dismissed H-1B Case: Web Design

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-NY INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 17, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a website design and search engine optimization business, seeks to temporarily 
employ the Beneficiary as a "project manager" under the H-1 B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ 
a qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, Vermont Service Center, denied the petition. The Director concluded that: ( 1) the 
position offered to the Beneficiary does not qualify as a specialty occupation; and (2) the Beneficiary 
does not qualify for a specialty occupation 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
her findings. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
We will first address the issue of whether the Petitioner's proffered position qualities as a specialty 
occupation. 
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 
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. 
Matter of K-NY Inc. 
The regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or h,igher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Cherto.ff, 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Proffered Position 
In the H-1B petition, the Petitioner stated that the Beneficiary will serve as a "project manager." In 
its offer of employment letter to the Beneficiary, the Petitioner provided the following job, duties for 
the position (verbatim): 
• Assist the company in reaching goals and objectives. related to sales, productivity, 
profitability and industry penetration, among other areas 
• Managing collaboration across functional departments and establishing rules and 
governance to ensure coordination and decision-making 
• Analyze data 
• Make crucial business decisions 
• Communicates information effectively to other team members 
• Hire, train and evaluate employees 
• Develop and implement budgets 
• Developing and monitoring project metrics to determine success, including high­
level KPis and executive dashboards 
• Prepare reports for senior management 
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Matter of K-NY Inc. 
• Ensure the department complies with company polices 
• Ensure workers have the resources to complete their work 
• Perform human resource activities such as performance evaluations, hiring and 
discipline 
• Remains up-to-date on changes and "project" updates 
• Participates in projects and interacts with all other individuals in a manner 
consistent with company values to ensure integrity and excellent customer service 
• Motivate workers through incentives and positive feedBack 
• Assess the performance of the department or company against goals and plans 
In response to the Director's request for evidence (RFE), the Petitioner stated that the "duties of the 
proffered position are a close match for those of an lT Project Manager." The Petitioner provided a 
new job description, along with the approximate percentage of time the Beneficiary will spend on 
each duty, as follows (verbatim): 
Manage execution of web design and SEO projects to ensure adherence to budget, 
schedule, and scope. Use spreadsheets and time management software if applicable. 
Provide weekly progress reports to management regarding employees' caliber of 
work, hours spent, and morale. 35% of time. 
Confer with project personnel to identify and resolve problems including lack of 
cooperation, slow pace of work, and desired time off. 5% of time. 
Develop work breakdown structure (WBS) for each project and ensure adherence to 
100% Rule. 10% oftime. 
Establish and execute a project communication plan and ensure that project personnel 
use the required means of communication. Provide and document feedback given to 
project personnel. 10% of time. 
Assign duties, responsibilities, and spans of authority to project personnel. 10% of 
time. 
Review, and approve or deny requested modifications to project plans. 10% of time. 
Identify need for additional project resources, including personnel, software, or 
vendor services. 10% of time . 
. Communicate with client to determine priorities and future needs as \vell as budget. 
10% oftime. 
According to the Petitioner, the position requires a bachelor's degree in management. 
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Matter of K-NY Inc. 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 1 
Specifically, the record (1) provides inconsistent information regarding the position; and (2) does not 
establish that the job duties require an educational background, or its equivalent, commensurate with 
a specialty occupation? 
For example, the purpose of an RFE is to provide a petitioner with an opportunity to clarify whether 
eligibility for the benefit sought has been established. 8 C.F .R. § 103 .2(b )(8). When responding to 
an RFE, the Petitioner cannot materially change a position's title, its level of authority within the 
organizational hierarchy, or the associated job responsibilities .. Rather, the Petitioner must establish 
that the position offered to the Beneficiary when the petition was filed merits classification for the 
benefit sought. See.Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). If 
significant changes are made, the Petitioner must file a new petition rather than seek approval of a 
petition that is not supported by ,the facts in the record. Here, in response to the RFE, the Petitioner 
changed the Beneficiary's job duties. Specifically, the Petitioner's job description submitted in 
response to the RFE is recited virtually verbatim from the Occupational Information Network 
(O*NET) OnLine Summary Report's list of duties associated with an information technology project 
manager.3 
Moreover, providing job duties for a proffered position from O*NET or other Internet source is 
generally not sufficient for establishing H-1 B eligibility. That is, while this type of description may 
be appropriate when defining the range of duties that may be performed within an occupational 
category, it cannot be relied upon by a Petiti<;mer when discussing the duties attached to specific 
employment for H-1 B approval as this type of generic description fails to adequately convey the 
substantive work that the Beneficiary will perform on a day-to-day basis. In establishing a position 
as qualifying as a specialty 
1 
occupation, a Petitioner must describe the specific duties and 
responsibilities to be performed by a Beneficiary in the context of the Petitioner's business 
operations, demonstrate that a legitimate need for an employee exists, and substantiate that it has 
H-1 B caliber work for the Beneficiary for the period of employment requested in the petition. 
Thus, these are issues that preclude the approval of the petition. Nevertheless, for the purpose of 
performing a comprehensive analysis of whether the proffered position qualifies as a specialty 
I 
occupation, we now turn to the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
1 
Although some aspects of the regulator-y criteria may overlap, we will address each of the criteria individually. 
2 The Petitioner submitted documentation to support the. H-1 B petition, including evidence regarding the proffered 
position. While we may not discuss every document submitted, we have reviewed and considered each one. 
3 For additional information, see O*NET OnLine, available at http://www.onetonline.org/link/summary/15-1199.09 (last 
visited Jan. II, 20 17). · 
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Matter of K-NY Inc. 
1. First Criterion 
The first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) 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 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.4 
On the labor condition application (LCA)5 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Computer Occupations, All 
Other" corresponding to the Standard Occupational Classification code 15-1199.6 
We note that there are occupational categories which are not covered in detail by the Handbook, as 
well as occupations for which the Handbook does not provide any information. The Handbook 
states the following about these occupations: 
Although employment for hundreds of occupations IS covered in detail in the 
Occupational Outlook Handbook. this page presents summary data on additional 
occupations for which employment projections are prepared but detailed occupational 
information is not developed. For each occupation, the Occupational Information 
Network (O*NET) code, the occupational definition, 2014 employment, the May 
2014 median annual wage, the projected employment change and growth rate from 
2014 to 2024, and education and training categories are presented. 
4 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 Handbook 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 Handbook 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 particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
5 
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 o.fSimeio Solutions, LLC, 26 I&N Dec. 542, 545-46 (AAO 20 15). 
6 The "Prevailing Wage Determination Policy Guidance" issued by DOL provides a description of the wage levels. A 
prevailing wage determination starts with an entry level wage and progress~s to a higher wage level after considering the 
experience, education, and skill requirements of the Petitioner's job opportunity. The Petitioner classified the proffered 
position at a Level II wage. We will consider this selection in our analysis of the position. DOL's wage-level guidance 
specifies that a Level II designation is reserved for positions involving only moderately complex tasks requiring limited 
judgment. For additional information, see U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
D.etermination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC_Guidance_Revised_ll_2009.pdf. A requirement for years of education 
and/or experience that are generally required as described in the O*NET Job Zones would be an indication that a wage 
determination at Level II would be proper classification for a position. 
5 
(b)(6)
Matter of K-NY Inc. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook. 2016-17 ed., 
"Data for Occupations Not Covered in Detail," http://www.bls.gov/ooh/ About/Data-for­
Occupations-Not-Covered-in-Detail.htm (last visited Jan. 11, 2017). 
Thus, the narrative of the Handbook reports that there are some occupations for which only summary 
data is prepared but detailed occupational profiles are not developed . 7 The Handbook -suggests that 
for at least some of the occupations , little meaningful information could be developed. 
Accordingly, in certain instances, the Handbook is not determinative. 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 the statutory and regulatory 
provisions, including 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 objection, authoritati•ve sources) that indicates 
whether the particular position in question qualifies as a specialty occupation. Whenever more than 
one authoritative source exists, we will consider and weigh all of the evidence presented to 
determine whether the particular position qualifies as a specialty occupation. 
In response to the Director's RFE, the Petitioner submitted a letter from 
associate dean at the based his opinion on his education 
and his professional and academic experience working in the academic setting and with various 
compames. 
analyzes the Petitioner 's duties of the proffered position and opines that the position 
requires a bachelor 's degree in management , or a related field, or its equivalent. 
concludes "that 
these duties are specialized and require the theoretical and practical application of a 
body of highly specialized knowledge." 
Upon review of the opinion letter, we find that characterization of the proffered 
position as a "professional position" involving "specialized and complex " duties that require a 
bachelor's degree in management appears inconsistent with the Petitioner 's designation of the 
position as a Level II wage position .8 As noted above, a Level II position indicates that it appears 
7 We note that occupational categories for which the Handbook only includes summary data includes a range of 
occupations, including for example, postmasters and mail superintendents; agents and business managers of artists, 
performers, and athletes ; farm and home management advisors; audio-visual and multimedia collections speciali sts; 
clergy; merchandise displayers and window trimmers; radio operators; first-line supervisors of police and detectives; 
crossing guards; travel guides; agricultural inspectors , as well as others. 
8 Nevertheless, a low wage-designation does not preclude a proffered position from classification as a specialty 
occupation, just as a Level IV wage-designation does not definitively establish such a classification. In certain 
occupations (e.g. , doctors or lawyers) , a Level II 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 if that higher-level position does not have an entry requirement of at least 
J 
6 
(b)(6)
Matter of K-NY Inc. 
that the Petitioner expects the Beneficiary to perform moderately complex tasks that require limited 
exercise of judgment compared to other positions within the same occupation. It is unclear if 
was informed of the Petitioner's attestation on the LCA that the proffered position was a 
Level II wage position. The omission of any discussion of the entry wage designation diminishes 
the evidentiary value of this opinion as the opinion does not appear to be based on a complete 
understanding of the proffered position . 
Moreover, the record does not include evidence that has published, conducted 
research, run surveys, or engaged in any enterprise, pursuit, or employment - academic or otherwise 
regarding the minimum education requirements for the performance of the duties of the proffered 
position. While he may have anecdotal information regarding recruitment by employers for students 
who study business and technology, the record does not include any relevant research, studies, 
surveys, or other authoritative publications as part of his review or as a foundation for his opinion. 
We may, in our discretion, use as advisory opinion statements submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable , we 
are not required to accept or may give less weight to that evidence. Matter of Caron Int 'I, Inc., 
19 I&N Dec. 791, 795 (Comm'r 1988). For the reasons discussed above, we do not find that Mr. 
McAdams' opmwn letter constitutes probative evidence towards satisfying 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l) or any other criterion. For efficiency's sake, we hereby incorporate the 
above discussion _and analysis regarding the opinion letter into each of the bases iri this decision for 
·dismissing the appeal. 
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). 
2. Second Criterion 
The second criterion presents two alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice , while the alternative prong narrows its focus to the 
Petitioner ' s specific position. \., 
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) 
ofthe Act. · 
Matter of K-NY Inc. 
a. 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 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)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or other authoritative source, reports a standard 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 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 
proceeding, we find that the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
b. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
We reviewed the Petitioner's statements regarding the proffered position; however, in the appeal 
brief, the Petitioner does not assert that it satisfies this prong of the second criterion. Further, the 
Petitioner has not sufficiently developed relative complexity or uniqueness as an aspect of the 
proffered position. Thus, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
3. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A) requires an employer to demonstrate that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
8 
Matter of K-NY Inc. 
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 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)(3). 
4. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
In the instant case, relative specialization and complexity have not been sufficiently developed by 
the Petitioner as an aspect of the proffered position. The Petitioner does not establish how the 
generally described duties of its project manager elevate the proffered position to a specialty 
occupation. We again refer to our comments regarding the inconsistent information regarding the 
Beneficiary's job duties, as well as to the implications of the Petitioner's designation of the proffered 
position at a Level II wage level. 
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). 
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. 
II. 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 proffered position does not require a 
baccalaureate or higher degree in a specific specialty, or its equivalent. However, we find that the 
record does not currently demonstrate that the Beneficiary's combined education and work 
experience is the equivalent of a U.S. bachelor's degree in a specific specialty. While the claimed 
equivalency is based in part on experience, the record does not establish (1) that the evaluator has 
authority to grant college-level credit for training and/or experience in the specialty at an accredited 
college or university with a program for granting such credit, or (2) that the Beneficiary's expertise 
in the specialty is recognized through progressively responsible positions directly related to the 
9 
Matter of K-NY Inc. 
specialty. See 8 C.F.R. §§ 214.2(h)(4)(iii)(C)(4) and (D)(l). Therefore, the Director's decision is 
affirmed, and the appeal is dismissed for this additional reason. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considelied as an independent and alternative basis for the decision. 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 of K-NY Inc., ID# 163611 (AAO Jan. 17, 2017) 
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