dismissed H-1B Case: Software Development

(b)(6)
DATE: 
IN RE: 
PETITION: 
JUl 1 0 2015 
Petitioner : 
Beneficiary : 
U.S. Department of Homeland Securil) ' 
U.S. Citizenship and Immigration Servit:e 
Administrative Appeals Orricc (AAO) 
20 Massachusetts Ave .. N.W .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT#: 
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 1 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. 
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. FACTUAL AND PROCEDURAL HISTORY 
On the Petition for a Nonimmigrant Worker (Form I -129), the petitioner describes itself as an 
advanced software development and consulting firm established in with 21 employees. In 
order to employ the beneficiary in what it designates as a technical support engineer, the 
petitioner seeks to classify her 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 benefit 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. The petitioner filed a combined 
motion to reopen and reconsider. The Director subsequently denied the motion, finding that the 
evidence submitted did not satisfy the requirements of a motion to reopen and reconsider. 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.
1 
The record of proceeding before us contains: (1) the Form J -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-2908) and supporting documentation. 
We reviewed the record in its entirety before issuing our decision. 2 
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. 
1 
We note that when an appeal is filed in response to a director's unfavorable action on a motion, the 
scope of the appeal is limited to the Director's decision on that motion. We see, for instance, that the 
regulatory provision at 8 C.F.R. § 103.3(a)(2)(i) states: "The affected party must submit the complete appeal 
including any supporting brief as indicated in the applicable form instructions within 30 days qfter service of 
the decision." (Emphasis added). Thus, if the petitioner wished to appeal the Director's decision to deny the 
appeal, it should have elected to file that appeal within 30 days of the Director's denial decision. Here, the 
petitioner elected to file a motion instead and, thereby , limited the scope of the appeal to the merits of the 
Director's decision to dismiss that motion. 
However, for this case, we will discuss the merits of the Director's decision of the Form 1-129 petition. 
2 We conduct appellate review on a de novo basis. See Soltane v. DO.!, 381 F.3d 143, 145 (3d Cir. 2004). 
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II. 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 occup ation in the United 
States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly speciali zed 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, theolog y, 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 quality 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; 
(J) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature ofthe specific duties [is] so specialized and complex that knowledge 
required to perfom1 the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
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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. See K 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 Venture v. Federal Sav. and Loan Ins. Corp., 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 Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate 
or higher degree, but one in a specific specialty that is directly related to the proffered position. 
See Royal Siam Corp. v. Cherto.fj; 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, USC IS 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 entr y 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, USCIS 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. USCIS must examine 
the ultimate employment of the alien , and determine whether the position qualifies as a specialty 
occupation. See generally Defimsor 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. The Proffered Position 
The 
petitioner indicated on the Form J-129 that it see ks the beneficiary's services as a technical 
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support engineer to work on a full-time basis for an annual salary of $60,000 per year. 
In a letter of support dated August 8, 2013, the petitioner stated that the beneficiary will be 
responsible for the following duties: 
• Provide technical support to clients by answering telephone calls (primarily) 
and replying to emails, which includes average call times, call wait times, 
with a focus on high quality, accuracy and customer satisfaction 
• Document and record all activity and communication with clients over 
telephone and email according to departmental standards of quality 
• Record all activity in the call logging system, updating cases in order that 
progress can be tracked with each customer's incident, viewed via the 
customer portal and reports generated for high profile customers 
• Meet or exceed goals for Case Management, Phone and Emai I response times, 
and Customer Satisfaction scores 
• Analyze and clarify customer queries though troubleshooting and researching 
existing knowledgebase articles/known issues 
• Review cases for technical complexity and make recommendations to team 
members with regards [to] escalation according to company's best [p ]ractice 
• Use and create knowledgebase articles based on new product information, 
support incidents, and/or common or critical issues 
• Actively participate in team meetings by providing feedback on current day to 
day activity and recommendations for improvement 
The petitioner also stated that the proffered position is a "professional level position and as such , 
we absolutely require, at a minimum, the functional equivalent of a Bachelor's degree or higher 
in Computer Science, Computer Applications, CIS, Information Technology, Mechanical or any 
related field with relevant experience." 
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 Support Specialists" -- SOC ( ONET /OES) Code I 5-1150, at a Level 
II (qualified) wage. The LCA also indicated that the beneficiary will work at the petitioner's 
office. 3 
C. Analysis 
A baccalaureate or higher degree in a .specific .specialty, or its equivalent, is 
normally the minimum requirement/or entry into the particular position 
3 The petitioner submitted a master subcontract agreement with located in MA, and 
a work order that names the beneficiary as a consultant providing ' 
starting Apri I 15, 20 13 for six months. The work location is not identified, and the petitioner did not 
provide additional information regarding this agreement. 
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We will first discuss the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(l), which is satisfied by 
establishing that a baccalaureate or higher degree, or its equivalent, in a specific specialty LS 
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. 4 As noted above, the LCA corresponds to the occupational 
classification "Computer Support Specialists"-SOC(ONET/OES) code 15-1150, at a Level II 
(qualified) wage. 
The Handbook states the following with regard to the educational requir ements necessary for 
entrance into this field: 
Because of the wide range of skills used in different computer support jobs , there 
are many paths into the occupation . A bachelor's degree is required for some 
computer support specialist position s, but an associate's degree or postsecondary 
classes may be enough for others. 
Education 
Education requirements for computer support specialists vary. Computer user 
support specialist jobs require some computer knowledge , but not necessarily a 
postsecondary degree. Applicants who have taken some computer-related classes 
are often qualified . For computer networ k support specialist s, many employers 
accept applicants with an associate' s degree, although some prefer applicants to 
have a bachelor's degree. 
Large software companies that provid e support to business users who buy their 
products or services often require a bachelor's degree. More technical positions 
are likely to require a degree in a field such as computer science, engineering , or 
information science , but for others , the applicant ' s field of study is less important. 
To keep up with changes in technolo gy, many computer support specialists 
continue their education throughout their careers. 
U.S. Dep't of Labor , Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Computer Support Specialists," http://www.bls.gov/ooh/computer-and-information­
technology/computer-support-specialists.htm #tab-4 (last visited July 9, 20 15). 
4 The Handbook, which is available in print ed form , may also be accessed online at 
http: //www.bls.gov /oo h. The references to the Handbook are from the 2014-15 edition available online. 
(b)(6)
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The Handbook does not indicate that at least a bachelor's degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into this occupation. The Handbook 
indicates that the educational requirements for the occupational category vary by the type of 
organization and the work performed. Further , the Handbook reports that an associate's degree 
or postsecondary classes may be acceptable for entry into this occupation. Moreover, the 
Handbook indicates that while some computer support specialists need at least a bachelor's 
degree, it continues by stating that for some employees the applicant's field of study is less 
important. The fact that only some employees in this occupation need a bachelor's degree (and 
that a range of disparate disciplines is acceptable) is not sufficient to establish that a bachelor's 
degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry. 
As mentioned, USCIS interprets the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) as 
requiring a degree in a specific specialty that is directly related to the proposed position. 
On appeal, the petitioner asserts that according to O*NET , the proffered position is classified 
under SOC code 15-1150 "Computer Support Specialists" unde r "Job Zone 4," "requiring the 
minimum of a bachelor's degree in a specific specialty for entry into the position. We note that 
SOC code 15-1150 is no longer in use and the new SOC Code is 15-1151 "Computer User 
Support Specialists ." Further, contrary to the petitioner's assertion, the occupational category of 
"Computer User Support Specialists" has a Job Zone Three, and O*NET states that "[m]ost 
occupations in this zine require training in vocational schools, related on-the-job experience, or 
an associate's degree." We further note that assuming arguendo that this occupational category 
falls under Job Zone Four, O*NET states that "[m]ost of these occupations require a four-year 
bachelor's degree, but some do not." In other words, O*NET does not indicate that a bachelor's 
degree in a specific specialty is a requirement for this occupational category . 
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. 
Thus, the petitioner has not satisfied the first criterion of8 C.F.R. § 214 .2(h)(4)(iii)(A)(J). 
The requirement of a baccalaureat e or higher degree in a .specific specialty, 
or its equivalent , is common to 
the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.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 that are identifiable as being (1) in the petitioner's industry, (2) parallel to the 
proffered position, and also (3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement , factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and 
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whether letters or affidavits from firms or individuals in the industry attest that such firms 
"routinely employ and recruit only degreed individuals." See Shanfi, Inc. v. Reno, 36 F. Supp. 2d 
1151, 1165 (D.Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 
(S.D.N.Y. 1989)). 
As previously discussed, the petitioner has not established that its proffered position is one for 
which the Handbook, or other authoritative source, reports a standard industry-wide requirement for 
at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by 
reference the previous discussion 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 de greed individuals." Thus, based upon a complete review of the record of proceeding, we 
find that the petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
Next, we find that the job-vacancy announcements submitted by counsel 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 a company 
engaged in advanced software development and consulting, establish in with 21 employees, 
and an annual gross income of $4.5 million. 
For the petitioner to establish that an organization is similar, it must demonstrate that the 
petitioner and the organization share the same general characteristics. Such factors may include 
information regarding the nature or type of organization, and, when pertinent, the particular 
scope of operations, as well as the level of revenue and staffing (to list just a few elements that 
may be considered). The petitioner claims that the job postings are for similar organizations 
since they are in the same field; however, 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 
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establish that a requirement for a bachelor's degree, in a specific specialty, is common to the 
petitioner's industry in similar organizations for parallel positions to the proffered position. 
For example, the advertisements include positions with (leading 
provider of Statistical Process Control software and services to manufacturers worldwide); 
(employs approximately 91,000 people worldwide) ; 
(operations m over 30 countries with 2600 employees worldwide); 
and (201 - 500 employees); 
(1001-5000 employees). 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 additional 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 positions. 
Specifically, the advertised positions appear to be for more senior positions than the proffered 
position. For example, the position with requires a minimum of 5 years experience; and 
requires "3-5 years of relevant experience in customer technical support." 
In addition, some job postings state that a bachelor's degree is preferred but not required 1 
. In addition, some job posting just state that a Bachelor's degree in 
required but does not require a specific specialty ( ). 
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 
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 
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 has not demonstrated 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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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. 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specffic specialty, or its equivalent 
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. 
In support of its assertion that the proffered position qualifies as a specialty occupation , the 
petitioner submitted various documents related to its business including tax returns, 
incorporation documents, and lease agreement. We reviewed the record in its entirety and find 
that the petitioner has not provided sufficient documentation to support a claim that its particular 
position is so complex or unique that it can only be performed by an individual with a 
baccalaureate or higher degree in a specific specialty, or its equivalent. 
Specifically, the petitioner has not demonstrated how the duties of the proffered position as 
described in the record require the theoretical and practical application of a body of highly 
specialized knowledge such that a bachelor's or higher degree in a specific specialty, or its 
equivalent, is required to perform them. For instance, the petitioner did not submit information 
relevant to a detailed course of study leading to a specialty degree and did not establish how such 
a curriculum is necessary to perform the duties it may believe are so complex and unique. While 
a few related courses may be beneficial, or even required, in performing certain duties of the 
position, the petitioner has not demonstrated how an established curriculum of such courses 
leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is required to 
perform the duties of the proffered position. The description of the duties does not specifically 
identify any tasks that are so complex or unique that only a specifically degreed individual could 
perform them. The record lacks sufficiently detailed inf01mation to distinguish the proffered 
position as more complex or unique from other positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant 
petition. Again, the LCA indicates a wage level based upon the occupational classification 
"Computer Support Specialists" at 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 she will only perform moderately complex tasks that 
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Page II 
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.6 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." 7 The evidence of 
record does not establish that this position is significantly different from other positions in the 
occupational category such that it refutes the Handbook's information that a bachelor's degree in 
a specific specialty is not required for the proffered position. 
By way of comparison, a position classified at a Level IV (fully competent) position is 
designated by the DOL for employees who "use advanced skills and diversified knowledge to 
solve unusual and complex problems." Thus, the wage level designated by the petitioner in the 
LCA for the proffered position is not consistent with claims 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 has not demonstrated how the proffered position is so complex or 
unique relative to other technical support engineer 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). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
6 The issue here is that the petitioner's designation of this position as a Level II position undermines its 
claim that the position is particularly complex, specialized, or unique compared to other positions within 
the same occupation. Nevertheless, it is important to note that a Level II wage-designation does not 
preclude a proffered position from classification as a specialty occupation. In certain occupations 
(doctors or lawyers, for example), a low 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 refiect that an occupation qualifies as a specialty occupation if that higher-level 
position does not have an entry requirement of at least a bachelor's degree in a specific specialty or its 
equivalent. That is, a position's wage level designation may be a consideration but is not a substitute for a 
determination of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
7 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 
(rev. Nov. 2009), available 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_!]_ 2009.pdf 
Programs 
at 
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We turn next to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3), which entails an employer 
demonstrating that it normally requires a bachelor's degree in a specific specialty or its 
equivalent for the position. 
To satisfy this criterion, the record must establish that a petitioner's imposition of a degree 
requirement is not merely a matter of preference for high-caliber candidates but is necessitated by 
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. 
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) ofthe 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. § 214.2(h)(4)(iii)(A)(3). 
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 in a spectfic 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 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
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). 
For the reasons related in the preceding discussion, the petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A) and, therefore, it cannot be found 
that the proffered position qualifies as a specialty occupation. The appeal will be dismissed. 
III. 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 ofOtiende, 26 I&N 
Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 8 
ORDER: The appeal is dismissed. 
8 As the identified grounds of ineligibility are dispositive of the petitioner's appeal, we need not address 
any additional issues in the record of proceeding