remanded H-1B Case: Information Technology

MATTER OF A-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 21, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting and services company, seeks to temporarily 
employ the Beneficiary as a "business systems consultant" 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)(l5)(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 California Service Center denied the petition, concluding that the Petitioner did 
.not establish that the Beneficiary is qualified to serve in a specialty occupation position in 
accordance with the applicable statutory and regulatory provisions. 
In its appeal, the Petitioner submits additional evidence and asserts that the Beneficiary is qualified 
to serve in a specialty occupation position. 
Upon review, the Director's decision will be withdrawn and the petition will be remanded for entry 
of a new decision. 
I. BENEFICIARY QUALIFICATIONS 
The Director denied the petition, concluding that the Petitioner did not establish that the Beneficiary 
is qualified to perform the services in a specialty occupation. However, a beneficiary's credentials 
to perform a particular job are relevant only when the job is found to qualify 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 a beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. C.f Matter of Michael Hertz Assoc., 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 
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Matter of A-S-, Inc. 
specialty occupation. Thus, the matter will be remanded to the Director for review and issuance of a 
new' decision. 
II. PROFFERED POSITION 
The Petitioner stated that the Beneficiary will serve as a business systems consultant and provided 
the following job duties for the position: 
• Assisting with the analysis of to identify and work through 
implementation tasks. 
• Creating/maintaining 
process flows, documentation and facilitate meetings 
• Represent SDLC tools team in 
various inter departmental meetings 
• Coordinating and 
conducting meetings with teammates, Build & Release (BAR) 
teams, and other partners participating in the implementation of 
• On boarding BAR (Build & Release) teams to 
• Coordinate testing activities and partnering with Leaning & Development to · 
develop 
According to the Petitioner, the proffered position requires a bachelor's degree or equivalent in a 
related field, and preferably relevant experience. 
III. SPECIALTY OCCUPATION 
Although not addressed in the Director's decision, we conclude that the record as presently 
constituted does not establish that the proffered position qualifies for classification as a specialty 
occupation.' Accordingly, the Director should review this issue on remand and request any 
additional evidence deemed necessary. 
A. Legal Framework 
Section 214(i)(l) ofthe Act, 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. 
1 The Petitioner submitted documentation in support 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. 
2 
Matter of A-S-, 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: 
(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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" 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 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Analysis 
The Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 2 
1. First Criterion 
We first turn 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 
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 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
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 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 we regularly review 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. 
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Matter of A-S-, Inc. 
The Petitioner designated the position under the occupation "Computer Systems Analysts" on the 
labor condition application (LCA),4 at a level I wage rate.5 We reviewed the subchapter of the 
Handbook entitled "How to Become a Computer Systems Analyst." The Handbook reports, in 
relevant part: "A bachelor's degree in a computer or information science field is common, although 
not always a requirement. Some firms hire analysts with business or liberal arts degrees who have 
skills in information technology or computer programming."· The Handbook continues by stating 
that there are a wide-range of degrees that are acceptable for positions in this occupation, including 
general-purpose degrees such as business and liberal arts. While the Handbook indicates that a 
bachelor's degree in a computer or information science field is common, it does not report that such 
a degree is normally a minimum requirement for entry. 
According to the Handbook, many computer systems analysts have liberal arts degrees and have 
gained programming or technical expertise elsewhere. We observe that the Handbook does not 
specify a degree level (e.g., associate's degree, baccalaureate) for these technical degrees. Moreover, 
it specifically states that such a degree is not always a requirement. Thus, the Handbook does not 
support the claim that the occupational category of computer systems analyst ·is one for which 
normally the minimum requirement for entry is a baccalaureate degree (or higher) in a specific 
specialty, or its equivalent. 
In addition, the Handbook indicates that baccalaureate degrees in various fields (computer/ 
information science or liberal arts) may be adequate for entry into this occupation. We note that, in 
general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum of 
a bachelor's of higher degree in more than one specialty is recognized as satisfying the "degree in the 
specific specialty (or its equivalent)" requirement of section 214(i)(l )(B) of the Act. In such a case, 
the required "body of highly specialized knowledge" would essentially be the same. 
Since there must be a close correlation between the required "body of highly specialized knowledge" 
and the position, however, a minimum entry requirement of a degree in disparate fields, such as 
engineering, science, and English, would not meet the statutory requirement that the degree be "in 
the specific specialty (or its equivalent)," unless the Petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required body of 
highly specialized knowledge is essentially an amalgamation of these different specialties. Section 
214(i)( 1 )(b). 
4 The Petitioner is required to submit a certified LCA to us 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, 545-546 (AAO 20 15). 
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The Petitioner classified the proffered position at a Level I wage. We will consider this selection in our analysis of the 
position. A prevailing wage determination starts 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. 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/download/NPWHC _Guidance_ Revised_ll_2009.pdf 
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Matter of A-S-, Inc. 
The Petitioner also submitted a letter from Ph.D., from 
The letter stated that "to successfully perform the complex and specialized duties of 
Business System Consultant requires as a minimum a Bachelor's Degree m Business 
Administration, Management Information Systems or related degree." However, does 
not provide documentary evidence to corroborate his claims. For example, does not 
reference, cite, or discuss probative studies, surveys, industry publications, authoritative 
publications, or other sources of empirical information which they may have consulted to complete 
the evaluation. 
did not discuss the duties of the proffered position in any substantive detail. Rather, he 
states the duties as described in the Petitioner's support letter. Thus, there is no indication that 
possesses any knowledge of the Petitioner's proffered position beyond this job description, 
e.g., visited the Petitioner's business, observed the Petitioner's employees, interviewed them about 
the nature of their work, or documented the knowledge that these workers apply on the job prior to 
documenting their opinions regarding the proffered position. The level of familiarity with the actual 
job duties as they would be performed in the context of the Petitioner's business has therefore not 
be~n substantiated. 
Importantly, there is also no indication that the petitioner advised that it characterized the 
proffered position as a low, entry-level computer systems analyst position, for a beginning employee 
who has only a basic understanding of the occupation (as indicated by the wage-level on the LCA). 
The wage-rate indicates that the Beneficiary will be expected to perform routine tasks that require 
limited, if any, exercise of judgment; that he will be closely supervised and his work closely 
monitored and reviewed for accuracy; and that he will receive specific instructions on required tasks 
and expected results. It appears that would have found this information relevant for his 
opinion letter. Moreover, without this information, the Petitioner has not demonstrated that 
possessed the requisite information necessary to adequately assess the nature of the 
Petitioner's position and appropriately determine parallel positions based upon the job duties and 
responsibilities. 
For the reasons discussed, we find that the opinion letter lend little probative value to the matter 
here. Matter of Caron Int 'l, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not required to 
accept or may give less weight to an advisory opinion when it is "not in accord with other 
information or is in any way questionable."). 
The Petitioner has not provided sufficient 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.P.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 
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Matter of A-S-, Inc. 
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 
contemplates the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
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 us 
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 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. 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's 
degree in a specific specialty, or its equivalent, is common to the industry in parallel positions 
among similar organizations. Thus, 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 indiviqual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
To establish eligibility, the Petitioner must describe the specific duties and responsibilities to be 
performed by the Beneficiary in the context of its business operations, demonstrate that a legitimate 
need for an employee exists, and substantiate that it has H-lB caliber work for the Beneficiary for 
the duration of the employment period requested in the petition. See Defensor v. Meissner, 201 F.3d 
at 387 (A reading of the regulations indicates an intention to fully implement the definition of 
"specialty occupation"); see generally 8 C.F.R. § 214.2(h)(4)(i)(A)(l), (iii)(B)(2), and (iv)(A). Here, 
the job description does not communicate: (1) the tasks that the Beneficiary would perform on a 
Matter of A-S-, Inc. 
day-to-day basis; (2) the complexity, uniquene·ss and/or specialization of those responsibilities; and 
(3) the correlation petween that work and a need for highly specialized knowledge and a particular 
level of education in a specific specialty. See generally section 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2) and ( 4). 
Moreover, the Petitioner designated the proffered position as an entry-level position within the 
occupational category (by selecting a Level I wage). This designation, when read in combination 
with the Petitioner's job description and the Handbook's account of the requirements for this 
occupation, further suggests that this particular position is not so complex or unique relative to other 
computer systems analysts that the duties can only be performed by an individual with a bachelor's 
degree or higher in a specific specialty, or its equivalent. 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 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). 
3. 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 record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 
See Defensor v. Meissner, 201 F.3d at 387-88. Were USCIS limited solely to reviewing the 
Petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the Petitioner created a token 
degree requirement. !d. Evidence provided in support of this criterion may include, but is not 
limited to, documentation regarding the Petitioner's past recruitment and hiring practices, as well as 
information regarding employees who previously held the position. 
Here the Petitioner did not provide evidence in support of this criterion. Therefore, it has not 
satisfied 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
Matter of A-S-, Inc. 
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. 
The job description submitted by the Petitioner does not establish that the duties are more 
specialized and complex than positions that are not usually associated with at least a bachelor's 
degree in a specific specialty, or its equivalent. We also incorporate our earlier discussion and 
analysis regarding the duties of the proffered position, and the designation of the proffered position 
in the LCA as a Level I position (of the lowest of four assignable wage-levels) relative to others 
within the occupational category.6 
Without further evidence, the Petitioner has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position within this occupational category would likely be 
classified at a higher-level, requiring a substantially higher prevailing wage.7 
Accordingly, the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, 
therefore, has not demonstrated that the proffered position qualifies as a specialty occupation. 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
Although not addressed by the Director, the evidence does. not establish whether the Petitioner 
qualifies as an H-lB employer. The United States Supreme Court determined that where federal law 
fails to clearly define the term "employee," courts should conclude that the term was "intended to 
describe the conventional master-servant relationship as understood by common-law agency 
doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for 
Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
6 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I 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 I, entry-level 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 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 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" and requires a significantly higher wage. For additional information 
regarding wage levels as defined by DOL, 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/N PWHC _Guidance_ Revised _II_ 2009 .pdf. 
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Matter of A-S-, Inc. 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party." 
!d.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323) .. As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United 
Ins. Co. of Am., 390 U.S. 254, 258 (1968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still 
relevant factors in determining who will control the Beneficiary, other incidents of the relationship, 
e.g., who will oversee and direct the work of the Beneficiary, who will provide the instrumentalities 
and tools, where will the work be located, and who has the right or ability to affect the projects to 
which the Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. The record of proceedings lacks 
sufficient documentation evidencing exactly what the Beneficiary would do for the period cif time 
requested. 
V. CONCLUSION 
Based on the foregoing discussion, although the Director's decision will be withdrawn, the evidence of 
record as presently constituted does not establish eligibility for the benefit sought. Accordingly, we 
will remand this matter to the Director for further action and entry of a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new 
decision. 
Cite as Matter of A-S-, Inc., ID# 225346 (AAO Apr. 21, 2017) 
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