remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 22, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology services firm, seeks to temporarily employ the Beneficiary as 
a "Database Administrator" under the H-1B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act)§ 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, California Service Center, denied the petition. The Director concluded that the Petitioner 
had not demonstrated that the Beneficiary is qualified to perform services in a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in concluding that the Beneficiary does not have the equivalent of a U.S. 
bachelor's degree in a specific specialty that is directed related to the proffered position. 
Upon de novo review, the matter will be remanded to the Director for action consistent with this 
decision. 
I. SPECIALTY OCCUPATION 
We have reviewed the entire record of proceedings, and find that the Director's decision to deny the 
petition did not adequately address another, more fundamental issue: whether the proffered position 
qualifies as a specialty occupation. U.S. Citizenship and Immigration Services (USCIS) is required to 
follow long-standing legal standards and determine first, whether the proffered position qualifies as a 
specialty occupation, and second, whether the Beneficiary was qualified for the position at the time 
the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 
560 (Comm'r 1988). ("The facts of a beneficiary's background only come at issue after it is found 
that the position in which the petitioner intends to employ him falls within [a specialty 
occupation]."). In the instant case, the record of proceedings does not establish that the proffered 
position qualifies as a specialty occupation. 
Matter of M-S-, Inc. 
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. 
The regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.P.R.§ 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter o.fW-F-, 
2 
Matter of M-S-, Inc. 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)( 4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(1) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)( 4)(ii), 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 requirement in a specific specialty" as "one that 
relates directly to the duties and responsibilities of a particular position"). Applying this standard, 
USC IS regularly approves H -1 B 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, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position 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. 
B. Analysis 
The Petitioner provided at least two different descriptions of the proffered position's duties and 
percentages of time to be devoted to those duties. In its March 10, 2014, letter, the Petitioner stated that 
the Beneficiary would be "[w]orking through all phases of the software development life cycle, 
including analysis, design, implementation, testing." The Petitioner further stated that the Beneficiary 
would "[a]nalyze and address reported defects in a timely manner, solutions to these problems could 
include code changes, data updates, or configuration modifications[.]" In the same letter, the Petitioner 
provided the following list of duties and percentages (verbatim, bullet points added for clarity): 
3 
Matter of M-S-, Inc. 
• System Analysis 20% 
• System Design 20% 
• Database Programming 40% 
• Quality Assurance 10% 
• Implementation and Documentation 1 0% 
In its March 31, 2014, support letter, the Petitioner provided the following list of duties and percentages 
(verbatim): 
• Building, maintaining, administering and supporting databases are the primary job 
duties of database administrators. Keeping data secure by managing access, 
privileges and information migration. Responsible for installing and configuring 
database management software, translating database design and diagnosing database 
performance issues. - 3 3% 
• Installing software upgrades, managing hardware upgrades and maintaining 
computer servers. Develop backup and recovery strategies, and monitor servers to 
ensure capacity is not exceeded. Occasionally devise network strategies, test 
systems and develop system standards[.]- 33% 
• Evaluating new tools and technologies, analyzing user needs and presenting findings 
to management are additional job duties of database administrators. Schedule, plan 
and supervise new Database installation and testing. Provide users with training on 
new database software and systems[.] -33% 
Based on these inconsistent recitations of the duties and corresponding percentages of time to be spent 
on each duty, it is unclear exactly what the Beneficiary will be doing, if the visa petition were approved. 
Further, it appears that the duties of the proffered position may change during the requested validity 
period. For example, in its support letter, when introducing the description of the duties therein, the 
Petitioner stated: "[The Beneficiary's] duties depending on the assignment may include the following 
tasks .... " An employment agreement in the record states: "[The Beneficiary] shall serve as Database 
Administrator during the course of his employment with [the Petitioner] and have duties and 
responsibilities, as the IT-Manager of [the Petitioner] shall determine from time to time." Further still, a 
document headed, "Right to Control," states: "[The Petitioner] will retain the full right to assign 
additional duties to [the Beneficiary] at all times." 
Overall, the evidence of record is insufficient to establish the substantive nature of the work to be 
performed by the Beneficiary. We are therefore precluded from finding that the proffered position 
satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that 
work that determines ( 1) the normal minimum educational requirement for entry into the particular 
position, which is the focus of criterion 1; (2) industry positions which are parallel to the proffered 
position and thus appropriate for review for a common degree requirement, under the first alternate 
prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the 
focus of the second alternate prong of criterion 2; ( 4) the factual justification for a petitioner 
4 
(b)(6)
Matter of M-S-, Inc. 
normally requiring a degree or its equivalent , when that is an issue under criterion 3; and (5) the 
degree of specialization and complexity of the specific duties, which is the focus of criterion 4. 
We also note that the Petitioner has inconsistently stated the educational requirements for the proffered 
position. In its March 10, 2014, letter, the Petitioner stated the following: "These duties and 
responsibilities are in line with [the Beneficiary's] professional background and our minimum 
requirements for the Database Administrator position, which includes at least a Bachelor's degree in 
Technology, or a closely related field." Then, in its support letter, the Petitioner did not include 
"Technology" in its list of acceptable degrees. The Petitioner stated in the support letter, "We believe 
that these duties . . . require an advanced theoretical knowledge and practical expertise gained through 
either a Bachelor's or a Master's degree in Computer Science, Information Systems, Management 
Information Systems, Electrical/Electronics Engineering, Physics, or a closely related field .... " 
In the instant case, it is unclear exactly what degree(s) the Petitioner requires for the proffered position 
and whether the list of degrees contained in the Petitioner's support letter is sufficiently limited such 
that the proffered position should be regarded as requiring a degree "in a specific specialty."1 
As a final matter, we note that the Petitioner stated on the Form I-129 that it then had eight employees. 
signed that petition on March 31, 2014, and is identified as the Petitioner's HR 
Manager. On that same date, also identified as the Petitioner's HR Manager, signed the 
labor condition application. Thus, the evidence submitted indicates that the Petitioner, with eight 
employees on March 31 , 2014, then employed two HR Managers. 
In a request for evidence dated January 4, 2016, we requested that the Petitioner provide, inter alia, a 
line-and-block organizational chart showing all of the Petitioner's employees, including names, titles, 
and work locations. The Petitioner did not provide that requested evidence, which is material to the 
Beneficiary's position in the Petitioner's hierarchy and the duties he would actually perform. 
For these reasons, the petition as currently constituted cannot be approved and this matter must be 
remanded to the Director for issuance of a new decision. 
II. CONCLUSION 
Absent a determination that the proffered position is a specialty occupation that requires at least a 
baccalaureate or higher degree in a specific specialty or its equivalent, it cannot be determined 
whether the Beneficiary possesses that degree or its equivalent. 2 As discussed, the evidence of 
1 
The Petitioner's website has a job posting for a database administrator position that states that the Petitioner requires a 
"Bachelor's degree or equivalent in Computer Science or related field." That job posting does not list the other fields 
that the Petitioner has listed in its letters to USCIS. 
(last visited Feb. 17, 20 16). The record contains no explanation of the discrepanc y 
between the educational requirements of that positon and the educational requirements of the position proffered in the 
instant case. 
2 We observe that one of the evaluations of the Beneficiar y's foreign education states that the Beneficiar y' s education is 
5 
Matter of M-S-, Inc. 
record does not demonstrate that the proffered position is a specialty occupation. Consequently, the 
matter will be remanded to the Director for further review and issuance of a new decision in 
accordance with the applicable statutory and regulatory provisions. The Director may request any 
additional evidence considered pertinent to the new determination. 
ORDER: The decision of the Director, California Service Center is withdrawn. The matter is 
remanded to the Director, California Service Center for further proceedings consistent 
with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of M-S-, Inc., ID# 15542 (AAO Feb. 22, 2016) 
equivalent to a U.S. bachelor's degree in mechanical engineering. We question whether such a degree is included in, or 
closely related to, the wide array of degrees the Petitioner asserts would qualify one for the proffered position.