remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-1-
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR.21,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology services company, seeks to temporarily employ the 
Beneficiary as a "business analyst" under the H-1 B nonip1migrant classification tor specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(I5)(H)(i)(b), 8 U.S.C. 
§ 1101(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 of the Vermont 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Upon review, the Director's decision will be withdrawn and the petition will be remanded for entry 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'S 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 quality 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 qualities as a specialty 
occupation, and second, whether a beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. C}.· Matter of Michael Hertz Assoc., 19 l&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 qualities as a 
specialty occupation. Thus, the matter will be remanded to the Director for review and issuance of a 
new decision. 
Matter ofS-1-
II. PROFFERED POSITION 
The Petitioner stated that the Beneficiary will serve as a business analyst and provided the following 
job duties for the position: 
• Expand or modify system to serve new purposes or improve work flow. 
• Test, maintain, and monitor computer programs and systems, including 
coordinating the installation of computer programs and systems. 
• Develop, document and revise· system design procedures, test procedures, and 
quality standards. 
• Provide staff and users with assistance solving computer related problems, such as 
malfunctions and program problems. 
• Review and analyze computer printouts and performance indicators to locate code 
problems, and correct errors by correcting codes. 
• Consult with management to ensure agreements on system principles. 
• Confer with clients regarding the nature of the information processing or 
computation needs a computer program is to address. 
• Read manuals, periodicals, and technical reports to learn how to develop 
programs that meet staff and user requirements. 
• Coordinate and link the computer systems within an organization to mcrease 
compatibility and so information can be shared. 
• Determine computer software or hardware needed to set up or alter system. 
According to the Petitioner, the proffered position requires a bachelor's degree m business 
administration, information systems, computer science or its equivalent. 
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 qualities 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) of the Act defines the term "specialty occupation" as an occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
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. 
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Matter of S-1-
(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 protTered 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). 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. Cherto(j; 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 qualities as a specialty occupation? 
1. First Criterion 
We first turn to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), 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 ofthe regulatory criteri~ 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 
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Matter ofS-1-
The Petitioner designated the position under the occupation "Computer Systems Analysts" 4 on the 
labor condition application (LCA); 5· therefore, 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 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 tields (e.g. computer or 
information science, or liberal arts) may be adequate for entry into this occupation. We note that, in 
general, provided the specialties are closely related (ex, 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 ofhighly 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 tield is directly 
related to the duties and responsibilities of the particular position such that the required body of 
general tasks and responsibilities of a proffered position, and we regularly review the Handhook 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. . 
4 
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://tlcdatacenter.com/download/NPWHC Guidance Revised II 2009.pdf 
5 
The Petitioner is required to submit a certified LCA to us to demo,:;-strate that-it will pay a;:;- 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 Solutiofls, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
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.
Matter ofS-1-
~ 
highly specialized knowledge is essentially an amalgamation of these difTerent specialties. Section 
214(i)( 1 )(b) of the Act. 
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.F.R. § 214.2(h)( 4)(iii)(A)(1). 
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 
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. y 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)). 
In support of this criterion, the Petitioner submitted several job announcements placed by other 
employers. However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements is misplaced. First, we note that some of the job postings do not appear to involve 
organizations similar to the Petitioner. For example, the Petitioner is an !!-person information 
technology services provider that was established in 2014, whereas the advertising organizations 
include: 
• - a banking firm; 
• ~ a financial services company with 14,000 
employees; 
• -
a company in the healthcare industry; 
• -a higher education institution; 
• - an international beverage company; 
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Matter ofS-1-
• -a consulting firm for financial institutions; and, 
• - an investment bank . 
Furthermore, some of the postings provide little or no information regarding the hiring employers 
(e.g., The Petitioner did not supplement the record of proceedings to establish that these 
advertising organizations are similar. 
When determining whether the Petitioner and the organization share the same general 
characteristics, such factors may include information regarding the nature or type of organization, 
and, when pertinent, the particular scope of operations, as well as the level of revenue and staffing 
(to list just a few elements that may be considered). It is not sufficient for the Petitioner to claim that 
an organization is similar and in the same industry without providing a legitimate basis for such an 
assertion. 
In addition, some of the postings do not indicate that at least a bachelor's degree in a directly related 
specific specialty (or its equivalent) is required. The postings listed a range of acceptable degrees 
such as finance, accounting, business, and healthcare administration. Also, some of the job postings 
do not list any requirements for a specific specialty. The job postings suggest, at best, that although 
a bachelor's degree is sometimes required for these positions, a bachelor's degree in a specific 
specialty (or its equivalent) is not.
6 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. 7 That is, not every deficit of every job posting has been addressed. 
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. 
6 
It must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a specific 
specialty is common to the industry in parallel positions among similar organizations (which they do not), the Petitioner 
has not demonstrated what statistically valid inferences, if any, can be drawn f1·om the advertisements with regard to 
detennining the common educational requirements for entry into parallel positions in similar organizations. S'ee 
generally Earl Babbie, The Practice of Social Research 186-228 ( 1995). Moreover, given that there is no indication that 
the advertisements were randomly selected, the validity of any such inferences could not be accurately determined even 
if the sampling unit were sufficiently large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] 
process [of probability sampling]" and that "random selection otTers access to the body of probability theory, which 
provides the basis for estimates of population parameters and estimates of error''). 
7 
The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
Matter o.fS-1-
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. 
In support of its assertion that the profTered positiOn qualifies as a specialty occupation, the 
Petitioner submitted a job description for the proffered position and information regarding its 
business operations. However, the Petitioner did not sutliciently 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. 
Moreover, the Petitioner's designation of this position as a Level I, entry-level position located 
within the "computer systems analyst" occupational category does not support 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 L 
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 )( 1) of the Act. x 
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. Accordingly, the Petitioner has not satisfied the 
second alternative prong of8 C.P.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. 
8 
In designating the position at a Level I wage the petitioner attests to the DOL that the Beneficiary will 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. In 
addition, the DOL guidance referenced above further indicates that Level I positions should be considered for research 
fellows, workers in training, or internships. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC _Guidance_ Revised _I I_ 2009.pdf 
Matter ofS-1-
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. Jd. 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. 
In response to the RFE, the Petitioner stated that it currently employs two business analysts with 
master's degrees. Upon review of the submitted documentation, it is not clear if these two business 
analysts perform the same job duties as the proffered position. More specifically, one of the 
individuals is designated on the organizational chart as a senior business analyst. The Petitioner did 
not provide any information regarding the complexity of the job duties, supervisory duties (if any), 
independent judgment required or the amount of supervision received. Based upon the job title, it 
appears that this individual holds a more senior position. 
Further, the 2015 Form W-2, Wage and Tax Statement, shows wages of$18,458 for the second 
employee. Without further. clarification from the Petitioner, it appears that this individual's salary 
varies considerably from offered wage. Accordingly, aside from job title, it is unclear whether the 
duties and responsibilities of this individual are the same or similar to the proffered position. 
Moreover, the Petitioner did not provide the total number of people it has employed to serve in the 
proffered position. Consequently, it cannot be determined how representative the Petitioner's claim 
regarding two individuals is of the Petitioner's normal recruiting and hiring practices for the 
proffered position. The Petitioner has not provided sut1icient evidence to establish that it normally 
requires at least a bachelor's degree, or the equivalent, in a specific specialty for the proffered 
position. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
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. 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 
Matter ofS-1-
occupational category would likely be classified at a higher-level, requiring a substantially higher 
prevailing wage. 
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. 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 (~fS-1-, ID# 318372 (AAO Apr. 21, 20 17) 
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