dismissed H-1B Case: Software Development

MATTER OF E-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 30,2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development, training, and consulting company, seeks to temporarily 
employ the Beneficiary as 'a "programmer 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)(l5)(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 Vermont Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that the proffered position is a specialty occupation. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. , 
Upon de novo review, we will dismiss the appeal. 
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.P.R. § 214.2(h)( 4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
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Matter of E-, Inc. 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature ·of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A) . We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Chertoff, 484 F.3d 1~9, 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). 
II. PROFFERED POSITION 
The Petitioner stated in the H-IB petition that the Beneficiary will work off-site for 
(client), located in NJ, as .a "programmer analyst." On the labor condition application 
(LCA) 1 submitted in support of the H-1 B petition, the Petitioner confirmed the Beneficiary's off-site 
placement in New Jersey, and designated the proffered position under the occupational category 
"Computer Programmers" corresponding to the Standard Occupational Classification code 15-1131.2 
1 
The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either 
the prevailing wage for the occupational classification in th~ "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 . See 
Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015) . 
. 2 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position . The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary 
to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results . U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric . Immigration Programs (rev. Nov. 2009) , available at 
http://tlcdatacenter.com /download/NPWHC _Guidance _Revised_!!_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience , education , and skill 
requirements of the Petitioner 's job opportunity. I d. 
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Matter of E-, Inc. 
In its support letter, the Petitioner summarized the duties of the proffered position as follows: 
• Research, design and develop computer software systems, in conjunction with 
hardware choices, for medical, industrial, communications, scientific, engineering, 
commercial and financial applications which require use of advanced computational 
and quantitative methodologies; 
• Apply principles and techniques of computer sciences and quantitative methodology 
& techniques to determine feasibility of design within time and cost constraints; 
• Analyze the communications, informational, database and programming 
requirements; plan develop, design, test and implement software programs for 
engineering applications and highly sophisticated network systems; 
• Design, program and implement software application packages customized to meet 
specific needs; 
• Review existing computer systems to determine compatibility with projected or 
identified needs; research and select appropriate system, including ensuring forward 
compatibility of existing systems; 
• Review, repair and modify software programs to ensure technical accuracy and 
reliability of programs; [and] 
• Train on use of software applications and computer systems developed; provide 
trouble shooting and debugging support[.] 
The Petitioner expanded upon these duties in response to the Director's request for additional 
evidence and on appeal. 
According to the Petitioner, the proffered position requires a bachelor's degree in a field related to 
information technology or engineering. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation.3 
We find first that the Petitioner has not provided consistent and reliable information regarding the 
proffered position's duties and nature, and where and for whom the Beneficiary would be working. 
When it filed the petition, the Petitioner submitted a copy of a Master Services Agreement (MSA) it 
had executed with the client. The MSA called for the Petitioner to provide information systems 
3 The Petitioner submitted documentation to support 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. 
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Matter of E-, Inc. 
services to the client's customers, and the Petitioner ,agreed that these individuals would work 
overtime as required by these customers .. The MSA also described the process by which the 
Petitioner would submit weekly time reports and status reports to the client's customers. The 
Petitioner also agreed that the client's customers would possess the power to "discontinue use of [the 
Petitioner's] services for any reason whatsoever." In addition, the Petitioner agreed that the client 
would make no payments unless its customers accept the Petitioner's work as satisfactory. The 
Petitioner claims that despite this language, the Beneficiary would work at the client's worksite for 
the duration of the petition's approval, and that he would not be assigned to work for any of the 
client's customers. The Petitioner must resolve these inconsistencies with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Unresolved material inconsistencies may lead us to reevaluate the reliability anci sufficiency of other 
evidence submitted in support of the requested immigration benefit. Jd. 
Even if we set that issue aside, we observe additional discrepancies regarding the nature of the job 
duties which lead us to question the reliability of the Petitioner's job description. Specifically, 
because the job duties vary across the various documents submitted by the Petitioner, we cannot be 
certain which duties would be part of the proffered position, and which would not. For example, the 
itinerary document indicates that the Beneficiary would focus on a single project throughout his 
tenure. However, the Petitioner's support letter and the client's March 2016 letter indicate that he 
would work on numerous projects. Some documents indicate that the Beneficiary would spend a 
significant amount of time training new users, while others do not. The statement of work (SOW) 
executed pursuant to the MSA, which appears to be the only document with any legal binding on the 
client, contains no description of any duties, projects, or other work beyond the phrase "programmer 
analyst." Again, these discrepancies lead us to question the reliability of the Petitioner's job 
i description. 
The lack of a reliable job description also leads us to question whether the Petitioner's proffer is 
non-speculative. We made clear long ago that speculative employment is not permitted in the H-1B 
program. For example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H~1B classification on the basis of 
speculative, or undetermined, prospective employment. The H-1B classification is 
not intended as a vehicle for an alien to engage in a job search within the United 
States, or for employers to bring in temporary foreign workers to meet possible 
workforce needs arising from potential business expansions or the expectation of 
potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1B nonimmigrant under the statute, the Service must first 
examine the duties of the position to be occupied to ascertain whether the duties of 
the position require the attainment of a specific bachelor's degree. See section 214(i) 
ofthe Immigration and Nationality Act (the "Act"). The Service must then determine 
whether the alien has the appropriate degree for the occupation. In the case of 
speculative employment, the Service is unable to perform either part of this two­
prong analysis and, therefore, is unable to adjudicate properly a request for H-1B 
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Matter of E-, Inc. 
classification. Moreover, there is no assurance that the alien will engage m a 
specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 
(proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted 
to change its intent with regard to non-speculative employment, e.g., a change in duties or job 
location, it must nonetheless document such a material change in intent through an amended or new 
petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
Overall, the deficiencies and inconsistencies in the job descriptions preclude us from understanding 
such aspects as (1) the actual work that the Beneficiary will perform on a daily basis; (2) the 
complexity, uniqueness or specialization of the tasks; and (3) the correlation between that work and 
a need for a particular level education of highly specialized knowledge in a specific specialty, or its 
equivalent. 
Accordingly, the Petitioner has not established the substantive nature of the work to be performed by 
the Beneficiary. We are therefore precluded from finding that the proffered position qualifies as a 
specialty occupation under any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the 
substantive nature of that work that determines ( 1) the normal minimum educational requirement for 
the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to 
the proffered position and thus appropriate for review for a common degree requirement, under the 
first alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered 
position, which is the focus of the second alternate prong of criterion 2; ( 4) the factual justification 
for a petitioner normally requiring a degree or its equivalent, when that is an issue under criterion 3; 
and (5) the degree of specialization and complexity of the specific duties, which is the focus of 
criterion 4. 
Further, we note that, as recognized by the court in Defensor, 201 F.3d at 387-88, where the work is 
to be performed for entities other than the petitioner, evidence of the client companies' job 
requirements is critical. The court held that the former Immigration and Naturalization Service had 
reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence that 
a proffered position qualifies as a specialty occupation on the basis of the requirements imposed by 
the entities using the beneficiary's services. ld. Such evidence must be sufficiently detailed to 
demonstrate the type and educational level of highly specialized knowledge in a specific discipline 
that is necessary to perform that particular work. 
Though it conflicts and is of limited value, the record does contain evidence from the client 
regarding the Beneficiary's duties. However, the record does not contain a statement from the client 
regarding the minimum educational requirements it requires to perform these duties. For this 
additional reason, the position is not a specialty occupation. 
While these issues are dispositive of the appeal, we will continue to assess the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) for the purpose of performing a more comprehensive analysis, assuming 
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Matter of E-, Inc. 
arguendo that the Beneficiary will be assigned to the client in the capacity claimed on the LCA, i.e., 
a Level I position under the "Computer Programmers" occupational classification. 4 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), 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 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 that it addresses. 5 
The Handbook states, in pertinent part: "Most computer programmers have a bachelor's degree; 
however, some employers hire workers who have an associate's degree. Most programmers get a 
degree in computer science or a related subject." Bureau of Labor Statistics, U.S. Dep't of Labor, 
Occupational Outlook Handbook, Computer Programmers (20 16-17 ed. ). 
According to the Handbook, this occupational cat~gory accommodates a wide spectrum of 
educational credentials, including ones that require less preparation than a bachelor's degree in a 
specific specialty, or the equivalent. For example, the Handbook states that some employers hire 
workers who have an associate's degree. Moreover, ~hile the Handbook's narrative indicates that 
most computer programmers obtain a degree (either a bachelor's degree or an associate's degree) in 
computer science or a related field, the Handbook does not report that at least a bachelor's degree in 
this field, or its equivalent, is normally required. The Handbook, therefore, does not establish that 
the occupational category is one for which normally the minimum requirement for entry is a 
baccalaureate degree (or higher) in a specific specialty, or its equivalent. 
In addition, when comparing the duties of the proffered position to those of other positions located 
within this occupational category, we no.te that the Petitioner stated on the LCA that it will pay the 
Beneficiary a Level I wage, which indicates that it is an entry-level position. Given the Handbook's 
implication that a bachelor's degree in a specific specialty, or the equivalent, is not normally 
required for positions located within this occupational category, it seems unlikely that an entry-level 
position possessing these characteristics would have such a requirement. 6 
4 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
5 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at http://www.bls.gov/ooh/. 
We do not, however, maintain that the Handbook is the exclusive source of relevant information. That is, the 
occupational category designated by the Petitioner is considered as an aspect in establishing the general tasks and 
responsibilities of a proffered position, and U.S. Citizenship and Immigration Services (USCIS) regularly reviews the 
Handbook on the duties and educational requirements of the wide variety of occupations that it addresses. To satisfy the 
first criterion, however, the burden of proof remains on the Petitioner to submit sufficient evidence to support a finding 
that its particular position would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
6 
Recent policy guidance directly supports this interpretation of the Handbook. USC IS Policy Memorandum PM-602-
0 142, Rescission of the December 22, 2000 "Guidance memo on HI B computer related positions" (Mar. 31, 20 17), 
https:/ /www. uscis.gov /sites/default/files/fi Ies/nati vedocuments/PM -6002-0 142-H-I BComputerRelatedPositions 
Recission.pdf. · 
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Matter of E-, Inc. 
The information the Petitioner submits from O*NET Online (O*NET) does not establish the 
proffered position as a specialty occupation, either. First, O*NET assigns, these positions a "Job 
Zone Four" rating, which groups it among occupations for which "most ... require a four-year 
bachelor's degree, but some do not." It is therefore not clear that a bachelor's degree is even 
required, which is consistent with the Handbook. Further, as indicated above a requirement for a 
bachelor's degree alone is not sufficient. Instead, we have consistently interpreted 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; Defensor, 201 F.3d at 387. 
O*NET does not indicate that when a four-year bachelor's degree is required, that it must be in a 
specific specialty directly related to the occupation, or the equivalent. For both reasons, this 
information does not establish the proffered position as a specialty occupation. 
For all of these reasons, the evidence of record does not support a finding that the particular position 
proffered here, an entry-level position located within the computer programmers occupational 
category, would normally have such a minimum specialty degree requirement, or the equivalent. 
The Petitioner therefore has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon 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 
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." See Shanti. Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 
(D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989) 
(considering these "factors" to. inform the commonality of a degree requirement)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion 
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Matter of E-, Inc. 
on the matter. Also, there are no submissions from the industry's professional association indicating 
that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did not submit 
any letters or affidavits from similar firms or individuals in the Petitioner's industry attesting that 
such firms "routinely employ and recruit only degreed individuals." 
The record contains seven job vacancy announcements for our consideration under this prong. To be 
relevant for this consideration, the job vacancy announcements must advertise "parallel positions," 
and the announcements must have been placed by organizations that ( 1) conduct business in the 
Petitioner's industry and (2) are also "similar" to the Petitioner. Upon review, we find that none of 
these job vacancy announcements satisfy that threshold. 
We will first consider whether any of the advertised job opportunities could be considered "parallel 
positions." As noted, the Petitioner attested to DOL that the proffered position is a Level I, entry­
level position. However, all seven of the advertised positions require experience - some significant. 
For example, one of the advertised positions requires seven years of experience, and another requires 
five. We observe further that the job titles indicate that some advertised positions are not entry­
level; two are titled "Programmer Analyst II," and one is titled "Programmer Analyst Ilf' (emphasis 
added). One of the announcements characterizes the advertised position as a "mid-level" position, 
and another states that a successful candidate would act as a "team lead" when necessary. These 
factors indicate that the advertised positions are not entry-level positions, and that they therefore are 
not "parallel positions" to the one proffered here. 
Nor did the Petitioner submit evidence to establish that any of these job vacancy announcements 
were placed by companies that (1) conduct business in the Petitioner's industry and (2) are also 
"similar" to the Petitioner. 
For all of these reasons, the Petitioner has not established that any of these job vacancy 
announcements are relevant. Even if that threshold had been met, we would find that they did not 
satisfY this prong of the second criterion, as they do not indicate that a bachelor's degree in a specific 
specialty, or the equivalent, is common to the industry in parallel positions among similar 
organizations. 7 To the contrary, one company specifically stated that two years of work experience 
7 
In addition, the Petitioner does not demonstrate what statistically valid inferences, if any, could be drawn from the job 
postings with regard to the common educational requirements for entry into parallel positions in similar organizations. 
See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 1995). Moreover, given that there is no 
indication that the advertisements were randomly selected, the validity of any such inferences could not be accurately 
determined even if the sampling unit were sufficiently large. See id. at 195-96 (explaining that "[r]andom selection is the 
key to [the] process [of probability sampling)" and that "random selection offers access to the body of probability theory, 
which provides the basis for estimates of population parameters and estimates of error"). 
As such, even if the job vacancy announcements supported the finding that the position requires a bachelor's or higher 
degree in a specific specialty, or its equivalent, it could not be found that such a limited number ofpostings that appear to 
have been consciously selected could credibly refute 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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Matter of E-, Inc. 
could be substituted for one year of education, and indicating that three years of college study would 
suffice, and another stated that experience "can be substituted on a year-to-year basis," thereby 
indicating that four years of work experience could substitute for a bachelor's degree. In addition, 
numerous advertisers indicated that a degree in a wide variety of fields would suffice. 
Consequently, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
2. Second Prong 
We will next consider 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. 
As discussed, neither the Handbook nor O*NET indicate that a bachelor's degree in a specific 
specialty, or the equivalent, is normally required for positions located within this occupational 
category. We acknowledge the generalized assertions of record that the knowledge and associated 
entry requirements associated with the proffered position exceed those of other positions located 
within the occupational category. For example, the Petitioner stated that the proposed duties are 
"diverse and complex," claimed that they require a "comprehensive knowledge of the field," and 
referenced its clients' "highly sophisticated computing needs." 
However, the Petitioner's Level I wage designation undercuts any claim that it satisfies this 
criterion. 8 In other words, if typical positions located within the occupational category do not 
require a bachelor's degree in a specific specialty, or the equivalent, then it is unclear how a position 
with the Level I characteristics described above would, regardless of these assertions. 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references his 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. We find that Petitioner did not sufficiently develop 
relative complexity or uniqueness as an aspect of the duties of the position, and that it did not 
identify any tasks that are so complex or unique that only a specifically degreed individual could 
8 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
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Matter of E-, Inc. 
perform them. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
C. 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. 
We acknowledge the foreign diplomas that the Petitioner claims establish t4e qualifications of its 
other employees. However, with the exception of A-S-K-, the Petitioner has not submitted 
education evaluation to establish that these foreign degrees are equivalent to a U.S. bachelor's 
degree in a specific specialty, or the equivalent. 
With regard to A-S-K-'s background, we observe that the credentials evaluation states that he 
possesses the equivalent of a bachelor's degree in business administration, with no further 
specialization. However, if the duties of the proffered position can be performed' by an individual 
with a bachelor's degree in business administration with no further specialization, then it is likely not 
a specialty occupation. 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 
administration, 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);~ To prove 
that a job requires the theoretical and practical application of a body of highly specialized knowledge 
as required by section 214(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 
explained 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 
administration, 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. Royal Si~m Corp., 484 F.3d at 147. 
In addition, the Petitioner has not established that any of these individuals hold the same position 
proffered here- an entry-level position with the Level I characteristics outlined above. 
I 
The Petitioner also submitted job postings it claims to have placed on its website advertising this 
position for our consideration under this prong. Again, it is not clear that the advertised position 
relates to the position proffered here. Because the job posting states a requirement for "extensive" 
experience, and describes the "[a]bility to meet deadlines and work independently with minimal 
supervision" as a required skill, it is not apparent that the advertised position is the type of entry-:­
level position with the Level I characteristics outlined above proffered in this H -1 B petition. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates, 
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Matter of E-, Inc. 
but is necessitated by the actual performance requirements of the position. The record does not 
establish this. While a petitioner may assert that a proffered position requires a specific degree, that 
statement alone without corroborating evidence cannot establish the position as a specialty 
occupation. 
Therefore, it has not satisfied the third criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
D. 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. 
We acknowledge the Petitioner's assertions regarding the specialization and complexity of the 
position's duties. However, as above, those claims are undermined by the Petitioner's Level I wage 
designation. Again, in classifying the proffered position at a Level I (entry-level) wage, the 
Petitioner effectively attested to DOL that the Beneficiary would perform routine tasks that require 
limited, if any, exercise of judgment, that he would be closely supervised and his work closely 
monitored and reviewed for accuracy, and that he would receive specific instructions on required 
tasks and expected results.9 The DOL guidance referenced above states that an employer should 
consider a Level I wage designation when the job offer is for a research fellow, a worker in training, 
or an internship. 
The Petitioner has not demonstrated in the record that its proffered position is one with duties 
sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
E. Prior H-lB Approvals 
The Petitioner claims that it has received H-1B approvals filed for similar positions on behalf of 
other beneficiaries. The Director's decision does not indicate whether the prior approvals of the 
other nonimmigrant petitions were reviewed. However, if the previous nonimmigrant petitions were 
approved based on records of proceeding similar to this one, they were granted in error. We are not 
required to approve petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See Matter of Church Scientology Int 'l, 19 I&N Dec. 593, 
597 (Comm'r 1988). It would be "absurd to suggest that [USCIS] or any agency must treat 
9 Again, the Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same occupation. 
I I 
Matter of E-, Inc. 
acknowledged errors as binding precedent." Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 
1090 (6th Cir. 1987). 
A prior approval does not compel the approval of a subsequent petition or relieve the Petitioner of its 
burden to provide sufficient documentation to establish current eligibility for the benefit 
sought. Temporary Alien Workers Seeking Classification Under the Immigration and Nationality 
Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) (to be codified at 8 C.F.R. pt. 214). A prior approval 
also does not preclude USCIS from denying an extension of an original visa petition based on a 
reassessment of eligibility for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 F. App.'x 
556 (5th Cir. 2004). Furthermore, our authority over the service centers is comparable to the 
relationship between a cou(t of appeals and a district court. Even if a service center director had 
approved the nonimmigrant petitions on behalf of a beneficiary, we would not be bound to follow 
the contradictory decision of a service center. See La. Philharmonic Orchestra v. INS, 44 F. Supp. 
2d 800, 803 (E.D. La. 1999). 
These prior H-1B approvals, therefore, do not establish the proffered position as a specialty 
occupation. 
IV. CONCLUSION 
We find that the Petitioner has not established that the proffered position is a specialty occupation. 10 
ORDER: The appeal is dismissed. 
Cite as Matter of E-, Inc., ID# 401198 (AAO June 30, 20 17) 
10 
Because this issue precludes approval of the petition we will not address any of the additional issues we have observed 
in our de novo review of this matter. 
12