U.S. Citizenship and Immigration Services

MATTER OF C-T-A-S-INC.

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: AUG. 26, 2019

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

The Petitioner, an information technology and business process services company, seeks to temporarily employ the Beneficiary as a "systems administrator" under the H-1B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § l 101(a)(15)(H)(i)(b). The H-1B 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 Vermont Service Center Director denied the petition, concluding that the Petitioner had not established that the proffered position is a specialty occupation.

On appeal, the Petitioner asserts that the Director erred and that the proffered position is a specialty occupation. 1

Upon de nova review, we will dismiss the appeal. 2

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

1 The Petitioner submitted documentation to support 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. 2 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010).

Matter of C-T-A-S- Inc.

(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:

(]) 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. Chertojf, 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").

II. PROFFERED POSITION

The Petitioner listed the Beneficiary's proposed duties, including day-to-day tasks and time allocated to each duty as follows:

Responsible for the day-to-day operational maintenance, support, and upgrades for operating systems, workstations, and servers. 50% Day-to-day tasks:

• Review and analyze application logs using UNIX, Autosys, Oracle, Sybase, and WebLogic for error source and recommend solution;

• Execute application and system changes using UNIX, SQL, Shell scripting; • Respond to system errors/incidents in collaboration with support and development teams.

Under general supervision, performs software installations and upgrades to operating systems and layered software packages. 20% Day-to-day tasks:

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• Analyze and execute software upgrades in collaboration with support and development teams using UNIX, Autosys, Oracle, and Sybase.

Monitors and tunes the system to achieve optimum performance levels. 10% Day-to-day tasks:

• Monitor processes and system job runtimes using UNIX and Autosys; • Responds to errors/issues in Oracle and Autosys with performance due to jobs.

Ensures workstation/server data integrity by evaluating, implementing, and managing appropriate software and hardware solutions. 10% Day-to-day tasks:

• Analyze and execute software upgrades in collaboration with support and development teams using UNIX, Autosys, Oracle, Sybase, SQL, Shell scripting, and WebLogic.

Implements and promotes standard operating procedures. 10% Day-to-day tasks:

• Review and update knowledge articles pertammg to application systems usmg UNIX, Autosys, Oracle, Sybase, SQL, and WebLogic;

• Draft, publish, and train teams on standard operating procedures in using SharePoint, UNIX, Autosys, Oracle, Sybase, SQL, and WebLogic.

The Petitioner initially stated that these duties require "at least a bachelor's degree or its equivalent in a directly related specialty field."

In response to the Director's request for evidence (RFE), the Petitioner elaborated on the duties and revised the amount of time the Beneficiary would spend on the duties. The Petitioner also omitted that the Beneficiary would perform some tasks, under general supervision and omitted that the Beneficiary would work in collaboration with support and development teams. The Petitioner further amended its educational requirement to perform the tasks to a bachelor's degree in computer science, computer engineering, information systems, or directly related specialty IT field.

III. ANALYSIS

Upon review of the record in its totality and for the reasons set out below, 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.

A. First Criterion

The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]), requires that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular

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pos1t10n. To inform this inquiry, we recognize the 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

The Petitioner designated the position on the labor condition application (LCA)4 as a Standard Occupation Classification (SOC) code 15-1142 "Network and Computer Systems Administrators" occupation at a Level I wage. 5 We reviewed the Handbook's subchapter entitled "How to Become a Network and Computer Systems Administrator," which states, in pertinent part, that most network and computer systems administrators have a bachelor's degree in a field related to computer or information science but some employers hire workers with only a postsecondary certificate or an associate's degree. 6 Thus the Handbook provides a range of methods to enter the occupation, from a postsecondary certificate, to an associate's degree, to a bachelor's degree in a field related to computer or information science. The Handbook does not establish a normal minimum requirement for entry into the occupation. Here, the Petitioner's designation of the proposed position as a wage Level I position on the LCA suggests that the proposed position is at the lower requirement level within the Handbook's broad range of acceptable paths to enter the occupation.

The Petitioner also refers to the DOL's Occupational Information Network (O*NET) summary report for the "Network and Computer Systems Administrators" occupation. Though relevant, the information the Petitioner submits from O*NET does not establish eligibility under the first criterion, as it does not establish that a bachelor's degree in a spec[fic specialty, or the equivalent, is normally required. Rather, the DOL designates this occupation as a Job Zone Four occupation, which does not include a requirement for the academic credentials to be directly related to the duties performed. Additionally, the Specific Vocational Preparation (SVP) rating, which is defined as "the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation," cited within O*NET's Job Zone section designates this position as having an SVP 7 < 8. This indicates that the occupation requires "over 2 years up to and including 4 years" of training. 7 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 does not describe how those years are to be divided among training, formal education, and experience - and again it does not specify the particular type of degree, if any, that a position would require. 8

3 The Handbook may be accessed at https://www.bls.gov/ooh. 4 A petitioner is required to submit an LCA to the Depaitment of Labor to demonstrate that it will pay an H-lB 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. § 655.73l(a). 5 We note that the Director incorrectly identified the occupation in their discussion of the first criterion. However, the Petitioner has presented its argument on why its proffered position, under the correct occupation, satisfies the first criterion. We have reviewed that argument on appeal. 6 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-systems­administrators.htm (last visited Aug. 21, 2019). 7 This training may be acquired in a school, work, military, institutional, or vocational environment. Specific vocational training includes: vocational education, apprenticeship training, in-plant training, on-the-job training, and essential experience in other jobs. 8 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/online/svp.

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Further, the O*NET summary report includes a graph of the educational requirements of "respondents" for this occupation. 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 level" for the respondents must be in a specific specialty. Notably, the survey for this occupation indicates that 52% of "respondents" claim to hold a bachelor's degree. The same survey indicates that an additional 20% of "respondents," reported possessing at most an associate' s degree, and a forth er 10% reported some college but no degree, while the remaining 18% did not report. This information is indicative of 52% of the respondents, at most, possessing a general bachelor's degree. These cited sources are insufficient to establish that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally required to perform the duties of the occupation.

We have also reviewed the opinion prepared by.__ ______ __.Associate Professor off omputer Applications and Information Systems, School of Business, University ofl and the Petitioner's assertion thatl Is opinion clarifies the Handbook's report that there are a variety of paths available to enter into the occupation. I !refers to the Petitioner as a company that would clearly be among the companies that would require its systems administrators to have a bachelor's level preparation at a minimum and that the Petitioner would naturally seek out only a Network and Computer Systems Administrator such as those systems administrators among the majority of professionals described in the Handbook and O*NET. However,! ~ does not adequately explain what sets the Petitioner apart from companies that do not require a bachelor's degree in a specific discipline to perform this occupation. All companies desire a candidate who will keep the IT systems functional and optimized. Here, the record does not include sufficient consistent information regarding the proposed position to conclude that the Petitioner's particular position, as described in the record normally requires a bachelor's degree in a specific specialty. The record is deficient in this regard.

Nor is the case law the Petitioner cites sufficient to satisfy the first criterion. The Petitioner cites Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252 (S.D.N.Y. 2017) as relevant here. This case arises out of a different jurisdiction than the instant matter. 9 Nevertheless, even if we considered the logic underlying the matter, we find that the Petitioner has not demonstrated that the proffered position is a specialty occupation. The court in Next Generation Tech., Inc. discussed our reading of the Handbook's discussion of the entry requirements for positions located within a different and separate occupational category "Computer Programmers" rather than the "Network and Computer Systems Administrators" category designated by the Petitioner in the LCA relating to this case. As noted above, the Handbook specifically states that "[some employers] may require only a postsecondary certificate or an associate's degree." Moreover, the court in Next Generation 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

9 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 decision of a United States district court in matters arising even within the same district. See K-S-, 20 T&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 does not have to be followed as a matter of law. Id.

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memorandum cited by the court in Next Generation Tech. Inc. 10 The record does not demonstrate that the position here is analogous to the computer programmer position discussed in the Next Generation Tech., Inc. case.

The Petitioner has not provided sufficient documentation from a probative 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)(]).

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 concentrates upon the common industry practice, 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.

Here and as already discussed, the Petitioner has not established that its proffered position is one for which the Handbook ( or other independent, authoritative sources) reports an industry-wide requirement for at least a bachelor's degree in a specific specialty, 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 indicating that it has made a degree a minimum entry requirement.

In response to the Director's RFE, the Petitioner submitted six job postings to demonstrate that a degree in a specific specialty is a common requirement of the industry for parallel positions among similar organizations. On appeal, the Petitioner asserts that the Director improperly characterized the educational requirements for the advertised positions. We have reviewed the advertisements and agree that the job postings do not refer to bachelor's degrees in data management, statistics, or mathematics, as referenced by the Director. However, we do not find that the advertised positions are parallel to the proffered position. For example, several of the advertisements indicate that "equivalent experience" or a combination of experience and education is acceptable, in lieu of a specific degree. The advertisers do not delineate their standard for determining equivalency and without that essential detail, we cannot ascertain what the advertisers require for a missing academic year of bachelor-level study in a particular discipline. Two of the job postings, in addition to accepting an equivalent

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

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combination of education and experience, also state that a bachelor's degree in computer science, management information systems, or related field is preferred. 11 However, a preference for a specific degree is not equivalent to a requirement for the identified degree. Another advertiser lists a university degree, or equivalent in computer science or related technical field, and an ITIL certification, as the education needed to perform its particular position. Here, the Petitioner does not state that it requires such a certification. The Petitioner does not advance its claim when comparing the proffered position to those positions advertised.

Significantly, all of the advertised positions require that the successful candidate have at least three years of experience and two advertisers require 12 years of experience in addition to a degree. The Petitioner, in this matter, designated the proffered position as requiring only a Level I wage. A Level I wage is appropriate for an entry-level position which requires only up to two years of experience. The Petitioner itself does not claim that any experience is necessary for this particular position. 12 Thus, the advertised positions all appear to be for more senior positions than the position proffered here. It is also not possible to determine important aspects of the advertised jobs, such as the day-to-day responsibilities, complexity of the job duties, supervisory duties (if any), and independent judgment required or the amount of supervision received. The Petitioner has not established that the advertised positions are parallel to the proffered position in terms of primary duties, responsibilities, and required experience. Thus, the advertisements do not assist in establishing a common bachelor's degree requirement in a specific specialty, or its equivalent in its industry for positions that are parallel to its entry-level position. 13

We have again reviewed the opinion pre7ared by I lin relation to this criterion. In support of the first prong of this criterion,ldaims that "[i]t is typical for one of the largest IT firms in the world and a publicly traded and highly respected employer of IT professionals globally to hire a Systems Administrator or someone in a similar professional position, and require the minimum attainment of a Bachelor's Degree in Computer Science, Computer Engineering, Information Systems, or a related specialty IT field for the position." I I however, does not support his conclusory statement with foundational evidence. For example, I I does not provide the results of formal surveys, research, statistics, or other objective quantifying information to substantiate that the Petitioner is "one of the largest IT firms in the world and a publicly traded and highly respected employer of IT professionals globally." Similarly, he does not substantiate what is typical in the

11 One of these two advertisements omits the preference for a management information systems degree. 12 If experience of two or more years is required, the Petitioner would be required to increase the wage level on the certified LCA in order for the LCA to accurately correspond to and supp01t the petition. See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). 13 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 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 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. Sec 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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industry with objective evidence. 14 Although I I may have anecdotal evidence regarding the hiring preferences of companies that visit his university, he has not offered sufficient foundational evidence or analysis to establish that similar companies to the Petitioner in the IT industry commonly require successful candidates to possess a bachelor's degree in a specific specialty to enter into a systems administrator position. Without evidence or analysis, I ts opinion does not assist in establishing this prong of this criterion.

The record does not satisfy the first alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

2. Second Prong

The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) 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.

On appeal, the Petitioner contends that the Director did not consider and off er an explanation for why the revision of the duties provided in response to the Director's RFE were not considered complex or unique. First we note that the Petitioner did not offer an explanation for the change in the Beneficiary's level of responsibility when it deleted phrases indicating that some tasks would be performed under general supervision and that the Beneficiary would work in collaboration with other teams. The Petitioner also did not explain why it re-allocated the Beneficiary's time to particular categories. 15

Second, we emphasize that it is the Petitioner's burden to establish that the duties it describes are complex or unique, not the agency's responsibility. Nevertheless, we will address the Petitioner's particular duty, provided in response to the Director's RFE, that the Petitioner's points to as indicative of complexity on appeal.

The Petitioner stated that part of the Beneficiary's operational maintenance support and upgrades for operating systems, workstations, and servers would include incident detection, assessment, response, and review to reduce incident volume. The Petitioner also noted that the Beneficiary would review knowledge articles and determine opportunities to improve service delivery through improved documentation and training. This description is sufficiently vague that this particular duty may also fall within the parameters ofa "Computer User Support Specialist" occupation, SOC 15-1151, which includes the duty of"[ r] ead technical manuals, confer with users, or conduct computer diagnostics to investigate and resolve problems or to provide technical assistance and support." 16 A "Computer User Support Specialist" occupation is a Job Zone Three occupation, which groups it among occupations

14 We reiterate that neither the Handbook nor O*NET establish a typical hiring requirement in the industry for this particular occupation. 15 The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, the Petitioner cannot offer a new position to the Beneficiary, or materially change a position's title, its level of authority within the organizational hierarchy. its associated job responsibilities, or the requirements of the position. The Petitioner must establish that the position offered to the Beneficiary when the petition was filed merits classification for the benefit sought. See Matter of Michelin Tire COip., 17 T&N Dec. 248, 249 (Reg'l Comm'r 1978). 16 See O*NET Online summary report for "Computer User Support Specialist" at https://www.onetonline.org/link/summary/15- l l 51.00 (last visited Aug. 21. 2019).

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for which "most ... require training in vocational schools, related on-the-job experience, or an associate's degree." 17

We are aware that the Petitioner asserts that this particular duty requires understanding of foundational concepts in code development, computer network infrastructure, databases, programming languages, applied mathematics, and batch processing as well as problem solving and analytical skills. The Petitioner also adds that this duty requires knowledge and understanding of database design, system architecture, data structures, upstream and downstream systems interfaces and file exchange concepts. The Petitioner concludes that this knowledge "can only be gained from specialty coursework in a Bachelor's degree or equivalent in Computer Science, Information Systems, Computer Engineering, or a similar specialty IT field." The Petitioner does not offer an analysis for, or adequately develop the logic of its argument, to support this conclusion. There is insufficient evidence in the record to support the Petitioner's conclusion that knowledge to perform the generally described duties can only be gained from a bachelor's degree, or equivalent in one of the specified fields. We point out that even if the proffered position is a systems administrators position, authoritative sources have reached a contrary conclusion. 18

We have also reviewed the additional revisions made to the initial description and note that the initial description of duties concentrated on the Beneficiary's use of third party technology to perform the duties. The proposed duties provided in response to the Director's RFE adds designing and modifying scripts and driving the defect review meetings among other new tasks. The revised description generally seems to increase the Beneficiary's level of responsibility. Although some of the added tasks are also found within the O*NET's summary report for the "Network and Computer Systems Administrators" occupation, the revisions do not clarify the initial description but appear to change its focus. Thus, the revisions made to the description create ambiguity in the record and farther undermine the Petitioner's claim that its proffered position is a specialty occupation.

We have also reviewed! l's opinion, to understand how or why the dutier proyjde1 in response to the Director's RFE, require a bachelor's degree in a specific specialty. ~---~ repeats the Petitioner's version of the proposed duties provided in response to the Director's RFE and opines that a "Bachelor's Degree in Computer Science, Computer Engineering, Information Systems, or a related specialty IT field, or the equivalent provides the student with the core competencies and skills needed for a Systems Administrator position." I I also lists 36 various courses that could be taken in these fields that would correspond to the duties and prepare a student for the responsibilities of the position. He later refers to three courses, computer programming, design in electrical and computer engineering, and database theory, as Qarticular courses that will prepare a student for the responsibilities of the position. However,! I <loes not offer a meaningful analysis of why the particular duties are so specialized and complex or unique, such that the position itself requires a bachelor's degree in a specific specialty, or its equivalent.

11 Id. 18 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-systems­administrators.htm (last visited Aug. 21, 2019).

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We understand that an individual who takes one or several of these courses may be prepared to perform the duties of this 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 qualifies as a specialty occupation. Thus, whether or not the Beneficiary in this case has completed a specialized course of study directly related to the proffered position is irrelevant to the issue of whether the proffered position qualifies as a specialty occupation, i.e., whether the duties of the proffered position require the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent. Section 2 l 4(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). Neither the Petitioner norl I have established the proffered position qualifies under the statutory or regulatory definition.

We have also reviewed I ts statements that the proffered position is a position that will be performed by an employee with a "strong background in computer science concepts and principles and a great level of responsibility within the comgany" and that this position is a "highly skilled leadership role." This raises questions regarding! Is actual knowledge of the proposed position within the context of the Petitioner's business operations. The Petitioner has designated the proffered fosition as one that requires only a Level I wage, an entry-level position, which appears at odds with_ Is assessment that the position has a great level of responsibility and is a highly skilled leadership role.

The record, including I Is opinion, 19 does not include probative evidence establishing that the proposed position is so complex or unique such that a only an individual with a bachelor's degree in a specific specialty can perform the position.

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. 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 does not include documentary evidence of other employees previously employed in the proffered position and cites confidentiality concerns with regards to this evidence. Although a petitioner may always refuse to submit confidential commercial information if it is deemed too sensitive, the Petitioner must also satisfy the burden of proof and runs the risk of a denial. Cf Matter of Marques, 16 I&N Dec. 314 (BIA 1977) (holding the "respondent had every right to assert his claim under the Fifth Amendment[; however], in so doing he runs the risk that he may fail to carry his burden

19 As the Director noted, we may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int'!, Inc., 19 l&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. Here the opinion presented does not offer a cogent analysis of the duties and why the duties require a bachelor's degree in a specific specialty. MoreoverJ ~oes not appear aware that the Petitioner requires only a basic understanding of the proffered position, as it has designated the position as requiring only a Level I wage.

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of persuasion with respect to his application."). 20 It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). The Petitioner, here, claims that it employs over 72,000 employees worldwide. Here, based on the totality of the record, the lack of information regarding the Petitioner's other employees in this particular position raises questions regarding the Petitioner's actual recruiting and employment practices.

The Petitioner requests that we review its job postings for the proffered position in lieu of evidence establishing its normal hiring requirements. The Petitioner offers two job postings for positions of systems administrator. On appeal, it asserts that these job postings are for positions that have duties that are the same or similar to the proposed position. We have reviewed both job postings for the systems administrators' position and conclude that they are not parallel to the proffered position. Both job postings indicate that a "Bachelors in computer science, network administration, or similar degree AND 5 years' experience are required for this role." As noted above, the Petitioner here does not state that experience is required to perform the duties of the proffered position. Moreover, if 5 years of experience" is required in addition to a bachelor's degree in a specific specialty, the Petitioner has not provided a certified LCA that corresponds to and supports the petition. That is, a requirement of an additional 5 years of experience for a Job Zone Four occupation requires a 3-level increase in the wage level. 21 The Petitioner's submission of these job postings and assertion that these positions are comparable to the entry-level position as designated on the LCA creates farther ambiguity in the record. The inconsistencies raise significant questions regarding the Beneficiary's actual position. 22

The third job posting provided is for a network administrator. The Petitioner asserts on appeal that this position is also similar to the proffered position. This job posting states that the required qualifications include a "B.S. degree in computer science or similar preferred." As stated above, a preference is not a requirement. If the position is similar to the proffered position, the Petitioner's indication that a bachelor's degree in a specific discipline is preferred but not required, undermines its claim that the proffered position is a specialty occupation. 23

20 Both the Freedom oflnformation Act and the Trade Secrets Act provide for the protection of a petitioner's confidential business information when it is submitted to USCIS. See 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. Additionally, the petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600, "Predisclosure Notification Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. Reg. 23,781 (June 23, 1987). 21 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). 22 The LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l ). See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1 B Visas in Specialty Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United States, 65 Fed. Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] with [DOL]."). According to section 212(n)(l)(A) of the Act, an employer must attest that it will pay a holder of an H-lB visa the higher of the prevailing wage in the "area of employment" or the amount paid to other employees with similar experience and qualifications who are performing the same services. See 20 C.F.R. § 655.73 l(a); Venkatraman v. REI Sys., Inc., 417 F.3d 418, 422 & n.3 (4th Cir. 2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal Vojtisek-Lom & Adm 'r Wage & Hour Div. v. Clean Air Tech. Int'/, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 23 A petitioner must demonstrate that the proffered position requires a precise and specific course of study that relates

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The Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3).

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. However, the Petitioner's description of duties includes at most the usual duties of a "Network and Computer Systems Administrators" occupation. 24 The descriptions do not detail the specialized and complex nature of specific duties the Beneficiary will perform. The Petitioner describes a position that involves knowledge of third-party software, servers, and platforms and indicates that the Beneficiary will use the third-party technology extensively. The Petitioner, however, does not develop relative specialization and complexity as an aspect of the proffered position. The proposed duties do not include meaningful discussion of what the Beneficiary will actually be required to do in the proffered position and how those duties require the theoretical and practical application of a body of highly specialized knowledge.

We have again reviewed! ~ s opinion, and again do not find it persuasive.I I does not present a descriptive analysis that supports his ultimate conclusion that the duties described are specialized, requiring a bachelor's degree in computer science, computer engineering, information systems or a related specialty IT field as a minimum. The inconsistencies in the record regarding the level of responsibility, the revisions to the duties, and the ambiguities presented by the Petitioner's own job postings and the proffered position, have not been addressed byl lso that it is clear that he has an understanding of the Beneficiary's actual position and role within the Petitioner's organization. Again 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. Matter of Caron Int'!, Inc., 19 I&N Dec. at 795. Here the opinion presented does not offer a cogent analysis of the duties and why the duties require a bachelor's degree in a specific specialty.

The Petitioner also does not detail why or how the duties of its wage Level I "Network and Computer Systems Administrators" position, which we acknowledge requires some technical skill and knowledge, is elevated to a specialty occupation requiring a detailed course of study leading to at least a bachelor's degree in a specific discipline. 25 The Petitioner does not offer sufficient analysis showing how the duties

directly and closely to the position in question. There must be a close correlation between the required specialized studies and the position; thus, the mere requirement of a degree, without further specification, does not establish the position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 T&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of a college degree for the sake of general education, or to obtain what an employer perceives to be a higher caliber employee, also does not establish eligibility."). Thus, while a general-purpose bachelor's degree may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify a conclusion that a particular position qualifies for classification as a specialty occupation. Royal Siam Co1p., 484 F.3d at 147. 24 The Petitioner's elaboration of the duties provided in response to the Director's RFE, include some duties that appear to fall within the parameters of the occupation designated on the LCA. 25 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a Level TV wage-designation does not definitively establish such a classification. In certain occupations ( e.g., doctors or

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Matter of C-T-A-S- Inc.

are more specialized and complex than "Network and Computer Systems Administrators" positions that are not usually associated with at least a bachelor's degree in a specific specialty, or its equivalent. While a few related courses 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. Upon review, the record lacks sufficiently detailed information to distinguish the proffered position as more specialized and complex or unique from other positions that can be performed by persons without at least a bachelor's degree in a specific specialty, or its equivalent.

The Petitioner has not demonstrated that its proffered position is one with duties sufiiciently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).

Upon review of the totality of the evidence submitted, the Petitioner has not established that more likely than not, the proffered position is a specialty occupation under any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). Moreover, the record does not establish that the Petitioner satisfied the statutory and regulatory definitions of specialty occupation.

IV. CONCLUSION

The appeal will be dismissed for the above stated reasons, with each considered an independent and alternative basis for the decision. 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 ofC-T-A-S-Inc., ID# 4750202 (AAO Aug. 26, 2019)

lawyers), a Level I, 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 TV 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 relevant factor but is not itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act.

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