the military health system. The advertisement for states that the duties 
of the position include supporting the government in activities as it relates to the 
Business Model.9 The petitioner has not sufficiently established that the primary duties and 
responsibilities of the advertised positions are parallel to the proffered position. 
Further, some postings do not indicate that at least a bachelor's degree in a directly related specific 
specialty (or its equivalent) is required. For instance, one of the postings states that a degree or 
eleven years of experience is sufficient. The advertisement does not indicate that such experience 
must be the equivalent of a bachelor's degree (or even involve progressively responsible duties). 
Several of the postings indicate that a degree in business is acceptable. 10 The job postings suggest, 
8 Without such information, evidence submitted by a petitioner is generally outside the scope of consideration 
for this criterion, which encompasses only organizations that are similar to the petitioner. 
9 Further, the position with requires a degree and 10 years of experience. As 
previously discussed, the petitioner designated its proffered position as a Level I (entry level) position on the 
LCA. The advertised position appears to be for a more senior position than the proffered position. 
10 As previously discussed, although a general-purpose bachelor's degree, such as a degree in business, may 
be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify a 
(b)(6)
NON-PRECEDENTDEC~ION 
Page 15 
at best, that a bachelor's degree is sometimes re~uired for these positions, but not at least a bachelor's 
degree in a specific specialty (or its equivalent) . 1 
As the documentation does not establish that the petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. 12 That is, not every deficit of every job posting has been addressed. 
The petitioner has not established that a requirement of a bachelor's or higher degree in a specific 
specialty, or its equivalent, is common to the petitioner's industry in positions that are (1) in the 
petitioner's industry, (2) parallel to the proffered position, and also (3) located in organizations that 
are similar to the petitioner. For the reasons discussed above, the petitioner has not satisfied the first 
· alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can he performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
A petitioner satisfies the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) by showing 
that its particular position is so complex or unique that it can be performed only by a person with at 
least a bachelor's degree in a specific specialty, or its equivalent. 
We find that the petitioner has not sufficiently developed the substantive nature and performance 
requirements of the proffered position so as to identify whatever substantive aspects of the proffered 
position would render it so complex or unique as to require the services of a person with at least a 
bachelor's degree in a specific specialty, or its equivalent. Also, the petitioner did not submit 
finding that a particular position qualifies for classification as a specialty occupation. See Royal Siam Corp. 
v. Chertoff, 484 F.3d at 147. 
11 Even if all of the job postings indicated that a bachelor's degree in a specific specialty, or its equivalent, is 
common to the industry in parallel positions among similar organizations (which they do not), the petitioner 
does not demonstrate what inferences, if any, can be drawn from these advertisements with regard to 
determining the common educational requirements for entry into parallel positions in similar organizations. 
See generally Earl Babbie, The Practice of Social Research 186-228 (1995). 
As such, even if the job announcements supported the finding that the position required a bachelor's or higher 
degree in a specific specialty, or its equivalent (for organizations in the same industry that are similar to the 
petitioner), it cannot be found that such a limited number of postings that appear to have been consciously 
selected outweigh the findings of the Handbook published by the Bureau of Labor Statistics that such a 
position does not normally require at least a baccalaureate degree in a specific specialty, or its equivalent, for 
entry into the occupation in the United States. 
12 The petitioner did not provide any independent evidence of bow representative the job postings are of the 
particular advertising employers' recruiting history for the type of job advertised. As the advertisements are 
only solicitations for hire, they are not evidence of the actual hiring practices of these employers. 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
information showing how completion of a particular curriculum culminating in a bachelor's or higher 
degree in a specific specialty would be necessary to address whatever relative level of complexity or 
uniqueness the petitioner may attribute to the position. 
The petitioner has indicated that the beneficiary's educational background will assist her in carrying 
out the duties of the proffered position. However, the test to establish a position as a specialty 
occupation is not the skill set or education of a proposed beneficiary, but whether the position itself 
qualifies as a specialty occupation. In the instant case, the evidence of record does not establish 
which of the duties, if any, of the proffered position would be so complex or unique as to be 
distinguishable from those of similar but non-degreed or non-specialty degreed employment. The 
evidence of record does not satisfy the second alternative prong of 8 C.P.R. § 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
The third criterion of 8 C .P.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. In the 
instant case, the record does not establish a prior history of recruiting and hiring for the proffered 
position only persons with at least a bachelor's degree in a specific specialty, or its equivalent. 
The appeal addresses this criterion by asserting that the petitioner has "three other management 
Analysts working with them in (the] same position." We shall refer to them by the initials of their 
first and last names as they appear in the record, that is, as S.T., V.D., and R.B. The chart submitted 
on appeal identifies all three persons as H-1B workers whose "Degree Certificate" is "Master of 
Business Administration." The chart also conveys the following information regarding the related 
employment periods: 
Management Start Date End Date 
Analyst 
1. S.T. February 14, 2011 Still Employed 
2. V.D. November 1, 2013 Still Employed 
3. R.B. May 17,2013 August 1, 2013 
We note that the petitioner submitted into the record copies of diplomas issued to the those three 
persons, as well as a copy ofthe 2013 Form W-2 Wage and Tax Statement issued to each person. 
The petitioner stated in the Form I -129 petition that it has 46 employees and that it was established 
in (approximately 12 years prior to the H-IB submission). The petitioner did not provide the 
total number of people it has employed to serve in the proffered position. Consequently, it cannot be 
determined how representative the petitioner's claim regarding three individuals over a 12 year 
period is of the petitioner's normal recruiting and hiring practices. 
Next, while the petitioner provided a general statement that it has employed these individuals to 
serve as management analysts, the petitioner did not provide the job duties and day-to-day 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
responsibilities of these positions that it claims are the same as the proffered position. The petitioner 
did not provide any information regarding the complexity of the job duties, supervisory duties (if 
any), independent judgment required or the amount of supervision received. Accordingly, aside 
from job title, it is unclear whether the duties and responsibilities of these individuals were the same 
or related to the proffered position. 
Moreover, the 2013 Wage and Tax Statements (Form W-2s) state the compensation of the 
individuals as follows: S.T. was paid $58,200; V.D. was paid $100,000 (apparently for employment 
from 11/0112013 to 12/31/2013); and R.B. was paid $125,000 (apparently for employment from 
05/17/2013 to 08/01/2013). 13 Thus, V.D. and R.B. were paid $40,000 and $65,000 more than the 
annual salary offered to the beneficiary. Additionally, S.T. (who had worked for the petitioner for 
approximately two years when the Form W-2 was issued) was paid $1,800 less than the annual 
offered salary to the beneficiary. Given the variances in wages, without more, it does not appear that 
these individuals serve in the same or similar positions to the proffered position. 
Further, to satisfy this criterion, the record must establish that a petitioner's imposition of a degree 
requirement is not merely a matter of preference for high-caliber candidates but is necessitated by 
performance requirements of the position. Were USCIS limited solely to reviewing a petitioner's 
claimed self-imposed requirements, then any individual with a bachelor's degree could be brought to 
the United States to perform any occupation as long as the petitioner artificially created a token 
degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty or its equivalent. See Defensor v. Meissner, 
201 F.3d at 388. 
In other words, if a petitioner's stated degree requirement is only designed to artificially meet the 
standards for an H-1B visa and/or to underemploy an individual in a position for which he or she is 
overqualified and if the proffered position does not in fact require such a specialty degree or its 
equivalent to perform its duties, the occupation would not meet the statutory or regulatory definition 
of a specialty occupation. See section 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the 
term "specialty occupation"). Regardless of a petitioner's intent, to meet the statutory and regulatory 
requirements for a specialty occupation, the evidence presented in the record of proceeding for 
consideration under the third criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) must establish that the 
petitioner's recruiting and hiring history was generated by performance requirements that necessitate 
both (1) "theoretical and practical application of a body of highly specialized knowledge," and (2) 
"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." For all of the reasons discussed above, we find 
that the petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
The nature of the specific duties is so specialized and complex that knowledge 
13 The Form W-2s provide addresses for the three individuals in the following locations: 
California; , Pennsylvania; and Rhode Island. Thus, it does not appear that the 
individuals were employed at the petitioner's business location on an in-house project. 
(b)(6)
Page 18 
NON-PRECEDENT DECISION 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree in a specific specialty, or its equivalent 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4) is satisfied if the evidence of record establishes that 
the nature of the proffered position's specific duties is so specialized and complex as to require the 
application of knowledge usually associated with the attainment of at least a bachelor's degree in a 
specific specialty or its equivalent. 
The proposed duties have not been described with sufficient specificity to show that they are more 
specialized and complex than of nature management analyst positions whose duty requirements are 
not usually associated with at least a bachelor's degree in a specific specialty, or its equivalent. 14 We 
note in particular that the petitioner does not provide any objective measure for correlating the 
substantive performance requirements of the proposed duties with a need for bachelor's degree level 
of knowledge of in a specific specialty. Therefore, the petitioner has not satisfied the criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
As the petitioner has not established that it has satisfied any of the criteria at 8 C.F .R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. The appeal will be dismissed and the petition denied for this reason. 
V. CONCLUSION AND ORDER 
The petition will be denied 
and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 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; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
14 Moreover, the petitioner has designated the proffered position as a Level I position on the submitted LCA, 
a prevailing-wage rate appropriate for an entry-level position for an employee who has only basic 
understanding of the occupation. 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. While certainly not 
decisive, this factor weighs against finding the relative level of specificity and complexity compared to other 
positions within the same occupation.