dismissed H-1B Case: Structural Engineering

U.S. Citizenship 
and Immigration 
Services 
MA ITER OF A-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 23.2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a structural steel engineering, fabrication, and detailing business, seeks to temporarily 
employ the Beneficiary as a "steel detailer" under the H-IB nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b). 
8 U.S.C. § 110l(a)(l5)(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, California Service Center, denied the petition conCluding that the Petitioner did not 
establish that: (l) the proffered position qualifies as a specialty occupation; and (2) the Beneficiary 
is qualified to perform services in a specialty occupation. 
In its appeal, the Petitioner asserts that the Director erred in her findings. Upon de novo review, we 
will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory detinition. 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; 
(b)(6)
Matter of A-S-, Inc. 
(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.P.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree'· in the criteria at 
8 C.P.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. See Royal Siom Corp. v. Chertof l 
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 "); De/(msor v. Meissn er. 
201 F.3d 384, 387-88 (5th Cir. 2000). 
II. PROFFERED POSITrON 
In the H-1 B petition , the Petitioner stated that the Beneficiary will serve as a "steel detai ler." f n 
response to the Director ' s request for evidence (RFE), the Petitioner provided the following job 
duties for the position (verbatim): 
[R]eview all project information including project tiles , specs , design , scope and 
fabrication standards; estimate and review bid documents, project set up information , 
attend project kick off meetings, and determine delivery time lines ; create, build and 
maintain every scope item down to nut, washer and bolt using 
software ; create a full set of For Approval drawings for fabrication and 
erection of steel scope items; general Fabtrol and every machine data file for nesting 
and ordering material; produce and maintain all CNC tiles throughout the life of the 
project ; create requests for information as required due to design drawing lacking or 
conflicting information ; implement design changes, clarification bulletins , 
Architectural Supplement Instructions and RFI answers timely as this information 
comes in; review all returned approval comments and address any lacking or 
conflicting information; implement Project Manager tasks on each project from start 
to finish; meeting with Project Managers daily; work with the Project Managers and 
detailers to determine schedules for all projects, based on the schedule of values; 
follow the budget on all projects, reach expected time limits and remain within cost­
competent parameters; write change orders to Project Managers /Fabricators for 
changes in scope and/or design revisions ; maintain direct reporting relationship with 
the Detailing Manager at the Utah Branch ; communicate daily with Project Managers 
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(b)(6)
Matter of A-S- , Inc. 
from the Main Office; and ensure all drawings meet /exceed the Project 
Managers' needs/expectations. 
According to the Petitioner, it "has required that the Beneficiary have a Bachelor degree in Civil 
Engineering or Equivalent work experience to be eligible for the position ." 
III. ANAL YSJS 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation. 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. 1 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the duties of the 
proffered position such that USCIS may discern the nature of the position and whether the position 
actually requires the theoretical and practical application of a body of highly specialized knowledge 
attained through at least a baccalaureate degree in a specific discipline. We find that the Petitioner 
has not done so. 
For example, the Petitioner did not provide any information with regard to the order of importance 
and/or frequency of occurrence with which the Beneficiary will perform the functions and tasks. 
Thus, the record does not specify which tasks are major functions of the proffered position. 
Moreover, the evidence does not establish the frequency with which each of the duties will be 
performed (e.g. , regularly , periodically , or at irregular intervals). 
Furthermore, the Petitioner described the proposed duties in terms of generalized and generic 
functions that did not convey sufficient substantive information to establish the relative complexity, 
uniqueness, or specialization of the proffered position or its duties. The abstract level of information 
provided about the proffered position and its constituent duties is exemplified by the Petitioner's 
assertion that the Beneficiary will "estimate and review bid document s, project set up information , 
attend project kick off meetings , and determine delivery time lines. " However , the statement doe s 
not provide any insight into the Beneficiary ' s actual duties , nor does it includ e sufficient information 
regarding the specific task s that the Beneficiary will perform . 
Further, the Petitioner claimed in pertinent part that the Beneficiary \Vi II "produce and maintain all 
CNC files throughout the life of the project " and "create requests for information as required due to 
design drawing lacking or conf1icting information." Notably, the Petitioner did not demonstrate how 
the performance of these duties, as described in the record, would require the attainment of a 
bachelor's or higher degree in a specific specialty , or its equivalent. 
1 
The Petitioner submitted documentation in supp01i of 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. 
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Matter of A-S-, Inc. 
The Petitioner also claimed the Beneficiary will "handle all Project Manager issues" and meet "with 
Project Managers daily." The Petitioner's statements do not convey any pertinent details as to the 
actual work involved in these tasks. The Petitioner did not convey how a baccalaureate level of 
education (or higher) in a specific specialty, or its equivalent, would be required to perform these 
tasks. Thus, the overall responsibilities for the proffered position contained generalized functions 
without providing sufficient information regarding the particular work and the associated 
educational requirements into which the duties would manifest themselves in their day-to-day 
performance within the Petitioner's business operations. 
Such generalized information does not in itself establish a necessary correlation between any 
dimension of the proffered position and a need for a particular level of education, or educational 
equivalency, in a body of highly specialized knowledge in a specific specialty. It is not evident that 
the proposed duties as described in this record of proceedings, and the position that they comprise, 
merit recognition of the proffered position as a specialty occupation. To the extent that they were 
described, the proposed duties did not provide a sufficient factual basis for conveying the substantive 
matters that would engage the Beneficiary in the actual performance of the proffered position for the 
entire 3-year period requested, so as to persuasively support the claim that the position's actual work 
would require the theoretical and practical application of any particular educational level of highly 
specialized knowledge in a specific specialty directly related to the duties and responsibilities of the 
proffered position. 
The Petitioner has not provided sufficient details regarding the nature and scope of the Beneficiary's 
employment or substantive evidence regarding the actual work that the Beneficiary would perform. 
Without a meaningful job description, the record lacks evidence sufficiently concrete and 
informative to demonstrate that the protlered position requires a specialty occupation's level of 
knowledge in a specific specialty. The tasks as described do not communicate: (1) the actual work 
that the Beneficiary would perform; (2) the complexity, uniqueness and/or specialization of the 
tasks; and/or (3) the correlation between that work and a need for a particular level education of 
highly specialized knowledge in a specific specialty. 
Nevertheless, assuming, for the sake of argument, that the Petitioner had adequately and accurately 
described the duties of the proffered position, we will now discuss the proffered position in relation 
to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 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. To inform this inquiry, we recognize the U.S. Department of 
2 
Although some aspects ofthe regulatory criteria may overlap, we will address each of the criteria individually. 
4 
Matter of A-S-, Inc. 
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. 3 
On the labor condition application (LCA) 4 submitted in support of the H-1 B petition. the Petitioner 
designated the proffered position under the occupational category "'Drafters, All Other'' 
corresponding to the Standard Occupational Classification code 17-3019. :i 
The Handbook subchapter entitled "How to Become a Drafter" states, in pertinent part: "Drafters 
typically need specialized training, which can be accomplished through a technical program that 
leads to a certificate or an associate's degree in drafting.'' U.S. Dep't of Labor, Bureau of Labor 
Statistics, Occupational Outlook Handbook, 2016-17 ed., '·Drafters," 
https:l/www.bls.gov/ooh/architecture-and-engineering/drafters.htm#tab-4 (last visited Feb. 2. 
20 17). The Handbook also states: "Drafters generally need to complete postsecondary education in 
drafting. This is typically done through a 2-year associate's degree from a technical institute or 
community college." !d. 
The Handbook does not state that a baccalaureate or higher degree, in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into the proffered position. In fact, the 
Handbook specifically states that a certificate or an associate's degree is sufficient for entry into the 
occupation. 
The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Thus, the Petitioner has 
not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
3 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 Ham/hook 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 USC IS regularly reviews the f-lm1(/hook 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 pat1icular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
4 
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, 545-46 (AAO 20 15). 
5 The Petitioner classified the proffered position at a Level 11 wage. We will consider this selection in our analysis of the 
position. The "Prevailing Wage Determination Policy Guidance'" issued by DOL provides a description of the wage 
levels. A Level II wage rate is for a petitioner who expects its employee to perform moderately complex tasks that 
require limited judgment. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/down load/NPWHC _Guidance_ Revised _I I_ 2009.pdf A prevailing wage determination stat1s 
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. 
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(b)(6)
Matter of A-S-, Inc. 
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. § 21 4.2(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. 
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 tirms '"routinely employ 
and recruit only degreed individuals." See Shanfi , Inc. v. Reno, 36 F. Supp. 2d 115 L 1165 (D. Minn. 
1999) (quoting 
Hird!Blaker Corp. v. Sava, 7l2 F. Supp. 1095, 1102 (S.D.N. Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or other 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." Nor is there any other evidence 
relevant to this prong. Thus, based upon a complete review of the record of proceedings, we find 
that the Petitioner has not satisfied the tlrst alternative prong of8 C.F.R. ~ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We wiU next consider the second alternative prong of 8 C.F.R. § 2l4.2(h)(4)(iii)(A)(2), which is 
satistled 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 support of its assertion that the proffered pos1t10n qualifies as a specialty occupation, the 
Petitioner described the proffered 
position and its business operations. The Petitioner asserts that the 
proffered position 's job duties are complex because they include working \Vith robotic equipment 
and ' However, the Petitioner has not sufticiently developed relative complexity 
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(b)(6)
Matter of A-S-, Inc. 
or uniqueness as an aspect of the proffered position. Again, it appears that the Petitioner expects the 
Beneficiary to perform moderately complex tasks that require limited exercise of judgment (by its 
selection of a Level II wage on the LCA) compared to other positions within the same occupation.
6 
The description of the duties provided by the Petitioner does not specifically identify any tasks that 
are so complex or unique that only a specifically degreed individual could perform them and does 
not refute the Handbook ·s narrative indicating that a bachelor's degree in a specific specialty, or its 
equivalent, is not required. 
We note that the Petitioner submitted a printout entitled ' 
however, the training is not for a bachelor's degree in specific specialty. 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 it may believe are so 
complex and unique. While a few related courses may be beneficial in performing certain duties of 
the 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 proffered position. 
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. 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 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 Petitioner stated in the Form I-129 that it was established in 2004 (approximately 12 years prior 
to the filing of the H-1 B petition) and that it has 56 employees. Upon review of the record, we find 
that the Petitioner did not submit information regarding employees who currently or previously held 
the position. The record does not establish that the Petitioner normally requires at least a bachelor's 
6 Nevertheless, a low wage-designation does not preclude a proffered pos1t10n from classification as a specialty 
occupation, just as a high wage-designation does not definitively establish such a classification. In certain occupations 
(e.g., doctors or lawyers), a Levell! 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 ifthat 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. 
7 
Matter of A-S-, Inc. 
degree in a specific specialty, or its equivalent, directly related to the duties of the position. 
Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 
D. Fomih 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 repeatedly claims that the duties of the proffered position are so specialized and 
complex that only a person with a bachelor's degree in civil engineering, or its equivalent, can 
perform them. However, relative specialization and complexity have not been sufficiently 
developed by the Petitioner as an aspect of the proffered position. That is, the proposed duties have 
not been described with sufficient specificity to establish that they are more specialized and complex 
than other positions in the occupational category that are not usually associated with at least a 
bachelor's degree in a specific specialty, or its equivalent. We also reiterate our earlier comments 
and findings regarding the implications of the position's wage level designation on the LCA. Thus, 
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)(.:/). 
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. BENEFICIARY QUALIFICATIONS 
The Director also found that the Beneficiary would not be qualified to perform the duties of the 
proffered position if the job had been determined to be a specialty occupation. However, a 
beneficiary's credentials to perform a particular job are relevant only when the job is found to be a 
specialty occupation. As discussed in this decision, the Petitioner did not submit sufficient evidence 
regarding the proffered position to determine whether it wiJJ require a baccalaureate or higher degree 
in a specific specialty, or its equivalent. Absent this determination that a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is required to perform the duties of the proffered 
position, it also cannot be determined whether the Beneficiary possesses that degree, or its 
equivalent. Therefore, we need not and will not address the Beneficiary's qualifications further, 
except to note that, in any event, the Petitioner did not submit an evaluation of the Beneficiary's 
foreign degree or sufficient evidence to establish that his degree is equivalent to a U.S. bachelor's 
degree in a specific specialty. As such, since evidence was not presented that the Beneficiary has at 
least a U.S. bachelor's degree in a specific specialty, or its equivalent the petition could not be 
approved even if eligibility for the benefit sought had been otherwise established. 
8 
Matter of A-S-, Inc. 
V. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofA-S-, Inc., ID# 181756 (AAO Feb. 23, 2017) 
9