dismissed H-1B Case: Advertising

U.S. Citizenship 
and Immigration 
Services 
In Re: 8560964 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 30, 2020 
The Petitioner, a publishing and advertising agency, seeks to temporarily employ the Beneficiary as a 
"marketing and content creation analyst" under the H-lB nonimmigrant classification for specialty 
occupations. 1 
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. Upon de nova review , we will dismiss the appeal. 2 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S .C. § l 184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor 's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214 .2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
1 See Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b) . 
2 A petitioner must establish that it meets each eligibility requirement of the benefit sought by a preponderance of the 
evidence. Matter ofChawathe, 25 I& N Dec. 369, 375-76 (AAO 2010) . 
(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). 
B. Analysis 
The Petitioner stated in its H-lB petition that the Beneficiary will work in-house in its New Jersey 
office. On the labor condition application (LCA) submitted in support of the H-lB petition, the 
Petitioner designated the proffered position under the occupational category of "Graphic Designers" 
corresponding to the Standard Occupational Classification code 27-1024. 3 We will not describe each 
duty here, but we have carefully considered each one. The Petitioner stated that the Beneficiary will be 
employed as a "marketing and content creation analyst" and that a minimum of a bachelor's degree in 
fine arts (graphic design) or industrial design is required to enter into the position. 
Upon review of the record in its totality and for the reasons set out below, we conclude 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. 4 
1. First Criterion 
3 The Petitioner classified the proffered position at a Level II wage. A wage determination starts with an entry-level wage 
(Level I) and progresses to a higher wage level (up to Level IV) after considering the experience, education, and skill 
requirements of the Petitioner's job opp01iunity. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/ download/NPWH C _Guidance_ Revised_ 11 _ 2009 .pdf 
4 The Petitioner submitted documentation to suppmt 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 
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 recognize the U.S. Department of Labor's (DOL) Occupational 
Outlook Handbook (Handbook) as an authoritative source on the duties and educational requirements 
of the wide variety of occupations that it addresses. 5 
The Handbook states, in pertinent part, the following about these occupations: "A bachelor's degree 
in graphic design or a related field is usually required. However, individuals with a bachelor's degree 
in another field may pursue technical training in graphic design to meet most hiring qualifications." 6 
The Handbook does not indicate that such "technical training" must be the equivalent of a bachelor's 
degree in a specific specialty. The Handbook therefore does not support the assertion that at least a 
bachelor's degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
these positions. 
As noted, the Handbook specifically states that individuals with a bachelor's degree in other fields 
may pursue a career as a graphic designer. As discussed, we interpret the term "degree" to mean a 
degree in a spec[fic specialty that is directly related to the proposed position. 7 Because there must be 
a close correlation between the required specialized studies and the position, a requirement of general 
and wide-ranging degrees strongly suggests that a graphic designer position is not categorically a 
specialty occupation. 8 While the Handbook indicates that a bachelor's degree in graphic design is 
common, it does not report that such a degree is normally a minimum entry requirement. 
According to the Handbook, many individuals who hold positions located within this occupational 
category have various forms of degrees and have gained technical expertise elsewhere. Thus, the 
Handbook does not sufficiently support the claim that this occupational category is one for which the 
normal minimum requirement for entry is a baccalaureate degree (or higher) in a specific specialty, or 
its equivalent. 
The Petitioner asserts that the Director has mischaracterized the Handbook to conclude that a 
bachelor's degree in a specific specialty is not normally the minimum requirement for the proffered 
position. In support of this assertion, the Petitioner cites to case law for the proposition that specialized 
study need not be in a single field and that the knowledge gained, not the title of the degree, is what is 
important.9 We generally agree with the proposition in Residential Finance Corp. v. USCISthat "[t]he 
5 We do not, however, maintain that the Handbook is the exclusive source of relevant information. To satisfy the first 
criterion, the Petitioner bears the burden to submit sufficient evidence to support a determination that its particular position 
will normally have at its minimum. a bachelor's degree requirement in a particular specialty, or its equivalent, for entry at 
any level - be it at the entry level (Level I), or at the fully competent level (Level IV). "[T]he choice of what reference 
materials to consult is quintessentially within an agency's discretion .... " Royal Siam Co1p., 484 F.3d at 146. 
6 Bureau of Labor Statistics. U.S. Dep't of Labor, Occupational Outlook Handbook, Graphic Designers. 
https://www.bls.gov/ooh/arts-and-design/graphic-designers.htm#tab-4 (last visited Apr. 27, 2020). 
7 See Royal Siam Co1p., 484 F.3d at 147. 
8 See id. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). 
9 The Petitioner cites to a 2014 AAO decision for language originally arising from Residential Finance Corp. v. USCIS, 
839 F. Supp. 2d 985 (S.D. Ohio 2012) and Tapis Int 'Iv. Immigration and Naturalization Service 94 F. Supp. 2d 172 (D. 
Mass. 2000). We directly address the primary source of this language rather than via a previous AAO decision. 
3 
knowledge and not the title of the degree is what is important." 10 Moreover, we also agree with the 
district court judge in Tapis Int'l v. Immigration and Naturalization Service, that in satisfying the 
specialty occupation requirements, both the Act and the regulations require a bachelor's degree in a 
specific specialty, or its equivalent, and that this language indicates that the degree does not have to 
be a degree in a single specific specialty. Provided 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. Because 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, such as computer science and social sciences, would not meet the statutory 
requirement that the degree be "in the specific specialty (or its equivalent)," 11 unless the Petitioner 
establishes how each field is directly related to the duties and responsibilities of the particular position. 12 
It is important to note that in a subsequent case that was reviewed in the same jurisdiction, the court 
agreed with our analysis of Residential Finance. 13 
Further, we also agree that, if the requirements to perform the duties and job responsibilities of a 
proffered position are a combination of a general bachelor's degree and experience such that the 
standards at both section 214(i)(l)(A) and (B) of the Act have been satisfied, then the proffered 
position may qualify as a specialty occupation. We do not conclude, however, that the U.S. district 
court in Tapis Int 'l is stating that any position can qualify as a specialty occupation based solely on 
the claimed requirements of a petitioner. 
Instead, we must examine the actual employment requirements, and, on the basis of that examination, 
determine whether the position qualifies as a specialty occupation. 14 In this pursuit, the critical 
element is not the title of the position, or the fact that an employer has routinely insisted on certain 
educational standards, but whether performance of the position actually requires the theoretical and 
practical application of a body of highly specialized knowledge and the attainment of a baccalaureate 
or higher degree in a specific specialty as the minimum for entry into the occupation as required by 
the Act. In the instant case, the Petitioner has provided insufficient evidence to establish the minimum 
requirements for the proffered position. Nor has the Petitioner adequately addressed the Handbook's 
indications that various forms of degrees are sufficient to enter into the occupational category and that 
technical expertise gained outside of a bachelor's degree program may be sufficient as well. 
In promulgating the H-1 B regulations, the former INS made clear that the definition of the term 
"specialty occupation" could not be expanded "to include those occupations which did not require a 
bachelor's degree in the specific specialty." 15 More specifically, in responding to comments that "the 
10 Residential Finance, 839 F. Supp. 2d 985. 
11 Section 214(i)(l )(B) of the Act ( emphasis added). 
12 The courts in Residential Finance and Tapis Int'! did not eliminate the statutory "bachelor's or higher degree in the 
specific specialty" language imposed by Congress. Rather, they found that the petitioners in those cases had satisfied the 
requirement. 
13 See Health Carousel, LLC v. USC1S, No. 1:13-CV-23, 2014 WL 29591 (S.D. Ohio 2014). 
14 See generally Defensor, 201 F. 3d 384. 
15 Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 56 Fed. Reg. 61,111, 
61,112 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
4 
definition of specialty occupation was too severe and would exclude certain occupations from 
classification as specialty occupations," the former INS stated that "[t]he definition of specialty 
occupation contained in the statute contains this requirement [ for a bachelor's degree in the specific 
specialty, or its equivalent]" and, therefore, "may not be amended in the final rule." 16 
In any event, the Petitioner has famished no evidence to establish that the facts of the instant petition 
are analogous to those in Residential Finance or Tapis Int 'l. 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. 17 Although 
the reasoning underlying a district judge's decision will be given due consideration when it is properly 
before us, the analysis does not have to be followed as a matter oflaw. 18 
The Petitioner cited to DOL's Occupational Information Network (O*NET) summary report for 
"Graphic Designers" (SOC code 27-1024.00) in support of its argument. The O*NET Summary 
Report does not establish that a bachelor's degree in a specific specialty, or the equivalent, is normally 
required. It provides general information regarding the occupation, but it does not support a 
conclusion that the proffered position requires a bachelor's degree in a specific specialty, or the 
equivalent. Instead, O*NET assigns these positions a "Job Zone Four" rating, which states "most of 
these occupations require a four-year bachelor's degree, but some do not." Moreover, the Job Zone 
Four designation does not indicate that any academic credentials for Job Zone Four occupations must 
be directly related to the duties performed. In addition, the specialized vocational preparation (SVP) 
rating designates this occupation as 7 < 8. An SVP rating of 7 to less than("<") 8 indicates that the 
occupation requires "over 2 years up to and including 4 years" of training. While the SVP rating 
indicates the total number of years of vocational preparation required for a particular position, it is 
important to note that it does not describe how those years are to be divided among training, 
experience, and formal education. The SVP rating also does not specify the particular type of degree, 
if any, that a position would require. 19 Further, although the summary reports provide the educational 
requirements of "respondents," it does not account for 100% of the "respondents." Moreover, the 
respondents' positions within the occupation are not distinguished by career level (e.g., entry-level, 
mid-level, senior-level). Furthermore, the graph in the summary report does not indicate that the 
"education level" for the respondents must be in a specific specialty. For all of these reasons, O*NET 
does not establish the proffered position as a specialty occupation. 
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)(I). 
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 
16 Id. 
17 See Matter of K-S-, 20 T&N Dec. 715, 719-20 (BIA 1993). 
IS Id. 
19 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/ 
help/online/svp. 
5 
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. 
a. First Prong 
We generally consider the following sources of evidence to determine if there is such a common degree 
requirement: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry establish that such firms "routinely employ and 
recruit only degreed individuals." 20 
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. Though the Director provided notice 
to the Petitioner that it may submit information and evidence to establish eligibility under this prong 
of criterion two, the Petitioner has not submitted evidence that a degree requirement is common to the 
industry in parallel positions among similar organizations. 
We note the Petitioner's statement that "similar companies in the industry are not considering 
occupations that do not include a body of specialized knowledge that can be theoretically and 
practically applied to this position. Due to the high level of professional responsibility inherent to the 
proposed position, their minimum requirement for the position is bachelor's level academic training 
in Graphic Design or closely related fields" and that "[the companies] stated that they would not 
consider anyone with lesser qualifications for this professional level position." Though the Petitioner 
attempts to use this statement to establish eligibility under this prong, the statement alone does not 
constitute evidence. The Petitioner offers no specific examples of the "similar companies" it 
references, nor does it provide a context whereby we might understand the logic of the statement. As 
such, we do not know what the Petitioner means when it states that similar companies do not consider 
occupations that do not include specialized knowledge that can be applied to this position. Further, it 
is unclear what the Petitioner means when it uses the term "this position." 
Accordingly, it cannot be concluded that this statement credibly refutes the conclusions of the 
Handbook that such positions do not normally require at least a baccalaureate degree in a specific 
specialty, or its equivalent, for entry into the occupation in the United States. The Petitioner has not 
provided sufficient probative 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). 
20 See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.Minn. 1999) (quoting Hird/Blaker Co1p. v. Sava, 712 F. Supp. 
1095, 1102 (S.D.N.Y. 1989) ( considering these "factors" to inform the commonality of a degree requirement)). 
6 
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, we conclude that 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. As described, the duties overall indicate that the Beneficiary will carry out 
routine functions and not be relieved of performing non-qualifying work. For instance, the duty to 
"gather data from different publishers and traffic vendors (Amazon, Facebook, Google, Instagram, 
different magazines, newspapers, other miscellaneous data sources) on the rise of the ketogenic 
lifestyle in the U.S. and all over the world" does not readily suggest the need for specialized 
knowledge. Researching various print and web-based sources and then collating this research into a 
spreadsheet 21 is a perfunctory task that can readily be performed without any formal education. 
Likewise, though the Petitioner states that the Beneficiary is the only individual on the team that can 
use film equipment effectively and creatively, this claim does not make the use of the equipment 
specialized. Using third-party movie and photo editing software need not be learned in a bachelor's 
degree program for graphic or industrial design and may be gained through a variety of other methods. 
In addition to this, the Petitioner indicates that a significant portion of the Beneficiary's workload 
involves managing social media accounts by direct messaging campaigns, curating third-party content, 
developing original content, researching hashtags, and staying on top of trends. As described, these 
tasks do not evidence complexity or uniqueness, nor has the Petitioner analyzed or explained why they 
require specialized knowledge that can only be learned in a bachelor's degree program for fine arts 
(graphic design) or industrial design. 
The Petitioner states that the Beneficiary will create designs and visuals for labels, brochures, 
pamphlets, and web pages, for which she uses third-party technologies such as Sketch, Photoshop, Pie 
Monkey, and Illustrator. In so doing, the Petitioner also states that "[k]nowing the basics of coding 
through different computer courses has become [the Beneficiary's] advantage when she works on 
graphic design." This information suggests that the duty does not require coding skills, but that such 
skills are helpful. As it does with a majority of the duties articulated, the Petitioner confuses the ability 
of a degreed graphic or industrial design person to perform the duties of the proffered position with a 
degree requirement in order to perform the duties. While a few basic courses or skills may be 
beneficial in performing certain duties of the position, the Petitioner, has not demonstrated how an 
established curriculum of such courses leading to a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is required to perform the duties of the proffered position. 
21 We acknowledge the submissions of the Beneficiary's work product samples including the collation of internet research 
into spreadsheets, monitoring of advertisement campaigns, screenshots of videos and photos, and social media and website 
posts. 
7 
The Petitioner argues that the duties of the position could not be performed by a person holding less 
than a bachelor's degree in in fine arts (graphic design) or industrial design, yet the Petitioner provides 
little context or analysis as to why this is so. In place of analysis, the Petitioner repeats its list of duties 
for the position and summarily declares its minimum requirements or turns instead to a discussion of 
why the general business and mission of the company is unique or important. Neither the importance 
of the work, nor the proffered position's role in it, can substitute for specialization. 
Accordingly, we conclude that the Petitioner has not shown that the duties of the position are 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. 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). 
3. 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. To satisfy this 
criterion, the record must establish that the specific performance requirements of the position 
generated the recruiting and hiring history. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 22 
Were U.S. Citizenship and Immigration Services (USCIS) limited solely to reviewing the Petitioner's 
claimed self-imposed requirements, then any individual with a bachelor's degree could be brought to 
the United States to perform any occupation as long as the Petitioner created a token degree 
requirement. 23 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 did not submit evidence of previous or current employees 24 who have served in the 
proffered position and therefore the Petitioner has not demonstrated that it normally requires a 
bachelor's degree in a specific specialty, or its equivalent, for the position. Thus, it has not satisfied 
the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
4. 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. 
Although some tasks may connote a requirement of familiarity with general graphic or industrial design 
principles, including marketing knowledge, the record is insufficient to establish that the duties require 
anything more than a few basic courses and a broad educational background. While a few such courses 
22 See Defensor, 201 F.3d at 387-88. 
23 Id. 
24 We note that the Petitioner's organizational chart reflects only the Beneficiary in the proffered position. 
8 
may be beneficial in performing certain duties of the position, the Petitioner fails to meaningfully 
address that the requisite knowledge in order to perform the duties of the proffered position could be 
adequately learned, for example, through a variety of degree programs, trial and error, certifications 
in the third-party technologies, or on-the-job training. Though we read that the proffered position is 
complex and requires specialized knowledge learned in bachelor's degree coursework in fine arts 
(graphic design) or industrial design, merely stating so does not discharge the Petitioner of its burden 
of proof 
For the same reasons we discussed under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), we 
conclude that the Petitioner has not established 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). We incorporate our earlier 
discussion and analysis on this matter. 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
II. EMPLOYER - EMPLOYEE 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need not 
fully address other issues evident in the record. That said, we wish to identify an additional issue to 
inform the Petitioner that this matter should be addressed in any future proceedings. Though the 
Director did not base her denial decision on the Petitioner's engagement of the Beneficiary in an 
employer-employee relationship, we conclude that this issue remains unresolved. The Director's 
request for evidence questioned the worksite of the Beneficiary, noting that it was located in a 
residential area. We reiterate those concerns. 
To establish the employer-employee relationship, the Petitioner submitted an employee handbook, a 
boilerplate offer letter with the Beneficiary's name on it, a self-filled W-4 form, general health 
insurance plan information, a one-page liability insurance form, an electric bill, a home mortgage bill, 
one office photo, and ADP payroll documentation. We conclude that this evidence is insufficient to 
establish that the Petitioner will engage the Beneficiary in an employer-employee relationship. 
The mortgage letter states that it is for a home and it is addressed to a person, not a business entity. 
Moreover, the single photo evidences a home office setup for one person and does not suggest a 
legitimate business location with seven employees. We read that the Beneficiary will report to and 
work directly under the administrative and HR control of the Petitioner, but in other parts of the record, 
we note that the Petitioner has outsourced much of this control to a third party, ADP TotalSource 
Employee Service Center. This entity handles significant HR functions as outlined in the employee 
handbook. Moreover, most of the general documentation concerning the Beneficiary's employee 
status is either a boilerplate handout or self-filled, neither of which establish an employer-employee 
relationship. Though ADP payroll documents include the Beneficiary's name, at best, this establishes 
that the Petitioner pays the Beneficiary, but it does not establish an employer-employee relationship. 
Finally, we read that the Petitioner states, "we run our entire business online" and have "a primarily 
remote workforce," which in combination with the other evidence submitted, causes us to question 
whether the Beneficiary will actually be employed at the site designated in the petition and whether 
the Petitioner would maintain an employer-employee relationship with the Beneficiary. 
9 
III. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. Moreover, the Petitioner 
has not established that it would maintain an employer-employee relationship with the Beneficiary. 
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 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. 
10