dismissed H-1B Case: Software Development

(b)(6)
JUN 0 2 2015 
DATE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
LJ.S. Citizenship and Immigration Services 
Auministrativc Appculs Oflice (AAO) 
20 Massachusctls Ave .. N.W .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETI TION REC EI PT#: 
PET ITION: Petition for a Nonimmigrant Worker Pursuant to Section I 0 I (a)( 15)(H)(i)(b) of the 
Immigration and Nationality Act, 8U.S.C. § ll0 l(a)(I5)(H)(i)(b) 
ON BEHALF OF PETITIONE R: 
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. § I 03.5. 
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. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 
The matter is now on appeal before the Administrative Appeals Office (AAO). The appeal will 
be dismissed. 
I. PROCEDURAL BACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the California 
Service Center on April 1, 2014. On the Form I-129 visa petition, the describes itself as an 
enterprise established in providing software and Web 2.0 applications development 
services with 16 employees. In order to employ the beneficiary in what it designates as a 
solutions architect, the petitioner seeks to classify him as a nonimmigrant worker in a specialty 
occupation pursuant to section 101(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 found the initial evidence insufficient to establish eligibility for the benetit sought, 
and issued a Request for Evidence (RFE). Thereafter, the petitioner responded to the director's 
RFE. The director denied the petition, finding that the petitioner did not establish that it would 
employ the beneficiary in a specialty occupation position. On appeal, the petitioner asserts that 
the director's basis for denial of the petition was erroneous and contends that it satisfied all 
evidentiary requirements. 
The record of proceeding before us contains: (1) the Form l-129 and supporting documentation; 
(2) the director's RFE; (3) the petitioner's response to the RFE; (4) the director's notice of 
decision; and, (5) the Notice of Appeal or Motion (Form I-290B) and supporting documentation. 
We reviewed the record in its entirety before issuing our decision.' 
For the reasons that will be discussed below, we agree with the director's decision that the 
petitioner has not established eligibility for the benefit sought. Accordingly, the director's 
decision will not be disturbed. The appeal will be dismissed. 
II. PROFFERED POSITION 
The petitioner indicated on the Form I-129 that it seeks the beneficiary's services as a solutions 
architect to work on a full-time basis for an annual salary of $80,000 per year. 
In a letter of support dated March 13, 2014, the petitioner stated that the beneficiary will be 
responsible for the following duties: 
• Design and implement the suite of tools and frameworks that form the base 
for the products and technologies that [the petitioner] works on. 
• Develop next generation tools and products using JAVA, J2EE and other 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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internet technologies. 
• Provide architectural guidance and direction to the QA Automation project 
teams. 
• Evaluate and provide technical guidance and analysis for the automation 
projects. 
• Execute manual and automation testing of products. 
• Mentor QA Automation Engineers. 
The petitioner also stated that the solutions architect "requires at least a Bachelor's degree or 
equivalent in Engineering or a related field." The petitioner submitted an evaluation of academic 
credentials from for the beneficiary. The beneficiary's 
credentials were found to be the equivalent of a Master of Science in Computer Science from an· 
accredited institution of higher education in the United States. The petitioner submitted copies 
of the beneficiary's degrees. 
The petitioner also submitted a Labor Condition Application (LCA) in support of the instant H-
1 B petition. The LCA designation for the proffered position corresponds to the occupational 
classification of "Computer Occupations, All Other" - SOC (ONET/OES) Code 15-1199, at a 
Level II (qualified) wage. The LCA also indicated that the beneficiary will work at the 
petitioner's office in California. 
In response to the RFE, the petitioner provided a more detailed description of the duties to be 
performed by the beneficiary as follows: 
Time Work to be Specific Tasks Reason Degree 
Performed Needed 
10% Reviewing Projects & Review the feature Reviewing and 
Prioritizing set, target system prioritizing needs a 
goals and prioritize thorough 
the projects understanding of the 
accordingly based technology and 
A] The value that the business. 
project can bring in. Demonstrated the 
B] Technology or ability to work with 
Business reasons on other technical 
why it is needed and personnel and 
in what understand complex 
concepts. 
10% Researching Solutions Once a set of proje cts Demonstrated the 
& Alternatives are agreed upon,. there ability to research 
is a need to solutions and 
understand the various document the results, 
products & solutions assumptions & pros-
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available in the cons of a given 
market and take solution/product, and 
decisions of Buy vs technology stack that 
Build. Showcase needs to be used. 
knowledge of various This forms the base 
applications and for all future activities 
programmmg and needs a well-
languages and ability trained hand. 
to communicate 
options, risks, 
timeframes for 
delivery etc. 
10% Build a Plan Work with all the Demonstrated the 
technical teams like ability to sequence a 
QA, Develops, set of activities that 
Design, Production form the roadmap of 
Support, yct parties [if executing the project 
needed] involved to in a smooth fashion. 
make a plan of the 
tasks that need to be 
completed. Bring out 
the dependencies & 
integration touch 
points that need to be 
taken care of. Give a 
timeline for when the 
business can expect 
the solution to be in 
_p_lacc. 
40% Develop Solutions Build the solution Learned & Mastered 
using Java/J2EE Java/J2EE over a 
Technologies, number of years and 
Continuous gained expertise to 
Integration with build complex web 
Jenkins, Unit Testing solutions that are 
with JUnit, Static needed for today's 
code scanning tools demanding customers. 
like SONAR, 
Checking 
Performance, 
Reliability, Usability 
etc. 
20% Develop Testing Plan Understand the Demonstrated ability 
various testing needs to write a plan and 
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like Functional execute a successful 
Testing, Regression test strategy. 
Testing, Performance 
Testing, Load Testing, 
User Acceptance 
Testing etc. Work 
with the QA teams as 
they do the testing of 
the application and fix 
any issues that come 
up. 
10% Support Applications Troubleshoot issues Demonstrated ability 
reported by the end to troubleshoot 
users of our solutions. custom code, find 
Coordinate with other solutions, work with 
experts if the issue is other technical experts 
due to another aspect and communicate 
of the solution such as with other technical 
data integration or disciplines. 
system. Work with 
the clients to ensure 
that the solution fixes 
their issue. 
III. SPECIALTY OCCUPATION 
The issue here is whether the petitioner demonstrated by a preponderance of the evidence that it 
will employ the beneficiary in a specialty occupation position. 
A. The Law 
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) states, in pertinent part, the following: 
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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.F.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.F.R. § 214.2(h)( 4)(iii)(A) must logically be read together 
with section 214(i)( l) of the Act and 8 C.F.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 of language which takes into account the design of the statute as a whole is 
preferred); see also COlT Independence Joint Venlure v. Federal Sav. and Loan Ins. Cmp., 489 
U.S. 561 (1989); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 
C.F.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 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 Immigrat ion 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 
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or higher degree, but one in a specific specialty that is directly related to the proffered position. 
See Royal Siam Corp. v. Cherto.ff, 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-1 B 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-1 B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USC IS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature 
of the petitioning entity's business operations, are factors to be considered. users must examine 
the ultimate employment of the alien, and determine whether the position qualities as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the 
title of the position nor an employer's self-imposed standards, but whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge, and 
the attainment of a baccalaureate or higher degree in the specific specialty as the minimum for 
entry into the occupation, as required by the Act. 
B. Analysis 
To determine whether the proffered position qualifies as a specialty occupation, we now turn to 
the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
1. A baccalaureate or higher degree in a specific specialty, or its equivalent, is normally 
the minimum requirement for entry into the particular position 
The criterion at 8 C.F.R. § 214.2(h)(4) (iii)(A)(l) 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. 
We recognize the U.S. Department of Labor's (DOL) Occupational Outlook Handbook 
(Handbook) as an authoritative source on the duties and educational requirements of the wide 
variety of occupations it addresses.2 As noted above, the LCA corresponds to the occupational 
classification "Computer Occupations, All Other"-SOC(ONET/OES) code 15-1799, at a Level II 
(qualified) wage. 
2 The Handbook, which is available in printed form, may also be accessed online at 
http://www.bls.gov/ooh. The references to the Handbook are from the 20 I 4-I 5 edition available online. 
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We reviewed the Handbook regarding the occupational category "Computer Occupations, All 
Other." However, the Handbook does not provide a detailed narrative account nor does it 
provide summary data for this occupational category. More specifically, the Handbook does not 
provide the typical duties and responsibilities for "Computer Occupations, All Other." It also 
does not provide any information regarding the academic and/or professional requirements for 
these positions. Thus, the Handbook does not support the claim that the occupational category 
here is one for which normally the minimum requirement for entry is a baccalaureate degree (or 
higher) in a specific specialty, or its equivalent. 
We note that there are occupational categories which are not covered in detail by the Handbook, 
as well as occupations for which the Handbook does not provide any information. The 
Handbook states the following about these occupations: 
Although employment for hundreds of occupations are covered in detail in the 
Occupational Outlook Handbook, this page presents summary data on additional 
occupations for which employment projections are prepared but detailed 
occupational information is not developed. For each occupation, the Occupational 
Information Network (O*NET) code, the occupational definition, 2012 
employment, the May 2012 median annual wage, the projected employment 
change and growth rate from 2012 to 2022, and education and training categories 
are presented. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Data for Occupations Not Covered in Detail," http://www .bls.gov/ooh/About/Data-for­
Occupations-Not-Covered-in-Detail.htm (last visited May 20, 2015). 
Thus, the narrative of the Handbook indicates that there are many occupations for which only 
brief summaries are presented and that detailed occupational profiles for these occupations are 
not developed.3 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 incumbent upon the petitioner to provide persuasive 
evidence that the proffered position more likely than not satisfies the statutory and regulatory 
provisions, including this or one of the other three criteria, notwithstanding the absence of the 
Handbook's, support on the issue. In such case, it is the petitioner's responsibility to provide 
3 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 artists, performers, 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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probative evidence (e.g., documentation from other objection, authoritative sources) that 
supports a finding that the particular position in question qualifies as a specialty occupation. 
Whenever more than one authoritative source exists, an adjudicator will consider and weigh all 
of the evidence presented to determine whether the particular position qualifies as a specialty 
occupation. 
In response to the RFE, the petitioner indicated that according to the Occupational Information 
Network (O*NET), the occupational category "Computer Occupations, All Other" encompasses 
multiple occupations, including "Computer Systems Engineers/Architects." The petitioner 
claimed that "Computer Systems Engineers/ Architects" is the most relevant occupational 
category for the proffered position. However, the petitioner did not clarify how the duties and 
responsibilities of "Computer Systems Engineers/ Architects" are similar to the proffered position 
as a solutions architect. The petitioner also claimed that according to O*NET, a Bachelor's 
degree is the standard minimum requirement for "Computer Systems Engineers/ Architects" 
positions. However, under the subsection entitled "Education," O*NET states that "[m]ost of 
these occupations require a four-year bachelor's degree, but some do not." Moreover, O*NET 
does not state that a degree must be in a specific .specialty. As was noted previously; we interpret 
the term "degree " in the criteria at 8 C.P.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. Although a general-purpose bachelor's degree 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. Cherto.ff, 484 F.3d 139, 147 (1st Cir. 2007). 
Upon review of the totality of the evidence in the entire record of proceeding, the petitioner has 
not established that the proffered position falls under an occupational category for which the 
Handbook, or other authoritative source, indicates that a requirement for at least a bachelor's 
degree in a specific specialty, or its equivalent, is normally required for entry into the occupation. 
Furthermore, the duties and requirements of the proffered position as described in the record of 
proceeding do not indicate that the particular position that is the subject of this petition 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 did not satisfy the first criterion of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
2a. A requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, 
is common to the industry in parallel positions among similar organizations 
Next, the petitioner has not satisfied the first of the two alternative prongs of 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(2). 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 sharing all three characteristics of being (1) within the petitioner's industry, 
(2) parallel to the proffered position, and also (3) located in organizations that are similar to the 
petitioner. 
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In determining whether there is such a common degree requirement, factors often considered by 
US CIS 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, ll 02 
(S.D.N. Y. 1989)). 
Here and as already discussed, the petitioner has not established that its proffered position is one for 
which the Handbook reports an industry-wide requirement for at least a bachelor's degree in a 
specific specialty or its equivalent. Nor are there any submissions from a professional association in 
the petitioner's industry stating that individuals employed in positions parallel to the proffered 
position are routinely required to have a minimum of a bachelor's degree in a specific specialty or 
its equivalent for entry into those positions. Nor has the petitioner submitted any letters or affidavits 
from firms or individuals in the industry attesting that such firms "routinely employ and recruit 
only degreed individuals. 
Next, we find that the job-vacancy announcements submitted by the petitioner also do not satisfy 
this alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). That is, neither the job-vacancy 
announcements themselves, nor any other evidence within the record of proceeding, establish 
that those advertisements pertain to positions that meet all of the criterion's elements of being in 
the petitioner's industry, in organizations similar to the petitioner, and also parallel to the 
proffered position, as required for evidence to merit consideration under this first alternative 
prong. In this regard, we make several specific findings. 
In the Form I-129 and supporting documentation, the petitioner stated that it is an enterprise 
established in 2012, providing software and Web 2.0 applications development services, with 16 
employees and an annual gross income of $1.4 million. The petitioner designated its business 
operations under the North American Industry Classification System (NAICS) code 541511 -
"Custom Computer Programming Services"4 The U.S. Department of Commerce, Census 
Bureau website describes this NAICS code as follows: 
This U.S. industry comprises establishments primarily engaged in wntmg, 
modifying, testing, and supporting software to meet the needs of a particular 
customer. 
See U.S. Dep't of Commerce, U.S Census Bureau, 2012 NAICS Definition, 541511 - Custom 
4 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 U.S. Dep't of Commerce, U.S. Census Bureau, NAICS, on the Internet at 
http://www.census.gov/eos/www/naics/ (last visited May 20, 20 15). 
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Page II 
Computer Programming Services on the Internet at http://ww w.census.gov/cgi­
bin/s ssd/naics/naicsrch (last visited May 20, 20 15). 
For the petitioner to establish that an organization is similar, it must demonstrate that the 
peti tioner and the organization share the same general characteristics. Such factors may include 
infor mation 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. 
We reviewed the job advertisements submitted by the petitioner. Notably, the petitioner did not 
provide any independent evidence of how representative these job· advertisements are of the 
particular advertising employer's recruiting history for the type of job advertised. Further, as 
they are only solicitations for hire, they are not evidence of what qualifications were ultimately 
required for the positions. Moreover, upon review of the documents, we find that they do not 
establ ish that a requirement for a bachelor's degree, in a specific specialty, is common to the 
pet itioner's industry in similar organizations for parallel positions to the proffered position. 
For example, the advertisements include positions with which employs more than 
200 professionals, and which is founded by , a 
publicly traded company. The petitioner also submitted a job posting from 
but the posting did not have sufficient information regarding its business operations. Without 
further information, the advertisements appear to be for organizations that are not similar to the 
petitioner, and the petitioner has not provided any probative evidence to suggest otherwise. 
Consequently, the record lacks sufficient information regarding the advertising employer to 
conduct a legitimate comparison of the organization to the petitioner. 
Further, the petitioner has not established that the advertisements are for parallel pos1t1ons. 
Specifically, the advertised positions appear to be for more senior positions than the proffered 
position. For example, the position with requires a "[ m]inimum 10 years 
software systems work with extensive experience on large scale internet based systems and at 
least 5 years of technical team leadership." The position with requires "1 2+ 
years of experience in software design and development." The two positions with 
require a "[ m]inimum of 10 years enterprise IT application experience that includes at 
least 2 years on hands-on software development" for the senior solutions architect position and 
"7+ years design/implementation/consulting experience with distributed applications," for the 
Solutions Architect position. As mentioned, the petitioner designated the proffered position on 
the LCA through the wage level as a Level II where the benefi ciary is expected to perform 
moderately complex tasks that require limited judgment. 
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. That is, as the evidence does not establish that similar organizations in the same 
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industry routinely require at least a bachelor's degree in a specific specialty, or its equivalent, for 
parallel positions, not every deficit of every job posting has been addressed. 5 
Thus, the petitioner has not satisfied the first of the two alternative prongs of 8 C.F.R. 
§ 214.2( h)(4)(iii)(A)(2), as the evidence of record does not establish that a requirement of a 
bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions 
sharing all three characteristics of being ( l) within the petitioner's industry, (2) parallel to the 
proffered position, and also (3) located in organizations that are similar to the petitioner. 
2b. The 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 
Next, the evidence of record does not satisfy the second alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is satisfied if the petitioner shows that its particular 
position is so complex or unique that it can be performed only by an individual with at least a 
bachelor's degree in a specific specialty, or its equivalent. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
petitioner submitted various documents including printouts from its parent company, 
photographs, lease agreement, and tax returns. However, the petitioner did 
not explain how the documents relate to the beneficiary's duties, and the evidence does not 
establish the relative complexity or uniqueness of the proffered position. 
On appeal, the petitioner states for the first time that the beneficiary "w ill perform architecture 
and development services for the product." The petitioner asserts that the 
beneficiary will "play a critical role in the ongoing development and enhancement of this product 
offering." The petitioner further claims that "[ b ]ecause the customization aspect of the 
product is essential to its success, the beneficiary's role as a Solutions Architect will 
be critical to the Petitioner's success going forward." 
5 It must be noted that 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. 
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However, the LCA submitted by the petitioner in support of the instant petition indicates a wage 
a Level II wage. In accordance with the relevant DOL explanatory information on wage levels, a 
Level II position is indicative that, relative to other positions falling under the occupational 
category, the beneficiary is expected to have a good understanding of the occupation but that he 
will only perform moderately complex tasks that require limited judgment. Without further 
evidence, it is not credible that the petitioner's proffered position is complex or unique as such a 
position falling under this occupational category would likely be classified at a higher-level, such 
as a Level III (experienced) or Level IV (fully competent) position, requiring a significantly 
higher prevailing wage. For example, a Level IV (fully competent) position is designated by 
DOL for employees who "use advanced skills and diversified knowledge to solve unusual and 
complex problems." 6 Thus, the wage level designated by the petitioner in the LCA for the 
proffered position is not consistent with claims that the beneficiary "will play a critical role to 
the petitioner's success going forward" and that the position would entail any particularly 
complex or unique duties or that the position itself would be so complex or unique as to require 
the services of a person with at least a bachelor's degree in a specific specialty. 
Consequently, as the petitioner did not demonstrate how the proffered position is so complex or 
unique relative to other director of operations positions that can be performed by a person 
without at least a baccalaureate degree in a specific specialty or its equivalent for entry into the 
occupation in the United States, the petitioner has not satisfied the second alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)( A)(2). 
3. The petitioner normally requires a bachelor's degree in a specific specialty, or its equivalent 
for the position 
We turn next to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which requires the employer to 
demonstrate that it normally requires a bachelor's degree in a specific specialty or its equivalent 
. for the position. We usually review the petitioner's past recruiting and hiring practices, as well 
as information regarding employees who previously held the position. 
To satisfY this criterion, the record must establish that a petitioner's imposttton of a degree 
requirement is not merely a matter of preference for high-caliber candidates but is necessitated by 
the performance requirements of the proffered 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. 
6 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.fore ignlaborcert.doleta .gov/pdf/NPWHC _Guidance_ Revised _II_ 2009.pdf 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
While a petitioner may believe or otherwise assert that a proffered position requires a specific 
degree, that opinion alone without corroborating evidence. cannot establish the position as a 
specialty occupation. 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 employer 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 387. In other words, if a petitioner's assertion of a particular degree 
· requirement is not necessitated by the actual performance requirements of the proffered position, 
the position would not meet the statutory or regulatory definition of a specialty occupation. See 
§ 214(i)( l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"). The 
petitioner did not provide evidence of its hiring history. 
As the record of proceeding does not demonstrate that the petitioner normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the proffered position, it does not 
satisfy 8 C.F.R. § 21 4.2( h)(4)(iii)(A)(3 ). 
4. 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 evidence of record does not satisfy the criterion at 8 C.F.R. § 214.2 (h)(4)(iii)(A)(4), which 
requires the petitioner to establish that the nature of the proffered position's 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 the specific specialty or its equivalent. 
The petitioner provided information regarding the proffered position and its business operations, 
including the documentation previously outlined. While the evidence provides some insights 
into the petitioner's business activities, the documents do not establish that the nature of the 
specific duties of the proffered position 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. 
We hereby incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level II position (out of 
four assignable wage-levels) relative to others within the occupational category, and hence one 
not likely distinguishable by relatively specialized and complex duties. Without further 
evidence, it is not credible that the petitioner's proffered position is one with specialized and 
complex duties as such a position would likely be classified at a higher-level, such as a Level IV 
(fully competent) position, requiring a substantially higher prevailing wage. As previously 
discussed, a Level IV (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. The petitioner has submitted inadequate probative evidence to 
satisfy the criterion of the regulations at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
For all of these reasons, the evidence in the record of proceeding does not establish that the 
proposed duties meet the specialization and complexity threshold at 8 C.F.R. 
§ 214.2(h)(4)(iii )(A)(4).7 
IV. CONCLUSION AND ORDER 
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 of Otiende, 26 I&N 
Dec. 127, 128 (BIA 2013). Here, that burden has not been met 
ORDER: The appeal is dismissed. 
7 As the identified grounds of ineligibility are dispositive of the petitioner's appeal, we need not address 
additional issues in the record of proceeding