dismissed H-1B Case: Software Quality Assurance

MATTER OF SMGG~.._ _ ____. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : SEPT . 25, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , ~ I seeks to temporarily employ the Beneficiary as a "quality 
and test engineer " 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-lB 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 proffered position 
does not qualify as a specialty occupation . 
On appeal , the Petitioner asserts that the Director erred in her decision 
Upon de nova 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 SMGG~.__ _ _. 
(]) 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 construe 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"). 
II. PROFFERED POSITION 
The Petitioner provided information about the proffered job duties, which we will summarize here for 
the sake of brevity: 
• Extract net list and Develop test programs using 274-x or Gerber files to testl 
I I as per IPC standards and customer specifications (30%); ~----~ 
• Create CNC drill programs to drill and make test fixtures for testing '----------' (25%); 
• Test all boards using Flying probes testing machines or Bed of Nail testers, trouble shoot 
and repair I I failed on testing machines or retest (15%); 
• Ensure product meets Underwriters Lab and IPC standards as well as customer designs and 
specifications (10%); 
• Prepare Quality assurance records, certificates and approve product for shipping to 
customers (10%); and 
• Work towards improving quality and efficiency in electrical testing department (10%). 
According to the Petitioner, the position requires a minimum of a bachelor's degree in computers, 
engineering, or an information technology related field, or the equivalent. 
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. 1 
1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
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Matter of SMGG~._ _ ____, 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 2 
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. 
On the labor condition application (LCA)3 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Occupations, All Other," 
more specifically, under the subcategory of "Software Quality Assurance Engineers and Testers," 
corresponding to the corresponding to the Standard Occupational Classification (SOC) code 15-
1199.01. 
We often look to the U.S. Department of Labor's (DOL) Occupational Outlook Handbook 
(Handbook), which is an authoritative source on the duties and educational requirements of the wide 
variety of occupations that it addresses. However, there are some occupations for which detailed 
profiles have not been developed, such as for the general occupational category "Computer 
Occupations, All Other." 4 Therefore, it is the Petitioner's responsibility to provide probative evidence 
( e.g., documentation from other objective, authoritative sources) that supports a conclusion that the 
particular position qualifies as a specialty occupation. For our determination, we will consider and 
weigh all of the evidence provided. 
Under this criterion, the Petitioner relies on the Occupational Information Network (O*NET) report 
for "Software Quality Assurance Engineers and Testers" which states that 70% of respondents 
reported having at least a bachelor's degree. The Petitioner concludes that, since a significant majority 
of respondents have at least a bachelor's degree, "it is more likely than not that a Quality and Test 
Engineer position demands highly specialized theoretical and practical knowledge that is only 
obtained through acquisition of a bachelor's degree or higher." 
We are not persuaded. Foremost, O*NET does not actually state that 70% of positions in this 
occupation possess a bachelor's degree in a specific specialty. O*NET only reports on respondents' 
general education level. By definition, a specialty occupation requires attainment of a bachelor's or 
higher degree in a spec[fic specialty (or its equivalent). Section 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Further, 22% ofrespondents have only an associate's degree or a post-secondary 
certificate. While less than a majority, it is still a notable percentage of persons who do not have at 
2 The Petitioner submitted documentation to support the H- IB 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. 
3 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-IB 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 duties, experience, and qualifications. Section 2 l 2(n)(l) of the Act; 20 C.F.R. § 655.731 (a). 
4 For additional information, see https://www.bls.gov/ooh/about/data-for-occupations-not-covered-in-detail.htm. 
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Matter of SMGG~.__ _ _. 
least a bachelor's level of education, strongly suggesting that there is no standard minimum entry 
requirement for the occupation and positions falling under it. 5 
The Petitioner submits a "Federal Student Aid" print-out for the "Software Quality Assurance 
Engineers and Testers" occupation. Consistent with O*NET, this print-out identifies the occupation's 
education level as "bachelor's degree or associate's degree usually needed." That an associate's 
degree is acceptable for this occupation strongly suggests that a bachelor's degree in a specific 
specialty ( or its equivalent) is not normally the minimum requirement for entry into the position, as 
required. 6 
Also under this criterion, the Petitioner submits job advertisements by other companies. The Petitioner 
states that, from these job advertisements, "USCIS is able to discern that the offered position is parallel 
to any position within similar organizations in this industry." Based on the nature of the Petitioner's 
claims regarding these job advertisements, we will discuss them under the first prong of the second 
criterion. 
The Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I). 
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 contemplates 
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. 
Under this prong, the Petitioner relies on numerous job advertisements from three groups of 
companies: (1) companies for which the Petitioner provides no additional information about, attached 
as "exhibit C"; (2) companies that are "of similar size as [the Petitioner]," attached as "exhibit D"; and 
(3) "other I I manufacturing companies," attached as "exhibit E." 
But the focus of this prong is not only on companies that are either similar to the Petitioner or in the 
Petitioner's industry, but companies that meet both of these threshold elements. The record does not 
5 O*NET does not account for the remaining 8% of respondents. Also, O*NET does not distinguish the respondents' 
positions by career level ( e.g., entry-leveL mid-level, senior-level) or other relevant characteristics. 
6 Because the record does not demonstrate a requirement of at least a bachelor's level of education, we need not address 
the Petitioner or Director's arguments regarding an engineering degree in general. 
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Matter of SMGG~.__ _ _. 
contain enough information to establish that any advertising company individually meets both 
elements. 
For example, the companies grouped as "exhibit C" include Amazon, Honeywell, North American 
Lighting, Hino Motors MFG USA, Honeywell, Philips, and Olympus. The Petitioner provided no 
additional information about these companies, and it does not appear that they are similar to the 
Petitioner and in the same industry. The companies grouped as "exhibit D" are DataSync, AxioMed, 
and SpineFrontier. The only relevant information the Petitioner highlighted about these companies is 
that they have between 1-50 employees; this may establish that they are relatively similar to the 
Petitioner in size, but does not establish that they are in the same industry. The companies grouped as 
"exhibit E" are from Enercon Technologies, Northrop Grumman, and Zin Technologies. While these 
companies may be in thel I manufacturing industry 7, there is no evidence that these 
companies are otherwise similar to the Petitioner in terms of relevant characteristics ( e.g., size, scope 
of operations, or revenue). Because the Petitioner has not demonstrated that any advertising company 
meets both threshold elements of similarity and being in the same industry, we decline to farther 
analyze the specific information contained in each of the postings. 
The Petitioner additionally relies on a letter from a past president of .__ _______ ___. 
,__ ___ __.I anothe~ !manufacturer. This letter states that the company "only 
recruited individuals with a minimum of a Bachelor's degree in Computers, Engineering, LT[.] or 
related field for the position of Quality and Test Engineer," that such a position requires this particular 
degree "because the requisite duties are complex and demand such specialty knowledge," and that this 
degree requirement "is common in the industry." The letter does not provide any farther explanation 
or data to support its claims. For example, it does not explain what job duties this particular company 
requires its Quality and Test Engineer to perform. Without more, these are conclusory statements that 
are not entitled to much evidentiary weight. 
We therefore conclude that 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. 
In the appeal brief, the Petitioner provides more detailed job duties and links those duties to the generic 
job duties set forth in O*NET. We have carefully reviewed this information, but determined that it is 
still adequate to convey the substantive work that the Beneficiary will perform. 
For example, much of the Beneficiary's job duties involve computer numerical control programming 
(CNC programming). 25% of his time will be spent on the duty of "creat[ing] CNC drill programs to 
7 The Petitioner only established that Northrop Grumman provides testing and calibration services in advanced electronics, 
which is not necessarily the same as being in the I I manufacturing industry. 
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Matter of SMGG- □ 
drill and make test fixtures for testing --------~" However, the O*NET report for 
"Software Quality Assurance Engineers and Testers" does not specifically mention CNC 
programming, and there is no objective evidence in the record explaining the complexity or uniqueness 
( or specialization) of tasks involving CNC programming. 8 
Another 30% of the Beneficiary's time will be spent on the duty of "extract[ing] net list and develop 
test programs using 274-x or Gerber files to testl las per IPC standards and 
customer specifications." The Petitioner elaborates on this duty by stating that the Beneficiary will 
utilize "robotic flying probe testing machines, universal bed-of-nails testers (fixture testers) and AOI 
machine." Despite the Petitioner's heavy use of technical terms, it has not sufficiently explained what 
this job duty actually entails. Again, the O*NET report for "Software Quality Assurance Engineers 
and Testers" does not mention any of these technologies (e.g., 274-x or Gerber files) or machines (e.g., 
robotic flying probe testing machines or universal bed-of-nails testers), and there is no objective 
evidence in the record explaining the complexity or uniqueness ( or specialization) of tasks involving 
these technologies or machines. The record does not demonstrate that the knowledge required to 
perform this and other job duties requires at least a bachelor's degree in a specific specialty, or the 
equivalent. 
Further, the Petitioner listed the Beneficiary's coursework that prepared him to perform each job duty. 
But the test to establish a position as a specialty occupation is not the skill set or education of a 
proposed beneficiary, but whether the position itself qualifies as a specialty occupation. The Petitioner 
did not submit information relevant to a detailed course of study leading to a specialty bachelor's 
degree (as opposed to an associate's degree or post-secondary certificate), and did not establish how 
such a curriculum is necessary to perform the proffered duties. 
More broadly, the Petitioner has not sufficiently explained the Beneficiary's role within its 
organizational structure. In its organizational chart, the Petitioner simply highlighted the departments 
of "Quality Assurance," 'Testing (Hardware & Software)," and "Methodizing CAM" but did not 
further explain where exactly the Beneficiary will be placed, whether there are other employees within 
each department, or what position the Beneficiary will report to. We acknowledge the Petitioner's 
submission of its internal "Inspection and Testing" guidelines, but like the organizational chart, there 
is no specific reference to the proffered position. This type of generalized information does not 
provide adequate information about the Beneficiary's role within the context of the Petitioner's 
organization. 
Overall, we find that the Petitioner did not sufficiently develop relative complexity or uniqueness as 
an aspect of the duties of the position, and it did not identify any tasks that are so complex or unique 
8 Compare, e.g., the Handbook chapter on "Metal and Plastic Machine Workers" listing "Computer numerically controlled 
machine tool programmers" as a subset of this occupation. Further, the Handbook states that "many computer numerically 
controlled machine tool programmers usually need to complete coursework beyond high school" and that "Some 
community colleges and other schools offer courses and certificate programs in operating metal and plastics machines 
including CNC programming." See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, 
Metal and Plastic Machine Workers, https://www.bls.gov/ooh/production/print/metal-and-plastic-machine-workers.htm 
(last visited Sep. 23, 2019). Our point is not that this is a "Metal and Plastic Machine Workers" position, but that the 
Petitioner has not demonstrated how the O*NET report for "Software Quality Assurance Engineers and Testers" 
corresponds to this duty. 
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Matter of SMGG~._ _ ____, 
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. 
Evidence provided in support of this criterion 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 record does not contain such evidence. Although 
the Petitioner submits affidavits from an electronics engineer and computer systems analyst it currently 
employs, neither affiant speaks to the Petitioner's normal recruitment and hiring practices for this 
particular position (nor does either affiant indicate that he or she would have the authority or 
knowledge to speak about the Petitioner's normal recruitment and hiring practices). 
The Petitioner claims that "[i]t is at the foll discretion of the Employer and Petitioner to choose 
qualified candidates based on their degrees and specialized knowledge on a position-by-position 
basis." We understand that the Petitioner has foll discretion over its hiring process, but this does not 
demonstrate the proffered position requires a certain degree. 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 v. Meissner, 201 F.3d 
384, 387-88 (5th Cir. 2000). Were we limited solely to reviewing a petitioner's claimed self-imposed 
requirements, an organization could bring any individual with a bachelor's degree to the United States 
to perform any occupation as long as the petitioning entity created a token degree requirement. Id. 
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)(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 references the "complex and highly specialized" job duties when discussing the 
"uniqueness and complexity" of this position's duties. Other than this briefreference, the Petitioner's 
appeal brief does not specifically discuss 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). Therefore, we will 
incorporate by reference our previous analysis of the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). For the reasons discussed above, the Petitioner has not demonstrated in the 
record that its proffered position is one with duties sufficiently specialized and complex to satisfy 
8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
As the Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
established that the proffered position qualifies as a specialty occupation. 
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Matter of SMGG,_I _ ____, 
ORDER: The appeal is dismissed. 
Cite as Matter of SMGG~,_ _ _____.I ID# 4655507 (AAO Sept. 25, 2019) 
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