dismissed H-1B Case: Software Development

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-C-S- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 25,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software solutions, projects, and development company, seeks to temporarily 
employ the Beneficiary as a "programmer analyst - under the H-lB 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)(15)(H)(i)(b). The H-IB 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. H-1B visas are statutorily capped at 65,000 per year (H-IB cap) with an 
additional 20,000 provided for those who hold a U.S master's or higher degree. Section 
214(g)(1)(A)(vii), (5)(C) ofthe Act, 8 U.S.C. § 1184(g)(l)(A)(vii), (5)(C). 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not establish, as required: (1) that the proffered position is a specialty occupation; and (2) that the 
Beneficiary qualifies for exemption from the H -1 B cap, which was reached prior to the filing of this 
petition. 
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. 
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Matter of E-C-S- Inc. 
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: 
(I) 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 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). 
II. PROFFERED POSITION 
The Petitioner stated in the H-lB petition that the Beneficiary will serve as a "programmer analyst­
The Petitioner explained 
that the Beneficiary would perform his duties at an offsite location 
for (end-client) pursuant to contracts executed between the Petitioner and 
(first vendor), between the first vendor and (second vendor), 
and between the second vendor and the end-client. The contractual path of succession therefore 
appears to be as follows: Petitioner -7 first vendor -7 second vendor -7 end-client. 
In a letter submitted in response to the Director's request for additional evidence (RFE), the 
Petitioner described the duties of the position as follows (note: errors in the original text have not 
been changed): 
1. Interact with users, developers, project manager to understand the business 
process, identify enhancements. 
2. Develop and communicate software development, design standards and best 
practices using Business Process Management (BPM) tool 
3. Develop reusable assets at the enterprise level. These components can be used by 
all the teams in [the end-client]. 
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Matter of E-C-S- Inc. 
4. Identify and develop enterprise wide reusable assets to address the common 
problems encountered by multiple teams. 
5. Perforrtl systems analysis and programming tasks to maintain and control the use 
of computer systems software as a systems programmer. 
6. Design, Develop Maps with Geographical Information 
System integrated into the application to locate court buildings customized to 
meet specific needs for the Judiciary; 
7. Enhance and create universe, reports to meet the reporting requirements for our 
office; 
8. Administer and upgrade the LINUX servers, application system and users, 
migration etc.; 
9. Analyze the database and programming requirements of clients; 
10. With BI tools we are using review existing legacy systems to determine 
compatibility with current needs, research and selec~ appropriate techniques and 
technology ensuring forward compatibility of existing systems; 
11. BO-SDK for the custom authentication mechanisms on both XI R2 and XI 3.1; 
12. Design custom stuff using BO explorer, Adobe flash/Illustrator/Photoshop and 
etc.; 
13. Train clients on use of information systems and provide technical and production 
support; 
14. Correct errors by making appropriate changes and rechecking the program to 
ensure that the desired results are produced; 
15. Conduct trial runs of programs and software applications to be sure they will 
produce desired information and that the instructions are correct; 
16. Write, update, and maintain computer programs or software packages to handle 
specific jobs such as tracking inventory, storing or retrieving data, or controlling 
other equipment; 
17. Write, analyze, review, and rewrite programs, using workflow chart and diagram, 
and applying knowledge of computer capabilities, subject matter, and symbolic 
logic; 
18. Perform or direct revision, repair, or expansion of existing programs to increase 
operating efficiency or adapt to new requirements; 
19. Consult with managerial, engineering, and technical personnel to clarify program 
intent, identify problems, and suggest changes; 
20. Perform systems analysis and programming tasks to maintain and control the use 
of computer systems software as a systems programmer; 
21. Compile and write documentation of program development and subsequent 
revisions, inserting comments in the coded instructions so others can understand 
the program; 
22. Prepare detailed workflow charts and diagrams that describe input, output, and 
logical operation, and convert them into a series of instructions coded in a 
computer language; 
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Matter of E-C-S- Inc. 
23. Consult with and assist computer operators or system analysts to define and 
resolve problems in running computer programs. 
According to the Petitioner, the proffered position requires an individual with a bachelor's degree in 
computer applications, computer information systems, computer science, engineering, or a related 
field. 
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. 1 
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 p~rticular work. 
The record of proceedings does not contain sufficient information from the end-client. The end­
client letter only lists the same first five duties provided in the Petitioner's letter, and does not make 
reference to the specifics of the project. For example, the duties include "interact with the users, 
developers, project manager to understand the business process" and "perform systems analysis and 
programming tasks." The duties, as described, do not contain sufficient information about their level 
of difficulty, complexity, uniqueness, or specialization. Further, on the labor condition application 
(LCA),2 the Petitioner designated the proffered position under the occupational category "Computer 
Programmers" corresponding to the Standard Occupational Classification code 15-1131 at a Level I 
wage.3 However, the end-client refers to the proffered position as a "senior programmer," which is 
1 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. 
2 The Petitioner is required to submit a certified LCA to USC IS 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). 
3 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 she 
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Matter of E-C-S- Inc. 
not consistent with a Level I wage. Moreover, the end-client states that "the duration of this project 
is ongoing and long term" but does not provide additional information regarding the duration of the 
Beneficiary's assignment. 4 Given the deficiencies and inconsistencies in the record, we cannot 
determine the substantive nature of the work to be performed by the Beneficiary. 
We are therefore precluded from finding 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. 
While this issue precludes the approval of the petition, for the purpose of performing a more 
comprehensive analysis, we will continue to assess the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), 
assuming arguendo that the Beneficiary will be assigned to the end-client in the capacity claimed on 
the LCA, i.e., a Level I position under the "Computer Programmers" occupational classification. 5 
A. First Criterion 
We turn first to the criterion at 8C.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.6 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she 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 _II_ 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. 
4 The record does not contain contractual agreements executed between the Petitioner and the end-client. 
5 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
6 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. 
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Matter of E-C-S- Inc. 
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 (2016-17 ed.). 
According to the Handbook, this occupational category accommodates a wide spectrum of 
educational credentials, including less than a bachelor's degree in a specific specialty. For example, 
the Handbook states that some employers hire workers who have an associate's degree. Moreover, 
while the Handbook's narrative indicates that most computer programmers obtain a degree - which 
could be 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. Thus, the Handbook does not support the claim 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 note 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. 7 
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, we find that the Petitioner has not established that the proffered position is 
located within an occupational category for which the Handbook, or any other relevant, authoritative 
source, indicates that the normal minimum entry requirement is at least a bachelor's degree in a 
specific specialty, or the equivalent. Consequently, the evidence of record does not support a finding 
that the particular position proffered here, an entry-level position located within the computer 
7 See 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/files/nativedocuments/PM-6002-
0 142-H-1 BComputerRelatedPositions Recission.pdf. 
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Matter of E-C-S-Inc. 
programmers occupational category, would normally have such a mtmmum 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 
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 five 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 conduct business in the 
Petitioner's "industry" and are also otherwise "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-
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Matter of E-C-S- Inc. 
level position. However, all five of the advertised positions require experience. This indicates that 
they are not entry-level positions, and that they therefore are not "parallel positions" to the one 
proffered here. 
Nor does the record establish that any of these job vacancy announcements were placed by 
companies that conduct business in the Petitioner's industry, or that they are otherwise "similar" to 
the Petitioner. As noted, the Petitioner described itself as a "software solutions, projects, and 
development" company. However, two of the job vacancy announcements were placed by 
universities, one was placed by a public school district, another was placed by a company that 
operates a chain of convenience stores, and the fifth was placed by a life insurance company. 
For all of these reasons, the Petitioner has not established that any of these job vacancy 
announcements are relevant for consideration under this prong. 8 
The Petitioner has not satisfied the first alternative prong of8 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. 
We discussed findings of the Handbook and O*NET regarding the occupational category into which 
the Petitioner placed the proffered position above. Again, neither resource indicates that a 
bachelor's degree in a specific specialty, or the equivalent, is normally required. 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 are 
acknowledged. For example, both the second vendor and the end-client state that the Beneficiary 
will work as a "senior programmer." However, the Petitioner's Level I wage designation undercuts 
any claim that it satisfies this criterion.9 In other words, if typical positions located within the 
8 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 if the 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"). 
9 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 
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Matter of E-C-S- Inc. 
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.10 
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 
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. The 
record must establish that a petitioner's stated degree requirement is not a matter of preference for 
high-caliber candidates but is necessitated instead by performance requirements of the position. See 
Defensor, 201 F.3d at 387-88. If we were limited solely to reviewing the 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 Petitioner created a token degree 
requirement. !d. Evidence provided in support of this cr~terion may include, but is not limited to, 
documentation regarding the Petitioner's past recruitment and hiring practices, as well as 
information regarding employees who previously held the position. 
The Petitioner submitted job postings it claims to have placed advertising this position for our 
consideration under this prong. However, because the advertised positions all require work 
experience, it is not apparent that any of these positions are the type of entry-level position proffered 
here. 
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. 
10 The apparent mismatch between this characterization of the proffered position's nature by the second vendor and end­
client and the Petitioner's attestations to DOL when it obtained the certified LCA raises questions as to whether the LCA 
actually corresponds to and supports the H-1 B petition, as required. For example, the DOL wage-level guidance 
referenced above specifically states that inclusion of the word "senior" in a position's job title is an indicator that a Level 
lii wage should be considered. However, because the Petitioner has not established that the proffered is a specialty 
occupation we will not address this issue further, except to note that the Petitioner should be prepared to address it in any 
future filings. 
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Matter of E-C-S- Inc. 
We also acknowledge that although the Petitioner provided educational credentials and pay stubs for 
some of its employees, the Petitioner did not submit job descriptions or other relevant evidence to 
establish that any of these individuals hold the position proffered here - an entry-level computer 
programmer position with the Level I characteristics outlined above, who is assigned to an end­
client. 
Without more, the Petitioner has not provided sufficient evidence to establish that it normally 
requires at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered 
position. Therefore, it has not satisfied the third criterion of8 C.P.R.§ 214.2(h)(4)(iii)(A). 
D. Fourth Criterion 
The fourth criterion at 8 C.P.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 Levell 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. 11 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.P.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. EXEMPTION FROM H-lB CAP 
The Director also found that the Petitioner did not establish that the Beneficiary qualifies for 
exemption from the numerical limitation placed on H -1 B filit1gs, which was reache<;l prior to the 
filing of this petition. Specifically, the Director stated that one of the Beneficiary's approved 
petition was revoked based on fraud. The Director concluded that pursuant to 
11 
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 tha same occupation. 
10 
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Matter of E-C-S- Inc. 
' 
section 214(g)(3) of the Act, 8 U.S.C. § 1184(g)(3), the Beneficiary's cap number was taken back, 
and that the Beneficiary is no longer exempt from the H-IB cap. 
Section 214(g)(3) states the following: 
Aliens who are subject to the numerical limitations of paragraph (1) shall be issued 
visas (or otherwise provided nonimmigrant status) in the order in which petitions are 
filed for such visas or status. If an alien who was issued a visa or otherwise provided 
nonimmigrant status and counted against the numerical limitations of paragraph ( 1) is 
found to have been issued such visa or otherwise provided such status by fraud or 
willfully misrepresenting a material fact and such visa or nonimmigrant status is 
revoked, then one number shall be restored to the total number of aliens who may be 
issued visas or otherwise provided such status under the numerical limitations of 
paragraph (1) in the fiscal year in which the petition is revoked, regardless of the 
fiscal year in which the petition was approved. 
We reviewed the aforementioned petition's record and are unable to determine if it was revoked 
based on fraud. While we are dismissing the appeal because the protiered position is not a specialty 
occupation, we will return to the Director for further review. 
V. CONCLUSION 
We find that the Petitioner has not established that the proffered position is a specialty occupation. 12 
ORDER: The appeal is dismissed. 
Cite as Matter o.fE-C-S- Inc., ID# 371368 (AAO July 25, 2017) 
12 
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. 
II