remanded H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
lnRe : 21160176 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 18, 2022 
The Petitioner seeks to employ the Beneficiary under the H-lB 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)(15)(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 attainmentof a bachelor's or higher degree in the specific 
specialty ( or its equivalent) as a minimum prerequisite for entry into the position. 
The Vermont Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation, and the Petitioner filed a timely appeal. The U.S. Court of Appeals for the Ninth Circuit 
issued its decision ininnova Sols., Inc. v. Baran, 983 F.3d428 (9th Cir. 2020)inDecember2020. The 
Director denied this petition after the Ninth Circuit issued that decision, and it is not apparent from the 
text of the denial whether they consideredinnovaSols., Inc. Because the analysis the Director utilized 
in arriving at the conclusion on the specialty-occupation issue appears that it was impacted by Innova 
Sols., Inc., we find it appropriate to remand the matter for the Director to consider the question anew, 
and to adjudicate in the first instance any additional issues as may be necessary and appropriate. 
As part of those additional issues, the Director may elect to inquire about two topics . First, why every 
duty the Petitioner provided in the initial petition is duplicated from other resources found through 
internet searches, and by extension whether those responsibilities actually represent the duties the 
Beneficiary will perform for the petitioning organization. Second, we note thatthe statutory definition 
constitutes the primary requirement for a position to qualify as a specialty occupation. See section 
214(i)(l) of the Act. The court in Inn ova Sols., Inc. found that the first regulatory criterion at 8 C.F.R 
§ 214 .2(h)( 4 )(iii)(A)(l) had been met, but they did not discuss the overarching requirement relating to 
the statutory definition of a specialty occupation. The criteria at 8 C.F.R. § 214 .2(h)( 4 )(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and regulatory 
definition of a specialty occupation. To otherwise interpret this section as stating the necessary and 
sufficient conditions for meeting the definition of a specialty occupation would result in particular 
positions meeting a condition under 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) but not the statutory or regulatory 
definition. SeeDefensor v. Meissner, 201 F.3d 384,387 (5th Cir. 2000) . 
While the regulatory criteria may allow for a lesser standard ( e.g., a qualifying degree is normally the 
minimum requirement for entry into the particular position, or such a degree is common to the 
industry), the statute does not provide for such a relaxed benchmark. The statute mandates a qualifying 
degree ( or its equivalent) as a prerequisite simply to enter into the occupation. As explained above, 
the statutory and regulatory definition of a specialty occupation requires a degree in a specific specialty 
( or its equivalent) that is directly related to the proposed position. Section 2 l 4(i)(l) of the Act; 
8 C.F.R. § 2 l 4.2(h)( 4 )(ii). And the Director should determine whether the Petitioner has demonstrated 
that the position it offers in the petition meets those definitions. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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