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. U.S. Citizenship and Immigration Services MATTER OF L&TT-S- Non-Prece dent Decision of the Admini stra tive Appeals Office DATE: APR. 27, 20 18 APPEAL Of CALIFORNIA SERVICE CENTER DECISION PETITION: FORM 1-1 29, PETITION FOR A NONIMMIGRANT WORKER The Petitioner seeks to temporari ly employ the Beneficiary as a "software engineer and te ster" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section l0 l(a)(15)(H)(i)(b), 8 U.S.C. § llOI(a)(15)(H)(i)(b). The H-18 program allows a U.S. employer to temporarily employ a qualified toreign worker in a position th at requires both (a) the theoretical and practical app li ca ti on of a body of hi ghly spec ial ized knmvledge and (b) the attainment of a bachelor's or higher degree in the specific specia lt y (or its equi valent) as a minimum prerequis it e for entry into the position. The Director of the California Service Center denied the petition, concluding that the record did not estab li sh that the proffered posi ti on qualifies as a specialty occupation. In its appeal, the Petitioner submits additional evidence and asserts that the Director erred in deny in g the petition. Upon de novo review, we will dismi ss the appeal. I. SPECIALTY OCCUPATION A. Legal Framework Section 2 14(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) attainme nt of a bachelor's or higher degree in th e specific s pe cialty (or it s equivalent) as a minimum for entry into the occupation in th e Un ited States. The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non- exhaustive li st of fiel ds of endeavor. In addition, the regulations provide that the proffered po sition must meet one of the following criteria to qualify as a specialty occupation:

U.S. Citizenship and Immigration Administrative … - Temporary Worker... · must meet one of the following criteria to ... 1 was certified with the job title "Software Engineer and

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U.S. Citizenship and Immigration Services

MATTER OF L&TT-S-

Non-Precedent Decision of the Administrative Appeals Office

DATE: APR. 27, 20 18

APPEAL Of CALIFORNIA SERVICE CENTER DECISION

PETITION: FORM 1-1 29, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner seeks to temporari ly employ the Beneficiary as a "software engineer and tester" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section l0 l(a)(15)(H)(i)(b), 8 U.S.C. § llOI(a)(15)(H)(i)(b). The H-18 program allows a U.S. employer to temporarily employ a qualified to reign worker in a position that requires both (a) the theoretical and practical application of a body of highly special ized knmvledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its equi valent) as a minimum prerequisite for entry into the position.

The Director of the California Service Center denied the petition, concluding that the record did not establish that the proffered position qualifies as a specialty occupation.

In its appeal , the Petitioner submits additional evidence and asserts that the Director erred in denying the petition. Upon de novo review, we will dismiss the appeal.

I. SPECIALTY OCCUPATION

A. Legal Framework

Section 2 14(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.F.R. § 214.2(h)( 4)(ii) largely restates this statutory definition, but adds a non­exhaustive li st of fields of endeavor. In addition, the regulations provide that the proffered position must meet one of the following cri teria to qualify as a specialty occupation:

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(/) 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. § 21 4.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or higher degree, but one in a specitic specialty that is directly related to the proposed position. See Royal Siam Corp. v. ChertrdJ; 484 F.3d 139, 14 7 ( l st Cir. 2007) (describing "a degree requi rement 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. Proffered Position

The Petitioner, a technology services company, states that the Beneficiary will perform the services of a software engineer and tester, and will work on the

project tor 0-E-S- (end-client) in Indiana. The record's labor condition application (LCA) 1 was certified with the job title "Software Engineer and Tester" for a position falling within the Standard Occupation Classification (SOC) code and category 15-1 199, "Computer Occupations, All Other."

The Petitioner initia lly provided tive, general job duties lor the proffered position. In response to the Director 's request lor evidence (RFE), the Petitioner submitted additional information lor the job description, along with the approximate percentage of time the Beneficiary will spend on each duty.

C. Analysis

Upon review of the record in its totality and for the reasons set out below, we determine that the Petitioner has not demonstrated that the proffered position qualities as a specialty occupation.

1 The Petitioner is required to submit a certified LCA to demo.nstrate 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 Mauer ofSimeio Soli/lions. LLC, 26 I&N Dec. 542. 545-546 (AAO 20 15).

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Specifically, the record docs not establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation.2

As a preliminary matter, the Petitioner indicated that the Beneticiary will work at the end-client site. As recognized by the court in Defensor, where the work is to be performed for entities other than the Petitioner, evidence of the client's job requirements is critical. Defensor, 201 F.Jd at 387-88. The court held that the fonner Immigration and Naturalization Service had reasonably interpreted the statute and regulations as requiring the Petitioner to produce evidence that a proffered position qualities as a specialty occupation on the basis or the requirements imposed by the entities using the Beneficiary's services. /d. at 384. Such evidence must be sufticiently detailed to demonstrate the type and educational level of highly specialized knowledge in a specif-ic di scipline that is necessary to perform that particular work.

Here, the record lacks sufficient substantive documentation regarding the specific job duties to be performed by the Beneficiary for the period of time requested or where exactly and for whom the Beneficiary would be providing services. The Petitioner provided a document entitled "General Terms and Conditions of the Master Procurement Agreement" (M PA), as well as a document entitled "Amendment No I to the MPA" between itself and the end-client: however. the

' . \. . documentation does not mention the Beneficiary, the proffered position, or the prOJect.

We acknowledge the submission of two letters from the end-client. The first, submitted in support of the petition, states that its "SOWs are conf"idential and it is also not possible for us to issue specific letters detailing each project for each assigned ... employee." The second letter, submitted in response to the RFE, states that the Beneficiary' s services are requi red on the project and provides a generalized overview of his intended tasks, which include generic duties such as software requirement analysis, unit test development , and bug tracking. The record, however, does not contain copies of any contractual documents specific to the Beneficiary which outline the specific requirements and duties associated with the project.

The Petitioner, thus, has not established the substantive nature of the work to be performed by the Beneficiary, which precludes a finding that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines ( I) the normal minimum educational requirement for the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus appropriate for review lor a common degree requirement, under the first alternate prong of criterion 2; (3) the level of coi11plexity or uniqueness or the proffered position, which is the focus of the second alternate prong of criterion 2; (4) the t~1ctual just ification f·or a petitioner normally requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of special ization and complexity ofthe specific duties, which is the focus of criterion 4.

2 The Petitioner submitted documentation to supp011 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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In addition, the record does not sufficiently establish availability of work from the end-client for the duration of the employment period requested. The general terms and conditions of the MPA states the Petitioner and the end-client "may, from time to time, enter into one or more Purchase Orders and/or Transaction Agreements." The MPA further states that "[the end-client] wi ll issue a Purchase Order for any Products and Services to be procured from [the Petitioner] and shall have no liabil ity or responsibility for products or services provided by supplier without a Purchase Order." Although the amendment extends the agreement between the parties through August of 2021 , the record does not contain any purchase orders for the Beneliciary' s services on the project or any other project for the end-client. While the record contains letters from the end-client, the letters do not adequately establish the Beneficiary's assignment for the employment period. For example, the letter dated August 20 I 7 states that the "length of the project is variable," but also notes that it is ''extending for up to 36 months and may require add itional extension subject to completion of deliverables."

We conclude that the record does not contain sufticient documentation evidencing that the Peti tioner has secured work fo r the Beneficiary through the entire H-1 B validity period. The Petit ioner has not demonstrated that it will have sufficient work tor the Beneficiary and that it wil l maintain an employer-employee relationship for the duration of the validity of the requested period.

Nevertheless, assuming, for the sake of argument, that the proffered duties as described in the record would in fact be the duties the Beneficiary would perform, we will analyze them and the evidence of record to determine whether the proffered position as described would qualify as a specialty occupation pursuant to 8 C.F.R. § 214.2(h)(4)(i ii )(A).

D. First Criterion

We turn first to the criterion at 8 C.F. R. § 214.2(h)(4)(iii)(A)(/), which requires that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement tor entry into the particular position. To inform this inquiry, we recognize the U.S. Department or Labor's (DOL's) Occupational Ou1/ook Handbook (Handbook) as an au thoritative source on the duties and educational requirements of the wide variety of occupations that it addresses.3

As previously noted, the Petitioner designated the proffered position under the occupational category "Computer Occupations, All Other" on the LCA. We note that there are occupational categories

·' The Handbook may be accessed at the In ternet 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 cons idered as an aspect in establishing the general tasks and responsibilities of a proffered position, and USC IS regu larly reviews 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 sufticient evidence to support a finding that its particular position would' nonnally have a minimum, specialty degree require1:nent. or its equiva lent. for entry.

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which are not covered in detail by the f-landboo{4 The Handbook suggests that for at least some of the occupations, little meaningful information cou ld be developed. Since the Handbook does not provide information regarding the occupational category, it is the Petitioner's responsibility to provide probative evidence (e.g., documentation from other objective, authoritative sources) to establish that the particular position in question qualifies as a specialty occupation . We will consider and weigh all ofthe evidence presented.

The Petitioner submits two expert opinions it asserts demonstrate that its degree requirement is normally the minimum requirement for entry into the particular position. In response to the RFE, the Petitioner submitted a letter from an associate prof·essor of computer science and information systems at University, who opined that the duties of the proffered position require at least a bachelor's degree in computer sc ience, electrical engineering, or a related field. On appeal, the Petitioner also submits a letter from professor of computer science at University, who concludes that the duties of the position and its level of complexity require "bachelor's-leve l educational training (or the equivalent) in Computer Science, Electronic Engineering, or a closely related ticld."

First, we note that evaluation docs not discuss the duties o f the proffered pos ition in any substantive detail. Rather, he restates the same tive bullet-point duties listed in the Petitioner's support letter. 5 He does not discuss them in the specific context o f the Petitioner's business or the end-client project upon which the Beneficiary would work. There is no indication that he possesses any knowledge of the Petitioner's proffered position beyond this limited job description. Nor docs he address the Petitioner' s wage-level designation in the LCA. His level of familiarity with the actual job duties as they would be performed in the context of the Petitioner's business has therefore not been substantiated. ·

Even assuming possesses expertise on the degree requirements for software engineers and testers; his opinion letter does not substantiate his conclusions, such that we can conclude that the Petitioner has met its l5urden of proof. For example, does not reference, cite, or discuss studies, surveys, industry publications, authoritative publications, or other sources of empirical information, which he may have consulted to complete hi s evaluation.

Moreover, regularly refers to the "complexity" of the position in his opinion and references the "high-level duties" of the position. In contrast, the Petitioner has only ass igned the position a Level I wage on the LCA indicating that the proffered position is an entry-level position. However, describes the position as involving the most complex and sophisticated

~ We note that occupational categories for which the Handbook only includes summary data includes a range of occupations, including for example, postmasters and mail superintendents; agents and business managers of artists. perfonners, and athletes: farm and home management advisors; audio-visual and multimedia collections specialists: clergy: merchandise displayers and window trimmers: radio operators: first-line supervisors of police and detectives: crossing guards: travel guides: agricultural inspectors, as well as others. 5 It is not apparent that reviewed the expanded list of duties submitted by the Petitioner in response to the RFE.

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tasks, which does not appear consistent with the proffered position 's generally described duties and level of responsibility. Given his lack of understanding of the level or responsibilities of the proffered position, it is not clear if he had sufficient information to determine the requirements of the position.

As a matter of discretion, we may use opm10n statements submitted by the Petitioner as advisory. lvfatter of" Caron lnt "f. Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we will reject an ~pinion or give it less weight if it is not in accord with other information in the record or if it is in any way questionable. !d. In this instance, the expert opinions do not ·offer su llicient probative value in establishing the proffered position as a specialty occupation.

On appeal, the Petitioner also references DOL's O*NET summary report for "Software Quality Assurance Engineers and Testers" listed as SOC code 15-1199.01. The summary report provides general information regarding the occupation; however, it does not support the Petitioner's assertion regarding the educational requirements for these posi tions.

We will first focus. on the Specific Vocational Preparation (SVP) rating. DOL assigns the occupation "Software Quality Assurance Engineers and Testers" an SVP 7 < 8. This indicates that ihe occupation requires "over 2 years up to and including 4 years" of training. While the SVP rating provides the total number of years of vocational preparation required for a particular position, it is important to note that it docs not describe how those years are to be divided among training, formal education, and experience - and it does not specify the particular type of degree, if any, that a position would rcquire.6

Next we will address DOL 's designation in the summary report of the occupation as a .lob Zone Four. Similar to the SVP rating, the summary report does not indicate that four-year bachelor's degrees required by Job Zone Four occupations must be in a specific specialty directly related to the duties performed .

Finally, \Ve note that the summary report provides the educational requirements of "respondents," but does not account for I 00% of the "respondents." The respondents' positions within the occupation are not distinguished by career level (e.g., entry-level, mid-level, senior-level). Additionally, the graph in the summary report does not indicate that the "education l.evel" for the respondents must be in a specific specialty.7

The Petitioner also cited Next. Generation Tech.. Inc. v. Johnson, (S.D.N. Y. Sept. 29, 20 17) as relevant here. · This case arises out of a different jurisdiction than the instant matter. 8 Neverthe less,

6 For addi tional information, sec the O*NET Online Help webpage available at http://www.onetonlinc.org/hclp/ online/svp. 7 Nor is it appar.ent that these individuals· credentials were hiring prerequisites. ~ In contrast to the broad precedential authority of the case law of a United States circuit court, we are not bound to

follow the published decis ion of a United States district court in matters aris ing even within the same district. See K-S-,

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even if we considered the logic underlying the matter, we tind that the Petitioner has not demonstrated that the proffered position is a specialty occupation.

The court in Next Genera/ion Tech.. Inc. relied in part on a U.S. Citizenship and Immigration (USCIS) policy memorandum regarding "Computer Programmers" indicating generally preferential treatment toward computer programmers, and "especially" toward companies in that particular petitioner's industry. However, USCIS rescinded the policy memorandum cited by the court in Ne:a

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In the instant matter, the Petitioner has not provided sufficient documentation from a probative, authoritative 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)(/).

E. 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[.]" s·c.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong looks to the common industry practice, while the alternative prong narrows its focus to the Petitioner's spec i~ic position.

\ I . First Prong

To satisfy this tirst 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.

We generally consider the following sources of evidence to determine if there is such a common degree requirement: whether the Handbook reports that the industry requires a degree; whether the industry's profess ional association has made a degree a minimum entry requirement; and whether letters or aftidavits from firms or individuals in the industry attest that such firms "routinely employ and recruit only degrccd individuals." See Shanli. Inc. v. Reno, 36 F. Supp. 2d 1151, 11 65 (0. Minn. 1999) (quoting Hird/13/aker Corp. v. Sava. 712 F. Supp. 1095, 1102 (S.D.N. Y. 1989) (considering these "factors" to inform the commonality of a degree requirement)).

20 I&N Dec. at 719-20. Although the reasoning underlying a district judge's decision will be given due consideration when it is ·properly before us. the analysis docs not have to be followed as a matter of law. I d. 9 See USC IS Pol icy Memorandum PM-602-0 142, Rescission r!f'lhe December 2 2. 2000 "Guidance memu on 1-1 I B computer related posilions .. (Mar. 31, 20 17). https://www. uscis.gov/sites/default/fileslliles/nativedocumenrs/PM -6002-0 142-H I B ComputerRelatedPositions Recission.pdf.

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As previously discussed, the Petitioner has not established that its proffered position is one for which the Handbook, or other authori tative source, reports a require'ment for at least a bachelor's degree in a specific specia lty, 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 ind icating that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did not submit any letters or aftidavits from similar tirms or individuals in the Petitioner's industry attesting that such firms "routinely employ and recruit only degreed individuals." Nor is there any other evidence relevant for our consideration under this prong. Thus, based upon a complete rev iew of the record of proceedings, we find that the Petitioner has not satisfied the tirst alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

2. Second Prong

We will next consider the second alternative prong of 8 C .F.R. § 2 14.2(h)(4)(iii)(A)(2), which is satisfied if the Petitioner shows that its particular position is so con1plex or unique that it can be perfonned only by an individual with at least a bachelor's degree in a specific spec ialty, or its equivalent.

In response to the RrE, the Petitioner submitted a list of job duties and the percentage o r time the Beneficiary would devote to certain tasks, along with the subjects related to each task. However, the record does not demonstrate that the necessary knowledge for the proffered position is attained through an established curriculum of particular courses leading to a baccalaureate or higher degree in a specific specialty; or its equi valent. While a few related courses and subjects may be beneficial in performing certain duties o f the position, the Petitioner has not demonstrated how an established curriculum o f such courses leading to a baccalaureate or higher degree in a specific spec ia lty, or its equivalent, is required to perform the duties of the proffered position.

The Petitioner claims that the Beneficiary is well-qualified for the posttton, and references his qualitications. However, the test to establish a position as a specialty occupation is not the educat ion or experience of a proposed bcneticiary, but whether the positi on itself requires at least a bachelor's degree in a specilic specialty, or its equivalent. The Petitioner did not suffi ciently deve lop relative complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks that arc 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).

F. Third Criterion

The third criterion of 8 C.F.R. ~ 214.2(h)(4)(iii)(A) entai ls an employer demonstrating that it normally requ ires 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 o f preference for high-caliber candidates but is necessitated instead by performance requirements of the position.

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See Defensor, 201 F.3d at 387-88. Were we limited solely to reviewing a petitioner's claimed self-imposed requirements, an organization could bring any individual with a bachelor's degree to the United States to perfonn any occupation as long as the petitioning entity created a token degree requirement. !d. Evidence provided in support of this criterion may include, but is not limi ted to, documentation regarding the Petitioner's past recruitment and hiring practices, as well as information regarding employees who previously held the position.

In support of this criterion, the Petitioner submitted postings for multiple openings for the position of "Software Engineers & Test Engineers" from its website. The posting states that a "Bachelor of Engineering in Electrical or Electronics or Telecommunications Engineering with relevant years of experience" is required for the position.

The Petitiol)er also provided a li st o f its employees in the software engineer and tester position, along with copies of their H-1 B approvals and foreign academic credentials. However, the record lacks evidence establishing that their work has the same or similar substantive responsibilities, duties, and performance requirements as the proffered position. For example, the Petitioner does not indicate whether these individuals hold the type of entry-level posi tion (as evidenced by the Petitioner's wage-level designation on the LCA) proffered in this peti tion.

Further, 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 representat ive one job posting and the Petitioner's claim regarding five individuals is of the Petitioner's normal recruiting and hiring practices.

The Petitioner has not persuasively established that it normally requires at least a bachelor's degree in a specific specialty, or its equivalent, for the position. Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J).

G. Fourth Criterion

The fourth criterion at 8 C.F.R . § 214.2(h)(4)(iii)(A) requires a petitioner to establ ish that the nature of the specific duties is so specialized and complex that the knowledge required to perfo rm them is usually associated with the attainment of a baccalaureate or hig.her degree in a specific specialty, or its equivalent.

In the instant case, relative specialization and complexity have not been suffic iently developed by the Petitioner as an aspect of the proffered posi tion. While the position may require that the Beneficiary possess some skill s and technical knowledge in order to perform these duties, the Petitioner has not sufficiently explained how these tasks require the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. The record does not include sufficient probative evidence that the duties require more than technical

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proficiency in the field. Thus, the Petitioner has not demonstrated that its proffered position is one with duties sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).

Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not demonstrated that the proffered position qualities as a specialty occupation.

II. CONCLUSION

The Petitioner did not establish that the proffered position is a specialty occupation.

ORDER: The appeal is dismissed.

Cite as lvfaller olL& 77'-S- ID# 1229727 (AAO Apr. 27, 2018)

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