dismissed H-1B Case: Software Development

MATTER OF P-S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 14,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development company, seeks to temporarily employ the Beneficiary as a 
"systems analyst" under the H-1 B nonimmigrant classification. See Immigration and Nationality 
Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B program 
allows a U.S. employer to temporarily employ a qualified foreign worker in a position that requires 
both (a) the theoretical and practical application of a body of highly specialized knowledge and (b) 
the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a 
minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the evidence of 
record was insufficient to establish that the proffered position is a specialty occupation. 
On appeal, the Petitioner submits a brief and additional evidence and asserts that the Director's 
decision was erroneous. 
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.F .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: 
Matter of P-S-, 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. 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
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. !d. 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. 
II. PROFFERED POSITION 
The Petitioner identified the proffered position as a "systems analyst" on the H-1B petition. In a 
statement submitted with the petition, the Petitioner stated that the· Beneficiary's specific duties 
included the following: 
[The Beneficiary] will work closely with Business users and Subject matter experts to 
understand the business needs, expectation and detail the requirements. He would 
implement both the traditional and agile methodology based on the needs of 
individual project approach. He will then closely work with the architecture team in 
determining the existing infrastructure and prepare Architecture design documents 
and detailed technical design documents based on the business needs. He shall 
organize review, control and execute the project. He will develop prototypes of the 
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Matter of P-S-, Inc. 
applications, show case and demonstrate working models and then obtain a sign off 
from the Business for actual development. 
[The Beneficiary] will develop, write, test and maintain computer programs and 
software applications using ERP's and Product Lifecycle Management tools. He will 
configure applications as per requirements of clients and develop flow chm1s for 
coding. He will participate in software development life cycles, standards and 
documentation. He will consult with clients to define needs or problems. He will 
conduct studies or surveys to obtain data to advice on or recommend solutions. He 
will also train the clients on the use of software applications and provide 
troubleshooting and debugging support as needed. 
The Petitioner stated that the minimum requirement for this position is a "baccalaureate degree in 
engineering; a closely related field; or the experiential equivalent of the same, with a strong 
background in configuration, customization, and implementation." 
III. ANALYSIS 
Upon review of the entire record and for the reasons set out below, we determine that the Petitioner 
has not demonstrated that the proffered position qualifies as a specialty occupation.
1 
Specifically, 
the Petitioner has not established that (1) it has secured definite, non-speculative specialty 
occupation work for the Beneficiary for the entire validity period requested ; and (2) the job duties 
require an educational background, or its equivalent , commensurate with a specialty occupation . 
Here, at the time of filing, the Petitioner indicated that the Beneficiary would work in-house , but did 
not sufficiently 
describe the Beneficiary's duties or submit evidence of any projects for clients. In 
response to the Director ' s request for evidence (RFE), the Petitioner claimed that the Beneficiary 
will work in-house on a project entitled for Company 
P. In support of this assertion, the Petitioner submitted a copy of its master services agreement 
(MSA) with Company P, execvted in 2009, and a purchase order identified as Exhibit A, executed in 
December 2016, which named the Beneficiary as a contractor assigned to the project. According to 
the purchase order, the Beneficiary would work on the project in-house at the Petitioner's location 
for a 12-month period beginning on February 6, 2017. 
In denying the petition , the Director noted that the MSA was several years old, and the purchase 
order, submitted in response to the RFE, was executed after the filing of the petition in April 2016. 
The Director concluded that the Petitioner had not established the availability of specialty 
occupation work for the Beneficiary at the time of filing. 
On appeal, the Petitioner submits a new purchase order, also identified as Exhibit A, which was 
executed in March 2016, one month prior to the filing of the petition. The new purchase order listed 
1 
While we may not discuss every document submitted, we have reviewed and considered each one. 
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Matter of P-S-, Inc. 
the Beneficiary's start date as October 3, 2016, which corresponds to the requested validity dates set 
forth in the petition, and indicates that the duration of the assignment would be for one year from 
that date. The Petitioner asserts that this document was not submitted in response to the RFE 
because the start date had already passed at the time the RFE was issued. 
Upon review, we 
concur with the Director's finding that the Petitioner did not demonstrate the 
existence of specialty occupation work for the Beneficiary for the duration of the requested validity 
period. 
First, as noted by the Director, the Petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition and must continue to be eligible for the benefit through adjudication. 
8 C.F.R. § 103.2(b)(1). A visa petition may not be approved at a future date after the Petitioner or 
the Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 
17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). In this case, the initial H-1 B filing simply provided a 
general overview of the Beneficiary's proposed duties as an in-house systems analyst, without 
mentioning that the Beneficiary would be tasked to work on the project for Company P. 
This project was mentioned for the first time in response to the RFE, where the Director requested, 
inter alia, evidence that specialty occupation work was available for the Beneficiary. The purchase 
orde; submitted in response to the RFE, which outlined the terms of the Beneficiary's assignment to 
this project for a one-year period, was executed after the RFE was issued. 
Although the Petitioner asserts that the other purchase order had actually been executed 
prior to the 
filing of the petition, the Petitioner did not submit that purchase order until appeal, claiming that it 
did not think it was sufficient given that the start date listed on that document had passed at the time 
the RFE was issued. Upon review, we do not find these assertions persuasive. 
Assuming that the purchase order submitted on appeal was in fact executed in March of 2016, and 
thus was in existence at the time both the petition and the response to the RFE was filed, it is unclear 
why the Petitioner did not submit this essential document previously. Again, the assertion that the 
Beneficiary would work on the project was raised for the first time in response to the 
RFE, yet on appeal, the Petitioner asserts that the Beneficiary's assignment to this project had been 
confirmed in March of 2016. We find it questionable, therefore, that the Petitioner did not discuss 
this project in its initial supporting documentation. The Petitioner must resolve this incongruity in 
the record with independent, objective evidence pointing to where the truth lies. Matter of' Ho, 
19 I&N Dec. 582,591-92 (BIA 1988). 
Based on these unresolved discrepancies, we afford little evidentiary weight to the purchase order 
executed in March 2016. The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is 
filed. See id. §§ 103.2(b)(l), (8), (12). The failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. !d. § 103 .2(b )(14 ). Here, we find 
the new purchase order to be of little value, and the previously submitted purchase order, as stated, 
post-dates the filing of the petition and does not establish that specialty occupation work was 
available for the Beneficiary at the time of filing. 
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Matter of P-S-, Inc. 
Even if we deemed the purchase orders acceptable, both orders indicate the Beneficiary would work 
on the project for a 12-month period. This contradicts the Petitioner's request for approval for a 
35-month period. Thus, the statements contained in the purchase orders raise questions with regard 
to what, if anything, the Beneficiary would be doing after the 12-month period expires. The 
Petitioner did not address this issue and did not attempt to establish that additional project work tor 
clients, or in-house projects overseen by the Petitioner, would be available for him. 
Moreover, the statement of duties provided by Company P in its letters is vague and confusing. For 
instance, the letters state that the Beneficiary will "design, develop and test technical, business and 
medical applications to be used by client" and "support client in use of application's existing change 
management issue resolution process." Given that the Beneficiary is supposed to be working on the 
project, it is unclear why Company P would not provide specific details on that project 
as opposed to providing generic statements 
regarding the Beneficiary's obligations to a "client," who 
we presume is Company P. Again, the Petitioner must resolve this discrepancy in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 
591-92. 
The record does not establish non-speculative employment for the Beneficiary. At best, if the date 
discrepancies in the purchase orders, and the other deficiencies regarding the project, 
were resolved, the Petitioner could establish available work for the Beneficiary until October of 
2017. The Petitioner, however, has requested approval of this petition to employ the Beneficiary 
until August of 2019, but has not demonstrated the existence of any additional projects or other 
in-house assignments that he could perform once her work on the project is completed.2 
2 
The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B 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-1 B 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) of the 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-1 B classification. Moreover, there is no 
assurance that the alien will engage in 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). 
5 
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Matter of P-S-, Inc. 
The record does not establish non-speculative employment for the Beneficiary. At best, if the date 
discrepancies in the purchase orders, and the other deficiencies regarding the project, 
were resolved, the Petitioner could establish available work for the Beneficiary until October of 
2017. The Petitioner, however, has requested approval of this petition to employ the Beneficiary 
until August of 2019, but has not demonstrated the existence of any additional projects or other 
in-house assignments that he could perform once her work on the project is completed. 
Overall, the deficiencies and inconsistencies in the record 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 of education or highly specialized knowledge in a specific specialty, or its 
equivalent. 
Taken as a whole, the record of proceedings does not contain sufficient, reliable evidence 
demonstrating the substantive nature of the proffered position and its constituent duties.3 
Accordingly, we find the record insufficient to demonstrate that the proffered position satisfies 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 entry into 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. 
Moreover, the Petitioner has not established that the educational requirements for the position 
qualify the position as a specialty occupation. As noted, the court in Defensor, 201 F.3d at 387-88, 
requires a petitioner to produce evidence that a proffered position qualifies as a specialty occupation 
on the basis of the requirements imposed by the entities using a beneficiary's services (emphasis 
added). Here, the letter from Company P simply states that the duties of the position require "at least 
a Bachelor's degree (or the equivalent) in a field closely and directly related to the nature of the 
work" without specifying a specific specialty. 
A petitioner must demonstrate that the proffered po.sition requires a precise and specific course of 
study that relates directly and closely to the position in question. There must be a close correlation 
between the required specialized studies and the position; thus, the mere requirement of a degree, 
without further specification, does not establish the position as a specialty occupation. C.'(" Matter (?f 
Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of a college 
degree for the sake of general education, or to obtain what an employer perceives to be a higher 
caliber employee, also does not establish eligibility."). Thus, while a general-purpose bachelor's 
3 
Further, without full disclosure, we are unable to determine whether the requisite employer-employee relationship with 
exist between the Petitioner and Beneficiary. 
Matter of P-S-, Inc. 
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. Royal Siam Corp., 484 F .3d at 14 7. 
Nevertheless, we will review the Petitioner's general description of duties and the evidence of record 
to determine whether the proffered position as described would qualify for classification as a 
specialty occupation. To that end and to make our determination as to whether the employment 
described above qualifies as a specialty occupation, we turn to the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the 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.4 
On the labor condition application (LCA)5 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Computer Systems Analysts" 
corresponding to the Standard Occupational Classification code 15-1121.6 
The Handbook's subchapter entitled "How to Become a Computer Systems Analyst" states, in 
pertinent part: "A bachelor's degree in a computer or information science field is common, although 
not always a requirement. ·Some firms hire analysts with business or liberal arts degrees who have 
4 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
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 we regularly review 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. 
5 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services to demonstrate that it 
will pay an H-1 B worker the higher of either the prevailing wage for the occupational classification in the "area of 
employment" or the actual wage paid by the employer to other employees with similar experience and qualifications who 
are performing the same services. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
6 The Petitioner classified the proffered position at a Levell wage. 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 Levell (entry) wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary 
to have a basic understanding of the occupation. 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_ll_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. !d. 
7 
Matter of P-S-, Inc. 
skills in information technology or computer programming." 7 The Handbook also states: "Although 
many computer systems analysts have technical degrees,· such a degree is not always a requirement. 
Many analysts have liberal arts degrees and have gained programming or technical expertise 
elsewhere. "8 
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 these positions. As cited above, the Handbook 
begins by stating that a bachelor's degree in a computer-related field is "not always a 
requirement."9 The Handbook continues by stating that there is a wide range of degrees that are 
acceptable for positions in this occupation, including general-purpose degrees in business and liberal 
arts. As discussed, we interpret the term "degree" to mean a degree in a spec(fic specialty that is 
directly related to the proposed position. Since there must be a close correlation between the 
required specialized studies and the position, the Handbook's acceptance of general and wide­
ranging degrees (such as business and liberal arts degrees) strongly suggests that a bachelor's degree 
in a specific specialty is not a standard, minimum entry requirement for this occupation. See Royal 
Siam Corp., 484 F.3d at 14 7. C.f Matter of Michael Hertz Assocs., 19 I&N Dec. at 560. 
Also according to the Handbook, many systems analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. It further ~eports that many analysts have technical 
degrees. But we observe that the Handbook does not specify the amount of programming or 
technical expertise required, or the degree level for these technical degrees (e.g., associate's 
degrees). Thus, the Handbook does not support the claim that the occupational category of 
"Computer Systems Analysts" 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, the Occupational Information Network (O*NET) Summary Report, referenced by the 
Petitioner, is also insufficient to establish that the proffered position qualifies as a specialty 
occupation normally requiring at least a bachelor's degree in a specific specialty, or its 
equivalent. O*NET OnLine does not state a requirement for a bachelor's degree for this 
occupation. Rather, it assigns this occupation a Job Zone "Four" rating, which groups it among 
occupations for which "most ... require a four-year bachelor's degree, but some do not." 10 Further, 
O*NET OnLine does not indicate that four-year bachelor's degrees required by Job Zone Four 
occupations must be in a specific specialty directly related to the occupation. Therefore, O*NET 
OnLine information is not probative of the proffered position being a specialty occupation. 
7 
Bureau of Labor Statistics ,U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Systems Analysts 
(2016-17 ed.). 
8 /d. 
9 ld 
10 
O*NET OnLine Summary Report for "15-1121.00 - Computer Systems Analysts," http://www.onetonline.org/ 
link/summary/15-1121.00 (last visited Aug. II, 2017); O*NET OnLine Help Job Zones, 
http://www.onetonline.org/help/online/zones (last visited Aug. II, 20 17). 
8 
Matter qf P-S-, Inc. 
The Petitioner has not provided sufficient documentation to substantiate its assertion regarding the 
minimum requirement for entry into this particular position, and thus 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 
concentrates upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
I. 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 discussed above, the Petitioner has not established that its proffered position is one for which the 
Handbook, or another authoritative source, reports an industry-wide requirement for at least a 
bachelor's degree in a specific specialty or its equivalent. We incorporate by reference our 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 degreed individuals. 
The Petitioner submits numerous job vacancy announcements for positions it deems parallel to the 
proffered position among similar organizations within the Petitioner's industry. Upon review, 
however, we find these submissions unpersuasive. · 
First, at least two of the vacancy announcements state a general requirement for only a bachelor's 
degree, without further specification regarding the field in which the degree should be obtained. 
While the Petitioner relies on these advertisement to demonstrate that a degree is a common 
9 
Matter of P-S-, Inc. 
requirement for the position of systems analyst, these positing do not demonstrate that a bachelor's 
or higher degree in a spec(fic 5pecialty is common to the industry. 
In addition, numerous postings state a requirement for at least five years of experience in the 
industry. As discussed previously, the Petitioner has designated this position as an Level I, 
entry-level position, requiring the Beneficiary to be closely supervised and allowing him to perform 
only routine tasks that require limited exercise of judgment. The submitted postings, therefore, 
appear to solicit individuals for more senior positions than that proffered here, and consequently 
cannot be deemed evidence that a common degree requirement exists among parallel position within 
similar organizations. 11 
As the record does not include probative evidence that a "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, 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. 
The record here does not credibly demonstrate relative complexity or uniqueness as aspects of the 
proffered position. The evidence of record does not distinguish the proffered position as unique from 
or more complex than other computer systems analyst 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 that, relative to other positions located within the "Computer Systems 
Analysts" occupational category, the Beneficiary would perform only routine tasks that require 
limited exercise of judgment and that he will be closely supervised, monitored, and reviewed for 
accuracy. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). Without further evidence, the record 
11 Even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty is common to 
the industry in parallel positions among similar organizations (which they do not), the Petitioner has not demonstrated 
what statistically valid inferences, if any, can be drawn from the 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). 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 ifthe sampling unit were 
sufficiently large. See id. at 195-196 (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"). 
10 
Matter of P-S-, Inc. 
does not demonstrate that the 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. 12 For example, 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." 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, or its equivalent, is not required for the proffered position. 
Therefore, it cannot be concluded that the Petitioner has 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. 
Here, the Petitioner provides the names of two employees it claims have been employed in the same 
position currently proffered to the Beneficiary. Although it provided copies of their foreign 
educational credentials and paystubs, the record does not establish the positions these individuals 
held within the Petitioner's organization or what their duties were during their tenure. Absent 
additional evidence, these documents do not establish that the Petitioner normally requires a 
specialty-degreed individual for the proffered position. Therefore, the Petitioner has not satisfied the 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)
1
(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The Petitioner has not sufficiently developed relative specialization and complexity as an aspect of 
the proffered position. The Petitioner only provides a generic description of duties and 
12 The issue here is that the Petitioner's designation of this position as a Level I 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 I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), such a 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 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. 
II 
Matter of P-S-, Inc. 
responsibilities, including familiarity and experience with different technological platforms and 
applications it expects from the Beneficiary. The proposed duties have not been described with 
sufficient specificity to show that they are more specialized and complex than other computer 
systems analyst positions that are not usually associated with at least a bachelor's degree in a 
specific specialty, or its equivalent. We also incorporate our earlier discussion and analysis 
regarding the duties of the proffered position, and the designation of the position in the LCA as a 
Level I position, and not as the higher Level III (referring to "special skills or knowledge") or Level 
IV (referring to "complex or unusual problems") wage levels. 
The Petitioner has not demonstrated 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. 
IV. CONCLUSION 
The Petitioner has not established that it has non-speculative, specialty occupation work for the 
Beneficiary. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-S-, Inc., ID# 459406 (AAO Aug. 14, 2017) 
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