§ 214.2(h)(4)(i)(A)(1). A position must meet one of the following criteria in order to qualify as a specialty occupation: 1) 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 are 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). The petitioning employer bears the burden of establishing that the alien worker is entitled to the visa by demonstrating that: (1) the position sought qualifies as a specialty occupation; and (2) the alien worker is qualified to perform services in the occupation. Alliance Home Health Care, 2012 WL 950021, at *4 (citing Shanti, Inc., 36 F. Supp. 2d at 1151).
Here, there is no dispute that Protashchuk is qualified to perform the services of an Operations and Finance Analyst. Protashchuk’s education and experience are not contested. Rather, the disagreement centers around USCIS’s determination that the Operations and Finance Analyst position at issue is not a “specialty occupation.” Having considered the record, the Court finds that USCIS did not abuse its discretion in determining that the Operations and Finance Analyst position is not a specialty occupation.USCIS found that “the proffered position’s duties most closely related to the [Occupational Outlook] Handbook’s description of operations research analysts.” (Admin. R. 6.) USCIS concluded, however, that the record failed to “establish that any related duties to be performed by the beneficiary would require the practical and theoretical application of a body of highly specialized knowledge attained by at least a bachelor’s degree, or the equivalent, in management, or business administration with an emphasis in management as required,” and consequently denied the petition.2 (Id.) USCIS noted that the Occupational Outlook Handbook (the “Handbook”) “indicates that operations research analysts do not constitute an occupational group that categorically requires a specialty-occupation level of education,” and further remarked that “while the Handbook reports that a bachelor’s degree is usually the minimum educational requirement for many operations research analyst jobs, a bachelor’s degree alone is not sufficient for all positions in the occupational category to be recognized as specialty occupations.” (Id. at 8.) Not only did USCIS conclude that Plaintiff failed to demonstrate that the Operations and Finance Analyst position in question “involved the theoretical and practical application of a highly specialized body of knowledge,” it also concluded that Plaintiff failed to establish that the position satisfies any of the criteria of 8 C.F.R. § 214.2(h)(4)(iii)(A). (Id. at 9.) Considering the Handbook, and other relevant factors, USCIS found that Plaintiff lacked substantive evidence of an industry-wide requirement of at least a bachelor’s degree in a specific specialty for similar positions. (See id. at 10-11); see also 8 C.F.R. § 214.2(h)(4)(iii)(A)(1). USCIS further concluded that “the record is devoid of sufficiently detailed information to distinguish the proffered position as unique from or more complex than similar positions that can be performed by persons without at least a bachelor’s degree in a specific specialty or its equivalent.” (Admin. R. 11); see also 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). Also, noting the absence in the record of Plaintiff’s prior hiring history for the position, USCIS determined that Plaintiff had not demonstrated that it normally requires at least a bachelor’s degree in a specific specialty for the position so as to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). (Admin. R. 12.)Finally, USCIS cited Plaintiff’s failure to present “any evidence to show that the skills utilized in its daily operations are so specialized and complex that the knowledge required to perform the duties of the proffered position is usually associated with the attainment of a baccalaureate or higher degree, or its equivalent, in a specific specialty.” (Id. at 12); see also 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).
The evidence in the record does not compel findings contrary to those made by USCIS. Noting that the Court may not substitute its judgment for that of USCIS, the Court concludes that USCIS’s determination that the Operations and Finance Analyst position is not a “specialty occupation” is reasonably supported by the evidence. Considering the record as a whole, USCIS’s decision to deny the petition was neither arbitrary nor capricious. Defendants are thus entitled to judgment, and Plaintiff is not entitled to judgment on its claim for declaratory relief. Consequently, Defendants’ motion for summary judgment is properly granted, and Plaintiff’s motion for summary judgment is therefore denied….