U.S. Citizenship and Immigration Services

MATTER OF C- CORP

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: SEPT. 27, 2019

PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, an information technology services and solutions company, seeks to temporarily employ the Beneficiary as a "network engineer" 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-IB program allows a U.S . employer to temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and practical application of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position.

The Director of the Vermont Service Center denied the petition, concluding that the Petitioner had not established that the proffered position qualifies as a specialty occupation. On appeal, the Petitioner asserts that the Director e1Ted and the evidence supports an approval of the petition

Upon de nova review, we will dismiss the appeal. 1

I. LEGAL FRAMEWORK

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.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position must meet one of the following criteria to qualify as a specialty occupation:

1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010).

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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. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000).

II. PROFFERED POSITION

The Petitioner, which is located inl INew J~rse~ed that the Beneficiary will work offsite forl i(end-client) in~I ---~!.and L__J Illinois. The contractual chain appears to be as follows:

Petitioner ~----------~(vendor#l)-j~---~l(vendor#2)-----+ end-client.

The Petitioner stated that the job duties include, but are not limited to:

• Operational Support for a large-scale Enterprise Network including tasks such as Incident, Request, Change, Vulnerability Tickets and Projects, new office deployments and migrations (LAN/WAN), Wireless Infrastructure Management, Deployment and Operational support for Cisco ISE, DNA Center etc. [30%] • L2 to L3+ Incident (INC) troubleshooting and onsite support for an Enterprise-scale

network in areas including wireless. LAN, WAN etc. Some recent examples include automated power and interface high discard rate alerts generated form the EMCSmarts monitoring tool, Connectivity to a PXE boot server from a user VLAN, A-V connectivity from Wireless SSID etc. and can be seen from the ITIL Tool (Service Cafe)

• Support for Service Request Tickets (RITMs) and Projects such as new connectivity from a user Wired/Wireless VLAN to a third-party (Av7a/West) voice Solution over the MPLS/ AT&T UVN,I I HQ move ~---~~' A WS/ Azure Deployment support, etc.

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• Vulnerability (VUL) remediation for Datacenter and stand alone/regional and HQ devices as seen below. Remediation includes addressing SNMPv3 MIB fixes, TLS/SSL Cipher strength, FREAK vulnerability, WannaCry remediation, etc.

• Support for Migration activities from legacy Datacenter/Colo infrastructure to cloud-based solutions such as AWS/Azure platforms. [10%] • IP Allocation and IP Management using Infoblox for allODeployments in Azure

& A WS Clouds, Coordinating withl I to enable N etbond VPC peering using new transit networks to the A WS/ Azure VNETs being deplo~

• Creation of new L3 outs on the ACI Fabric in the I I &L_j)atacenters to deploy a new EPG in the APIC for Migration oflegacy Datacenter servers to the A WS cloud, leveraging the new WAN pipe.

• Coordination with migration teams from I I and I I to help create NSG rules for third-party ~ I deployment.

• Provide Network Infrastructure Monitoring Capabilities for devices/technologies such as Jolata, Cisco Prime, AppNeta, WAAS Central Manager, EMC Smarts & NCM, Infoblox, APIC C caldes etc. used b the client and work with multi le vendors such as

~--------~-~ etc. to support daily operational activities as well as new project deployments. [15%] • Monitorinl and identifying network traffic based on traffic patterns and flows at all

I _ s US Regional Offices and Datacenters, Identification of backup traffic (Mozy/Live Vault) during business hours that could affect bandwidth and availability for other legitimate applications such as MDS, FBI etc.

• Deployment and utilization of weekly configuration backup of all network devices (Routers, Switches, WLC etc.) using NCM (EMCSuite) tool. Change deployment requires pre-cut config backup to support a successful rollback in case of any issues during approved maintenance windows.

• Work with~----.:,----~-----~---.-------.--..,,.......,,--~ Datacenter) to raise operational incidents for L3+ support in case of major P 1 outages and design queries as well as to investigate and provide Root Cause Analysis (RCA) Documents for major outages/issues.

• Support and Troubleshoot operational tickets pertaining to !Pee or DMVPN Solutions as well as Routing and Switching technologies deployed at worldwide locations that need access to Corporate resources hosted in the 3 worldwide Datacenters and DR corresponding locations. [15%] • Deployment of a new DMVPN solutions froml I Regional Datacenter to~I -~

Global DC ~ I) at I I andD Datacenter atl IV A using ASR4331 (spoke) and ASR1001 (Hub) Routers.

• Deployment and Troubleshoot of IPSec VPN tunnels fromc=JHlb (ASRl1001) to multiple third-party vendors worldwide such as I I Bank of HA VI, I Ftc. TSHOOT involves addition of new destinations in the

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Encryption Domains, TSHOOT Phase- I ISAKMP and Phase-II (IPSec) packets on the hub router in coordination with the Firewall teams and partners.

• Deployment and TSHOOT support for switching and routing technologies such as redesign from OSFP routing protocol to a static routing deployment to cutover from MPLS to new AT&T UVN ring; redistribution of static routes to EIGRP ( datacenter) or to OSPF (Regional/Home Office) to advertise new networks over the WAN or VPN Tunnel.

• Assist with Bug scrubs, project timelines etc. as part of the Lifecycle management process and work within ITSM guidelines leveraging CMDB resources to raise change tickets and tasks for approvals and deployment for tasks such as standalone device software upgrades, ACI firmware upgrades, vulnerability management and patching etc. [10%] • Creation of Project Plans and Timelines for multiple efforts such as the Regional Office

Voice Migration Project,.__ _____________ __.'s Office Migration project etc. This includes in-person meetings to collaborate with multiple vendors and stakeholders (Project Managers, Building Contractors, Internet & WAN Service Providers etc.)

• Create Bill of Material for Cisco devices (Build and Price Tool) and present toD based on design requirements, create plans for lifecycle management (IOS upgrades, periodic reboots etc.) and deploy using change tickets in the ITSM tool (Service Now).

• Research and suggest new IOS codes based on open caveats and vulnerabilities reP,orted on the new code by Cisco BU and analyze and highlight potential impact to th~ !environment.

• Scale up capabilities to support new technologies being introduced and deployed in the network-this includes working with the vendors/manufacturers to create Design and Deployment documentations, Architecture diagrams, Standard Operating Procedures and Runbooks etc. [10%] • Creation of support documentation for Network Operations Team (L2+) and Command

Center (Ll)-such as a Standard Operating Procedure document for IP Allocation using Infoblox, IP AM Runbook etc.

• Provide design/as-built architecture diagrams using MS Viion to support vendors such as West (Voice Solutions), detailing the LAN deployment and connectivity to cloud services fromc=J offices over the I IMPLS.

• Coordinate with Cisco to deploy newer technologies and solutions such as DNA Center, Cisco ISE etc. and provide training/internal reference documentation and KB articles to support teams to help with basic TSHOOT and ensure deployment of monitoring capabilities using these solutions.

• Attend internal trainings and create documentations where required, to support deployment activities which could include InfoSec trainings, periodic technical trainings, periodic trainings and awareness workshops conducted by HR, Legal etc. and requires utilizing independent judgment. [ 10%] • Attend periodic trainings on Azure Networking based on the I ts

implementation and support plan. This includes working with the migration team to

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understand and support existing deployments as well as to prepare for operational post­migration support.

• Attend and create reports based on Annual Informational Security (Info Sec) Training to ensure Client data privacy and understand industry best-practices relating to security.

• Attend workshops and trainings to ensure comf liance with the latest solutions and deployment strategies catered specifically for the Is Network Infrastructure.

The Petitioner further stated that the position requires a minimum of a bachelor's degree in computer science, electronics and communication engineering, a directly related field, or the equivalent.

III. ANALYSIS

As a preliminary matter, we conclude that the record does not sufficiently substantiate the Petitioner's claims regarding the proffered position and establish the substantive nature of the position.

As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for entities other than the petitioner, evidence of the client companies' job requirements is critical. The court held that the former Immigration and Naturalization Service had reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the beneficiary's services. Id. Such evidence must be sufficiently detailed to demonstrate the type and educational level of highly specialized knowledge in a specific discipline that is necessary to perform that particular work. The record does not include any information directly from the end-client detailing the job duties or the minimum requirements for the position. Nevertheless, assuming for the sake of argument that the Beneficiary will be employed as described by the Petitioner, we will analyze the record to determine whether the proffered position as described would qualify for classification as a specialty occupation.

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

A. First Criterion

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

2 The Petitioner submitted documentation to support the H- IB 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. 3 We do not maintain that the Handbook is the exclusive source ofrelevant information. That is, the occupational category

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On the labor condition application (LCA)4 submitted in support of the H-1B petition, the Petitioner designated the proffered position under the occupational category "Network and Computer Systems Administrators" corresponding to the Standard Occupation Classification (SOC) code 15-1142. The Handbook states, in pertinent part, about these occupations: "Most employers require network and computer systems administrators to have a bachelor's degree in a field related to computer or information science. Others may require only a postsecondary certificate or an associate's degree."5

Notably, the Handbook specifically states that "some employers require only a postsecondary certificate or an associate's degree" rather than a bachelor's degree in a specific specialty. Although we do not maintain that the Handbook is the exclusive source of relevant information, to satisfy the first criterion, the burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position will normally have a minimum, specialty degree requirement, or its equivalent, for entry.

On appeal, the Petitioner asserts that the O*NET's summary report for "Network and Computer Systems Administrators" establishes that the occupational category qualifies as a specialty occupation. The O*NET Summary Report provides general information regarding the occupation, but it does not support the Petitioner's assertion regarding the educational requirements for the occupation. For example, the Job Zone Four designation indicates that most, but some do not, require a four-year bachelor's degree. It does not specify the specific field of study, if any, from which the degree must come. The occupation's Specialized Vocational Preparation (SVP) rating of 7 < 8 is even less persuasive. An SVP rating of 7 to less than("<") 8 indicates that the occupation requires "over 2 years up to and including 4 years" of training. While the SVP rating indicates the total number of years of vocational preparation required for a particular position, it is important to note that it does not describe how those years are to be divided among training, experience, and formal education. 6 For all of these reasons, we are not persuaded by the Petitioner's references to the O*NET.

On appeal, the Petitioner refers to the "Occupational Requirements Survey" and "BLS 's Table 1.11 Educational attainment for workers ... " to state that "a bachelor's degree as the normal entry requirement for the profession is statistically proven." However, these documents do not specify a specific specialty; therefore, they do not establish eligibility under the first criterion.

The record includes articles related to the education, knowledge, and skills of information technology professions. However, none of these articles specifically address the normal minimum requirement for entry into the proffered position.

designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered position, and we regularly review 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 ofproofremains on the Petitioner to submit sufficient evidence to support a finding that its particular position would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 4 A petitioner submits the LCA to U.S. Department of Labor (DOL) to demonstrate 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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. § 655.73 l(a). 5 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Network and Computer Systems Administrators, https://www.bls.gov/ooh/computer-and-information-technology/network-and-computer-systems -administrators.htm#tab-4 (last visited Sept. 27, 2019). 6 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/online/svp.

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The Petitioner submitted a letter from .__ _______ __, University of I I I I who offers his opinion on the requirements of the proffered position. In his letterJ I (1) describes the credentials that he asserts qualify him to opine upon the nature of the proffered position; (2) lists the duties proposed for the Beneficiary; and (3) states that these duties require at least a bachelor's degree in information technology, electrical engineering, or a related area, or the equivalent.

.__ ___ ~I asserts that the position should be classified under the Handbook as a "Network and Computer Systems Administrator" and also refers to the O*NET and states that the proffered position shares many of the same duties and falls under the "Network and Computer Systems Administrators" category. However, as discussed, we do not find that the Handbook and O*NET establish that the proffered position qualifies as a specialty occupation. Moreover,! I asserts that the proffered position is a "highly skilled leadership role." However, the record does not sufficiently establish the Beneficiary's role within the end-client's organization to substantiate such a critical role and it is not clear howl I came to such conclusion. In addition, while he claims his past opinions have been accepted as authoritative, the record does not substantiate his claims. Therefore,! I's assertions in support of the instant petition are not persuasive. 7 We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in accord with other information or is in any way questionable, we are not required to accept or may give less weight to that evidence. Id.

The Petitioner asserts that the Director has mischaracterized the Handbook to conclude that a bachelor's degree in a specific specialty is not normally the minimum requirement for the proffered position. The Petitioner cites to Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252, 267 (S.D.N.Y. 2017) to state that the Director's conclusion has no "rational connection" to the Handbook.

We first note that we are not bound to follow the published decision of a United States district court. SeeMatterofK-S-,20I&NDec. 715, 719-20(BIA 1993). Nevertheless,evenifweconsidered the logic underlying the matter, we conclude that the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation.

As recognized by another court, while the Handbook may establish the first regulatory criterion for certain professions, many occupations are not described in such a categorical manner. 8 See In nova Sols., Inc. v. Baran, 2019 WL 3753334, at *8 (N.D. Cal. Aug. 8, 2019) (declining to follow Next Generation Tech., Inc.). For example, "[the Handbook's] description for the Computer Programmer occupation does not describe the normal minimum educational requirements of the occupation in a categorical fashion." Id.; see also Xiaotong Liu v. Baran, 2018 WL 7348851 (C.D. Cal. Dec. 21, 2018). "Accordingly, [the Petitioner] could not simply rely on [the Handbook] profile, and instead had the burden to show that the particular position offered to [ the Beneficiary] was among the Computer Programmer positions for which a bachelor's degree was normally required." See Innova

7 For efficiency's sake, we hereby incorporate the above discussion regarding the letter into our analysis of each criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 8 Such professions would include surgeons or attorneys, which indisputably require at least a bachelor's degree for entry into the occupation.

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Sols., Inc. 2019 WL 3753334, at *8. Moreover, the court in Next Generation Tech., Inc. relied in part on a 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 Next Generation Tech. Inc. 9

Here, the Handbook does not describe the normal mm1mum educational requirement for the occupation in a categorical manner since some employers accept less than a bachelor's degree. Further, the Petitioner has not sufficiently established that a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular position.

We also note that the Petitioner cites to Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012), for the proposition that "[t]he knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors. What is required is an occupation that requires highly specialized knowledge and a prospective employee who has attained the credentialing indicating possession of that knowledge."

The Petitioner asserts that "more than one specific specialty that could qualify someone for a specialty occupation," but the issue here is whether a bachelor's degree or its equivalent is normally the minimum requirement for entry into the particular position.

The Petitioner has famished no evidence to establish that the facts of the instant petition are analogous to those in Residential Finance. 10

We conclude that the Petitioner has not established that the proffered position is located within an occupational category for which a relevant, authoritative source indicates that the normal minimum entry requirement is at least a bachelor's degree in a specific specialty, or the equivalent. Moreover, the Petitioner has not provided documentation from a probative source to substantiate its assertion regarding the minimum requirement for entry into this particular position. The Petitioner therefore has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).

9 See USCTS Policy Memorandum PM-602-0142, Rescission of the December 22, 2000 "Guidance memo on Hl B computer related positions" (Mar. 31, 2017), https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1 BComputerRelatedPositionsRecission.pdf.

10 It is noted that the district judge's decision in that case appears to have been based largely on the many factual errors made by the Director in the decision denying the petition. We further note that the Director's decision was not appealed to us. Based on the district court's conclusions and description of the record, if that matter had first been appealed through the available administrative process, we may very well have remanded the matter to the service center for a new decision for many of the same reasons articulated by the district court if these errors could not have been remedied by us in our de novo review of the matter.

We also note that, in contrast to the broad precedential authority of the case law ofa United States circuit court, we are not bound to follow the published decision ofa United States district court in matters arising even within the same district. See Matter of K-S-, 20 I&N Dec. 715, 719-20 (BIA 1993). Although the reasoning underlying a district judge's decision will be given due consideration when it is properly before us, the analysis does not have to be followed as a matter oflaw. Id.

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B. Second Criterion

The second criterion presents two, alternative prongs: "The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong contemplates common industry practice with regard to positions that are "parallel" to the one under consideration, while the alternative prong narrows its focus to the Petitioner's specific position.

1. First Prong

To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent) is common to the industry in parallel positions among similar organizations.

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 professional association has made a degree a minimum entry requirement; and whether letters or affidavits from firms or individuals in the industry establish that such firms "routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Herd/Blacker Corp. v. Sava, 712 F. Supp. 1095, 1102 (considering these "factors" to inform the commonality of a degree requirement) (S.D.N.Y. 1989)).

As noted above, the Handbook does not indicate that a bachelor's degree in a specific specialty is a common requirement within the industry for parallel positions among similar organizations. Also, the Petitioner did not submit evidence from an industry professional association or from firms or individuals in the industry indicating such a degree is a minimum requirement for entry into the position.

In support of this criterion, the Petitioner submitted copies of six job announcements placed by other employers. However, upon review of the documents, we find that the Petitioner's reliance on the job announcements is misplaced. First, the Petitioner has not demonstrated that these organizations are similar. When determining whether the Petitioner and the organization share the same general characteristics, such factors may include information regarding the nature or type of organization, and, when pertinent, the particular scope of operations, as well as the level of revenue and staffing (to list just a few elements that may be considered). It is not sufficient for the Petitioner to claim that an organization is similar and conducts business in the same industry without providing a legitimate basis for such an assertion. The record shows that four of the companies are in the information technology field and two are in the business field. Furthermore, while the record includes a size range for the companies, the actual number of employees is not clear. The record includes evidence that only one of the companies has similar revenue as the Petitioner.

In addition, two of the advertisements include experience requirements of at least five years, therefore indicating that they are not parallel positions. As the documentation does not establish that the

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Petitioner has met this prong of the regulations, farther analysis regarding the specific information contained in each of the job postings is not necessary. 11

Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's degree in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar organizations. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2).

2. Second Prong

We will now 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.

The record does not sufficiently 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 equivalent. While a few related courses and skills may be beneficial in performing certain duties of the position, the Petitioner has not demonstrated 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 proffered position. For example, the record does not sufficiently demonstrate how performance of duties such as "Incident, Request, Change, Vulnerability Tickets and Projects," "support and Troubleshoot operational tickets," "assist with Bug scrubs, project timelines etc. as part of the Lifecycle management process," and "working with the vendors/manufacturers to create Design and Deployment documentations, Architecture diagrams, Standard Operating Procedures and Runbooks" establishes a necessary correlation for a particular level of education, or educational equivalency, in a body of highly specialized knowledge in a specific specialty.

The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the position. The evidence of record does not establish that this position is so complex or unique that it can be performed only by an individual with a degree. The Petitioner claims that the Beneficiary is well-qualified for the position, and references the Beneficiary's qualifications as evidence that the proffered position is a specialty occupation. However, the test to establish a position as a specialty occupation is not the education or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's degree in a specific specialty, or its equivalent. Here, the Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the duties of the position.

11 It must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty is common to the industry in parallel positions among similar organizations (which they do not), the Petitioner has not demonstrated what statistically valid inferences, if any, can be drawn from the adve1iisements 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 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").

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Thus, it cannot be concluded that the Petitioner has satisfied the second alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2).

C. Third Criterion

The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position.

The record must establish that a petitioner's stated degree requirement is not a matter of preference for high-caliber candidates but is necessitated instead by performance requirements of the position. See Defensor, 201 F.3d at 387-88. Were U.S. Citizenship and Immigration Services (USCIS) limited solely to reviewing the Petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could be brought to the United States to perform any occupation as long as the Petitioner created a token degree requirement. Id. Evidence provided in support of this criterion may include, but is not limited to, documentation regarding the Petitioner's past recruitment and hiring practices, as well as information regarding employees who previously held the position.

The Petitioner submitted a list of network engineer employees along with copies of educational records for them. However, the record does not include a list of their job duties, or the job advertisements for their positions. The record contains insufficient evidence that these individuals have or had the same or similar substantive responsibilities, duties, and performance requirements as the proffered position.

Moreover, the Petitioner did not provide the total number of people it has employed to serve in the proffered position. Consequently, it cannot be determined how representative the Petitioner's claim regarding the limited number of individuals it submitted 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.

Without more, the Petitioner has not satisfied the third criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A).

D. Fourth Criterion

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

Here, the Petitioner claims that the position's nature and the specific duties are so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent. However, based on the reasoning of our previous discussion, the record does not sufficiently demonstrate that the duties of the proffered position are so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent. While we understand that the Beneficiary must have some skills and knowledge in order to perform these duties, the Petitioner has not sufficiently explained how these tasks require the

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attainment of a bachelor's or higher degree in the specific specialty or its equivalent as a minimum for entry into the occupation.

We find that the Petitioner has not demonstrated in the record 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 qualifies as a specialty occupation

IV. CONCLUSION

The Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden.

ORDER: The appeal is dismissed.

Cite as Matter of C- Corp, ID# 4560899 (AAO Sept. 27, 2019)

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