remanded H-1B Case: Network Engineering

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 03 176 50228 Office: CALIFORNIA SERVICE CENTER Date: M2%2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 176 50228 
Page 2 
DISCUSSION: The director of the service center denied the nonimrnigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The director's decision is withdrawn and the 
petition remanded for entry of a new decision. 
The petitioner is a co-location data center that seeks to employ the beneficiary as a network engineer. The 
petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation 
pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 10 1 (a)( 15)(H)(i)(b). 
The director denied the petition on the ground that the proffered position is not a specialty occupation. On 
appeal, counsel submits a brief and additional evidence. 
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. 
Pursuant to 8 C.F.R. § 214.2@)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
8 214.2(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. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
WAC 03 176 50228 
Page 3 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a network engineer. Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's support letter; 
and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail managing the day-to-day operations of a co-location facility; 
monitoring bandwith usage for Internet access customers; maintaining the Network Management System; 
providing connectivity to customers such as fiber, El, TI, and DS3 by testing the circuit; providing remote 
hand to test, operate, troubleshoot, andlor replace a customer's equipment components; coordinating the 
addition, moving, or deletion of circuits with clients and third party suppliers; providing ongoing network 
maintenance to ensure uninterrupted service. The petitioner seeks to employ the beneficiary who holds a 
bachelor's degree in computer engineering from an institution in the Philippine Islands and has experience in 
business and computer information systems. 
The director stated that a network engineer requires a baccalaureate degree. However, the director found that 
the evidence does not show that the proposed position was that of a network engineer. The director stated that 
the petitioner's business is not the lund that requires the services of a network engineer, as that occupation is 
described in the Department of Labor's (DOL) Occupational Outlook Handbook (the Handbook). The 
director further stated that the Handbook reveals that the proposed duty to install, maintain, and repair is 
similar to that of electrical and electronics installers and repairers working in a co-location data center; and 
that the Handbook indicates that those occupations do not require a baccalaureate degree in a specific 
specialty. The director noted that the petitioner's ability to pay the offered wage is relevant as it bears on the 
totality of the circumstances and whether there is sufficient work requiring the application of theoretical 
knowledge. 
On appeal, to, show that the proposed position qualifies as a specialty occupation, counsel submits into the 
record a letter from the petitioner, a list of clients, a letter from a client, and a diagram illustrating the 
organizational structure of linked networks and system. Counsel explains the nature of the petitioner's 
business operation. 
Upon review of the record, the petitioner has established one of the four criteria outlined in 8 C.F.R. 
8 214.2&)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The fourth criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A) requires that the petitioner 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 an October 23, 2004 letter the 
petitioner states that it provides bandwidth on demand, linhng of data and telecommunications networks, and 
managed information technology services to customers. This involves the installation and configuration of 
wide area networks, local area networks, the integration of telecommunications equipment within a 
company's network, and ensuring that the network systems are integrated with those of the end users and the 
clients of customers. The petitioner also provides ongoing monitoring of the system. The petitioner 
WAC 03 176 50228 
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establishes that the proposed duties are specialized and complex, requiring a bachelor's degree in computer 
science or a related branch of knowledge, based on the description of the proposed position, the client list, the 
network and system diagrams, the information about the petitioner's services, and a December 15,2003 client 
letter. Consequently, the petitioner establishes the fourth criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(~).' 
The AAO must now consider whether the beneficiary is qualified to perform the proposed position. 
The beneficiary holds a baccalaureate degree in computer engineering from a university in the Philippine 
Islands. Nevertheless, the petition may not be approved as the record contains no evidence demonstrating that 
the beneficiary's baccalaureate degree is the educational equivalent of a U.S. baccalaureate degree in 
computer science or a related discipline from an accredited college or university in the United States. The 
director must afford the petitioner reasonable time to provide evidence pertinent to the issue of whether the 
beneficiary is qualified for the proposed position, and any other evidence the director may deem necessary. 
The director shall render a new decision based on the evidence of record as it relates to the regulatory 
requirements for eligibility. The burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. $1361. 
ORDER: The director's August 27, 2004 decision is withdrawn. The petition is remanded to the director 
for entry of a new decision, which if adverse to the petitioner, is to be certified to the AAO for 
review. 
' In the denial letter the director discussed the petitioner's ability to pay the offered wage. The ability to pay 
the proffered wage is not at issue in the adjudication of an H-1B petition. Nevertheless, the submitted DE-6 
reflects that the petitioner paid wages of $44,820 for the quarter ending December 3 1,2003, and the Form I- 
129 petition shows that the petitioner earned a gross annual income of $600,000, sufficient to cover the 
proffered wages.