dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTEROFM-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 31, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an inventory-oriented software development firm, seeks to employ the Beneficiary 
temporarily as a "quality assurance engineer" under the H-1B nonirnmigrant 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 Form 1-129, Petition for a Nonirnmigrant 
Worker, concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. On appeal, the Petitioner submits additional evidence and asserts that the Director 
committed several errors in denying the petition. 
Upon de nova review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l) , defines the term "specialty occupation" as an 
occupation that requires : 
(A) theoretical and practical application of a body of highly specialized knowledge , 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) adds a non-exhaustive list of fields of endeavor. In 
addition, the regulations provide that the offered position must meet one of the following criteria to 
qualify as a specialty occupation: 
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(]) 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. 1 
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. 2 
II. ANALYSIS 
A. Preliminary Issues 
Prior to presenting its appellate arguments under the regulatory criteria, the Petitioner addresses 
several other issues. First, it cites to Next Generation Tech., Inc. v. Johnson, (S.D.N.Y. Sept. 29, 2017) 
and how that decision addressed terms found within each of the regulatory criteria ( e.g., "usually," 
"common," or "normally.") The Petitioner only briefly addresses how this case applies to the present 
petition stating "[t]o qualify as a specialty occupation the degree requirement is not 'mandatory' or 
absolute .... " While we may agree that the regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) utilizes 
permissive terms, we cannot ignore the fact that the statutory definition of a specialty occupation 
mandates that a petitioner must establish that-as its minimum acceptable education level-the 
occupation requires a bachelor's degree in the specific specialty, or its equivalent. This definition 
constitutes the primary statutory requirement for a position to qualify as a specialty occupation; 
however, the Petitioner did not address this statutory requirement. As a result, it has not demonstrated 
the applicability of the Next Generation Tech. decision to the present case. 
Next, the Petitioner cites to two additional cases supporting the position that U.S. Citizenship and 
Immigration Services (USCIS) should not require a bachelor's degree in a single specific specialty. 3 
1 8 C.F.R. § 214.2(h)(4)(iii)(A). 
2 See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific 
specialty" as "one that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 
201 F.3d 384. 387 (5th Cir. 2000). 
3 The Petitioner cites to Residential Fin. Co1p. v. USC1S, 839 F. Supp. 2d 985 (S.D. Ohio 2012) and Chung Song Ja Co1p. 
v. USC1S, 96 F. Supp. 3d 1191 (W.D. Wash. 2015). 
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However, the Petitioner did not describe the manner in which the Director expressed such a 
requirement. As a result, we see no error on the Director's part and we will not address this further. 
Additionally, the Petitioner discusses the wage level it designated on the U.S. Department of Labor's 
(DOL) ETA Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers (LCA). 
As part of the Petitioner's argument, it posits that USCIS exceeds its authority when it reviews wage 
leveling on an LCA. USCIS does not "review and enforce" an LCA' s contents as the Petitioner contends. 
A DOL Employment and Training Administration Certifying Officer performs that function, and the 
"mathematical calculation employers use to determine the wage rate for H-lB petitions" consists of the 
method DOL employs through DOL guidance and OFLC FAQs. 4 As the Petitioner acknowledges, 
according to 20 C.F.R. § 655.705(b), it is USCIS' delegated responsibility to determine whether an LCA 
corresponds with and supports an H-lB petition. Conforming to that function, USCIS inherits the 
responsibility to ensure that an employer accurately represented the proffered position's elements to 
DOL via the Standard Occupational Classification (SOC) code and the selected wage level on the 
LCA. These responsibilities are fully within USCIS' purview: 
DOL reviews LCAs "for completeness and obvious inaccuracies" and will certify the 
LCA absent a determination that the application is incomplete or obviously inaccurate. 
Section 212(n)(l)(G)(ii) of the Act. In contrast, USCIS must determine whether the 
attestations and content of an LCA correspond to and support the H-lB visa petition. 5 
The Act further prescribes the DOL's limited role in reviewing LCAs stating that "[u]nless the [DOL] 
Secretary finds that the application is incomplete or obviously inaccurate, the Secretary shall provide 
the certification .... "6 The Petitioner does not explain how USCIS is to carry out its responsibilities 
to determine whether the LCA corresponds with and supports the H-lB petition without performing 
such a review. In summary, when filing an LCA and an H-lB petition, a petitioner subjects itself to 
two authorities: (1) to DOL through the certification process, or through a prevailing wage 
determination, and (2) to USCIS by way of our authority to ensure that the LCA corresponds with and 
supports the petition. As specified within the Act, by simply submitting the LCA to DOL without also 
obtaining a prevailing wage determination, the Petitioner has only received DOL's certification that 
the form is complete and does not contain obvious inaccuracies. 7 In other words it did not receive an 
evaluative determination from either authority on whether the LCA's content and the specifics were 
appropriate and accurate. 
The Petitioner further states that "USCIS does not have the expertise to apply DOL Guidance." However, 
as noted above, employers simply follow publicly available guidance from DOL to determine the proper 
SOC code, and to calculate the appropriate prevailing wage rate on LCAs. The Petitioner has not 
explained how it possesses a level of expertise to properly determine these aspects on an LCA that either 
exceeds USCIS' expertise, or that USCIS is incapable of applying in the same manner. Stated more 
simply, DOL clearly explains the proper methodology, and based on USCIS' authority to determine 
4 20 C.F.R. § 655.740(a). 
5 Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 546 n.6 (AAO 2015). (Emphasis added). 
6 Section 212(n)(l)(G)(ii) of the Act. 
7 Id. 
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whether an LCA corresponds with and supports an H-lB petition, this agency is clearly capable o±: and 
authorized to evaluate both the appropriateness of the SOC code as well as the wage level. 
Finally, the Petitioner notes that engineering is mentioned within the regulatory definition of a specialty 
occupation at 8 C.F.R. § 214.2(h)(4)(ii). It further claims that because the proffered position's job title 
contains the term "engineer," it should be considered an "engineering role" and considered to qualify as 
a specialty occupation. A corollary scenario was encountered in Fast Gear Distrib., Inc. v. Rodriguez, 
116 F. Supp. 3d 839, 846 (E.D. Mich. 2015). That court's response was: "Not so. When making a 
decision as to an Hl-B visa, USCIS relies on more than [the] job title." We do not take the title of the 
position provided by the petitioning employer at face value. 8 Instead, we consider "the job duties of the 
offered position along with the petitioning employer's business operations to make a determination if the 
position actually requires skills of someone with a bachelor's degree" in a specific specialty (or 
equivalent). 9 Moreover, the Petitioner does not identify any legal authority that supports its sequential 
reasoning. As a result, we are not persuaded by the Petitioner's position. 
B. Proffered Position 
The Petitioner initially provided the position's description with 10 bullet points, and expanded on 
those duties in response to the Director's request for evidence (RFE). For the sake of brevity, we will 
not quote the most recent version; however, we note that we have closely reviewed and considered the 
duties. Although the Petitioner indicated it required at least a bachelor's degree, or equivalent, in 
computer science, information systems, information technology, software engineering, or a related 
field, it did not state any experience requirements. For the reasons discussed below, we have 
determined that the Petitioner has not demonstrated that the proffered position qualifies as a specialty 
occupation. 10 Specifically, we conclude that the record does not establish that the job duties require 
an educational background, or its equivalent, commensurate with a specialty occupation. 11 
C. First Criterion 
We first turn 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 recognize the 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. 12 The Petitioner submitted the required LCA with 
8 See Altimetrik Co1p. v. USC1S, No. 2:18-CV-11754, 2019 WL 3943053, at *2 (E.D. Mich. Aug. 21, 2019). 
9 Fast Gear Distrib., Jnc, 116 F. Supp. 3d at 846. 
10 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
11 The Petitioner submitted documentation to supp01t the petition, including evidence regarding the position and its 
business operations. While we may not discuss every document submitted, we have reviewed and considered each one. 
12 We do not, however, maintain that the Handbook is the exclusive source of relevant information. To satisfy the first 
criterion, the Petitioner bears the burden to submit sufficient evidence to support a determination that its particular position 
will normally have at its minimum, a bachelor's degree requirement in a particular specialty, or its equivalent, for entry at 
any level - be it at the entry level (Level I), or at the fully competent level (Level TV). 
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this pet1t10n, where it classified the proffered pos1t10n under the occupational title "Computer 
Occupations, All Other," corresponding to the SOC code 15-1199. 13 
There are occupational categories the Handbook does not cover in much, if any, detail. 14 Thus, the 
Handbook's narrative reports that there are some occupations for which only summary data is 
prepared, and detailed occupational profiles are not developed. 15 The Handbook suggests that for at 
least some of the occupations, little meaningful information could be developed. 
Accordingly, in certain instances, the Handbook is not determinative. When the Handbook does not 
support the proposition that a proffered position is one that meets the statutory and regulatory 
provisions of a specialty occupation, it is the Petitioner's burden to provide probative evidence (e.g., 
documentation from other objective, authoritative sources) that supports a finding that the particular 
position in question qualifies as a specialty occupation. 
Because the Handbook does not contain detailed information for the SOC code the Petitioner selected, 
it presents the argument that the Handbook contains a separate entry for Software Developers. Again, 
the Petitioner attempts to correlate the proffered position's title, or SOC code found in the 
Occupational Information Network (O*NET) with the general engineering field, which the petitioning 
organization claims is a qualifying field. As we previously discussed, we do not find this line of 
reasoning persuasive. If the Petitioner surmised that the proffered position was more appropriately 
aligned with the Software Developer SOC code, it should have designated that occupational 
classification on the LCA. 
Turning to the O*NET entry for Software Quality Assurance Engineers and Testers, the Petitioner 
notes that it indicates that a certain percentage of those in this occupation possess a bachelor's degree. 
The portion of the O*NET the Petitioner references pertains to the Education and the Job Zone section. 
The summary report for Software Quality Assurance Engineers and Testers provides general 
information regarding the occupation; however, it does not support the Petitioner's assertion regarding 
the educational requirements for this vocation. For example, the Specialized Vocational Preparation 
(SVP) rating cited within O*NET's Job Zone designates this occupation as 7 < 8. An SVP rating of 7 to 
less than ("<") 8 indicates that the occupation requires "over 2 years 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, formal education, and experience. Further, it does not specify the particular type of 
13 The Petitioner is required to submit a certified LCA to USCTS to demonstrate that it will pay the Beneficiary 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 experience and qualifications who are performing the same services. Section 
212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). 
14 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, "Data for Occupations Not Covered 
in Detail," https://www.bls.gov/ooh/about/data-for-occupations-not-covered-in-detail.htm (accessed on Oct.30.2019). 
15 We note that occupational categories for which the Handbook only includes summary data includes a range of 
occupations, including for example, postmasters and mail superintendents; agents and business managers of aiiists, 
perfonners, and athletes; farm and home management advisors; audio-visual and multimedia collections specialists; clergy; 
merchandise displayers and window trimmers; radio operators; first-line supervisors of police and detectives; crossing 
guards; travel guides; agricultural inspectors, as well as others. 
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degree, if any, that such a position would require.16 The O*NET makes no reference to a degree 
requirement in any specific specialty for Software Quality Assurance Engineers and Testers. 17 
Finally, within the appeal the Petitioner identifies two opinion letters in support of its claims not only 
under this criterion, but also under the second and fourth criteria. The first is a letter from a computer 
science professor, and the second is from a human resources recruiter who works for a professional 
healthcare solutions firm. The Director specifically requested this type of evidence within the RFE, 
but the Petitioner did not submit it at that time. When the regulation or correspondence from the 
Director notified the Petitioner of a requirement, but the organization did not provide the required 
material before the Director, new evidence or claims should not factor into our appellate determination. 
If the Petitioner wished to address this issue, it should not start at the appellate stage, but before the 
initial reviewing authority. Therefore, to address this issue, the Petitioner should have either filed a 
motion to reopen before the Director, or present the letters within a new petition filing. 18 
The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Therefore, it has not 
satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
D. 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 .... " 19 The first prong concentrates on the common industry practice, while the alternative 
prong narrows its focus to the Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
16 For additional information, see the O*NET Online Help webpage available at 
http://www.onetonline.org/help/online/svp. 
17 Sagarwala v. Cissna, No. CV 18-2860 (RC), 2019 WL 3084309, at *6 (D.D.C. July 15, 2019). 
18 See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988); 
Matter of Jimenez, 21 I&N Dec. 567, 570 n.2 (BIA 1996) (finding that claims of eligibility for a waiver presented for the 
first time on appeal are not properly before the Board of Immigration Appeals and that the Board will not issue a 
determination on the matter.) Although we maintain de novo review and a petitioner may supplement previous eligibility 
assertions, it should not raise previously unclaimed eligibility issues on appeal. Soriano, 19 l&N Dec. at 766. Further, 
issues that are raised for the first time on appeal will not normally be considered within the appellate proceedings. 
McKenzie v. USCJS, 761 F.3d 1149, 1154-55 (10th Cir. 2014) cert. denied, 135 S.Ct. 970 (2015). Such late-asserted 
claims, or evidence, are not contemporaneous and appear to be a direct response to an adverse aspect of the Director's 
decision. The reason for filing an appeal is to provide an affected party with the means to remedy what he or she perceives 
as an erroneous conclusion of law or statement of fact within a decision in a previous proceeding. See 8 C.F.R. 
§ I 03.3(a)( I )(v). Without adequately presenting this issue before the Director, the Petitioner deprived the Director of the 
ability to sufficiently review the relevant factors. This is not a proper basis to raise this evidence within the appeal. 
19 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). 
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equivalent) is common to the industry in parallel positions among similar organizations. We generally 
consider the following sources of evidence to determine if there is such a common degree requirement: 
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 establish that such firms "routinely employ and recruit only degreed 
individuals." 20 
As previously discussed, the Petitioner has not established that an authoritative source reports at least 
a bachelor's degree in a specific specialty, or its equivalent is required for the proffered position, and 
we incorporate our previous discussion on this matter. Within the proceedings before the Director, 
the Petitioner did not offer any submissions from the industry's professional association indicating 
that it has made a degree a minimum entry requirement, nor did it submit any letters or affidavits from 
similar firms or individuals in its industry attesting that such firms "routinely employ and recruit only 
degreed individuals." 
In support of this prong, the Petitioner's evidence before the Director consisted of seven job 
advertisements from other organizations. The Director listed deficiencies relating to whether the 
Petitioner demonstrated the other organizations were similar, as well as the degree the other 
organizations found acceptable. The advertisements must satisfy the following three main elements 
that the degree requirement is common: (1) to the industry, (2) among similar organizations, and (3) in 
parallel positions. When determining whether the Petitioner and other organizations share the same 
general characteristics, such factors may include information regarding the nature or type of 
organization, and, when pertinent, the size, scope, or scale of operations, expenditures, 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. Such statements made without supporting documentation are of 
limited probative value and are insufficient to satisfy the Petitioner's burden of proof 21 
On appeal, the Petitioner lists an error on the Director's part in the methodology she utilized to 
determine whether or not the other organizations were similar to the petitioning entity. The Director 
created a chart to display her findings for each business type, the job title, and the requisite degree. 
The Director then analyzed the type of business each organization operated (if she was able to 
determine the type of business from the job announcement), included the job title, and indicated 
whether each business was similar to the petitioning organization. Within the appellate brief: the 
Petitioner incorrectly states that the purpose behind this regulatory provision "is to make reasonable 
comparisons between jobs and job requirements." We look to the plain language of the regulation to 
ascertain the purpose, which is to evaluate whether the Petitioner has shown that "[t]he degree 
requirement is common to the industry in parallel positions among similar organizations .... " Jobs 
and job requirements may be a portion of the equation; however, limiting the purpose to these elements 
20 See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999); Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 
1102 (S.D.N.Y. 1989); cf Matter of Michael Hertz Assocs., 19 T&N Dec. 558, 560 (BIA 1988)). 
21 Matter ofSoffici, 22 l&N Dec. 158, 165 (Comm'r 1998); see also MatterofChawathe, 25 l&N Dec. 369, 371-72 (AAO 
2010) ( discussing assertions that are not supported by probative material will not meet a filing party's burden of proof). 
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would ignore that the Petitioner is required not only to demonstrate that the other organizations operate 
within the same industry, but also that they are similar to the petitioning entity. 
Within the appeal, the Petitioner does not discuss any of the organizations, nor did it offer evidence to 
illustrate the similarities between the entities. As a result, the Petitioner has not demonstrated 
eligibility under this portion of the second criterion. Furthermore, we note that a review of all of the 
job announcements does not reveal any one advertisement that meets all three of this criterion's 
requirements (i.e., the degree requirement is common: (1) to the industry, (2) among similar 
organizations, and (3) in parallel positions). For example, all but one announcement required more 
experience than the Petitioner listed in its correspondence, with one advertisement mandating between 
five and ten years of experience in the position. This reveals that these positions are likely more senior 
than the proffered position, and it would follow that they do not appear to be for "parallel positions" 
as the regulation requires. 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's degree 
in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar 
organizations. Consequently, the Petitioner has not satisfied the first prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
The Petitioner does not specifically contest this portion of the Director's decision on appeal. Nor does it 
offer claims or evidence to establish 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. 
This amounts to the Petitioner's abandonment or waiver of this issue. 22 
E. 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. Evidence 
provided in support of this criterion may include, but is not limited to, documentation regarding the 
Petitioner's past recruitment and hiring practices, as well as information regarding employees who 
previously held the position. 
Before the Director, the Petitioner offered an organizational chart, education documentation for the 
Beneficiary's manager and coworkers that occupy a similar position, and a document the Petitioner 
claimed was a copy for a recent posting for the quality assurance engineer position. Responding to 
the RFE, the Petitioner listed the above evidence, and stated its position requirements. The Director 
concluded that the material within the record demonstrated its other personnel possessed a bachelor's 
degree or higher in their fields. However, the Director also determined that the record did not 
demonstrate the Petitioner's "requirements upon hiring the workers." The Director concluded that the 
22 See Matter of R-A-M-, 25 T&N Dec. 657, 658 n.2 (BIA 2012) (when a respondent fails to substantially appeal an issue 
addressed in a decision, that issue is waived on appeal). See also Franchise Tax Bd. of California v. Hyatt. 587 U.S._. 
139 S. Ct. 1485, 1491 n.1 (2019) (finding that a failure to raise an issue within the previous proceeding waives that issue 
on appeal). 
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Petitioner did not offer probative evidence that it normally requires a bachelor's degree, or its 
equivalent, in a specific specialty for the proffered position. 
We farther note that within the RFE response, the Petitioner claimed that its attestations under the 
penalty of perjury "constitutes 'evidence' that must be given the appropriate weight and considered 
by the USCIS. Absent contrary evidence, an employer's statements and supporting documentation 
regarding employees meets the preponderance of the evidence standard." The Petitioner did not 
support these statements with any legal authority. Regarding its attestations under the penalty of 
perjury, we note that except where a different standard is specified by law, a petitioner must prove 
eligibility for the requested immigration benefit by a preponderance of the evidence. 23 Under the 
preponderance of the evidence standard, the evidence must demonstrate that the petitioner's claim is 
"probably true." 24 We will examine each piece of evidence for relevance, probative value, and 
credibility, both individually and within the context of the totality of the evidence, to determine 
whether the fact to be proven is probably true. If a petitioner submits relevant, probative, and credible 
evidence that leads us to believe that the claim is "more likely than not" or "probably" true, it has 
satisfied the standard of proof Stated another way, a petitioner must establish that there is greater 
than a fifty percent chance that a claim is true. The Petitioner has not presented a persuasive argument 
or evidence that we should presume that signing under the penalty of perjury inherently means that all 
material claims a filing party makes are accurate. As a result, the Petitioner has not demonstrated that 
its signature under the penalty of perjury should eliminate all questions relating to the veracity of its 
claims. 
Now, we tum to the Petitioner's assertion that an employer's statements and supporting documentation 
regarding its employees intrinsically meets the preponderance of the evidence standard. The Petitioner 
did not provide any additional information to qualify this statement. For instance, it did not specify 
whether such statements could be conclusory and brief: or whether they must be of sufficient detail to 
explain how the evidence not only supports its assertions, but also how the evidence sufficiently 
demonstrates the claimed eligibility. Nor did it indicate whether the statements or the evidence must 
be credible; it simply indicated that its statements should be granted preponderant evidentiary 
weight. 25 We conclude that such unqualified statements are lacking corroborating and probative 
support. Furthermore, it is unnecessary that the degree of the agency's weight accorded to a 
petitioner's statements and evidence correlates with that of the petitioning organization, provided the 
agency considers the content and grants an appropriate value. 26 
On appeal, the Petitioner restates much of what it offered in the RFE response, and provides what 
appears to be a confusing rebuttal to the Director's analysis stating: "The Service must consider all of 
the facts presented in this case, and the petitioner's statements must be due consideration; ignoring 
statements and evidence must be supporting other evidence in the record of the matter under 
consideration." (Emphasis added). 
23 Chawathe, 25 T&N Dec. at 375-76. 
24 Id. at 376. 
25 Soffici, 22 l&N Dec. at 165; Chawathe. 25 l&N Dec. at 371-72. A petitioner's ipse dixit assertions will not carry its 
burden of demonstrating eligibility. See In re Grand Jwy Subpoena Dated July 6, 2005, 510 F.3d 180, 184 (2d Cir. 2007). 
26 Visinscaia v. Beers, 4 F. Supp. 3d 126, at 134 (D.D.C. Dec. 16, 2013). 
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Setting aside the above unclear statement, we conclude the Petitioner has not explained how the 
Director erred in her analysis under this criterion. Within the appeal, the Petitioner does not describe 
how the organizational chart, educational material for its other employees, and a claimed job posting 
for the proffered position demonstrated that its normal hiring practice was to require a qualifying 
degree. Regarding the organizational chart, the Petitioner did not establish that this self-generated 
document should demonstrate, by a preponderance of the evidence that these individuals were hired 
into the same or a sufficiently similar position as the one proffered in the petition. Nor did it establish 
the actual duties these personnel perform daily by presenting this chart. While the educational 
documentation may show the degrees the Petitioner's other personnel possess, it does not satisfy this 
criterion's requirement that this organization normally requires a bachelor's degree in a specific 
specialty, or its equivalent, for the position. 
As the Director noted, the record lacks evidence pertammg to the Petitioner's actual hiring 
requirements, such as job announcements that it utilized when recruiting for the positions its other 
personnel occupy. This brings us to the job posting the Petitioner offered in the RFE response. This 
document appears to be information typed on a page that lacks markings indicating when it was posted, 
where it was posted, the application opening and closing period, or other aspects that might 
demonstrate the organization actually utilized this as a job advertisement. Further, the Petitioner did 
not demonstrate the form of media it utilized to post the advertisement, whether internally, on a job 
search website or service, or some similar method. As a result, the Petitioner has not established that 
this job posting is anything more than a self-generated document, meaning it is of limited probative 
value and is insufficient to satisfy its burden of proof. 
Even if we were to accept that the Petitioner actually posted this job advertisement, it contains 
prerequisites that exceed those of the proffered position. Specifically, the job posting requires "1-2 
years of hands on QA experience using the latest Microsoft technologies." The Petitioner did not 
indicate its quality assurance engineer positions require any experience in the initial filing nor within 
its RFE response. The Petitioner must resolve this incongruent requirement in the record with 
independent, objective evidence pointing to where the truth lies.27 Moreover, the Petitioner's website 
contains a job posting for a quality assurance engineer with even greater experience requirements. 28 
The website posting differs in that it requires more, as well as additional types of experience. For 
example, it contains the following requirements: 
• 2+ years of hands on QA experience using the latest Microsoft technologies; 
• 2+ year of SQL with data validation experience; and 
• 2+ years of experience with Microsoft Visual Studio or any other IDE. 
Not only does the website advertisement add to the Petitioner's inconsistent job requirements, but a 
requirement of a bachelor's degree and greater than two years of qualifying experience ("2+ years") 
would necessitate raising the wage level by one increment to a Level II wage rate on the LCA. 29 This 
27 Matter of Ho, 19 I&N Dec. 582, 591-92,.....{B_IA_l 9_8_8~). ____________________ ~ 
28 See Quality Assurance Engineer. I ~ 
(accessed on Oct. 30, 2019). 
29 See DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration 
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would mean that the Beneficiary's compensation rate would fall several thousand dollars below the 
Level II prevailing wage rate for the relevant location and timeframe. 30 
Finally, within the appeal, the Petitioner states that the Director "argued that it can ignore an 
employer's usual minimum requirements for an offered H-1 B position when determining whether the 
position qualifies as a specialty occupation." Although the Director made a general comment that the 
critical elements in whether a position qualifies under the H-lB program are not the job title or an 
employer's self-imposed standards, the Director did not state or denote that the Petitioner's stated 
position requirements were self-imposed, nor did she indicate she could ignore the organization's 
requirements. Instead, the Director acknowledged the Petitioner's prerequisites, and determined that 
the evidence did not sufficiently corroborate the petitioning organization's assertions; namely, 
regarding what the Petitioner required when it hired its other personnel in similar positions. The record 
must establish that a petitioner's stated degree requirement is not a matter of preference for 
high-caliber candidates but is necessitated instead by performance requirements of the position. 31 
Were USCIS limited solely to reviewing the Petitioner's claimed 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 created a token degree requirement. 32 Consequently, we do not agree with the Petitioner 
that the Director specifically argued that she could ignore their position requirements. Not only that, 
but we also agree with the Director's ultimate determination under the third criterion. 
Without more, the Petitioner has not provided sufficient evidence to establish that it normally requires 
at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered position. 
Therefore, it has not satisfied the third criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
F. 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. The Director determined that the stated duties were presented in generalized and abstract 
terms, and they lacked sufficient detail. The Director further stated that it appeared the Beneficiary 
would perform the normal duties of a quality assurance engineer without any additional specialization. 
While the Petitioner provided a more detailed job description in response to the RFE, the description 
does not establish that the duties are more specialized and complex than positions that are not usually 
associated with at least a bachelor's degree in a specific specialty, or its equivalent. The Director 
essentially came to this same conclusion; that the Petitioner did not establish that entry into the 
occupation of Software Quality Assurance Engineers and Testers required a bachelor's degree in a 
specific specialty, or an equivalent. And more importantly, she decided the Petitioner did not establish 
Programs (rev. Nov. 2009) (DOL guidance), available at http://flcdatacenter.com/download/NPWHC_Guidance_ 
Revised_ 11 _ 2009 .pdf 
3° For additional information. see the Foreign Labor Certification Data Center, Online Wage Library - FLC Wage Search 
Wizard available at http://www.flcdatacenter.com/OESWizardStaii.aspx. 
31 See Defensor. 201 F.3d at 387-88. 
32 Id. 
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MatterofM-
why the duties of the proffered position were any more specialized and complex than those types of 
positions that do not necessarily require a qualifying degree for entry into the occupation. 
The Petitioner's description only reiterated the claimed degree requirement, without demonstrating a 
sufficient nexus between an established course of study leading to a specialty degree, and without 
establishing how such a curriculum is necessary to perform the duties it claims are so specialized and 
complex. For instance, it is unclear from the Petitioner's claims and evidence what the numerous 
duties relating to automated and manual test activities would involve and how this supports its claim 
that the position requires a particular degree in a specific specialty. To execute some functions of the 
proffered position, associated courses may be helpful or necessary. However, the Petitioner has not 
established that to perform the duties, a prepared educational program leading to a bachelor's degree or 
higher in a specific specialty, or its equivalent, is required. On appeal, the Petitioner also identifies the 
letter from a human resources recruiter. But as noted above, the Director issued an RFE specifically 
requesting this type of evidence. As the Petitioner did not submit it within the initial proceedings before 
the Director, it will not factor into our decision on appeal. 33 
Finally, we observe the Petitioner designated the proffered position as an entry-level position within 
the occupational category by selecting a Level I wage on the LCA (the lowest of four assignable wage 
levels) relative to others within the occupational category. 34 Without further evidence, the Petitioner 
has not demonstrated that its proffered position is one with specialized and complex duties as such a 
position within this particular occupational category would likely be classified at a higher level, 
requiring a substantially higher prevailing wage. 35 
Although the Petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Therefore, the Petitioner has submitted 
insufficient evidence to satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a 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. 
33 See Soriano, 19 I&N Dec. at 766 (BIA 1988); Obaigbena, 19 I&N Dec. at 537; Jimenez, 21 I&N Dec. at 570 n.2 (BIA 
1996). 
34 Nevertheless, a low wage-designation does not preclude a proffered position from classification as a specialty 
occupation, just as a high wage-designation does not definitively establish such a classification. In certain occupations 
( e.g., physicians or lawyers), a Level I position would still require a minimum of an advanced degree in a specific specialty, 
or its equivalent, for entry. Similarly, however, a Level TV 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 relevant factor but is not itself 
conclusive evidence that a proffered position meets the requirements of section 2 l 4(i)( I) of the Act. 
35 For example, a Level TV (fully competent) position is designated by DOL for employees who "use advanced skills and 
diversified knowledge to solve unusual and complex problems" and requires a significantly higher wage. For additional 
information regarding wage levels as defined by DOL, 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. 
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MatterofM-
ORDER: The appeal is dismissed. 
Cite as Matter of M-, ID# 4022717 (AAO Oct. 31, 2019) 
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