dismissed H-1B Case: Advertising

U.S. Citizenship 
and Immigration 
Services 
In Re: 17852048 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 19, 2021 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonirnrnigrant classification 
for specialty occupations. 1 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 Petitioner did not 
establish that the proffered position is a specialty occupation. In these proceedings , it is the Petitioner's 
burden to establish eligibility for the requested benefit by a preponderance of the evidence. 2 
Upon de novo review, we will dismiss the appeal. 3 
I. LEGAL FRAMEWORK 
According to the filing requirements for applications and petitions found at 8 C.F.R. § 103.2(b)(l) , 
... [ a ]n applicant or petitioner must establish that he or she is eligible for the requested 
benefit at the time of filing the benefit request and must continue to be eligible through 
adjudication. Each benefit request must be properly completed and filed with all initial 
evidence required by applicable regulations and other USCIS instructions . Any 
evidence submitted in connection with a benefit request is incorporated into and 
considered part of the request. 
The regulations require that before filing a Form 1-129, Petition for a N onimrnigrant Worker , a 
petitioner obtain a certified labor condition application (LCA) from the Department of Labor (DOL) 
in the occupational specialty in which the H-lB worker will be employed. 4 Additionally, a petitioner 
submits the LCA to the DOL to demonstrate that it will pay an H-lB worker the higher of either the 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(l5)(H)(i)(b). 
2 See section 291 of the Act; Matter ofChawathe , 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
4 See 8 C.F.R. § 214.2(h)(4)(i)(B). 
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. 5 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-lB nonirnrnigrant as a foreign national "who is 
corning temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), 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)(l) 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. 6 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(J) states that an H-IB 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 is 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. 7 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 The Director may request additional evidence 
in the course of making this determination. 9 
5 See section 212(n)(l) of the Act, 8 U.S.C. § l 182(n)(l )(A); 20 C.F.R. § 655.73 l(a). 
6 The regulation at 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)(1) 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"). 
7 See 8 C.F.R. § 214.2(h)(4)(iii)(A). 
8 See 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
9 See 8 C.F.R. § 103.2(b)(8). 
2 
TI. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not established that the 
services the Beneficiary will perform qualify as a specialty occupation under sections 
10l(a)(15)(H)(i)(b ), 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and 
(iii)(A). 10 Specifically, the record provides inconsistent and insufficient information regarding the 
proffered position, which in tum precludes us from understanding the position's substantive nature 
and determining whether the proffered position qualifies as a specialty occupation. When determining 
whether a position is a specialty occupation, we look at the nature of the business offering the 
employment and the description of the specific duties of the position as it relates to the performance 
of those duties within the context of that particular employer's business operations. 
On the Form I-129, the Petitioner identifies itself as an advertising and communications firm. In its 
letter in support of the petition, the Petitioner stated that it is part of a larger communications group 
and that it is the group's "audience intelligence and activation solution that builds personalized 
consumer relationships at scale." On the LCA submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Market Research Analysts and 
Market Specialists" corresponding to the standard occupational classification (SOC) code 13-1161. 
The Petitioner initially stated that the Beneficiary "will be responsible for campaign execution by 
serving as a client-advisor and by mentoring junior members of the team." The Petitioner also 
provided a list of 11 duties and the approximate time attributed to performing the duties. In response 
to the Director's request for evidence (RFE), the Petitioner added the Beneficiary "is responsible for 
performing defined system administration activities on a defined system or environment" and "will be 
responsible for advising clients on all aspects of data measurement, data capture and research as it 
pertains to media." The Petitioner repeated the initial list of 11 duties as well as adding sub-tasks to 
some of the initial described duties. The revised version describes the position in terms of use of 
third-party search tools to gather data and to create Excel pivot tables, formulas, graphs, and charts to 
display the data. The duties also include writing drafts of creative text ads, responsibility for account 
record keeping, tracking reports and invoice reconciliation, and guiding and providing training to 
associates. The broad range of tasks from a position focused on data analytics using third-party 
technology to involvement in budgeting and training associates is insufficient to ascertain either the 
application of knowledge needed to perform the position or the occupation and wage level required. 
That is, the Petitioner provides such a broad description that the duties could encompass any number 
of occupations. Without a more precise description, we cannot ascertain the substantive nature of the 
proposed position and analyze whether the petition is supported by an LCA which corresponds with 
the petition. 
For example, within the Petitioner's broad overview of the proposed position are tasks that might more 
appropriately fall within the parameters of a "Marketing Managers" occupation, SOC 11-2021.11 We 
note for example that budgeting and guiding and training associates are tasks that do not fall within 
10 The Petitioner submitted documentation in the underlying record to support the H-lB 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. 
11 O*NET Summary Report for "Marketing Managers." SOC Code 11-2021 at 
https://www.onetonline.org/link/summary/l l-2021.00 (last visited Aug. 19, 2021). 
3 
the Occupational Information Network's (O*NET) summary report for "Market Research Analysts 
and Market Specialists." Similarly, the Beneficiary's involvement in writing creative text ads 12 and 
budgeting tasks may also fall within an "Advertising and Promotions Managers" occupation, SOC 
11-2011. 13 Both, the "Marketing Managers" occupation and the "Advertising and Promotions 
Managers" occupation require significantly higher wages than a "Market Research Analysts and 
Marketing Specialists" occupation. 14 Such a wage disparity highlights the difference between these 
occupational categories generally, and more specific to this case, the significance of the Petitioner's 
choice of the lower paying occupational category. As the record does not include an organizational 
chart or description of teams assigned to clients or accounts, it is not possible to identify the 
Beneficiary's role and level of responsibility within the Petitioner's organizational hierarchy. The 
lack of this information coupled with the Petitioner's broad descriptions cast doubt on the nature of 
the proposed position and whether the Petitioner has correctly identified the occupation and wage level 
on the certified LCA. 
The Petitioner, within its response to the Director's RFE, provides a table of duties and associated 
tools and knowledge that is copied from an opinion prepared byl I Professor, Finance and 
Economics at the School of Business and Nonprofit Management] I University. However, 
the professor's description of duties does not correspond to the Petitioner's broad overview of 
proposed tasks. For example,.__ _______ __, indicates the Beneficiary is responsible for 
designing and distributing survey questionaries to assist with market research and for conducting 
qualitative and quantitative market research and analysis. 15 The Petitioner does not include these 
generic duties within its description of the proposed position. Rather, the Petitioner's position focuses 
on the use of data analytics using commonly available third-party tools, such as Search Ads 360, 
Google Ads, Bing Ads, Google Ads Editor, Bing Ads Editor, Excel, Google Keyword Planner, SEM 
Rush, etc. 16 It is not possible to discern the application of knowledge necessary to use the third-party 
software tools. That is, the record does not include sufficient evidence establishing that using the 
third-party ad software requires a bachelor's degree in a specific specialty, or its equivalent. 
We have reviewed.__ _______ _.'s opinion to understand why a bachelor's degree in a specific 
specialty would be required to perform the Petitioner's described tasks rather than certifications or 
12 On appeal, the Petitioner points to the 12 percent of time the Beneficiary will spend "writing initial drafts of ad creative 
text ads based on briefing materials, website content and client direction" which "involves detailed research on client's 
products/services to obtain in-depth understanding on value props and competitive features" as an example of its detailed 
description. Although we understand from this description that the Beneficiary will be involved in research and writing 
ad text, the description is insufficient to illustrate the scope and nature of the Beneficiary's role within the context of the 
Petitioner's business operations and whether the position is properly identified on the ce1iified LCA. 
13 O*NET Summary Report for "Advertising and Promotions Managers." SOC Code 11-2011 at 
https://www.onetonline.org/link/summary/l l-20 l 1.00 (last visited Aug. 19, 2021 ). 
14 At the time the Petitioner's LCA was certified, the Level II prevailing wage for "Marketing Managers" in the area of 
intended employment was an annual wage of $103,210 and the Level II annual wage for an "Advertising and Promotions 
Managers" occupation was $99,133. See https://www.flcdatacenter.com/OesQuickResults.aspx?code=l 1-
2021 &areao&yeai=20&source= 1 and https://www.flcdatacenter.com/OesQuickResults.aspx?code= 11-
2011 &area &yeai=20&source=1. 
15 1 lalso adds tasks/knowledge occurring within this process. 
16 The Petitioner indicates that the third-party software is used to monitor campaign budget pacing, performance check-up, 
and optimizing the account's overall performance, to build new advertising campaigns, including ad copies, keywords, ad 
extensions, landing pages and data tracking, to run marketing search reports, and to conduct analysis on existing keywords 
and adjust bid strategies. 
4 
training in this specific technology . .__ ______ __, however, does not provide a foundation for 
his leap from the Petitioner's overly general duties and use of third-party technology to his generic list 
of tasks that he opines require a deep understanding of descriptive statistics and an advanced 
quantitative and analytical educational background with an understanding of statistics, business 
analytics, market research, data visualization, and organizational behavior. It may be that the professor 
was given materials by the Petitioner that further delineate the duties and required knowledge of the 
proposed position, (which we have not been afforded the opportunity to review), but the record here 
does not include those materials and the professor does not provide a cogent correlation of his 
description of tasks and knowledge to the Petitioner's position description in the record. 17 I I I Is opinion does not assist in establishing the substantive nature of the Petitioner's position or 
the minimum requirements necessary to perform the duties of the position. We may, in our discretion, 
use opinion statements submitted by the Petitioner as advisory. 18 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. 19 For the reasons discussed, the opinion lends little probative value 
to the matter here. 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. 20 
We also note that on appeal, the Petitioner repeats I l's conclusion that the position 
"involves highly specialized job duties in the sophisticated and complex areas of market research, 
business evaluation and recommendation, reporting and project management." However, the expansion 
of the position to include more than the market research area again appears to undermine the Petitioner's 
characterization of the position as a wage Level II "Market Research Analysts and Market Specialists" 
occupation. 21 We understand, generally, that the proposed position will include tasks related to market 
research, data analytics, advertising, and reporting using analytic software, however there is a wide range 
ofrequirements that could prepare an individual to perform such tasks. The duties as generally described 
could be performed with a general degree ( either at the bachelor or associates level), certifications and/or 
undefined experience in third-party software. The duties could also require special skills, specific 
certifications, or advanced knowledge. Here, it is the lack of detail and clarity regarding the proposed 
position within the Petitioner's business operations that limit analysis of the actual nature of the 
position and preclude a conclusion that, more likely than not, the position is a specialty occupation. 
17 ....._ _____ ___,does incorporate some of the Petitioner's descriptions into his opinion, but the opinion overall 
includes assumptions regarding the position that do not appear based on the Petitioner's list of duties. 
18 Matter a/Caron Int'l,Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). 
19 Id. 
20 Id.; see also Matter ol V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("Expert 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."'). 
21 It is not clear from the Petitioner's descriptions whether the position is a combination of two or more related occupations 
or whether the Petitioner requires duties that are not typical of a "Market Research Analysts and Marketing Specialists" 
occupation. It is also not clear from the Petitioner's description whether the Beneficiary will be expected to "supervise" 
junior associates. As the record does not include a depiction of the Petitioner's organizational structure. we cannot use 
such evidence to assist in demonstrating the Beneficiary's role and level ofresponsibility within the Petitioner's business 
operations. It is this type of information that is useful to assist in understanding the substantive nature of the particular 
position and to also conclude that the certified LCA supports the petition. 
5 
Overall, the tasks described provide little insight into the level of complexity or demands associated 
with the proposed duties or the specialized knowledge required to perform them. The Petitioner does 
not sufficiently detail specific job duties, supervisory duties (if any), independent judgment required, 
or the amount of supervision received for the position. The record also does not include a sufficiently 
detailed description to distinguish the position from occupations that require a higher wage or that 
otherwise establishes the nature of the position and the minimum requirements needed to perform the 
duties of the position. The lack of detailed information regarding the position raises questions 
regarding the nature of the position and level of responsibility of this position within the company. In 
other words, the Petitioner does not provide adequate information to delineate how the job description 
translates to specific duties and responsibilities and how such work will be conducted within the 
Petitioner's business operations. 22 
As described, the duties appear to require general business knowledge and knowledge of data analytics 
software but do not include sufficient information to conclude that the Beneficiary will require 
advanced knowledge in a specialized bachelor's field of study to perform the tasks. The information 
in the record is not sufficiently detailed so that we may ascertain the substantive nature of the proposed 
position and also analyze whether the petition is supported by an LCA which corresponds with the 
petition. The description does not establish that the Beneficiary's proposed tasks require the 
theoretical and practical application of highly specialized knowledge and attainment of at least a 
bachelor's degree in a specific specialty or its equivalent. 
III. CONCLUSION 
Upon review of the totality of the evidence submitted, the Petitioner has not provided sufficient 
substantive detail regarding the duties the Beneficiary will perform or established the minimum degree 
requirements of the occupation. Therefore, we are unable to determine the substantive nature of the work 
and whether the Beneficiary will be employed in a position that satisfies at least one of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A) and is also a position that meets the statutory and regulatory definitions of 
a specialty occupation as defined by section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), 8 C.F.R. 
§ 214.2(h)(4)(ii), and (iii)(A). In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. 23 The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
22 We reviewed the documents the Petitioner states are the Beneficiary's work product. However, the Petitioner does not 
provide context for the documents or explain how the Beneficiary's role and tasks associated with the work product is 
connected to specific duties. Without context, the work product does not demonstrate that a bachelor's degree in a specific 
specialty is required to create it. 
23 See Section 291 of the Act, 8 U.S.C. § 1361. 
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