dismissed H-1B Case: Structural Engineering

(b)(6)
DATE: 
IN RE: 
MAR 2 5 7.015 
Petitioner: 
Beneficiary: 
U.S. Department ol' Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: CALIFORNIA SERVICE CENTER FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion 
(Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
www. uscis.gov 
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DISCUSSION: The service center director denied the noniinmigrant visa petition, and the matter is 
now before the Administrative Appeals Office on appeal. The appeal will be dismissed. The petition 
will be denied. 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner states it is a "structural 
engineering firm" established in and currently employs seven1 people and has a gross annual 
income of $800,000. The petitioner states it wishes to hire the beneficiary as a nonimmigrant "cost 
estimator" and classify that position as a specialty occupation pursuant to section 
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The director denied the petition, concluding that the petitioner failed to demonstrate that the 
proffered position qualifies as a specialty occupation. 
The record of proceeding before us contains the following: (1) the Form 1-129 and supporting 
documentation; (2) the director's request for additional evidence (RFE); (3) the petitioner's response 
to the RFE; ( 4) the director's letter denying the petition; and (5) the 
Form I-290B and supporting documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record supports the 
director's decision to deny the petition for its failure to establish the proffered position as a specialty 
occupation. Accordingly, the appeal will be dismissed, and the petition will be denied. 
I. ANA YLTICAL FRAMEWORK 
To meet its burden of proof in establishing the proffered position as a specialty occupation, the 
petitioner must establish that the employment that it is offering to the beneficiary meets the 
following statutory and regulatory requirements. 
Section 214(i)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(1) defines the 
term "specialty occupation" as one 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 term "specialty occupation" is further defined at 8 C.P.R.§ 214. 2(h)(4)(ii) as: 
An occupation which requires [(1)] theoretical and practical application of a body of 
highly specialized knowledge in fields of human endeavor including, but not limited 
1 The letter of support submitted with the Form 1-129 states there are six employees. 
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to, architecture, engineering, mathematics, physical sciences, social sciences, 
medicine and health, education, business specialties, accounting, law, theology, and 
the arts, and which requires [(2)] 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, the position must 
also 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 (198 8) (holding that construction of 
language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of 
W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result 
in particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory 
or regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid 
this illogical and absurd result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing 
supplemental criteria that must be met in accordance with, and not as alternatives to, the statutory 
and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 
8 C.F.R. § 214.2(h )(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently 
interprets the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree 
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Page 4 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"). Applying this standard, USCIS regularly approves H-1B 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 rely 
simply upon a proffered position's title. The specific duties of the 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 beneficiary, and determine whether the position qualifies 
as a specialty occupation. See generally Defensor v. Meissner, 201 F. 3d at 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. 
II. ANALYSIS 
We will now discuss the application of each supplemental, alternative criterion at 8 C.P.R. § 
214.2(h)(4)(iii)(A) to the evidence in this record of proceeding. 
A. 8 C.P.R.§ 214.2(h)(4 )(iii)(A)(l) 
We will first discuss the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which is satisfied by establishing 
that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry into the particular position that is the subject of the petition. 
As noted above, the petitioner states that it is a "structural engineering firm." The petitioner's 
March 31, 2014 letter of support, filed with the Form I-129 states that the position requires a 
bachelor's degree in civil engineering. In response to the director's May 9, 2014 RFE the petitioner 
also provided the following list of job duties: 
• Under supervision of principal engineers, perform and provide project review and 
pre-design services; 
• Perform detailed quantity take offs by reliably identifying the quantities of the various 
materials involved in the project by analyzing the architectural plan, assign unit 
pricing for materials, equipment costs, to quantity factors and prepare cost estimates 
from concept through execution; 
• Ensuring overall accuracy and completeness of estimate; 
• Perform and provide structural calculations; 
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• Utilizing software such as AutoCad, and other computer software to 
prepare structural drawings to calculate project estimates; 
• Soliciting project pricing from vendors and/or sub-contractors; 
• Collaborate and interface with engineers, architects and clients on project estimates; 
• Performing additional assignments per supervisor's direction. 
The petitioner asserts in the Labor Condition Application (LCA) that the proffered position falls 
under the occupational category "Cost Estimators" at a Level I wage. The petitioner's designation 
of the proffered position as wage Level I position is indicative of a comparatively low, entry-level 
position relative to others within the occupation and signifies that the beneficiary is only expected to 
possess a basic understanding of the occupation and carries expectations that the beneficiary 
perform routine tasks that require limited, if any, exercise of judgment; that he would be closely 
supervised; that his work would be closely monitored and reviewed for accuracy; and that he would 
receive specific instructions on required tasks and expected results. See U.S. Dep't of Labor, Emp't 
& Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration 
Programs (rev. Nov. 2009), available at 
http://www .foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf. 
The above phrases and descriptions in the record of proceeding are generalized tasks performed by 
some cost estimators and track closely those duties listed in the U.S. Department of Labor's 
Occupational Outlook Handbook (Handbook )2 chapter on cost estimators. The Handbook states the 
following about this occupational category: 
What Cost Estimators Do 
Cost estimators collect and analyze data in order to estimate the time, money, 
materials, and labor required to manufacture a product, construct a building, or 
provide a service. They generally specialize in a particular industry or type of 
product. 
Duties 
Cost estimators typically do the following: 
• Identify and quantify cost factors, such as production time, materials, and 
labor expenses; 
• Travel to jobsites to gather information on materials needed, labor required, 
and other factors; · 
2 We recognize the Handbook as an authoritative source on the duties and educational requirements of the 
wide variety of occupations that it addresses. The Handbook, which is available in printed form, may also be 
accessed on the Internet, at http: www.stats.bls.gov/oco/. Our references to the Handbook are to the 2014-
2015 edition available online. We hereby incorporate into the record of proceeding the excerpt of the 
Handbook regarding the duties and requirements of the occupational category "Cost Estimators." 
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• Read blueprints and technical documents in order to prepare estimates; 
• Collaborate with engineers, architects, clients, and contractors on estimates; 
• Consult with industry experts to discuss estimates and resolve issues; 
• Use computer software to calculate estimates; 
• Evaluate a product's cost-effectiveness or profitability; 
• Recommend ways to make a product more cost effective or profitable; 
• Work with sales teams to prepare estimates and bids for clients; 
• Develop project plans for the duration of the project. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Cost Estimators," http://www .bls.gov/ooh/business-and-financial/cost-estimators.htm#tab-2 (last 
visited Mar. 11, 2015). 
The Handbook does not indicate that "Cost Estimators" comprise an occupational group for which 
at least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. The subchapter of the Handbook entitled "How to Become a Cost Estimator" 
states that "[i]ncreasingly, employers prefer candidates who have a bachelor's degree." Id. at 
http://www .bls.gov/ooh/business-and-financial/cost-estimators.htm# tab-4 (last visited Mar. 11, 
2015). The Handbook does not state a degree in a specific specialty is a minimum requirement for 
entry into the career. The only "essential" qualification identified by the Handbook is a "strong 
background in mathematics." Jd. 
Although the beneficiary's bachelor's and master's degrees iri"civil engineering suggest he has the 
requisite background in mathematics, neither the Handbook nor the petitioner's submissions 
demonstrate that these degrees are the minimum entry requirements for the proffered position.3 
Noting that the Handbook states that there is no specific degree requirement, and that some 
employees can qualify for the position without a degree, the record does not suggest that the instant 
position qualifies as a specialty occupation as defined in the regulations. See id. at 
http://www.bls. gov/ooh/business-and-financial/cost-estirnators.htm#tab-4 (last visited Mar. 11, 
2015). 
In addition, materials from DOL's Occupational Information Network (O*NET OnLine) do not 
establish that the proffered position satisfies the first criterion described at 8 C.F.R. § 
214.2( h)(4)(iii)(A). O*NET OnLine is not particularly useful in determining whether a 
baccalaureate degree in a specific specialty, or its equivalent, is a requirement for a given position, 
as O*NET OnLine's Job Zone Four designation (the one assigned to Cost Estimators) makes no 
mention of the specific field of study from which a degree must come.4 As was noted previously, 
3 A beneficiary's credentials to perform a particular job are relevant only when the job is found Lo be a 
specialty occupation. 
4 See the Job Zone section of the O*NET Summary Report for Cost Estimators, 
http://www.onetonline.org/link/summary/13-1051.00 (last visited Mar. 11, 2015). 
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we interpret the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. 
As the evidence in the record of proceeding does not establish that at least a baccalaureate degree in 
a specific specialty, 6r its equivalent, is normally the minimum requirement for entry into the 
particular position that is the subject of this petition, the petitioner has not satisfied the criterion at 
8 C.F.R. § 214.2(h)(4)( iii)(A)(l). 
B. 8 C.F.R. § 214.2(h)(4) (iii)(A)(2) 
Next, we find that the petitioner has not satisfied 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 to 
the petitioner's industry in positions that are both: (1) parallel to the proffered position; and 
(2) 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 at 1165 
(D.Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As already discussed, the petitioner has not established that its proffered position is one for which 
the Handbook, or any other authoritative resource, reports an industry-wide requirement of at least a 
bachelor's degree in a specific specialty or its equivalent. 
The petitioner did provide nine job advertisements from different companies which will be 
addressed below. 5 
• , seeks an experience (non-manager) cost estimator. This 
position does not appear to be similar to the proffered job as it is not for a Level I 
(entry-level) employee. 
• 
_ 
seeks an experienced (non-manager) cost estimator and requires a bachelor's 
degree. The lack of a specific degree requirement does not establish that it is a 
specialty occupation. Further, the job is not similar to the proffered job as it is for an 
experienced estimator and not for an entry-ievel employee. 
5 The petitioner also provided a resume for an architect named 
is not established by the petitioner or by the record as a whole. 
The relevance of this document 
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• also seeks an experienced cost estimator, and not an entry-level 
employee. It does require a "related bachelor's degree" but does not specify what it 
deems to be "related." 
• seeks an estimator with a degree in civil engineering or 
construction management with five years of "heavy civil construction experience." 
. advertisement states that it "has built some of America's largest infrastructure 
projects; highways, bridges, dams, rail, power and other 'heavy civil' projects." The 
record does not establish that the petitioner's operations and the demands of the instant 
position are similar in size, scope, or complexity. In addition, seeks an 
experienced estimator, not an entry-level employee. 
• advertisement for a construction estimator has job requirements 
that are largely unrelated to the instant position. Based on the disparity of the job 
requirements the record does not establish that the jobs are parallel or in organizations 
that are similar. 
• seeks a cost estimator and prefers that they have a 
bachelor's degree. On its face, this advertisement does not require a degree, let alone a 
degree in a specific specialty. 
• is a "cost consulting firm." From the record it is not clear if 
is in the construction or engineering business, or solely a consultant (it cites 
litigation support and claims that its services include "analysis"). The job description 
for this position is not parallel to the proffered position. Thus, the petitioner has not 
established that the position is parallel or in a similar organization. 
• 
_ 
seeks an experienced cost estimator, not a 
Level I, entry-level, employee. It states it wishes to hire someone with a degree in 
construction, engineering, or architecture, but it will consider applicants with any 
degree if they have construction or design related experience. The lack of a 
requirement for a degree in a specific specialty does not support the petitioner's case. 
• seeks a cost estimator with over ten 
years of experience. This is not an entry-level position and is not parallel to the instant 
petition. 
There are no submissions from professional associations, individuals, or similar firms in the 
petitioner's industry attesting that individuals employed in positions parallel to the proffered 
position are routinely required to have a minimum of a bachelor's degree in a specific specialty or 
its equivalent for entry into those positions. 
Therefore, the petitioner has not satisfied the first of the two alternative prongs described at 
8 C.P.R. § 214.2(h)(4)(iii)(A)(2), as the evidence of record does not establish a requirement for at 
least a bachelor's degree in a specific specialty as common to the petitioner's industry in positions 
that are both (1) parallel to the proffered position and (2) located in organizations that are similar to 
the petitioner. 
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Next, we find that the petitioner did 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." 
In this particular case, the petitioner has failed to credibly demonstrate that the duties the 
beneficiary will 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 the 
equivalent. 
The petitioner has not established with sufficient evidence in the record that the job requirements 
can only be satisfied by someone with a degree in a specific specialty. The petitioner's assertions 
are further contradicted by its pronouncement that this position is a wage Level I job. Without 
further evidence, it is simply not credible that the petitioner's proffered position is complex or 
unique in comparison to others within the occupation, as such a position would likely be classif[ed 
at a higher-level, such as a Level III (experienced) or Level IV (fully competent) position, requiring 
a significantly higher prevailing wage. For instance, a Level IV (fully competent) position is 
designated by DOL for employees who "use advanced skills and diversified knowledge to solve 
unusual and complex problems. "6 
The documents in the record do no� demonstrate that the proffered position or its proposed duties 
and responsibilities can be distinguished from other cost estimator positions and their associated 
duties that do not require either (a) the services of a person with at least a bachelor's degree in a 
specific specialty or (b) the application of knowledge usually associated with attainment of at least a 
bachelor's degree in a specific specialty. Consequently, as it has not been shown that the particular 
position for which this petition was filed is 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, the petitioner has 
not satisfied the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. 8 C.P.R.§ 214.2( h)(4)(iii)(A)(3 ) 
We turn next to the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(3 ), which entails an employer 
demonstrating that it normally requires a bachelor's degree in a specific specialty, or the equivalent, 
for the position. 
The petitioner has provided no evidence, nor has it provided any arguments in its RFE response or 
appeal that it has only hired employees with a degree in a specific specialty for this position in the 
past. 
6 For additional information on wage levels, see U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www .foreignlaborcert.doleta.gov/pdf!NPWHC _Guidance_ Revised _11_ 2009.pdf. 
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As the record of proceeding does not present a history of recruiting and hiring only individuals with 
a bachelor's degree in a specific specialty, or the equivalent, for the proffered position, it does not 
satisfy the criterion at 8 C.P.R.§ 214. 2(h)(4)(iii)(A)(3 ). 
D. 8 C.P.R. § 214.2(h)(4 )(iii)(A)(4) 
Next, we find that the petitioner has not satisfied the criterion at 
8 C.P.R. § 214.2(h)(4)(iii)(A)(4), which requires the petitioner to establish that the nature of the 
proffered position's duties is so specialized and complex that the knowledge required to perform them 
is usually associated with the attainment of a baccalaureate or higher degree in the specialty. 
Again, we note that the petitioner classified this position as a wage Level I occupation on the LCA. 
This level is for "beginning level employees who have only a basic understanding of the occupation. 
These employees perform routine tasks that require limited, if any, exercise of judgment." This is 
incongruous with a claim that the instant position is so specialized or complex that it requires a 
degree in specific specialty.7 Without further evidence, it is simply not credible that the petitioner's 
proffered position is one with specialized and complex duties compared to others within the 
occupation as such a position would likely be classified at a higher-level, Level III (experienced) or 
IV (fully competent) position, requiring a substantially higher prevailing wage. As previousi.Y 
discussed, a Level IV (fully competent) position is designated by DOL for employees who "use 
advanced skills and diversified knowledge to solve unusual and complex problems." 
For these reasons, the evidence in the record of proceeding fails to establish that the proposed duties 
meet the specialization and complexity threshold at 8 C.P.R.§ 214.2(h)(4)(iii)(A)(4 ). 
III. CONCLUSION 
As the petitioner has not satisfied at least one of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A), it 
cannot be found that the proffered position is a specialty occupation. Accordingly, the appeal will 
be dismissed and the petition will be denied on this basis. 
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. The petition is denied. 
We incorporate into the present analysis, and into the analysis of each criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), this decision's earlier comments and findings with regard to the evidentiary deficiencies 
of the petitioner's statements and documentary submissions about the proposed duties.