remanded H-1B Case: It Consulting

(b)(6)
DATE: IJUl 1 0 2015 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. All 
documents have been returned to the office that originally decided your case. Any further inquiry must be 
made to that off1ce. 
Thank~ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the petition. The matter is now before 
the Administrative Appeals Office (AAO) on appeal. The Director's decision will be withdrawn. The 
matter will be remanded to the Director for action consistent with this decision. 
I. INTRODUCTION 
On the Form I-129 visa petition, the petitioner describes itself as a 15-employee "IT Consulting" 
company established in In order to employ the beneficiary in what it designates as a full-time 
"Systems Analyst" position at a salary of $60,000 per year, 1 the petitioner seeks to classify her as a 
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The Director denied the petition, finding that the evidence of record did not establish that the 
beneficiary is qualified to perform services in a specialty occupation. On appeal, the petitioner 
asserts that the Director's basis for denial of the petition was erroneous. 
The record of proceeding before us contains the following: (1) the Form I-129 and supporting 
documentation; (2) the Director's RFE; (3) the petitioner's response to the RFE; ( 4) the Director's 
letter denying the petition; and (5) the Form I-290B and supporting documentation. We reviewed 
the record in its entirety before issuing our decision. 2 
II. BENEFICIARY QUALIFICATIONS 
The Director denied the petition, finding that the evidence of record did not establish that the 
beneficiary is qualified to perform 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 an alien beneficiary was qualified for the position at the 
time the nonimmigrant visa petition was filed. Cf 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 proceeding does not establish that the proffered 
1 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was certified 
for use with a job prospect within the "Computer Systems Analysts" occupational classification, SOC 
(O*NET/OES) Code 15-1121, and a Level I (entry-level) prevailing wage rate, the lowest of the four 
assignable wage-levels. 
2 In the exercise of our administrative review in this matter, as in all matters that come within our purview, 
we follow the preponderance of the evidence standard as specified in the controlling precedent decision, 
Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), unless the law specifically provides that a different 
standard applies. 
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position qualifies as a specialty occupation. Thus, the matter will be remanded to the Director for 
additional review and issuance of a new decision. 
III. SPECIALTY OCCUPATION 
A. Legal Framework 
To meet the petitioner's burden of proof in establishing the proffered positiOn as a specialty 
occupation, the evidence of record must establish that the employment the petitioner is offering to 
the beneficiary meets the following statutory and regulatory requirements. 
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.P.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 
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(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 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.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.P.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.P.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)(l) of the Act and the regulation at 8 C.P.R. 
§ 214.2(h)(4)(ii), USCIS consistently interprets the term "degree" in the criteria at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific 
specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 484 
F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one that 
relates directly to the duties and responsibilities of a particular position"). Applying this standard, 
USCIS regularly approves H-lB petitions for qualified aliens 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-lB 
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. USCIS must examine the 
ultimate employment of the alien, 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 nor 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. 
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B. Analysis 
To make our determination as to whether the proffered position qualifies as a specialty occupation, 
we will turn to the supplemental, additional criteria at 8 C.P.R. § 214.2(h)( 4 )(iii)( A). 
As a preliminary matter, we note that the evidence of record does not present the proffered position 
and its constituent duties in sufficient detail to establish either the substantive nature of the work 
that the beneficiary would perform in the proffered position or any particular educational or 
education-equivalent level of any body of highly specialized knowledge in any specific specialty 
that the beneficiary would have to apply to perform the position. 
When determining whether a position is a specialty occupation, we must look at the nature of the 
business offering the employment and the description of the specific duties of the position as it 
relates to the particular employer. To ascertain the intent of a petitioner, USCIS looks to the Form 
1-129 and the documents filed in support of the petition. It is only in this manner that the agency 
can determine the exact position proffered, the location of employment, the proffered wage, et 
cetera. Pursuant to 8 C.P.R. § 214.2(h)(9)(i), the Director has the responsibility to consider all of 
the evidence submitted by a petitioner and such other evidence that he or she may independently 
require to assist his or her adjudication. Further, the regulation at 8 C.P.R. § 214.2(h)(4)(iv) 
provides that "[a]n H-lB petition involving a specialty occupation shall be accompanied by 
[ d]ocumentation ... or any other required evidence sufficient to establish ... that the services the 
beneficiary is to perform are in a specialty occupation." 
Thus, a crucial aspect of this matter is whether the petitioner has adequately described the duties of 
the proffered position, such that users may discern the nature of the position and whether the 
position requires the theoretical and practical application of a body of highly specialized knowledge 
attained through at least a baccalaureate degree in a specific discipline, or its equivalent. We find 
that the petitioner has not done so. 
In its support letter, the petitioner stated that the beneficiary works on a project for 
, the end-client, and provided the following duties for the 
proffered position: 
[T]he Systems Analyst will assist in gathering information, conducting research, and 
analyzing business needs for computer software applications and systems. The 
Systems Analyst will work on computer software tools for various industries. They 
will perform the following duties: apply principles and techniques of computer 
science and computation to perform business analysis; assist in the analysis of 
software requirements to determine feasibility of design within time and cost 
constraints; formulate and design software systems using scientific analysis and 
mathematical models to predict and measure the outcome and consequences of 
design; and develop software system testing procedures, programming, and 
documentation. 
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With its support letter, the petitioner also submitted a letter dated March 26, 2014, from its middle­
client, 1, in which the duties of the proffered position were 
listed as follows: 
• Work directly with business areas to identify information needs of vanous 
domains and develop technical requirements to address them. 
• Translate technical requirements into optimal data delivery solutions (using 
Cognos 10 reports, cubes and dashboards). 
• Build new reports in Cognos 10 using specification provided. Modify existing 
reports as per business needs. 
• Develop and [sic] in-depth understanding of the Data ware house [sic] and help 
users understand the breadth and depth of information. 
• Identify long running report and work with users to rewrite them to be more 
efficient. 
• Work with the architecture team to establish best practices for projects that have 
reporting components and provide guidance on data structure and layout to 
improve access and delivery. 
• Conduct internal road shows to propagate information knowledge and best 
practices. 
• Serve as a help line for users reporting needs. 
The Director requested additional evidence regarding the beneficiary's qualification. In response, 
among other things, the petitioner submitted a letter dated July 23, 2014, along with letters from 
and both dated June 6, 2014? The duties of the proffered position listed in 
these three letters were identical and were listed as follows: 
• Perform Systems Analyst role for pharmacy claims and prescription 
verification application[.] 
• Responsible for requirements gathering, technical report build and maintenance 
(non-clinical) aspects of the pharmacy information system, pharmacy claims, 
pharmacy dispensing, and prescription verification systems. 
• Works directly with pharmacy staff as a Subject Matter Expert to acquire an 
understanding of the underlying needs of the Pharmacy department and translates 
these needs into technical requirements to build reporting system. 
• Analyze large sets of pharmacy and claims data to drive metrics of 
Pharmacy claims performance. 
• Develop and execute processes and procedures related to claims processing and 
prescription verification system IT Project Intake Process[.] 
• Translate technical requirements into optimal data delivery solutions (using 
Cognos 10 reports, cubes and dashboards)[.] 
3 Notably, both of these letters are identical in content and verbatim of each other, with the exception of the 
company logos and signatories. 
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• Comply with schedule to report results to senior leaders and others on a regular 
basis[.] 
• Coordination with Information Technology Quality Assurance team that 
develops and executes test plans for claims processing prescription verification 
software releases[.] 
• Develop and execute coordination of benefits processes and procedures that 
maximize compliance with Pharmacy regulatory requirements. 
• Ensure the accuracy of coordination of benefits claims processing system 
(includes subrogation claims)[.] 
• Build new reports in Cognos 10 using specification provided. Modify existing 
reports as per business needs[.] 
• Develop an in-depth understanding of the Data Warehouse and help users 
understand the breadth and depth of information[.] 
• Identify long running reports and work with users to rewrite them to be more 
efficient[.] 
• Work with Architecture team to establish best practices for projects that have 
reporting components and provide guidance on data structure and layout to 
improve access and delivery[.] 
• Conduct internal road shows to propagate information knowledge and best 
practices. 
• Serve as a 
help line for users reporting needs[.] 
The petitioner and its clients state that the proffered position requires a "Bachelor's degree in 
Pharmacy to meet pharmacy business client's needs along with IT system's knowledge in 
managing pharmacy claims and prescription validation reports built with Cognos 10." 
The petitioner and its clients (collectively "the petitioner") describe the proffered position and its 
duties in relatively abstract terms of generalized functions. For instance , the petitioner states that 
the beneficiary will "[work] directly with pharmacy staff," "[w]ork with Architecture team," and 
"[c]oordinat[e] with Information Technology Quality Assurance team" without specifying 
the beneficiary's specific roles within these tasks. This is again illustrated by the petitioner's 
statement that the beneficiary will "help users understand the breadth and depth of information" and 
"[s]erve as a help line for users" without explaining what exactly helping users and serving as a help 
line involves. The petitioner also does not explain the beneficiary's specific role in "[ c]onduct[ing] 
internal road shows." In addition, the petitioner does not explain how the beneficiary would 
"[ e ]nsure the accuracy of coordination of benefits claims processing system." Further, the 
petitioner's statements do not illuminate the substantive application of knowledge involved or any 
particular educational attainment associated with such application. This type of generalized 
description may be appropriate when defining the range of duties that may be performed within an 
occupational category, but it does not adequately convey the substantive work that the beneficiary 
will perform within the end-client's business operations and, thus, cannot be relied upon by a 
petitioner when discussing the duties attached to specific employment. In establishing a position as 
a specialty occupation , a petitioner must describe the specific duties and responsibilities to be 
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performed by a beneficiary in the context of the end-client's business operations, demonstrate that a 
legitimate need for an employee exists, and substantiate that it has H-1B caliber work for the 
beneficiary for the period of employment requested in the petition. 
Furthermore, the petitioner did not provide any information with regard to the order of importance 
and/or frequency of occurrence with which the beneficiary will perform these functions and tasks. 
Thus, the petitioner failed to specify which tasks were major functions of the proffered position, and 
it did not establish the frequency with which each of the duties would be performed (e.g. , regularly, 
periodically or at irregular intervals). As a result, the petitioner did not establish the primary and 
essential functions of the proffered position. 
Without a meaningful job description, the record lacks evidence sufficiently concrete and 
informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. The tasks as described do not communicate (1) the actual work 
that the beneficiary would perform, (2) the complexity, uniqueness and/or specialization of the 
tasks, and/or (3) the correlation between that work and a need for a particular level education of 
highly specialized knowledge in a specific specialty. 
In the instant case, the petitioner has not described the proffered position with sufficient detail to 
determine that the minimum requirements are a bachelor's degree in a specialized field of study. It 
is incumbent on the petitioner to provide sufficient evidence to establish that the particular position 
that it proffers would necessitate services at a level requiring both the theoretical and practical 
application of a body of highly specialized knowledge and the attainment of at least a bachelor's 
degree in a specific specialty, or its equivalent. When "any person makes an application for a visa or 
any other document required for entry, or makes an application for admission, [ .. . ] the burden of 
proof shall be upon such person to establish that he is eligible" for such benefit. Section 291 of the 
Act; see also Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972) . For 
this reason alone, the present record of proceeding does not establish that the proffered position is a 
specialty occupation. 
However, we will nevertheless analyze the duties and the evidence of record to determine whether 
the proffered position as described would qualify as a specialty occupation. 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
To make our determination as to whether the employment described above qualifies as a specialty 
occupation, we turn first to the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(l), which is satisfied by 
establishing that a baccalaureate or higher degree, or its equivalent, in a specific specialty is 
normally the minimum requirement for entry into the particular position that is the subject of the 
petition. 
We recognize the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook (the 
Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
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of occupations it addresses. 4 As noted above, the LCA that the petitioner submitted in support of 
this petition was certified for a job offer falling within the "Computer Systems Analysts" 
occupational category. 
The Handbook states the following with regard to the educational requirements necessary for 
entrance into this field: 
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. 
Education 
Most computer systems analysts have a bachelor's degree in a computer-related 
field. Because these analysts also are heavily involved in the business side of a 
company, it may be helpful to take business courses or major in management 
information systems. 
Some employers prefer applicants who have a master's degree in business 
administration (MBA) with a concentration in information systems. For more 
technically complex jobs, a master's degree in computer science may be more 
appropriate. 
Although many computer systems analysts have technical degrees, such a degree is 
not always a requirement. Many analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. 
Many systems analysts continue to take classes throughout their careers so that they 
can learn about new and innovative technologies and keep their skills competitive. 
Technological advances come so rapidly in the computer field that continual study is 
necessary to remain competitive. 
Systems analysts must understand the business field they are working in. For 
example, a hospital may want an analyst with a background or coursework in health 
management, and an analyst working for a bank may need to understand finance. 
U.S. Dep't of Labor, Bureau of Labor Statistics, .Occupational Outlook Handbook, 20_14-15 ed., 
"Computer Systems Analysts," available at http://www.bls.gov/ooh/computer-and-information­
technology/ computer-systems-analysts.htm#tab-4 (last visited July 8, 2015). 
4 The Handbook, which is available in printed form, may also be accessed online at 
http://www.stats.bls.gov/oco/. Our references to the Handbook are from the 2014-15 edition available 
online. 
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The Handbook does not support the assertion that at least a bachelor's degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for these positions. This section of the 
narrative begins by stating that a bachelor's degree in a related field is not a requirement. The 
Handbook continues by stating directly that there are a wide-range of degrees acceptable for 
positions in this occupation, including technical and 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 in normally a minimum requirement 
for entry. 
According to the Handbook, many systems analysts have liberal arts degrees and gained 
programming or technical expertise elsewhere. It further reports that many analysts have technical 
degrees. 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. Even if it did, the 
record lacks sufficient evidence to support a finding that the particular position proffered here, an 
entry-level computer systems analyst position, would normally have such a minimum, specialty 
degree requirement or its equivalent. 
In the instant case, the duties and requirements of the position as described in the record of 
proceeding do not indicate that this particular position proffered by the petitioner is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the petitioner did not satisfy the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record of proceeding regarding the first of the two alternative prongs of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for 
positions that are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the petitioner. 
Here and as already discussed, the evidence of record does not establish that the petitioner's proffered 
position is one for which the Handbook reports an industry-wide requirement for at least a bachelor's 
degree in a specific specialty or its equivalent. Also, there are no submissions from professional 
associations in the petitioner's industry attesting that individuals employed in positions parallel to the 
proffered position are routinely required to have a minimum of a bachelor's degree in a specific 
specialty or its equivalent for entry into those positions. While the assertions of a 
manager at , with regard to an industry-wide recruiting and hiring standard are 
acknowledged, the record contains insufficient evidence to support these assertions. Going on record 
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without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). Furthermore, the record 
does not contain information regarding Rama Gorjala's credentials indicating her qualifications to 
opine upon the position. 
We will next address the job advertisements submitted by the petitioner. The record of proceeding 
contains copies of eight job advertisements in support of its assertion that the degree requirement is 
common to the petitioner's industry in parallel positions among similar organizations. However, 
upon review of the documents, we find that the petitioner's reliance on the job advertisements is 
misplaced. 
In the Form I -129 petition, the petitioner describes itself as a 15-employee information technology 
consulting company, established in 2004. The petitioner states that its gross annual income is $1.2 
million. 
For the petitioner to establish that an organization within its industry is similar, it must demonstrate 
that the petitioner and the organization share the same general characteristics. Without such 
evidence, documentation submitted by a petitioner is generally outside the scope of consideration 
for this criterion, which encompasses only organizations that are similar to the petitioner. When 
determining whether the petitioner and the advertising 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. 
Upon review, we find that the record does not demonstrate that a requirement of a bachelor's or 
higher degree in a specific specialty, or its equivalent, is common for positions that are identifiable 
as being (1) in the petitioner's industry, (2) parallel to the proffered position, and (3) located m 
organizations that are similar to the petitioner. 5 
As noted, in support of its assertion that the degree requirement is common to the petitioner's 
industry in parallel positions among similar organizations, the petitioner provided copies of job 
advertisements. However, the advertising organizations do not appear similar to the petitioner. 
More specifically, the advertisements include: 
• An unidentified company 
• (staffing company) 
• 
• (health insurance company for government health plans) 
5 See 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
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• 
• 
• 
• 
NON-PRECEDENT DECISION 
(healthcare technology provider) 
(healthcare management and administration service provider) 
(medical center) 
(IT consulting company) 
The petitioner did not state which aspects or traits (if any) it shares with the advertising 
organizations. Although _ _ appears to be involved in information technology 
business, the record does not contain sufficient information to make a determination whether it is 
similar to the petitioner. Without further information, the advertisements appear to be for 
organizations that are not similar to the petitioner and the petitioner has not provided any probative 
evidence to suggest otherwise. The petitioner did not supplement the record of proceeding to 
establish that the advertising organizations are similar to it. 
Moreover, these advertisements do not appear to involve parallel positions. More specifically, the 
position with the unidentified company requires a master's degree or seven years of experience; the 
position with requires a minimum three-year experience; the position 
with requires three-year experience; the position with _ _ requires a 
five years of experience; the position with requires a 3-5 years of experience; and the 
position with requires three years of experience. The petitioner designated 
the proffered position on the LCA through the wage level as a Level I position, which indicates that 
the beneficiary is expected to have only a basic understanding of the occupation and perform 
routine tasks that require limited, if any, exercise of judgment. 6 The advertised positions appear to 
be for more senior positions than the proffered position. More importantly, the petitioner has not 
sufficiently established that the primary duties and responsibilities of the advertised positions are 
parallel to the proffered position. In addition, the "Sr Systems Analyst" position with 
requires only an associate's degree, which undermines the petitioner's assertion 
that positions similar to the proffered position require at least a bachelor's degree. 
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. That is, as the evidence does not establish that similar organizations in the same industry 
routinely require at least a bachelor's degree in a specific specialty, or its equivalent, for parallel 
positions, not every deficit of every job posting has been addressed. 
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 does not demonstrate what statistically valid 
inferences, if any, can be drawn from the advertisements with regard to determining the common 
educational requirements for entry into parallel positions in similar organizations. See generally 
Earl Babbie, The Practice of Social Research 186-228 (1995). Moreover, given that there is no 
6 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/NPWHC_Guidance_Revised_11_2009.pdf(last visited July 8, 2015). 
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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 offers access to the body of probability theory, which provides the basis for 
estimates of population parameters and estimates of error"). 
Thus, based upon a complete review of the record, we find that the petitioner has not established 
that a requirement for at least a bachelor's degree in a specific specialty, or its equivalent, is 
common for positions that are identifiable as being (1) in the petitioner's industry, (2) parallel to the 
proffered position, and also (3) located in organizations that are similar to the petitioner. Thus, for 
the reasons discussed above, the petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
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 the instant case, the evidence of record does not credibly demonstrate relative complexity or 
uniqueness as aspects of the proffered position. Specifically, it is unclear how the systems analyst 
position, as described, necessitates the theoretical and practical application of a body of highly 
specialized knowledge such that a person who has attained a bachelor's or higher degree in a specific 
specialty or its equivalent is required to perform them. More specifically, the petitioner did not 
demonstrate how the duties described require the theoretical and practical application of a body of 
highly specialized knowledge such that a bachelor's or higher degree in a specific specialty, or its 
equivalent, is required to perform them. For instance, the petitioner did not submit information 
relevant to a detailed course of study leading to a specialty degree and did not establish how such a 
curriculum is necessary to perform the duties of the proffered position. While related courses may 
be beneficial, or even essential, in performing certain duties of a data analyst position, the petitioner 
did not demonstrate how an established curriculum of such courses leading to a baccalaureate or 
higher degree in a specific specialty, or its equivalent, is required to perform the duties of the 
petitioner's proffered position. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
The LCA indicates that the position is a low-level (entry-level) position relative to others within the 
occupation. Based upon the wage rate, the beneficiary is only required to perform routine tasks that 
require limited, if any, exercise of judgment. Accordingly, given the Handbook's indication that 
typical positions located within the "Computer Systems Analysts" occupational category do not 
require at least a bachelor's degree in a specific specialty, or the equivalent, for entry, it is not 
credible that a position involving limited exercise of judgment would contain such a requirement. 
(b)(6)
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Without further evidence, it is simply not credible that the petitioner's proffered position is complex 
or unique relative to other positions within the same occupational category, as such a position 
would likely be classified at a higher-level, such as a Level IV (fully competent) position, requiring 
a significantly higher prevailing wage. For instance, 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." Even a position involving a Level II wage, which would exceed 
the complexity of the one proposed by the petitioner, would involve only "moderately complex 
tasks that require limited judgment." 7 
Finally, we observe that the petitioner has indicated that the beneficiary's experience and her 
educational background make her qualified for the proffered position. However, the test to 
establish a position as a specialty occupation is not the skill set or education of a proposed 
beneficiary, but whether the position itself requires the theoretical and practical application of a 
body of highly specialized knowledge obtained by at least baccalaureate-level knowledge in a 
specialized area. In the instant case, the petitioner does not establish which of the proposed duties, 
if any, would render the proffered position so complex or unique as to be distinguishable from those 
of similar but non-degreed or non-specialty degreed employment. Again, the petitioner did not 
demonstrate 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. 
For all of these reasons, it cannot be concluded that the evidence of record satisfies the second 
alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
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. We 
normally review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position. 
7 The issue here is that the petitioner's designation of this positiOn as a Level I, entry-level pos1t10n 
undermines its claim that the position is particularly complex, specialized, or unique compared to other 
positions within the same occupation. Nevertheless, it is important to note that a Level I wage-designation 
does not preclude a proffered position from classification as a specialty occupation. In certain occupations 
(doctors or lawyers, for example), an 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 consideration but is not a substitute for a determination of 
whether a proffered position meets the requirements of section 214(i)(l) of the Act. 
(b)(6)
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To merit approval of the petition under this criterion, the record must establish that the imposition 
of a degree requirement by the petitioner is not merely a matter of preference for high-caliber 
candidates but is necessitated by performance requirements of the position. The record contains 
insufficient evidence demonstrating the petitioner's prior hiring history. 
We note that the petitioner claims repeatedly that the duties of the proffered position can only be 
employed by a degreed individual. While a petitioner may believe or otherwise assert that a 
proffered position requires a degree in a specific specialty, that opinion alone without corroborating 
evidence cannot establish the position as a specialty occupation. Were USCIS limited solely to 
reviewing a 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 employer 
artificially created a token degree requirement, whereby all individuals employed in a particular 
position possessed a baccalaureate or higher degree in the specific specialty or its equivalent. See 
Defensor v. Meissner, 201 F. 3d at 387. In otheJ: words, if a petitioner's degree requirement is only 
symbolic and the proffered position does not in fact require such a specialty degree or its equivalent 
to perform its duties, the occupation would not meet the statutory or regulatory definition of a 
specialty occupation. See section 214(i)(1) of the Act; 8 C.P.R. § 214.2(h)(4)(ii) (defining the term 
"specialty occupation"). The record does not contain sufficient documentary evidence 
demonstrating a hiring history of the petitioner for the proffered position. As the record of 
proceeding does not demonstrate that the petitioner normally requires at least a bachelor's degree in 
a specific specialty or its equivalent for the proffered position, it does not satisfy 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(J). 
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 in a specific specialty, or its equivalent 
Next, we find that the evidence of record does not satisfy the criterion at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(4), which requires the petitioner to establish that the nature of the proffered 
position's 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 the specific specialty or its 
equivalent. 
Again, relative specialization and complexity have not been sufficiently developed by the petitioner 
as an aspect of the proffered position's duties. In other words, the proposed duties have not been 
described with sufficient specificity to show that their nature is more specialized and complex than 
systems analyst positions whose duties are not of a nature so specialized and complex that their 
performance requires knowledge usually associated with a degree in a specific specialty. With 
regard to the specific duties of the position proffered here, we find that the record of proceeding 
lacks sufficient, credible evidence establishing that they are so specialized and complex that the 
knowledge required to perform them is usually associated with the attainment of a bachelor's degree 
in a specific specialty, or the equivalent. 
Moreover, we incorporate our earlier discussion regarding the wage-level designation on the LCA , 
(b)(6)
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Page 16 
which is appropriate for duties whose nature is less complex and specialized than required to satisfy 
this criterion. We find that both on its own terms and also in comparison with the two higher wage­
levels that can be designated in an LCA, by the submission of an LCA certified for a wage-level I 
(entry-level), the petitioner effectively attests that the proposed duties are of relatively low 
complexity as compared to others within the same occupational category. This fact is materially 
inconsistent with the level of complexity required by this criterion. 
As earlier noted, the Prevailing Wage Determination Policy Guidance issued by DOL states the 
following with regard to Level I wage rates: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who 
have only a basic understanding of the occupation. These employees perform routine 
tasks that require limited, if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. The employees 
may perform higher level work for training and developmental purposes. These 
employees work under close supervision and receive specific instructions on required 
tasks and results expected. Their work is closely monitored and reviewed for accuracy. 
Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Level I wage should be considered [emphasis in original]. 8 
The pertinent guidance from DOL, at page 7 of its Prevailing Wage Determination Policy Guidance 
describes the next higher wage-level as follows: 
!d. 
Level II (qualified) wage rates are assigned to job offers for qualified employees 
who have attained, either through education or experience, a good understanding of 
the occupation. They perform moderately complex tasks that require limited 
judgment. An indicator that the job request warrants a wage determination at Level 
II would be a requirement for years of education and/or experience that are generally 
required as described in the O*NET Job Zones. 
The above descriptive summary indicates that even this higher-than-designated wage level is 
appropriate for only "moderately complex tasks that require limited judgment." The fact that this 
higher-than-here-assigned, Level II wage-rate itself indicates performance of only "moderately 
complex tasks that require limited judgment," is very telling with regard to the relatively low level 
of complexity imputed to the proffered position by virtue of its Level I wage-rate designation. 
8 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/NPWHC _Guidance_ Revised _11_ 2009 .pdf (last visited July 8, 2015). 
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Further, we note the relatively low level of complexity that even this Level II wage-level reflects 
when compared with the two still-higher LCA wage levels, neither of which was designated on the 
LCA submitted to support this petition. 
The aforementioned Prevailing Wage Determination Policy Guidance describes the Level III wage 
designation as follows: 
I d. 
Level III (experienced) wage rates are assigned to job offers for experienced 
employees who have a sound understanding of the occupation and have attained, 
either through education or experience, special skills or knowledge. They perform 
tasks that require exercising judgment and may coordinate the activities of other 
staff. They may have supervisory authority over those staff. A requirement for years 
of experience or educational degrees that are at the higher ranges indicated in the 
O*NET Job Zones would be indicators that a Level III wage should be considered. 
Frequently, key words in the job title can be used as indicators that an employer's job 
offer is for an experienced worker. ... 
The Prevailing Wage Determination Policy Guidance describes the Level IV wage designation as 
follows: 
I d. 
Level IV (fully competent) wage rates are assigned to job offers for competent 
employees who have sufficient experience in the occupation to plan and conduct 
work requiring judgment and the independent evaluation, selection, modification, 
and application of standard procedures and techniques. Such employees use 
advanced skills and diversified knowledge to solve unusual and complex problems. 
These employees receive only technical guidance and their work is reviewed only for 
application of sound judgment and effectiveness in meeting the establishment's 
procedures and expectations. They generally have management and/or supervisory 
responsibilities. 
As already noted, by virtue of this submission, the petitioner effectively attested that the proffered 
position is a low-level (entry-level) position relative to others within the occupation, and that, as 
clear by comparison with DOL's instructive comments about the next higher level (Level II), the 
proffered position did not even involve "moderately complex tasks that require limited judgment" 
(the level of complexity noted for the next higher wage-level, Level II). 
For all of these reasons, 
proposed duties meet 
§ 214.2(h)(4)(iii)(A)(4). 
the evidence in the record of proceeding does not establish that the 
the specialization and complexity threshold at 8 C.F.R. 
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NON-PRECEDENT DECISION 
Page 18 
Accordingly, as the record of proceeding does not establish that it has satisfied any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. 
V. CONCLUSION AND ORDER 
As discussed above, the evidence of record as presently constituted 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. 
ORDER: The Director's August 8, 2014 decision is withdrawn. The matter is remanded to the 
Director for further action consistent with this decision.