dismissed H-1B Case: Stone/Tile Sales

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-H-W-
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 7, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a business selling tile, marble, stone, and granite at wholesale and retail, seeks to 
continue to employ the Beneficiary as a "Sales Engineer" under the H-1B nonimmigrant 
classification. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The Director, Vermont Service Center, denied the petition. The matter is 
now before us on appeal. The appeal will be dismissed. 1 
I. ISSUES 
The Director denied the petition, finding that the evidence of record did not establish (1) that the 
proffered position qualifies for treatment as a specialty occupation in accordance with the applicable 
statutory and regulatory provisions, and (2) that the Petitioner paid all applicable fees when it filed 
the visa petition. 
II. WITHDRAWAL OF ONE BASIS FOR DENIAL OF THE VISA PETITION 
As was noted above, one of the bases for the decision of denial was the Director's finding that the 
Petitioner had not paid all of the fees required when it filed the instant petition. Based upon our 
review of the entire record of proceedings, including the Petitioner's submissions on appeal, we find 
that the Petitioner has overcome that basis of the Director's denial. We therefore withdraw that basis 
of the Director's decision. 
III. SPECIALTY OCCUPATION 
The remaining issue is whether the evidence of record establishes that the Petitioner would employ 
the Beneficiary in a specialty occupation position. 
1 We conduct appellate review on a de novo basis. Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); see 
also 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); Dor v. INS, 891 F.2d 997, 
1002 n.9 (2d Cir. 1989). 
Matter ofT-H-W-
A. 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 
kriowledge, 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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement 
for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among similar 
organizations or, in the alternative, an employer may show that its particular position is 
so complex or unique that it can be performed only by an individual with a degree; 
(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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
oflanguage which takes into account the design ofthe statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-
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Matter ofT-H-W-
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. ·Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. s 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. 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"). Applying this standard, US CIS regularly approves H -1 B petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty or its equivalent directly related to the duties and responsibilities of the 
particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Proffered Position 
The Labor Condition Application (LCA) submitted to support the visa petition states that the 
proffered position is a "Sales Engineer" position and that it corresponds to Standard Occupational 
Classification (SOC) code and title "41-9031, Sales Engineers," from the Occupational Information 
Network (O*NET). The LCA further states that the proffered position is a Level IV position. 
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Matter ofT-H-W-
In a letter dated August 4, 2014, submitted with the visa petition, the Petitioner provided the 
following description of the duties of the proffered position, verbatim: 
As a Sales Engineer, [the Beneficiary's] mains duties are to manage the store, where 
marble, granite, stone and quartz custom made kitchen countertops are made and 
installed, among other things that are sold there. He uses his expertise in making 
sales and supervises 8 persons who are salespersons, office personnel, cashiers and 
warehouse employees. He is also in charge of the area of projects and wholesales. 
He supervises and manages all sales efforts and makes specialized sales for custom 
made countertops and other products. He is also in charge of purchasing stones, such 
as marble, granite and quartz. [The Beneficiary] has the ability to read blueprints and 
prepares estimates based on these and knows about manufacturing special pieces of 
marble, granite and quartz. He elaborates different alternatives for pieces sold and 
countertops, combining elements to obtain innovative finishing and products. He is 
also in charge of the quality control of products received; inspects and selects 
products according to the needs of the clients and the different projects that are being 
worked on. He controls and supervises the installation process of countertops and 
materials and verifies proper installation according to specification, materials and 
verifies proper installation according to specifications, materials and products needed 
in each case. 
Elsewhere in the same letter, the Petitioner stated: "[The Beneficiary is] in charge of the delicate 
manufacturing process involved in creating custom kitchen and bathroom counters, dealing with the 
programming and 'fine tuning' of the computerized sophisticated tools used to carry out the 
manufacturing, cutting and design process used to make products sold by [the Petitioner]." The 
Petitioner stated, "[The proffered position] requires the very specific and specialized knowledge of 
being able to plan and implement the automatization process in the manufacture of custom made 
counter tops," and "a good knowledge of the use of automatic machines and equipment as well as 
[computerized numeric control] machines." The Petitioner stated that, in the proffered position, the 
Beneficiary "must understand the programming of the equipment and have knowledge of the 
density, resistance and thickness of the different materials used," "[supervise] the manufacturing of 
special pieces and [make] sure that they are processed on time and shaped to the requirements of the 
clients," and be "in charge of quality control of the raw materials once they are received from 
suppliers." 
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Matter ofT-H-W-
C. Analysis 
A baccalaureate 9r higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will first discuss the record of proceedings in relation 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. 
As noted above, the Petitioner claims that the proffered position corresponds to SOC code and title 
41-9031, Sales Engineers, from O*NET. We recognize the Handbook, cited by the Petitioner, as an 
authoritative source on the duties and educational requirements of the wide variety of occupations 
that it addresses. 2 The Handbook states the following with regard to the duties of sales engineers: 
What Sales Engineers Do 
Sales engineers sell complex scientific and technological products or services to 
businesses. They must have extensive knowledge of the products' parts and functions 
and must understand the scientific processes that make these products work. 
Duties 
Sales engineers typically do the following: 
• Prepare and deliver technical presentations explaining products or 
services to existing and prospective customers 
• Confer with customers and engineers to assess equipment needs 
and to determine system requirements 
• Collaborate with sales teams to understand customer requirements 
and provide sales support 
• Secure and renew orders and arrange delivery 
• Plan and modify products to meet customer needs 
• Help clients solve problems with installed equipment 
• Recommend improved materials or machinery to customers, 
showing how changes will lower costs or increase production 
• Help in researching and developing new products 
Sales engineers specialize in technologically and scientifically advanced products. 
They use their technical skills to explain the benefits of their products or services to 
potential customers and to show how their products or services are better than their 
2 The Handbook, which is available in printed form, may also be accessed on the Internet, at http://www.bls.gov/oco/. 
Our references to the Handbook are to the 2016-17 edition available online. 
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Matter ofT-H-W-
competitors'. Some sales engineers work for the companies that design and build 
technical products. Others work for independent sales firms. 
Many of the duties of sales engineers are similar to those of other salespersons. They 
must interest the client in buying their products or services, negotiate a price, imd 
complete the sale. To do this, sales engineers give technical presentations during 
which they explain the technical aspects of the product and how it will solve a 
specific customer problem. 
Some sales engineers, however, team with salespersons who concentrate on 
marketing and selling the product, which lets the sales engineer concentrate on the 
technical aspects of the job. By working as part of a sales team, each member is able 
to focus on his or her strengths and expertise. For more information on other sales 
occupations, see the profile on wholesale and manufacturing sales representatives. 
In addition to giving technical presentations, sales engineers are increasingly doing 
other tasks related to sales, such as market research. They also may ask for technical 
requirements from customers and modify and adjust products to meet customers' 
specific needs. Some sales engineers work with research and development (R&D) 
departments to help identify and develop new products. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Sales Engineers," http://www.bls.gov/ooh/sales/sales-engineers.htm#tab-2 (last visited Dec. 30, 
2016). 
The duties of the proffered position bear very little resemblance to the duties of a sales engineer. 
The proffered position does not entail selling complex machinery or engineering services to clients, 
which is the fundamental duty of a sales engineer. 
However, the Handbook states the following about the duties of top executives, in pertinent part: 
What Top Executives Do 
Top executives devise strategies and policies to ensure that an organization meets its 
goals. They plan, direct, and coordinate operational activities of companies and 
organizations. 
Duties 
Top executives typically do the following: 
• Establish and carry out departmental or organizational goals, policies, 
and procedures 
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Matter ojT-H-W-
• Direct and oversee an organization's financial and budgetary activities 
• Manage general activities related to making products and providing 
services 
• Consult with other executives, staff, and board members about general 
operations 
• Negotiate or approve contracts and agreements 
• Appoint department heads and managers 
• Analyze financial statements, sales reports, and other performance 
indicators 
• Identify places to cut costs and to improve performance, policies, and 
programs 
The responsibilities of top executives largely depend on an organization's size. For 
example, an owner or manager of a small organization, such as an independent retail 
store, often is responsible for purchasing, hiring, training, quality control, and day-to­
day supervisory duties. In large organizations, however, top executives typically 
focus more on formulating policies and strategic planning, while general and 
operations managers direct day-to-day operations. 
The following are examples of types of top executives working in the private sector: 
Chief executive officers (CEOs), who are also known by titles such as executive 
director, managing director, or president, provide overall direction for companies 
and organizations. CEOs manage company operations, formulate and implement 
policies, and ensure goals are. met. They collaborate with and direct the work of other 
top executives and typically report to a board of directors. 
Chief operating officers (COOs) oversee other executives who direct the activities of 
various departments, such as human resources and sales. They also carry out the 
organization's guidelines on a day-to-day basis. 
General and operations managers oversee operations that are too diverse and 
general to be classified into one area of management or administration. 
Responsibilities may include formulating policies, managing daily operations, and 
planning the use of materials and human resources. They make staff schedules, assign 
work, and ensure that projects are completed. In some organizations, the tasks of 
chief executive officers may overlap with those of general and operations managers. 
U.S .. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Top Executives," http://www.bls.gov/oohlmanagement/top-executives.htm#tab-2 (last visited Jan. 
6, 2016). 
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Matter ofT-H-W-
The duties of the proffered position correspond very closely to the duties the Handbook attributes to 
Top Executive positions, and more specifically to General and Operations Managers as described in 
the same chapter. In the proffered position, the Beneficiary would manage the Petitioner's store, 
supervise the Petitioner's sales personnel, be in charge of purchasing raw materials, perform quality 
control on the materials received, and supervise the installation of countertops and the Petitioner's 
other products. He would also be in charge of the manufacturing process and the machines required 
for the process. In short, he appears to be in charge of the Petitioner's entire operation. The duties 
of the proffered position are entirely consistent with a general and operations manager position as 
described in the Handbook, as it involves overseeing "operations that are too diverse and general to 
be classified into one area of management or administration." 
Further, we observe that the record contains the Petitioner's appeal brief to the Board of Alien 
Certification Appeals in a matter involving a denied ETA Form 9089, Application for Permanent 
Employment Certification. The Petitioner's brief in that matter indicates that the Petitioner has 
offered the Beneficiary a permanent position as its "General and Operations Manager."3 Also, the 
Beneficiary's resume submitted with the instant appeal indicates that the Beneficiary has been 
working as the Petitioner's "Project and Operations Manager" from "2004-present." We recognize 
that the position proffered in the instant matter is temporary while the other offered position is 
permanent. However, the record contains insufficient indication that the duties of the proffered 
position differ from the duties of that permanent General and Operations Manager position in any 
way. We find that the description of the duties of the proffered position and the other evidence in 
the record demonstrate that the proffered position is a general and operations manager position as 
described in O*NET. 
The Handbook states the following with respect to the educational requirements of top executive 
positions, including general and operations manager, positions: 
Many top executives have a bachelor's or master's degree in business administration 
or in an area related to their field of work. Top executives in the public sector often 
have a degree in business administration, public administration, law, or the liberal 
arts. Top executives of large corporations often have a master's degree in business 
administration (MBA). 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Top Executives," http://www.bls.gov/oohlmanagement/top-executives.htm#tab-4 (last visited Jan. 
6, 2016). 
The Handbook does not indicate that a bachelor's degree in a specific specialty, or the equivalent, is 
normally required for entry into a top executive position. Instead, the Handbook states that these 
positions generally impose no specific degree requirement on individuals seeking employment. The 
3 The .matter under appeal appears to be the DOL's fmdings pertinent to some of the requirements the Petitioner posited 
for the position proffered in that other case. 
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Matter ofT-H-W-
statement that "many" top executives, which category includes general and operations managers, 
have college degrees is not synonymous with the "normal[] minimum requirement" standard 
imposed by this criterion. To the contrary, such a statement does not even necessarily indicate that a 
majority of top executives possess a degree. Moreover, the Handbook does not state that those 
positions which may require a bachelor's degree or the equivalent require that the degree be in a 
specific specialty. 
When the Handbook does not support the proposition that a proffered position is one that meets the 
statutory and regulatory provisions of a specialty occupation, it is incumbent upon the Petitioner to 
provide persuasive evidence that the proffered position more likely than not satisfies this or one of 
the other three criteria, notwithstanding the absence of the Handbook's support on the issue. In such 
cases, it is the Petitioner's responsibility to provide probative evidence (e.g., documentation from 
other objective, authoritative sources) that supports a finding that the particular position in question 
qualifies as a specialty occupation. Whenever more than one authoritative source exists, an 
adjudicator will consider and weigh all of the evidence presented to determine whether the particular 
position qualifies as a specialty occupation. 
The Handbook does not support the claim that the occupational category of general and operations 
manager is one for which normally the minimum requirement for entry is a baccalaureate degree (or 
higher) in a specific specialty, or its equivalent, and the Petitioner has not submitted sufficient 
evidence from another source which would support a finding that the particular position in question 
qualifies as a specialty occupation. The duties and requirements of the position as described in the 
record of proceedings do not indicate that this particular position proffered by the Petitioner is one 
for which a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the. 
minimum requirement for entry. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions 
that are: (1) in the petitioner's industry, (2) parallel to the proffered position, and also (3) located in 
organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest 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)). 
9 
Matter ofT-H-W-
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative source) reports an industry-wide 
requirement for at least a bachelor's degree in a specific specialty or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. Also, there are no submissions from 
a professional organization of general and operations managers 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" for such positions. 
The Petitioner did, as was noted above, make reference to online vacancy announcements posted by 
other companies. The Petitioner did not, however provide the announcements themselves, and they 
do not appear to be currently available on the Internet. Those vacancy announcements are 
unavailable to us and will not, therefore, be considered. 
The evidence of record does not establish that a requirement of a bachelor's or higher degree in a 
specific specialty, or its equivalent, is common to parallel positions with organizations that are in the 
Petitioner's industry and otherwise similar to the Petitioner. The Petitioner has not, therefore, 
satisfied the criterion ofthe first alternative prong of8 C.P.R.§ 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
The evidence of record also does not satisfY the second alternative prong of 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(2), which provides that "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." A review of the 
record of proceedings indicates that the Petitioner has not credibly demonstrated that the duties the 
Beneficiary will be responsible for or perform on a day-to-day basis constitute a position so complex 
or unique that it can only be performed by a person with at least a bachelor's degree in a specific 
specialty, or its equivalent. 
For instance, the Petitioner did not submit information relevant to a detailed course of study leading 
to a specialty degree and did not establish how such a curriculum is necessary to perform the duties 
of the proffered position. While a few related courses may be beneficial, or even required, in 
performing certain duties of the proffered position, the Petitioner has not demonstrated how an 
established curriculum of such courses leading to a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is required to perform the duties of the particular position here. Even 
when considering the Petitioner's descriptions of the proffered position's duties, the evidence of 
record does not establish why a few related courses or industry experience alone is insufficient 
preparation for the proffered position. 
The description of the duties does not specifically identify any tasks that are so complex or unique 
that only a specifically degreed individual could perform them. The record lacks sufficiently 
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Matter ofT-H-W-
detailed information to distinguish the proffered position as more complex or unique from other 
positions that can be performed by persons without at least a bachelor's degree in a specific 
specialty, or its equivalent. 
As the Petitioner did not demonstrate how the proffered position is so complex or unique that it 
requires at least a baccalaureate degree in a specific specialty or its equivalent for entry into the 
occupation in the United States, it cannot be concluded that the Petitioner has satisfied the second 
alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
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. To 
this end, we usually review a petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position. 
The Petitioner has not expressly asserted eligibility nor submitted evidence under this criterion. 
Whether the Petitioner has previously employed anyone other than the Beneficiary in the proffered 
position is unknown to us. While a first-time hiring for a position is certainly not a basis for 
precluding a position from recognition as a specialty occupation, it is unclear how an employer 
would be able to satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which requires a 
demonstration that it normally requires at least a bachelor's degree in a specific specialty or its 
equivalent for the position, without providing some evidence pertinent to those who have previously 
held the position. We cannot conclude that the Petitioner has satisfied the third criterion of 8 C.F .R. 
§ 214.2(h)(4)(iii)(A).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 in a specific specialty, or its equivalent 
Finally, we will address the alternative criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4), which is 
satisfied if the evidence of record establishes that the nature of the specific duties is so specialized 
4 While a petitioner may believe or otherwise assert that a proffered position requires a degree in a specific specialty, 
that opinion alone without corroborating evidence cannot establish the position as a specialty occupation. Were USCIS 
limited solely to reviewing a petitioner's claimed self-imposed requirements, then any individual with a bachelor's 
degree could be brought to· the United States to perform any occupation as long as the employer artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a baccalaureate or higher 
degree in the specific specialty or its equivalent. See Defensor v. Meissner, 201 F. 3d at 387. In other words, if a 
petitioner's degree requirement is only symbolic and the proffered position does not in fact require such a specialty 
degree or its equivalent to perform its duties, the occupation would not meet the statutory or regulatory definition of a 
specialty occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty 
occupation"). 
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Matter ofT-H-W-
and complex that knowledge required to perform them is usually associated with the attainment of a 
baccalaureate or higher degree in a specific specialty or its equivalent. In the instant case, relative 
specialization and complexity have not been sufficiently developed by the Petitioner as an aspect of 
the proffered position. Upon review of the totality of the record, the Petitioner has not established 
that the nature of the specific duties is so specialized and complex that the knowledge required to 
perform the duties is usually associated with the attainment of a baccalaureate or. higher degree in a 
specific specialty, or its equivalent. 
For the reasons discussed above, the evidence of record does not satisfy the fourth criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
The Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it 
cannot be found that the proffered position qualifies as a specialty occupation. The appeal will be 
dismissed and the petition denied for this additional reason. 
IV .. ADDITIONAL BASIS 
The record suggests an additional issue that was not addressed in the decision of denial but that, 
nonetheless, also precludes approval of this visa petition. 
A. Legal Framework 
The regulation at 8 C.F.R. § 214.2(h)(4)(i)(B)(1) stipulates the following: 
Before filing a petition for H-1B classification in a specialty occupation, the 
petitioner shall obtain a certification from the Department of Labor that it has filed a 
labor condition application in the occupational specialty in which the alien(s) will be 
employed. 
While the U.S. Department of Labor (DOL) is the agency that certifies LCAs before they are 
submitted to U.S. Citizenship and Immigration Services (USCIS), the DOL regulations note that it is 
within the discretion of the U.S. Department of Homeland Security (DHS) (i.e., its immigration 
benefits branch, USCIS) to determine whether the content of an LCA filed for a particular Form I-
129 actually supports that petition. See 20 C.F.R. § 655.705(b), which states, in pertinent part: 
For H-1B visas ... DHS accepts the employer's petition (DHS Form I-129) with the 
DOL certified LCA attached. In doing so, the DHS determines whether the petition is 
supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements of H -1 B visa classification . . . . · 
[Italics added] 
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B. Analysis 
As was noted above, the LCA submitted to support the visa petition is certified for a sales engineer 
position. However, for the reasons explained above, we have found that the proffered position is not 
a sales engineer position. Therefore, we also find that the LCA submitted does not correspond to the 
instant visa petition. The appeal will be dismissed for this additional reason. 
V. CONCLUSION 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does n<?t identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that we conduct appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, aff'd. 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm'n, 351 F.3d 1177, 1183 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it is 
the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
CiteasMatterofT-H-W-,ID# 15331 (AAOJan. 7,2016) 
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