dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 6689751 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 13, 2020 
The Petitioner, a company engaged in software development, seeks to employ the Beneficiary 
temporarily as a "market research analyst" 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-lB program allows a U.S . employer to temporarily employ a qualified 
foreign worker in a position that requires both: (a) the theoretical and practical application of a body 
of highly specialized knowledge; and (b) the attainment of a bachelor's or higher degree in the specific 
specialty ( or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish that the proffered position qualifies as a specialty occupation. On appeal, the Petitioner 
submits additional evidence and asserts that the Director erred in denying the petition. 
Upon de nova review, we will dismiss the appeal. 1 
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 and adds a 
non-exhaustive list of fields of endeavor. 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 l&N Dec. 369, 375-76 
(AAO 2010). 
II. ANALYSIS 
For the reasons discussed below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. 2 Specifically, we conclude that, as a result of 
the Petitioner's own requirements, the proffered position does not meet the statutory or regulatory 
definition of a specialty occupation. 
A petitioner must demonstrate that the proffered position requires a precise and specific course of 
study that relates directly and closely to the position in question. Here, the Petitioner indicated in the 
letter of support that the minimum education required for the proffered position is a bachelor's degree 
in marketing, computer science, engineering, business, math, technology, MIS, CIS, finance, 
economics, a related analytic or scientific discipline, or the equivalent thereof, as well as working 
experience in the field. 
On appeal, the Petitioner asserts that the job duties of the proffered position can "only be performed 
by an individual who has theoretical and practical application of specialized knowledge in researching 
market conditions in local, regional, or national areas, and gathering information to examine potential 
sales of a product or services, which can only be obtained through the completion of a baccalaureate 
program in Marketing or a closely related technical field." However, a petitioner must demonstrate 
that the proffered position requires a precise and specific course of study that relates directly to the 
position in question. 
Since there must be a close correlation between the required specialized studies and the position, the 
requirement of a degree with a generalized title, such as business, without farther specification, does 
not establish the position as a specialty occupation. See Matter of Michael Hertz Assocs., 19 I&N 
Dec. 558,560 (Comm'r 1988). To prove that a job requires the theoretical and practical application of 
a body of highly specialized knowledge as required by section 2 l 4(i)(l) of the Act, a petitioner must 
establish that the position requires the attainment of a bachelor's or higher degree in a specialized field 
of study or its equivalent. As stated above, we interpret the degree requirement at 8 C.F.R. § 
214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
position. We have consistently stated that, 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 conclusion that a particular position qualifies for classification as a 
specialty occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007). 3 Since 
2 The Petitioner submitted documentation to suppmt the H-1 B 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 Specifically, the judge 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-IB specialty 
occupation visa. See, e.g., Tapis Int "Iv. 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 
2 
there must be a close correlation between the required specialized studies and the pos1t10n, the 
requirement of a degree with a generalized title, such as business, without further specification, does 
not establish the position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 
558, 560 (Comm'r 1988). 
We note that in general, a minimum of a bachelor's or higher degree in more than one specialty is 
recognized as satisfying the "degree in the specific specialty ( or its equivalent)" requirement of section 
214(i)(l) of the Act provided the specialties are closely related, e.g., chemistry and biochemistry. In 
such a case, the required "body of highly specialized knowledge" would essentially be the 
same. However, a minimum entry requirement of degrees in disparate fields, such as business and 
computer science, or finance and engineering, 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. 4 
The Petitioner, who bears the burden of proof in this proceeding, has not established either (1) that 
marketing, computer science, engineering, business, math, technology, MIS, CIS, finance, economics 
are closely related fields or (2) that degree in business, finance, economics or technology relate directly 
to the duties and responsibilities of the proffered position. Absent this evidence, we cannot conclude 
that the proffered position has a normal minimum entry requirement of a bachelor's or higher degree 
in a specific specialty or its equivalent under the Petitioner's own standards. 
The Petitioner cites to Unico American Corp. v. Watson for the proposition that deference should be 
given to a petitioner's statements regarding its position. First, the Petitioner's reliance on Unico is 
misplaced, not only because it has not established how the facts in Unico are analogous to the facts of 
the instant petition, but also because that case was adjudicated under regulations that predated the 
adoption of the specialty occupation standard into the H-1 B program. Second, in contrast to the broad 
precedential authority of the case law of a United States circuit court, we are not bound to follow the 
published decision of a United States district court in matters arising even within the same district. 
See Matter of K-S-, 20 I&N Dec. 715, 719-20 (BIA 1993). Further, it is the Petitioner who bears the 
burden of proof in this proceeding, and who must establish that the duties of the proffered position 
require a bachelor's degree in a specific specialty, or its equivalent. 
The Petitioner also cites to Raj and Co. v. USCIS, 85 F. Supp. 3d 1241 (W.D. Wash. 2015), Tapis Int'l 
v. INS, 94 F. Supp. 2d 172 (D. Mass. 2000), and Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 
985 (S.D. Ohio 2012), among other cases, to support its claim that the first regulatory criterion does 
not preclude the finding of a specialty occupation position when multiple disciplines may be permitted. 
We are not persuaded. Rather, the court in Raj specifically stated that a specialty occupation requires 
the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent. Raj, 85 F. 
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 a1iificial) degree requirement. 
4 While the statutory "the" and the regulatory "a" both denote a singular "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) of the 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. 
3 
Supp.3d at 1246. The court confirmed that this issue is well-settled in case law and within the agency's 
reasonable interpretation of the legal framework. Id. The court also observed that "permitting an 
occupation to qualify simply by requiring a generalized bachelor's degree would run contrary to 
congressional intent to provide a visa program for specialized, as opposed to merely educated, 
workers." Id. The Tapis court similarly confirmed that the agency is "not unreasonable in interpreting 
the guidelines to demand that an employer require a degree in a specific field. Otherwise a position 
would qualify if any bachelor's degree were required." Tapis, 94 F. Supp. 2d at 175. 
We agree with the general proposition that "[ t ]he knowledge and not the title of the degree is what is 
important." Residential Finance, 839 F. Supp. 2d at 997 ( citing Tapis, 94 F. Supp. 2d at 175-76). 
Moreover, we generally agree that, if the requirements to perform the duties and job responsibilities 
of a proffered position are a combination of a general bachelor's degree and specialized experience 
such that the standards at both section 214(i)(l )(A) and (B) of the Act have been satisfied, then the 
proffered position may qualify as a specialty occupation. However, these general propositions are not 
applicable here. 
Instead, they are applicable in circumstances where (1) a specific degree is not available in a particular 
field, and (2) the beneficiary has obtained the equivalence to that specific degree through a 
combination of general education and specialized experience. The Petitioner does not demonstrate 
that the same circumstances existed here, e.g., that a degree in computer science does not exist or is 
not typically available, or that a liberal arts or business degree is acceptable only under certain 
circumstances. 
In any event, the Petitioner has famished no evidence to establish that the facts of the instant petition 
are sufficiently analogous to those in Raj, Residential Finance, and Tapis, all of which concerned 
marketing-related, not computer-related, occupations. 5 And in contrast to the broad precedential 
authority of the case law of a United States circuit court, we are not bound to follow the published 
decision of a United States district court in matters arising even within the same district. See K-S-, 20 
I&N Dec. at 719-20. Although the reasoning underlying a district judge's decision will be given due 
consideration when it is properly before us, the analysis does not have to be followed as a matter of 
law. Id. 
The Petitioner also cites unpublished AAO decisions in which we determined that the positions 
proffered in those matters qualified as a specialty occupation. However, those decisions were not 
published as a precedent and therefore do not bind officers in future adjudications. See 8 C.F.R. 
§ 103.3(c). Non-precedent decisions apply existing law and policy to the specific facts of the individual 
case, and may be distinguishable based on the evidence in the record of proceedings, the issues 
considered, and applicable law and policy. Furthermore, any suggestion that we must review 
unpublished decisions and possibly request and review each case file relevant to those decisions, while 
being impractical and inefficient, would also be a shift in the evidentiary burden in these proceedings 
from the Petitioner to the agency, which would be contrary to section 291 of the Act, 8 U.S.C. § 1361. 
For all of these reasons, the Petitioner has not demonstrated that the proffered position requires 
anything more than a general bachelor's degree. As explained above, the statutory and regulatory 
5 It is important to note that the district judge's decision in Residential Finance appears to have been based largely on the 
many factual errors made by the service center in its decision denying the petition. See, e.g., 839 F. Supp. 2d at 996-97. 
4 
definition of a specialty occupation requires a degree in a specific specialty that is directly related to 
the proposed position. 
As a result, it is unnecessary to address the regulatory criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(])-( 4). 6 
Even if the Petitioner were to demonstrate that it satisfied one of the listed criteria, this would not result 
in this petition's approval, as it still has not shown that the proffered position satisfies the statutory or 
regulatory definition of a "specialty occupation." See section 214(i)(l) of the Act and 8 C.F.R. § 
214.2(h)(4)(ii). The statutory definition constitutes the primary requirement for a position to qualify as a 
specialty occupation. Only after this antecedent requirement has been met, may a petitioner move to 
demonstrate how it may satisfy one of the supplementary criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
III. CONCLUSION 
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. 7 
ORDER: The appeal is dismissed. 
6 The regulations provide that the offered position must also meet one of the following criteria to qualify as a specialty 
occupation: 
( I) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for 
entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among similar 
organizations or, in the alternative, an employer may show that its particular position is so 
complex or unique that it can be performed only by an individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge required to 
perform the duties is usually associated with the attainment of a baccalaureate or higher degree. 
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, 484 F.3d at 147. 
7 Because this is dispositive of the appeal, we need not discuss additional deficiencies we observe in the record such as the 
record does not establish that the Beneficiary is qualified for the proffered position. The Beneficiary was awarded degrees 
from Universities outside of the United States, and the Petitioner did not submit a credential evaluation on behalf of the 
Beneficiary to determine if the Beneficiary obtained the equivalent of a U.S. Bachelor's degree. 
5