dismissed H-1B Case: Video Game Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 17442092 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 11, 2021 
The Petitioner, a video game software developer, seeks to temporarily employ the Beneficiary as a 
under the H-1B nonimmigrant classification for specialty occupations. 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-1B 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 record did not 
establish that the proffered position is a specialty occupation. On appeal, the Petitioner submits a brief 
and asserts that the Director erred by denying the petition. 
The Petitioner bears the burden of proof to demonstrate el igibi I ity by a preponderance of the evidence.1 
We review the questions in this matter de novo.2 Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § l 184(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 also meet one of the following criteria to qualify as a specialty occupation: 
1 Section 291 of the Act ; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
(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. 
We note as a threshold issue that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together with 
section 214(i)(1) 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. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction of 
language which takes into account the design of the statute as a whole is preferred); see also COIT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of W-F-, 
21 l&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)(1) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), we construe 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 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 individuals 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, we do not rely simply upon 
a position's title or the broader occupational category within which a petitioner claims the position is 
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located. The specific duties of the proffered position, combined with the nature of the petitioning 
entity's business operations, are factors to be considered. We must examine the ultimate employment 
of the individual, and determine whether the position qualifies as a specialty occupation. See generally 
Defensor, 201 F. 3d 384. The critical element is not the title of the position or 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. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
11. PROFFERED POSITION 
The Petitioner claims that the Beneficiary will work as a "management data analyst" and submitted a 
labor condition application (LCA) certified for a position located within the "Management Analysts" 
occupational category, corresponding to the Standard Occupational Classification code 13-1111. The 
Petitioner stated in its support letter that the proffered position requires a bachelor's degree or foreign 
equivalent in business administration or a related field. 
Ill. ANALYSIS 
As a result of the Petitioner's own stated requirements, the proffered position does not meet the 
statutory or regulatory definition of the term "specialty occupation." 3 As noted, both definitions 
require the Petitioner to demonstrate that the proffered position requires: (1) the theoretical and 
practical application of a body of highly specialized knowledge; and (2) the attainment of a bachelor's 
degree in the specific specialty. The record of proceedings satisfies neither. 
That the Petitioner would find acceptable a bachelor's degree in business administration, with no 
further specialization, alone precludes a determination that the position involves a "body of highly 
specialized knowledge" or that it requires the attainment of a bachelor's degree in a "specific 
specialty." The First Circuit Court of Appeals explained in Royal Siam, 484 F.3d at 147, that: 
The courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not 
justify the granting of a petition for an H-1B specialty occupation visa. See, e.g., Tapis 
Int'lv. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. Supp. 2d at 1164-
66; cf. Matter of Michael Hertz Assocs., 19 I & &N Dec. 558, 560 ([Comm'r] 1988) 
(providing frequently cited analysis in connection with a conceptually similar 
3 The Petitioner submitted documentation in support of the H-1B 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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provision). This is as it should be: elsewise, an employer could ensure the granting of 
a specialty occupation visa petition by the simple expedient of creating a generic (and 
essentially artificial) degree requirement.4 
The record therefore satisfies neither the statutory nor the regulatory definition of the term "specialty 
occupation." 
As the Petitioner has not met the threshold requirement of satisfying the statutory and regulatory 
definitions of the term "specialty occupation," it cannot satisfy any of the supplemental specialty­
occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4) because, again, we must 
consider those criteria in harmony with the thrust of the related regulatory provisions and with the 
statute as a whole. In other words, we must construe those criteria's references to the term "degree" 
as meaning not just any baccalaureate or higher degree, but one in a specific specialty that is directly 
4 Id. But see India House , Inc. v. McAleenan, 449 F. Supp. 3d 4, 2020 WL 1479519 (D.R.I. 2020). In India House the 
court distinguished Royal Siam on factual grounds but did not dispute its central reasoning: that a position whose duties 
can be fulfilled by an individual with a general-purpose bachelor's degree in business administration is not a specialty 
occupation . Instead , it distinguished Royal Siam on factual grounds . Here, the Petitioner specifically recognizes an 
unspecialized bachelor 's degree in business administration as being one of the many degrees it considers as providing an 
adequate preparation to perform the duties of the proffered position . 
The agency has longstanding concerns regarding general-purpose bachelor 's degrees in business administration with no 
additional specialization. For example , in Matter of Ling, 13 I. & N. Dec . 35 (Reg'! Comm'r 1968), the agency stated that 
attainment of a bachelor 's degree in business administration alone was insufficient to qualify a foreign national as a 
member of the professions pursuant to section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32) . Twenty years later, the 
agency looked to the nature of the position itself and clarified that a requirement for a degree with a generalized title, such 
as business administration, without further specification, was insufficient to qualify the position as one that is professional 
pursuant to section 101(a)(32) of the Act. Michael Hertz Assocs., 19 l&N Dec. at 560. See also Matter of Caron Int '!, 
Inc., 19 I&N Dec . 791 (Comm'r 1988) (vice president for manufacturing in a textile company was not a professional 
position because individual holding general degree in business, engineering or science could perform its duties). 
Congress created the modern H-1B program as part of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978. 
In doing so, it pivoted away from the prior H-1 standard of whether a position was "professio nal." Instead , petitioners 
were now required to demonstrate that a proffered position qualified as a "specialty occupation." Section 
101(a)(15)(H)(i)(b) of the Act. In the final rule setting forth the requirements for the revamped H-lB program, the agency , 
responding to commenters suggesting that the proposed regulatory "specific specialty" requirement "was too severe and 
would exclude certain occupations from classifications as specialty occupations ," stated that "[t]he definition of specialty 
occupation contained in the statute contains this requirement." Temporary Alien Workers Seeking Classification Under 
the Immigration and Nationality Act, 56 Fed. Reg. 61111, 61112 (Dec. 2, 1991) . 
The agency's concerns regarding a general-purpose, non-specific degree in business, or business administration , continued 
under the revamped H-1B program. See, e.g., Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151 (D. Minn. 1999); Royal Siam, 484 
F.3d at 147; 2233 Paradise Road, LLC v. Cissna, No. 17-cv - 01018 - APG- VCF, 2018 WL 3312967 (D. Nev., July 3, 
2018); XiaoTong Liu v. Baran, No. 18-00376-JVS, 2018 WL 7348851 (C.D. Cal. , Dec. 21, 2018); Parzenn Partners v. 
Baran, No. 19-cv-11515-ADB, 2019 WL 6130678 (D. Mass., Nov. 19, 2019). 
To the extent the Petitioner is arguing that a bachelor's degree in business administration, with no further specialization 
(or the equivalent), is a bachelor ' s degree in a specific specialty , then consistent with agency history and federal case law, 
we must disagree. 
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related to the proffered position. 5 For example, the Petitioner cannot satisfy the supplemental 
specialty-occupation criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) because even if it establishes, in the 
words of this criterion, that "a baccalaureate or higher degree or its equivalent is normally the 
minimum requirement for entry into the particular position," we would still 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 proffered position. And as discussed above, the Petitioner would not be able to make 
that demonstration. 
The same would be true of the remaining three criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2)-(4): because 
the Petitioner does not require a bachelor's degree in a specific specialty, or the equivalent, it would 
not be able to satisfy any of those criteria because we would interpret each reference to a "degree" to 
mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related 
to the proffered position. We therefore will not consider the Petitioner's arguments, and the evidence 
it submits, in support of its contention that it satisfies the supplemental specialty-occupation criteria 
enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)-(4). 
The record of proceedings does not establish that the proffered pos1t1on requires both: (1) the 
theoretical and practical application of a body of highly specialized knowledge; and (2) the attainment 
of a bachelor's degree in the specific specialty. The Petitioner, therefore, has satisfied neither the 
statutory definition of a "specialty occupation" at section 214(i)(l)(B) of the Act nor the regulatory 
definition of a specialty occupation at 8 C.F.R. § 214.2(h)(4)(ii). As the Petitioner has not satisfied 
that threshold requirement, it cannot satisfy any of the supplemental specialty-occupation criteria 
enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)-(4). The Petitioner, therefore, has not established that 
the proffered position is a specialty occupation. 
IV. ORAL ARGUMENT 
The Petitioner requests oral argument before the AAO on appeal. The regulations provide that the 
requesting party must explain in writing why oral argument is necessary. And we have the sole 
authority to grant or deny a request for oral argument. We grant oral argument only in cases involving 
unique factors or issues of law that cannot be adequately addressed in writing. See 8 C.F.R. § 103.3(b). 
In this instance, the Petitioner identified no unique factors or issues of law to be resolved. To the 
contrary, the issue underpinning this case - the acceptability of a bachelor's degree in business 
administration, with no further specialization - is long-settled. The written record of proceedings fully 
represents the facts and issues in this matter, and there is no explanation why any facts or issues in this 
matter, whether novel or not, have not and cannot be adequately addressed in writing. Consequently, 
the request for oral argument is denied. 
5 Royal Siam, 484 F.3d at 147; Caremax, 40 F.Supp.3d at 1187-88; lnnova Sols., Inc. v. Baran, 338 F. Supp. 3d 1009, 
1017 (N.D. Cal. 2018) (USCIS did not abuse its discretion in reading the degree requirement together with the "specific 
specialty" language); Payjoy v. Cuccinelli, No. 19-cv-03977-HSG, 2019 WL 3207839 at *3 (N.D. Cal. July 17, 2019) 
(statutory and regulatory text appear to support USCIS's interpretation that the degree requirement must be read in 
conjunction with the "specific specialty" requirement). 
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V. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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