U.S. Citizenship and Immigration Services

In Re: 9687043

Appeal of California Service Center Decision

Form 1-129, Petition for Nonimmigrant Worker (H-18)

Non-Precedent Decision of the Administrative Appeals Office

Date: SEPT. 14, 2020

The Petitioner, a medical practice, seeks to temporarily employ the Beneficiary as a "clinical informatics director" under the H-18 nonimmigrant classification for specialty occupations. 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-18 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 California Service Center denied the petition, concluding that the record did not establish that the proffered position is a specialty occupation. The matter is now before us on appeal.

The Petitioner bears the burden of proof to demonstrate el igibi I ity by a preponderance of the evidence. 1

We review the questions in this matter de novo. 2 Upon de nova review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section 101(a)(15)(H)(i)(b) of the Act defines an H-18 nonimmigrant as a foreign national "who is coming temporarily to the United States to perform services ... in a specialty occupation described in section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the term "specialty occupation" as an occupation that requires "theoretical and practical application of a body of highly specialized knowledge, and 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 section 214(i)(I) of the Act but adds a non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the proffered position must meet one of four criteria to qualify as a specialty occupation position. 3 Lastly,

1 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 2 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 3 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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").

8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national who "will perform services in a specialty occupation ... "(emphasis added).

Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we look to the record to ascertain the services the Beneficiary will perform and whether such services require the theoretical and practical application of a body of highly specialized knowledge attained through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (1) the normal minimum educational requirement for entry into the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus appropriate for review for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the second alternate prong of criterion 2; (4) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and complexity of the specific duties, which is the focus of criterion 4. 4

By regulation, the Director is charged with determining whether the petition involves a specialty occupation as defined in section 214(i)(1) of the Act. 5 The Director may request additional evidence in the course of making this determination. 6 In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to be eligible through adjudication. 7

II. ANALYSIS

Upon review of the record in its totality, we conclude that the Petitioner has not adequately established the services the Beneficiary will perform, which precludes a determination of whether the proffered position qualifies as a specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(i)(A)(1), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 8

Specifically, the record (1) does not contain sufficient evidence regarding the duties the Beneficiary will perform; and (2) has inconsistencies that undermine the Petitioner's claims regarding the proffered position.

4 8 C.F.R. § 214.2(h)(4)(iii)(A). 5 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 6 8 C.F.R. § 103.2(b)(8). 7 8 C.F.R. § 103.2(b)(1). 8 The Petitioner submitted documentation to support the H-1B petition, including evidence regarding the proffered position and its business operations. Although we may not discuss every document submitted, we have reviewed and considered each one.

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A. Nature of the Position

The Petitioner is a medical practice established in 2017 with five employees. 9 The Petitioner claims to "provide data-driven healthcare services" which include direct primary care, occupational health care, telemedicine, healthcare professionals and health informatics training, and services in healthcare migration data.

The Petitioner identifies the proposed duties as follows: 10

I Assess the in-house electronic health record system performance and resolve technical issues with clinical care and patient health management technology as it relates to user accessibility, usability, workflow/processes, policies, and procedures. [25%]

I Evaluate a decision support system for clinical care, medication, disease surveillance and disease reporting, identify gaps, prepare a brief/concept note for the potential solutions. [25%]

I Meeting with leadership, staff, patients, and other professionals to promote medical informatics awareness. [6%]

I Develop and test health informatics application prototypes. [32%] I Perform the Electronic Health Record System maintenance and deploy or upgrade

informatics tools and systems and other ad-hoc tasks. [12%]

The Petitioner designated the proffered position, "clinical informatics director," on the labor condition application (LCA) 11 as a Standard Occupation Classification (SOC) code 15-1121 "Computer Systems Analysts" occupation, at a Level I (entry level) wage. In its response to the RFE, the Petitioner clarifies the proffered position is classified as SOC code 15-1121.01 "Informatics Nurse Specialists," a subcategory under "Computer Systems Analysts." However, the job duties for the proffered position do not involve nursing and is not written with enough detail for us to determine if the Beneficiary would be handling nursing data. 12 The duties for the occupation in O*NET appear to be written for

9 The Petitioner submitted its tax return from 2017; it indicates that gross income is $66,305 and net income is $13,482. The record does not contain any other tax returns. 10 The Petitioner provided an expanded duties list in response to the Director's request for evidence (RFE). While we will not quote the entire description for the sake of brevity, we have reviewed and considered it and note that it is not inclusive of duties presented elsewhere in the record. 11 A petitioner is required to submit an LCA to the Department of Labor to demonstrate that it will pay an H-1B 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)(1) of the Act; 20 C.F.R. § 655.731(a). 12 On appeal, to establish that a minimum of at least a bachelor's degree is required for entry into the occupation, the Petitioner submits letters dated July 21, 2014 and September 20, 2016, addressed to the Standard Occupational Classification Policy Committee at the U.S. Bureau of Labor Statistics (BLS), authored by several organizations and schools, requesting a SOC designation for health informatics practitioners. The letters do not identify a specific course of study or specialized knowledge necessary for the occupation and are not probative with respect to the educational requirements of the occupation. However, they provide some insight into the proposed occupation. For example, the September 20, 2016 letter to BLS submitted in support of the petition references that, "Nursing Informatics has been a recognized nursing specialty."

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nurses. 13 However, the Petitioner submits evidence that there is not an SOC code for clinical informatics professionals, and asserts its proffered position has duties that align with the occupation and also that of a "Computer Systems Analyst." The record does not persuasively support the Petitioner's assertions.

As written, the duties are described such that we are unable to discern 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. For example, a quarter of the Beneficiary's time will be to "assess the in-house electronic health record system performance" by design[ing], develop[ing] and deploy[ing] informatics tools and systems, to enable clinical care surveillance and clinic population-based studies" in "Charm electronic health records (EHR)." The record does not provide context for this duty, only identifies one digital software used by Petitioner, and does not provide details on the volume of records this 5 employee practice handles. In describing some of the duties under the task "[e]valuate a decision support system ... " the Petitioner explains that the Beneficiary will conduct research on "secondary use of medications and its impact on the patient population," and Medicare's payment system, but the record does not contain evidence to substantiate such research. We are therefore unable to ascertain the complexity or specialized nature of these duties.

Rather than explaining the aforementioned duties or placing them in context within the organizational structure of Petitioner's practice, the support letters in the record highlight additional duties not mentioned above. For example, within its letters submitted in support of the initial petition, the Petitioner describes the Beneficiary's duties to include "write research grants and professional documentation of work performed for both internal and external consumption including technical presentation, business reports, peer reviewed and non-peer reviewed publications." This duty does not align with that of an "informatics nurse specialist" or a "computer systems analyst" and the Petitioner does not provide sufficient information regarding its research projects such as current or past projects, relevance to its operations, resources dedicated to the research, potential duration, or the types of grants they are applying for so we may ascertain how this duty relates to the overall nature of the position. Similarly, the Petitioner states "[t]he position requires familiarity with project management and prototype development in general, development of appropriate data security provisions and protocols, ... data architecture and data mining skills," and "exploring new technologies such as Artificial Intelligence." However, the Petitioner does not provide context for these highly technical duties, such as how they align with the occupational category designated by the Petitioner in the LCA or their relevance in the overall structure of its business operations. Although "computer systems analysts" test, maintain and monitor computer programs, and develop system design procedures, 14 these more technical designing, creating, and researching new technology duties discussed in the record appear to be outside the scope of a "computer systems analyst" or "informatics nurse specialist. " 15

13 See O*NET Online Summary Report for "15-1121.01 - Informatics Nurse Specialists," https://www.onetonline.org/link/summary/15-1121.01 (last visited Sept. 11, 2020). 14 See O*NET Online Summary Report for "15-1121.00 - Computer Systems Analysts," https://www.onetonline.org/link/summary/15-1121.00 (last visited Sept. 11, 2020). 15 While we need not determine which occupational category best applies to the proffered position, we note similarities between the proffered duties and those of "Computer and Information Research Scientists," SOC 15-1111.00, who are

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While the proffered position is designated a "clinical informatics director," the Petitioner has not provided sufficient evidence of its business operations to demonstrate the Beneficiary's actual role within its organization. The proffered position's duties do not mention managerial or supervisory tasks and the record is unclear as to whether the Petitioner is truly employing someone in a "director's" role. 16 The Petitioner does not include its organizational chart, describe its staffing, or otherwise provide evidence of its organizational hierarchy to clarify the record. The Petitioner states the Beneficiary has been in its employ as a "clinical informatics analyst/tableau developer" since December 1, 2018 but does not provide information regarding the duties and responsibilities of the other four employees. In a letter submitted on appeal, the Petitioner refers to its "Clinical Informatics Director" who "prevented further damage to [the Petitioner's] payment systems." The steps were not described in detail to ascertain whether they were specialized or complex in nature and based on this information, it is unclear if the Petitioner has multiple informatics personnel. One of duties of the proffered position is "meeting with leadership, staff, patients, and other professionals to promote medical informatics awareness." However, leadership and staff were not identified, nor were their roles, and the record does not clarify who are the "other professionals." Within the duties of the proffered position, the Petitioner states the Beneficiary would "perform related duties and responsibilities as required." In its daily duties description for the proffered position, the Petitioner states maintaining electronic records, deploying or upgrading informatics tools and systems and other ad hoc tasks would make up 12% of the Beneficiary's time. However, electronic systems maintenance and developing informatics tools are covered under other duties. The Petitioner does not address what these ad hoc duties entail, whether they are the extraneous duties mentioned in its letters, whether they would be H-lB caliber duties and if so whether they fall within a higher paying occupation. Without additional information, it cannot be ascertained how the performance of these ad hoc duties affects the occupational classification of the position. 17

tasked with directing network security measures, creating and applying new technology and publishing their findings in academic journals. See O*NET Online Summary Report for "15-1111.01 - Computer and Information Research Scientists," https://www.onetonline.org/link/details/15-1111.00 (last visited Sept. 11, 2020). 16 According to the 2014 letter to BLS, a "Clinical Informatics Director" would best be categorized under the SOC code 11-9111 for "Medical and Health Services Managers." Occupational Information Network (O*NET)'s description for "medical and health services managers" contains managerial, supervisory, planning, overseeing and implementing duties. See O*NET Online Summary Report for "11-9111- Medical and Health Services Managers," https://www.onetonline.org/link/summary/11-9111.00 (last visited Sept. 11, 2020). The job duties for the proffered position do not mention supervisory or managerial tasks, however, the Petitioner's support letters describe the Beneficiary as implementing data migration and developing staff training guidelines. Moreover, due to the vague job description, it is unclear if tasks, such as, establishing clinical care surveillance, maintaining clinical care and patient health practices and health data, align with a director's level position, i.e. "Medical and Health Services Managers" or a less senior position, i.e. "Informatics Nurse Specialists." 17 If the Petitioner's duties for the position fall under more than one occupational category, it should have chosen the relevant occupational code for the highest paying occupation, which is not "Computer Systems Analysts." See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009); http://flcdatacenter.com/download/NPWHCGuidance_Revised_11_2009.pdf. We have noted two other occupational categories supported by the record, undermining that the LCA corresponds to the petition, including the occupational category certified therein. See Section 212(n)(1) of the Act; 20 C.F.R. § 655.731(a). At the time the Petitioner's LCA was certified, the Level I prevailing wage in the area of intended employment for "Computer and Information Research Scientists" was $34.41 per hour, and for "Medical and Health Services Managers" was $32.19 per hour, which is higher than the prevailing wage for "Computer Systems Analysts" of $29.83 per hour. See https://flcdatacenter.com/OESWizardStart.aspx.

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The Petitioner also selected the Level I or entry level wage as consonant with the job requirements, necessary experience, education, and special skills/other requirements of the proffered position. 18

However, the Petitioner's statements and submissions in the record undermine its assertions regarding the Level I wage. For example, Petitioner's support letters state, "[t]he position required is for an experienced Clinical lnformaticist" with a "comprehensive understanding of healthcare and health information technologies" (emphasis added). The "duties require [the Beneficiary] to be proficient in the field of [h]ealthcare [i]nformation [s]ystem implementation ... " (emphasis added).

The Petitioner submits opinion letters in support of its petition. One letter is from I I a Professor and Director at the at thel I I I for The University L-----------~---_____. here the Beneficiary obtained his graduate degree in biomedical informatics. ,___ ___ ___, "endorse[s] that the [Petitioner's] Clinical Informatics Director's role requires complex and specialized skill sets, which are only gained through graduate-level education or several ears of ex erience in the field after a bachelor's degree." The second opinion letter is fro · · Professor at the I lat the University at I I Similarly,! I states, "[w]ith my several years o experience in researc an teaching in the biomedical informatics field, I view [the Beneficiary's] duties as Clinical Informatics Director [for the Petitioner] as highly complex and re uirin multidisciplinary skill sets with an advanced degree." A third letter was submitted by a radiologist and Medical Director for an imaging center physically located near the Petitioner . .__ __ _.states, "[c]andidacy for this position also requires a master's or other advanced degree in some combination of health and computer sciences." The Petitioner submitted a fourth letter brl I who is the Vice President of Sales for an electronic health records system. I states, "I attest that the [proffered] position ... [with the Petitioner] requires an advanced degree (Master's or Ph.D.) for the job duties of this position." I I adds, the position requires "a complex set of skills" and "many years of experience in the field." In other words, the Petitioner and the supporting record contend that this position involves duties that are more complex and specialized and require more education and experience than the duties typically performed by entry level "informatics nurse specialists" or "computer systems analysts." If so, this would indicate that the proffered position has special skills and advanced degree requirements, which would then render the Level I wage rate inappropriate. 19 The Petitioner has not reconciled the Level I wage rate with its claims about this position's relative complexity, specialization, or uniqueness. 20

18 A prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill requirements of the Petitioner's job opportunity. See Prevailing Wage Determination Policy Guidance, available at http://flcdatacenter.com/download/NPWHC_Guidance_ Revised_11_2009.pdf. 19 The employer's requirements for experience, education, training, and special skills shall be compared to those generally required for an occupation as described in O*NET. If there are any requirements above those generally required for an occupation, then one or more points should be added to the appropriate wage column(s). U.S. Dep't of Labor, Emp't & Training Adm in., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs, supra. 20 To clarify, the Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is particularly specialized and complex, 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 IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 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 IV wage-designation would not reflect that

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B. Minimum Requirements

We also find that there are numerous inconsistencies in the record that call into question the accuracy of the Petitioner's statements regarding the proffered position. 21 The Petitioner does not consistently identify a degree or related degrees that would be minimally required to perform the duties of the proffered position. In its initial filing, the Petitioner's support letter states, "[t]he position required is for an experienced Clinical lnformaticist who has education and experience in healthcare and informatics." While general fields of study are identified, the Petitioner does not identify degrees required for the proffered position. In satisfying the specialty occupation requirements, both the Act and the regulations require a bachelor's degree in a specific specialty, or its equivalent. In general, provided that the specialties are closely related, e.g., chemistry and biochemistry, a minimum of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in the specific specialty (or its equivalent)" requirement of section 214(i)(l)(B) of the Act. In such a case, the required "body of highly specialized knowledge" would essentially be the same. Since there must be a close correlation between the required "body of highly specialized knowledge" and the position, however, a minimum entry requirement of a degree in disparate fields would not meet the statutory requirement that the degree be "in the specific specialty (or its equivalent)," unless the Petitioner establishes how each field is directly related to the duties and responsibilities of the particular position. Section 214(i)(l)(B) of the Act (emphasis added). Here the Petitioner does not consistently identify fields of study, much less degrees in the fields that are directly related to the duties and responsibilities of the particular position.

The Petitioner asserts the minimum requirement is a bachelor's degree but is inconsistent on what degree or specialty is required for the proffered position. The Petitioner states that O*NET requires a bachelor's degree for the "informatics nurse specialists" so the occupation is a specialty occupation. 22

Contrary to the assertions of the Petitioner, 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."23

Further, even if a majority of the occupation requires at least a bachelor's degree, O*NET, which only provides general information regarding the occupation, does not indicate that four-year bachelor's degrees required by Job Zone Four occupations must be in a specific specialty directly related to the occupation. 24 Therefore, O*NET information is not probative of the proffered position being a specialty occupation.

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. 21 "[l]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 19 l&N Dec. 582, 591 {BIA 1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the Petitioner submits competent objective evidence pointing to where the truth lies. Id. at 591-92. 22 The Petitioner's claim that a bachelor's degree is a sufficient minimum requirement for entry into the proffered position is inadequate to establish that the proposed position qualifies as a specialty occupation. Cf. Matter of Michael Hertz Assocs., 19 l&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."). 23 O*NET Online Summary Report for "15-1121.01 Informatics Nurse Specialists," https://www.onetonline.org/link/summary/15-1121.01 (last visited Sept. 11, 2020); O*NET Online Help - Job Zones, http://www.onetonline.org/help/online/zones (last visited Sept. 11, 2020). 24 See Id.

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The Petitioner asserts that the U.S. Department of Labor's (DOL) Occupational Outlook Handbook's (Handbook) statement "most computer systems analysts have a bachelor's degree in a computer-related field" means the occupation meets 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), citing to a rescinded policy memorandum 25 and Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252 (S.D.N.Y. 2017). 26 Of note, the court in Next Generation Tech., Inc. discussed the entry requirements for positions located within a different and separate occupational category "Computer Programmers" rather than the "Computer Systems Analysts" category designated by the Petitioner in the LCA relating to this case. 27 Also 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. 28 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. For example, programming or technical expertise not gained through bachelor's-level study may be acceptable to enter into this occupation. 29 Further, the Handbook states that business and I iberal arts degrees may be acceptable. 30 The Handbook does not identify a specific discipline required to perform the duties of the occupation, or support a conclusion that the occupation of "computer systems analysts" normally requires a minimum of a bachelor's degree in a specific specialty, or its equivalent. The lnnova court concluded: "[a]ccordingly, [the Petitioner] could not simply rely on [the Handbook] profile, and instead ha[s] the burden to show that the particular position offered to [the Beneficiary] [is] among the Computer Programmer positions for which a bachelor's degree [is] normally required." 31 The Petitioner has a similar burden here. 32

The Petitioner asserts that the opinion letters in the record support a minimum degree requirement of a bachelor's in computer and health science. I I does not identify a degree requirement but

25 The Petitioner claims computer related positions require a bachelor's degree and cites the legacy Immigration and Naturalization Service (INS) memorandum from the Nebraska Service Center Director, Terry Way ("Terry Way memo"). However, the Terry Way memo has now been rescinded. See USCIS Policy Memorandum PM-602-0142, Rescission of the December 22, 2000 "Guidance memo on HlB computer related positions" (Mar. 31 , 2017), https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRe1atedPositionsRecission.pdf. 26 We first note that 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. See Matter of K-S-, 20 l&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. 21 Id. 28 See lnnova Sols. , Inc. v. Baran, 399 F. Supp. 3d 1004, 1015 (N.D. Cal. 2019) (declining to follow Next Generation Tech. , Inc.); see also Xiaotong Liu v. Baran, 2018 WL 7348851 (C.D. Cal. Dec. 21, 2018). 29 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Systems Analysts, https://www.bls.gov/OOH/computer-and-information-technology/computer-systems-analysts.htm#tab-4 (last visited Sept. 11, 2020). 30 Id. 31 lnnova Sols. , Inc. 399 F. Supp. 3d at 1015. 32 Although the Petitioner relies on the Handbook to support arguments on appeal, it also asserts that the Director "illogically" and "erroneously ... focus[ed] [her] adjudication around the [Handbook] as the Handbook "does not take into account many occupations, [including] the Informatics Nurse Specialist." It adds the Director's decision "centering on the Handbook is corrupt." While it would be erroneous to accord to the Handbook the weight or directive power of statute, regulation, or any legally binding document or directive, this was not how the Handbook was used in the Director's analysis. Of note, the Petitioner provided arguments relying on the Handbook in its response to the Director's RFE, which the Director addressed in her analysis of the first criterion. Also, as the Director's decision does not refer to the Handbook in the remainder of her analysis, it is not clear why the Petitioner believes the decision was "focused" or "centered" around the Handbook.

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describes the courses that contribute to the "interdisciplinary field" of "Biomedical/Clinical informatics." He lists a number of graduate level courses offered by his institution that he believes would provide the skill set necessary to perform the duties of the proffered position. 33 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. Similarly, I I states, "a sound knowledge of information technology and the healthcare profession is [a] must" but does not identify a degree requirement. I I rather than identifying a specific course of study, vaguely states that "some" combination of health and computer science knowledge would prepare an individual for the position. According tq I in order to perform the duties of the proffered position, "the qualified individual needs a complex set of skills, which can be achieved only through Bachelor's or higher-level studies in computer science and healthcare." I I does not identify degrees or a course of study that would be required to perform the job duties or would be the minimum entry requirement to the industry. 34

As evidence of a degree requirement, the Petitioner includes an article from the Online Journal of Nursing Informatics, which states, "Healthcare Informatics is defined as the 'integration of healthcare science, computer science, information science and cognitive science to assist in the management of healthcare information."' The article does not designate a degree requirement for the position but names various sciences that "assist" in the field.

The Petitioner also submits 15 job advertisements and states "the requirement of at least a bachelor's degree in computer science and Biomedical Informatics or a related field or the equivalent is common to positions like the Petitioner's position with substantively similar job duties within the Medical industry in which Petitioner operates." On appeal, the Petitioner states, a "minimum of a bachelor's degree in a computer related field or a health-related field" is common to the industry. The job advertisements are from various sources and as a result, only some list the size of the company. The descriptions of the companies vary in length and detail and do not provide enough information to ascertain whether they are similar to the Petitioner. The descriptions of the job duties also vary and some are too vague to tell whether they are parallel to the proffered position. The years of experience required for entry into these positions vary as well, with some requiring none, others up to 5 years, and the experience requested are in various areas of study. For example, one company asks for three or more years of clinical informatics analyst experience, while another asks for five years in the healthcare or managed care industries, while another asks for a year in insurance, managed care, or data analysis. In sum, despite the Petitioner's statement that the job advertisements establish that the industry requirement is a degree in computer science and biomedical informatics, only two of the 15

33 The record contains course descriptions for the courses taken by the Beneficiary. We observe thatl llists a number of courses that correlate with the Beneficiary's coursework as providing the skillsets and ability to perform the day-to-day duties of the position. On appeal, the Petitioner argues that the course breakdown establishes the complexity and uniqueness of the proffered position. However, the test to establish a position as a specialty occupation is not the skill set, experience, or education of a proposed beneficiary, but whether the position itself qualifies as a specialty occupation. See Cf. Matter of Michael Hertz Assocs., at 560 ("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].") 34 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").

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companies require a computer science degree, one requires a degree in clinical informatics and two requires computer science or health informatics.

Moreover, the job advertisements list alternative degrees to include bachelor's degrees in health information technology, healthcare, information sciences, health information management, statistics, economics, engineering, medical technology, health care statistics, public health economics, epidemiology, mathematics, information technology, finance, mathematics, healthcare administration. Other acceptable degrees listed include MD, NP, RN, PharmD. One job advertisement accepts any bachelor's degree. On appeal the Petitioner argues that the breadth of the degree requirements is due to the occupational category, and that the "degrees must be related to the health industry or occupations where computer programming/software use is heavily used." Rather than explaining how these various degrees establish the degree requirement in a specific specialty, the Petitioner basically comes to the determination this occupation is multidisciplinary and accepts a number of degrees. Absent evidence of a direct relationship between the claimed degrees required and the duties and responsibilities of the position, it cannot be found that the proffered position requires anything more than a general bachelor's degree.

Furthermore, the information submitted on appeal does not clarify the record as to the minimum degree requirement. 35 In the supporting appeal brief, the Petitioner again states different requirements for the proffered position, this time stating the degree requirement is "a minimum bachelor's degree with a sound knowledge of medicine and technology."36

Also submitted on appeal is an opinion letter by,___ _________ __. a "chief marketing officer and executive vice president" of a "global digital transformation IT consulting company." D

I !opines that "Clinical Informatics is[] a complex domain" and "the degree programs will include a blend of information technology and healthcare topics, as well as discussion about ethical and legal issues that pertain to this field." He states that Clinical Informatics professionals have either a bachelors or master's degree and very limited colleges and universities have developed specialized programs. 37 To inform his opinion.I !states he reviewed the "job posting" for the proffered position and degree requirement for four similar jobs in the federal government. 38 Even assuming! !possesses expertise on the educational requirements for the position, his letter does not identify degree requirements or substantiate his conclusions, such that we can conclude

35 As an example, the 2016 letter to BLS submitted on appeal describes health informatics as "largely a multidisciplinary, interprofessional endeavor combining expertise in computational fields of computer sciences, information sciences or data analytics, as well as in clinical fields, such as physician, nursing, dentistry, or pharmacy. 36 On appeal, the Petitioner asserts that medicine and health are identified as specialty occupations within 8 C.F.R. § 214.2(h)(4)(ii) and since the occupation of "informatics nurse specialist" is related to health and medicine, it is inherently a specialty occupation. This is not an accurate reading of the regulation, which requires the "theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor, including ... medicine and health .. and requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States." 8 C.F.R. § 214.2(h)(4)(ii) (emphasis added). 37 This statement is contradicted by the record. The September 20, 2016 letter to BLS states, there are "over 50 graduate degree programs in Health Informatics." 381 I does not provide information on the jobs he believes are "similar" to the proffered position, other than to mention he found them on https://www.usajobs.gov and provides their titles: records and information management specialist, health system specialist, program analyst (informatics) and supervisor medical records administrator. These jobs would not be in a similar industry as the Petitioner and we are unable to ascertain whether they are parallel to the proffered position just based on their titles.

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that the Petitioner has met its burden of proof. 39 Similar to the other opinion letters,~!-----~ does not reference, cite, or discuss studies, surveys, industry publications, authoritative publications, or other sources of empirical information, which he may have consulted to complete his evaluation on the educational requirements. For the reasons discussed, we conclude that the opinion letters are insufficient to establish that the proffered position is a specialty occupation. Matter of Caron lnt'I, 19 l&N Dec. 791, 795 (Comm'r 1988) (The service is not required to accept or may give less weight to an advisory opinion when it is "not in accord with other information or is in any way questionable.").

The Petitioner does not consistently identify areas of study, much less a degree or related degrees that would be minimally required to perform the duties of the proffered position. Absent this evidence, we cannot conclude that the particular position proffered in this matter requires the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. The Petitioner has not satisfied the definition of specialty occupation as set out in the Act.

Furthermore, while the proffered position may qualify as a specialty occupation if the record sufficiently and consistently demonstrates the duties and requirements of the position in the context of the Petitioner's business, the inconsistencies in the record with respect to the minimum degree requirements for the proffered position, the Petitioner's wage level designation, the LCA, and the lack of information regarding the Beneficiary's role within the organization undermine the Petitioner's claims regarding the substantive nature of the work to be performed by the Beneficiary. This precludes a finding that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). Moreover, the Petitioner has not satisfied the statutory and regulatory definitions of specialty occupation as defined by section 214(i)(1) of the Act, 8 U.S.C. § 1184(i)(1), 8 C.F.R. § 214.2(h)(4)(ii), and (iii)(A).

ORDER: The appeal is dismissed.

3l I cites to one outside source, a pamphlet by the Center for Disease Control, which explains how it is using informatics in health surveillance. However, the pamphlet does not provide background on clinical informatics directors or insight into their educational requirements and is therefore not probative of the proffered position being a specialty occupation.

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