U.S. Citizenship and Immigration Services

In Re: 8790920

Appeal of Vermont Service Center Decision

Form 1-129, Petition for Nonimmigrant Worker (H-lB)

Non-Precedent Decision of the Administrative Appeals Office

Date: JUNE 18, 2020

The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S . employer to temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and practical application of a body of highly specialized knowledge and (b) the 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 record did not establish that the proffered position is a specialty occupation. On appeal, the Petitioner contends that it has established the proffered position is a specialty occupation.

The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de nova review, we will dismiss the appeal.

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:

( I) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

(3) The employer normally requires a degree or its equivalent for the position; or

( 4) The nature of the specific duties [is] so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

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).

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.

II. PROFFERED POSITION

The Petitioner, a software and computer consulting services firm, indicates that the Beneficiary will be performing duties at the offices of a United States federal agency (end-client) pursuant to agreements between the Petitioner and the end-client. 1 In its support letters, the Petitioner states that the Beneficiary will serve as a systems administrator as part of a team of information technology personnel placed by the Petitioner at the end-client location, and in that position he will:

Support the operations and maintenance of services (physical and virtual), firmware, operating systems, application software, access management, file storage, and backup and recovery for select current and farther [end-client] systems and capabilities.

1 The Petitioner most recently employed the Beneficiary through STEM-related post-completion optional practical training. 8 C.F.R. ~ 274.a.12(c)(3)(i)(B); 8 C.F.R 214.2(t)(l0)(ii)(C).

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The Petitioner provided a description of the proffered position in its initial letter of support and expanded on those duties in response to the Director's request for evidence (RFE). For the sake of brevity, we will not quote the duty descriptions; however, we have closely reviewed and considered the duties. 2 The Petitioner states that the position requires a bachelor's degree or foreign equivalent in computer science, software engineering, or a related technical field, along with "some" work expenence, and summarized the information technology (IT) skills required for the position, as follows:

Operating System: Linux or Windows. Databases: Oracle, PostgreSQL, MySQL, Microsoft MS SQL. Servers: Linux and Windows based servers. Tools and utilities: AWS, EC2, S3, SQL, IAM, RDS, Service Now, VMware, PHP, Apache, NGINX ManageEngine, JIRA. Domain Knowledge: Amazon Web Services, Cloud Environment concepts, Linux Server tools.

III. 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 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. 3

A. End-Client Position Requirements

As a preliminary matter, we observe that the Petitioner has provided insufficient and inconsistent information regarding the minimum requirements for the proffered position. The Petitioner submits contractual documentation from the end-client that details the overarching nature of the information technology work that the Petitioner will perform on behalf of the end-client. For instance, the end­client's task order indicates the Petitioner "shall be responsible for managing and overseeing the activities of all [Petitioner] personnel as well as subcontractor efforts used in performance of this effort." The task order farther specifies:

All foll-time personnel performing work[] on this contract must be on-site and well versed in microcomputer and multi-user software design, development and maintenance. In particular, the [Petitioner] development team must have significant development experience in a) PowerBuilder front-end, Oracle back-end client/server

2 The Petitioner also discusses the Beneficiary's previous coursework for the purpose of correlating the need for the Beneficiary's education with the associated job duties of the position. However, we are required to follow long-standing legal standards and determine first, whether the proffered position qualifies for classification as a specialty occupation. and second, whether the Beneficiary was qualified for the position at the time the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 T&N Dec. 558, 560 (Comm'r 1988) ("The facts of a beneficiary's background only come at issue after it is found that the position in which the petitioner intends to employ him falls within [a specialty occupation]."). 3 The Petitioner submitted documentation to suppmt the H-lB 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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environment, b) Oracle 8.1.7 and 10g database and application server, c) J2EE, and d) .Net environments. The [Petitioner] staff collectively, must have a working knowledge of Adobe Forms, web and graphics design, usability, SharePoint technology, and 508 compliancy issues.

[Petitioner] personnel shall be trained, qualified, and certified under the requirements specified in this contract. ... Resumes submitted for employees assigned to perform under this statement of work shall contain documented experience directly applicable to the functions to be performed. Further, these prior work experiences shall be specific and of sufficient variety and duration that the employee is able to effectively and efficiently perform the functions assigned.

Based on the contractual material presented it appears that the Petitioner will be largely responsible for various operational aspects of the information technology projects in which its staff will be engaged at the end-client location. However, the end-client is to specify the training, qualifications, and certifications required for Petitioner's staff who will perform services under the contract, and the Petitioner will submit resumes and other material to the end-client demonstrating the qualifications of its staff.

The Petitioner maintains that a bachelor's degree or foreign equivalent in computer science, software engineering, or a related technical field, "some" work experience, and certain IT skills are required for the position. Though requested by the Director in her RFE, the Petitioner did not provide copies of the end-client's contractual material, end-client letters, or other evidence to establish the end-client's requirements for the proffered position. 4 Notably, while the end-client material in the record generally references a need for the Petitioner's IT staff to possess "experience directly applicable to the functions to be performed," and for the Petitioner's development team to possess "significant development experience" using various information technology tools, environments, and methodologies, the end-client does not indicate therein that the positions utilized to meet the Petitioner's obligations under the contract require the incumbents to possess a degree in a specific specialty, which would presumably include candidates for the proffered position. The Petitioner must resolve these inconsistencies and ambiguities in the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988).

On appeal, the Petitioner cites to Matter of Chawathe, 25 I&N Dec. at 3 7 6, to state that "[ the Director] ignored or misinterpreted relevant, credible, and probative evidence and applied an elevated standard of proof contrary to law" in denying the petition, asserting that it "gave ample evidence that [the] proffered position is one that requires a Bachelor's degree in [s]oftware [e]ngineering, [c]omputer [s]cience, a related field or the equivalent for entry into the occupation." We disagree. To determine whether a petitioner has met its burden under the preponderance standard, we consider not only the quantity, but also the quality (including relevance, probative value, and credibility) of the evidence.

4 "Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the [petition]." 8 C.F.R. § 103.2(b)(l4).

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Id.; Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). In other words, a petitioner must show that what it claims is "more likely than not" or "probably" true. It is the Petitioner's burden to prove by a preponderance of evidence that it is qualified for the benefit sought in this matter. Id.

Here, the documentation provided does not sufficiently establish the terms and conditions of the Beneficiary's assignment as imposed by the end-client, including the end-client's requirements for the position. 5 See 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). As explained above, we interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed position. The general position requirements for the Petitioner's IT staff discussed by the end-client in the contractual material in the record, which suggests that simply possessing work experience would be sufficient to perform the duties under the contract, alone indicates that the proffered position is not in fact a specialty occupation. For these reasons, the petition may not be approved.

B. Criteria in 8 C.F.R. § 214.2(h)(4)(iii)(A).

The Director concluded the evidence was insufficient to establish that the position qualified as a specialty occupation under at least one of the criteria in 8 C.F.R. § 214.2(h)(4)(iii)(A). On appeal, the Petitioner asserts that the position meets the criteria in subsections (]) and (2) at 8 C.F.R. § 214.2(h)(4)(iii)(A). It does not challenge the Director's determination of ineligibility, under the criteria in subsections (3) or (4) of 8 C.F.R. § 214.2(h)(4)(iii)(A). Accordingly, we will limit our analysis of the evidence as it relates to the first and second criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) and the statutory and regulatory definitions. Section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii).

1. 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 position. To inform this inquiry, we consider the information contained in the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the duties and educational requirements of the wide variety of occupations it addresses. 6 On the certified labor condition application (LCA), 7

the Petitioner designated the proposed position as a Standard Occupation Classification (SOC) code 15-1142 "Network and Computer Systems Administrators" occupation at a Level I wage.

5 Although the Petitioner asserted its own education requirements, similar to the Defensor case, the education details the Petitioner provided are less probative to our analysis than the end-client's requirements. 6 We do not maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category designated by the Petitioner is considered an aspect in establishing the general tasks and responsibilities of a proffered position. Nevertheless, 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 would normally have a minimum, specialty degree requirement or its equivalent, for entry. 7 A petitioner is required to submit an LCA to the Department of Labor 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 2 l 2(n)( I) of the Act; 20 C.F.R. § 655.73 l(a).

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On appeal, the Petitioner asserts that the Handbook reports that "[ m Jost employers require network and computer systems administrators to have a bachelor's degree in a field related to computer or information science"8 and thus this occupation is a specialty occupation. However, the Handbook recognizes in the next sentence that "[ o ]thers may require only a postsecondary certificate or an associate' s degree. " 9 Thus, the Handbook identifies 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. It is the imprecise and varied information in the Handbook regarding the ways to enter this occupation that precludes a conclusion that there is categorically a normal minimum educational requirement for entry into the occupation.

On appeal, the Petitioner presents the 2013 and 2016 Curriculum Guidelines for Undergraduate Degree Programs in Computer Engineering, and the IS 2010 Curriculum Guidelines.for Undergraduate Degree Programs in Information Systems, all published by the Association for Computing Machinery (ACM). These guidelines for potential curriculums are far too broad to establish that a particular position requires a body of highly specialized knowledge that is attained through study at a bachelor-level degree in a specific specialty, or its equivalent. The Petitioner asserts "there is a broad consensus that the general curricular requirements for Bachelor's programs of study in computing fields have been established in direct response to the employment demands of this occupation." Here, the Petitioner suggests that "Network and Computer Systems Administrators" positions are categorically a specialty occupation. However, many technology occupations may be performed with a general degree ( either at the bachelor or associate level) and certifications or undefined experience in a particular program or third-party software.

The Petitioner also refers to the DOL's Occupational Information Network (O*NET) summary report for "Network and Computer Systems Administrators" as establishing that such a position requires a bachelor's degree. However, the O*NET does not state a requirement for a bachelor's degree for this occupation. Rather, it assigns this occupation a Job Zone "Four" rating, which groups it among occupations for which "most ... require a four-year bachelor's degree, but some do not." Significantly, O*NET does not indicate that Job Zone Four occupations require that a bachelor's degree must be in a specific specialty directly related to the occupation. That is, it does not refer to any specific discipline as required, therefore the information is not probative of the proffered position being a specialty occupation. 10 We also note that the O*NET summary report provides the educational requirements for 82% of the "respondents," thus does not account for 100% of the "respondents." The respondents' positions within the occupation are not distinguished by career level ( e.g., entry-level, mid-level, senior-level). Finally, the graph in the summary report does not indicate that the "education level" for the respondents must be in a specific specialty.

8 See DOL's Occupational Outlook Handbook, Network and Computer Systems Administrators, https://www.bls.gov/ooh/computer-and-information-technology/network-and-computer-systems-administrators.htm (last visited Jun. 17, 2020). 9 Id. 10 Similarly, the generalized occupational data presented on appeal from the Bureau of Labor Statistics (BLS) Occupational Requirements Survey is also not persuasive. For instance, the survey analysis presents the relative percentage of "educational attainment for workers 25 years and older by detailed occupation," but does not indicate that the degrees for these workers are in a specific specialty directly related to the occupation.

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The Petitioner cites Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252,267 (S.D.N.Y. 2017) to support its argument that the Handbook establishes its particular position is a specialty occupation. 11

However, 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. 12

See Innova 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 Sols., Inc. 2019 WL 3753334, at *8. Here, the Handbook does not describe the normal minimum educational requirement for the occupation in a categorical manner since some employers accept less than a bachelor's degree.

We conclude the Petitioner has not established that its particular position is among the "Network and Computer Systems Administrators" for which a bachelor's degree in a specific discipline, or its equivalent, is normally required. We incorporate by reference the previous discussion regarding the inconsistent and insufficient evidence regarding the requirements of the position. 13 Again, the Petitioner has the burden to demonstrate that the particular position offered to the Beneficiary is among the "Network and Computer Systems Administrators" or other technology occupations for which a bachelor's degree in a specific specialty, or its equivalent, is normally required. The Petitioner has not established this component of the specialty occupation requirements. Consequently, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).

2. 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.

a. 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.

11 We are not bound to follow the published decision of a United States district court. See Matter of K-S-. 20 T&N Dec. 715, 719-20 (BIA 1993). Nevertheless, even if we considered the logic underlying the matter, we conclude that the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 12 Such professions would include surgeons or attorneys, which indisputably require at least a bachelor's degree for entry into the occupation. 13 Matter of Ho, Dec. at 591-92.

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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 attest 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 Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989) (considering these "factors" to inform the commonality of a degree requirement)).

As already discussed, the Petitioner has not established that its proffered position is one for which the Handbook ( or another independent source) 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. In addition, there are no submissions from the industry's professional association indicating that it has made a degree a minimum entry requirement.

On appeal, the Petitioner submits for the first-time evidence that it describes as "job announcements from other businesses. . . . which share similar characteristics to the Petitioner," in order to demonstrate "that a [b ]achelor' s [ d]egree in a specific, and related field of study, is normally required for the nature of the Petitioner's offered position." However, the Petitioner previously did not address the Director's RFE for "Li ]ob postings or advertisements showing a degree requirement of a bachelor's degree or higher in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar organizations." Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, we will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533,537 (BIA 1988). If the Petitioner had wanted the submitted evidence to be considered, it should have submitted the documents in response to the Director's RFE. Id. Under the circumstances, we need not and do not consider the sufficiency of the evidence submitted for the first time on appeal. 14

The Petitioner submitted an expert opinion letter in response to the Director's RFE authored by In his letter, the professor ( 1) describes the credentials that he asserts qualify

him to opine upon the nature of the proffered position; (2) describes the duties proposed for the Beneficiary; and (3) states that these duties require at least a bachelor's degree, or its equivalent, in computer science, software engineering, or a related field. We carefully evaluated the professor's

14 Furthermore, even if the Petitioner had submitted the job postings to the Director upon request, and 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 does not demonstrate what statistically valid inferences, if any, could be drawn from the job postings with regard to the common educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 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 195-96 ( 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"). As such, it cannot be found that such a limited number of postings that appear to have been consciously selected could credibly refute the conclusions of the Handbook that such a position does not normally require at least a baccalaureate degree in a specific specialty, or its equivalent, for entry into the occupation in the United States.

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assertions in support of the instant petition but find them insufficient. In his letter, the professor states that his assessment is based upon the Director's RFE, the Petitioner's letter of support, the Beneficiary's resume and academic credentials, and his review of the Handbook and O*NET. While the professor provides a brief: general description of the Petitioner's business activities and a description of the end-client's operational activities provided by the Petitioner in the RFE response, he does not demonstrate in-depth knowledge of the organizations' operations or how the duties of the position would actually be performed in the context of the end-client's business enterprise.

Further, the professor's opinion letter does not substantiate his conclusions, such that we can conclude that the Petitioner has met its burden of proof. For instance, the professor indicates that "it is apparent upon review of the O*NET online and the [Handbook], that most positions similar to [the proffered position] at [the Petitioner] require a four-year degree," which as we have already discussed does not establish that the Petitioner's industry requires a degree in a specific specialty for the proffered pos1t10n. While he farther opines that "[g]iven my expertise in the field I am highly qualified to analyze and objectively determine what the educational and experiential requirements are for a given position," he does not reference, cite, or discuss any studies, surveys, industry publications, authoritative publications, or other sources of empirical information which he may have consulted to complete his evaluation, beyond his general references to the Handbook and O*NET.

In addition, the professor quotes the Petitioner's position description verbatim and concludes that the proffered position "has responsibilities and authority commensurate with professional standing." However, he does not reference the specifics of the particular projects or tasks upon which the Beneficiary would work in meaningful detail. While we appreciate his brief discussion of the duties provided by the Petitioner, that description still falls short of providing a meaningful discussion of what the Beneficiary would actually do in the proffered position and how those duties actually require the theoretical and practical application of a body of highly specialized knowledge. For example, the professor indicates:

The skills required to participate in designing, implementing, securing, and maintaining the Linux servers for its test, development, stage, and production environment, work on code and content push using bash and python scripts, work on launching and setting up multiple A WS EC2 instances for new application environments, and review and debug issues related to databases, web servers and backend tools using error logs are learned and refined through [ various computer science and engineering courses] .... This level of skill in the areas of computer science, software engineering requires at least college-level academic training, [acquired] through [the professor's previously stated education requirements for the position].

Here, the professor repeats a partial list of the Beneficiary's duties as submitted by the Petitioner and follows it with a discussion of the coursework involved in obtaining a typical bachelor's degree in computer science or software engineering. The professor then links some of the Beneficiary's duties in the proffered position to a course of study in these degree programs. While we acknowledge that the professor may be attempting to demonstrate how an established curriculum of courses leading to a bachelor's degree in a specific specialty is required to perform the duties of the proffered position, we cannot agree with his analysis. Here, the professor confuses the ability of a degreed computer science person to perform the duties of the proffered position with a degree requirement in order to

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perform the duties. While the professor may draw inferences that computer science related courses may be beneficial in performing certain duties of the position, we disagree with his inference that such a degree is required in order to perform the duties of the proffered position. Put simply, stating for example that a person with a bachelor's degree in computer science could perform the duties of the proffered position is not the same as stating that such a degree is required to perform those duties. As such, the professor's analysis misconstrues the statutory and regulatory requirements of a specialty occupation.

Additionally, the record does not indicate whether the professor was aware that as indicated by the Level I wage on the LCA, the Petitioner considered the proffered position to be for an employee who is expected to have a basic understanding of the occupation that requires limited, if any, exercise of judgment, close supervision, close monitoring of work for accuracy, and specific instructions on required tasks and expected results. 15

For the reasons discussed, we conclude that the Petitioner has not demonstrated that the professor possessed the requisite information to adequately assess the nature of the position and appropriately determine parallel positions based upon the job duties and level ofresponsibilities. 16 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. We are ultimately responsible for making the final determination regarding an individual's eligibility for the benefit sought; the submission of expert opinion letters is not presumptive evidence of eligibility. Id.; see also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but rather is admissible only if 'it will assist the trier of fact to understand the evidence or to determine a fact in issue."'). 17 We find that this evaluation does not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) and, for the sake of brevity we will not address other deficiencies within the professor's analyses of the proffered position.

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).

15 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009); http://www.foreignlaborcert.doleta.gov/pdt;NPWHC _Guidance_ Revised _l 1_2009.pdf. 16 On appeal, the Petitioner objects to similar concerns expressed by the Director in her denial regarding the professor's opinion letter, indicating "there is absolutely no evidence provided by [USCTS] that the Adjudicating Officer who wrote this denial is qualified [], or is eligible to make an expert detennination about the Petitioner's field and its degree requirements." Here, the Petitioner seeks to shitt the evidentiary burden in these proceedings from the Petitioner to USCTS, which would be contrary to section 291 of the Act, 8 U.S.C. § 1361. 17 We hereby incorporate our discussion of the professor's letter into our discussion of the other 8 C.F.R. § 214.2(h)(4)(iii)(A) criteria.

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b. 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.

When determining whether a position is a specialty occupation, we look at whether the position actually requires the theoretical and practical application of a body of highly specialized knowledge attained through at least a baccalaureate degree in a specific discipline. Upon review of the totality of the record, the Petitioner has not sufficiently explained or documented why the proffered position is so complex or unique that a bachelor's degree in a specific specialty is required. A crucial aspect of this matter is whether the Petitioner has submitted sufficient and consistent evidence describing the proffered position such that we may discern the nature of the position.

Although the Petitioner has provided an extensive job description with percentages of time spent on each duty on appeal, we conclude the job description and the other evidence in the record does not sufficiently detail the claimed complexity or uniqueness of the job duties. The Petitioner provided many vague and general job duties, including "[ m ]onitor, maintain, and optimize operating systems, applications, and vendor specific software supporting the servers and/or peripheral equipment," and "[p ]lan, implement, install, and monitor system backup capabilities." These descriptions, among others, illustrate how the Petitioner has not explained in detail how the proffered position's duties require the theoretical and practical application of a body of highly specialized knowledge.

On appeal, the Petitioner further asserts "there are many U.S. Government specific knowledge, experience, and skills necessary to be successful [in the proffered position] such as cybersecurity tools and techniques, security vulnerability remediation techniques and compliance documentation and planning." However, the Petitioner did not provide copies of the end-client's contractual material, end-client letters, or other evidence to establish the end-client's requirements for the proffered position sufficient to substantiate the Petitioner's assertions on appeal. For instance, the end-client's statement of work reflects that "[the Petitioner] staff: collectively, must have a working knowledge of Adobe Forms, web and graphics design, usability, SharePoint technology, and 508 compliancy issues," but the record does not adequately demonstrate the complexity and uniqueness of the "U.S. Government specific knowledge, experience, and skills" which the Petitioner claims are "necessary" to perform the duties of the proffered position.

The Petitioner also submits brief descriptions of the various end-client projects underway, along with an organization chart for the Petitioner's software development team at the end-client location. The chart indicates that the Beneficiary and another individual are employed as Linux system administrators, and report to the Linux team tech manager. It provides copies of material as evidence of the Beneficiary's work product, that largely consist of work emails from an end-client manager which are so heavily redacted they do not provide any insight to the information technology activities being discussed therein. For instance, one email is wholly redacted but for the statement "[p]lease let me know when the push has started and when it's finished so we can confirm the updates," while the unredacted portion of another email simply states "[ c ]ontent push is completed and cache has been cleared on both App servers." Another document, entitled "[INFRA-1009] Set up the Production Environment for BPM 8.6," shows that the Beneficiary was assigned tasks, such as "[ c ]reate security

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group for BPM PROD RDS," "[ c ]reate masterdb username and password," and "export profile PSPDmgr0l to bpm86.pro." Other duties listed by the Petitioner involve programming languages such as SQL and Oracle, which O*NET lists are typical skills of network and computer systems administrators. The Petitioner has not sufficiently explained why the described information technology procedures performed by the Beneficiary and the underlying programming languages that he will utilize must be learned in a bachelor's degree program in a specific specialty or why the Beneficiary's use of them is complex or unique.

On appeal, the Petitioner asserts that a level I wage does not preclude a position's consideration as a specialty occupation. We agree that 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. However, in general, a petitioner must distinguish its proffered position from others within the same occupation through the proper wage level designation to indicate factors such as the relative complexity of the job duties, the level of judgment, the amount and level of supervision, and the level of understanding required to perform the job duties. 18 Here, the Petitioner does not sufficiently develop the complexity or uniqueness aspect of the proffered position and has not designated the proffered position as requiring more than an entry-level wage which requires a basic understanding of the occupation. If an individual with a postsecondary certificate or an associate' s degree may enter the occupation, as described in the Handbook, the Petitioner must offer some evidence distinguishing its particular position from such positions within this occupation. The Petitioner's designation of the proffered position as requiring only a Level I wage reinforces our conclusion that the position is not particularly specialized and complex.

In summary, the record lacks sufficiently detailed and unambiguous information to distinguish the proffered position as unique from or more specialized and complex than other closely related positions that can be performed by persons without at least a bachelor's degree in a specific specialty, or its equivalent. 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).

IV. CONCLUSION

The Petitioner has not presented evidence or argument sufficient to establish that, more likely than not, the proffered position is a specialty occupation as defined by the regulations and the statute. In visa petition proceedings, it is a 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.

18 Prevailing Wage Determination Policy Guidance, supra.

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