dismissed H-1B Case: Advertising

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-B-0-W- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 2, 2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a restaurant and bar, seeks to employ the Beneficiary as an advertising/promotions 
manager and classify him as a nonimmigrant worker in a specialty occupation. See section 
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101 ( a)(15)(H)(i)(b ). The Director, Vermont Service Center, denied the petition and subsequently 
denied the Petitioner's motion to reopen and reconsider. The matter is now before us on appeal. 
The appeal will be dismissed. 
The Director denied the motion to reopen and reconsider, finding that the motion did not provide 
new facts to support reopening or give supported reasons for reconsideration. The Petitioner now 
files this appeal, asserting that the proffered position constitutes a specialty occupation. 
We note that when an appeal is filed in response to a Director's unfavorable action on a motion, the 
scope of the appeal is limited to the Director's decision on that motion. For instance, the regulatory 
provision at 8 C.P.R. § 103.3(a)(2)(i) states: "The affected party must submit the complete appeal 
including any supporting brief as indicated in the applicable form instructions within 30 days after 
service of the decision (emphasis added)." Thus, if the Petitioner wished to appeal the Director's 
decision to deny the petition, it should have elected to file that appeal within 30 days of the 
Director's decision. Here, the Petitioner elected to file a motion instead and, thereby, limited the 
scope of the instant appeal to the merits of the Director's decision to deny that motion. 
The record of proceeding contains: (1) the Petitioner's Form I-129 and the supporting documentation 
filed with it; (2) the Director's request for additional evidence (RFE); (3) the Petitioner's response to 
the RFE; ( 4) the Director's decision denying the petition; (5) the Petitioner's motion to reopen and 
reconsider and supporting documentation; ( 6) the Director's decision denying the motion; and (7) the 
Petitioner's appeal and submissions on appeal. 
I. THE DIRECTOR'S MOTION DECISION 
We will first determine whether the Director's decision to deny the motion to reopen and reconsider 
was correct. 
Matter ofT-B-O-W- LLC 
A. Overarching Requirement for Motions by a Petitioner 
The provision at 8 C.P.R. § 103.5(a)(l)(i) includes the following statement limiting USCIS's authority 
to reopen the proceeding or reconsider the decision to instances where "proper cause" has been shown 
for such action: "the official having jurisdiction may, for proper cause shown, reopen the proceeding or 
reconsider the prior decision." 
Thus, to merit reopening or reconsideration, the submission must not only meet the formal requirements 
for filing (such as, for instance, submission of a Form I-290B that is properly completed and signed, and 
accompanied by the correct fee), but the Petitioner must also show proper cause for granting the motion. 
As stated in the provision at 8 C.P.R. § 103.5(a)(4), Processing motions in proceedings before the 
Service, "[a] motion that does not meet applicable requirements shall be dismissed." 
B. Requirements for Motions to Reopen 
The regulation at 8 C.P.R.§ 103.5(a)(2), "Requirements for motion to reopen," states that "[a] motion to 
reopen must [(1)] state the new facts to be provided in the reopened proceeding and [(2)] be supported 
by affidavits or other documentary evidence .... " 
This provision is supplemented by the related instruction at Part 4 of the Form I-290B, which states: 1 
"Motion to Reopen: The motion must state new facts and must be supported by affidavits and/or 
documentary evidence demonstrating eligibility at the time the underlying petition or application 
was filed .. " 
Further, the new facts must possess such significance that, "if proceedings ... were reopened, with all 
the attendant delays, the new evidence offered would likely change the result in the case." Matter of 
Coelho, 20 l&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-40 
(lOth Cir. 2013). 
C. Requirements for Motion to Reconsider 
The regulation at 8 C.P.R. § 103.5(a)(3), "Requirements for motion to reconsider," states: 
A motion to reconsider must [(1)] state the reasons for reconsideration and [(2)] be 
supported by any pertinent precedent decisions to establish that the decision was 
based on an incorrect application of law or Service policy. A motion to reconsider a 
decision on an application or petition must [(3)], [(a)] when filed, also [(b)] establish 
that the decision was incorrect based on the evidence of record at the time of the 
initial decision. 
1 The regulation at 8 C.F.R. § 103.2(a)(l) states in pertinent part: "[e]very benefit request or other document submitted 
to DHS must be executed and filed in accordance with the form instructions, notwithstanding any provision of 8 CFR 
chapter I to the contrary, such instructions are incorporated into the regulations requiring its submission. 
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Matter ofT-B-O-W- LLC 
These provisions are augmented by the related instruction at Part 4 of the Form I-290B, which states: 
"Motion to Reconsider: The motion must be supported by citations to appropriate statutes, 
regulations, or precedent decisions when filed and must establish that the decision was based on an 
incorrect application of law or policy, and that the decision was incorrect based on the evidence of 
record at the time of decision." 
A motion to reconsider contests the correctness of the prior decision based on the previous factual 
record, as opposed to a motion to reopen which seeks a new hearing based on new facts. Compare 8 
C.F.R. § 103.5(a)(3) and 8 C.F.R. § 103.5(a)(2). 
A motion to reconsider should not be used to raise a legal argument that could have been raised 
earlier in the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 219 (BIA 1990, 1991) 
("Arguments for consideration on appeal should all be submitted at one time, rather than in 
piecemeal fashion."). Rather, any "arguments" that are raised in a motion to reconsider should flow 
from new law or a de novo legal determination that could not have been addressed by the affected 
party. Matter ofO-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (examining motions to reconsider under a 
similar scheme provided at 8 C.F.R. § 1003.2(b)); see also Martinez-Lopez v. Holder, 704 F.3d 169, 
171-72 (1st Cir. 2013 ). Further, the reiteration of previous arguments or general allegations of error 
in the prior decision will not suffice. Instead, the affected party must state the specific factual and 
legal issues raised on appeal that were decided in error or overlooked in the initial decision. See 
Matter ofO-S-G-, 24 I&N Dec. at 60. 
D. Discussion 
As previously stated, when an appeal is filed in response to a Director's unfavorable action on a 
motion, the scope of the appeal is limited to the Director's decision on that motion. In other words, 
the issue before us is whether the Director's July 15, 2014 decision was correct in denying the 
Petitioner's motion to reopen and reconsider. As will be discussed below, we find that the Director's 
decision to deny the combined motion was correct. 
On motion, the Petitioner resubmitted evidence that was previously submitted in support of the original 
petition. We find that the Petitioner's submissions on motion did not establish any new facts, and thus, 
did not meet the requirements of a motion to reopen. Further, the Petitioner's motion to reconsider did 
not establish that the Director's December 31, 2013 decision denying the petition was erroneous 
based on the evidence of record at the time of the initial decision. 
The submission does not meet the applicable requirements for a motion for an additional 
reason. More specifically, the motion does not contain a statement pertinent to whether the validity 
of the unfavorable decision has been or is the subject of any judicial proceeding, which is required 
by 8 C.F.R. § 1 03.5(a)(l)(iii)(C). Thus, the combined motion must also be dismissed for this reason. 
Matter ofT-B-O-W- LLC 
Although the scope of the appeal is limited to the Director's July 15, 2014 decision on the 
Petitioner's combined motion to reopen and reconsider, we are nevertheless providing a discussion 
of the specialty occupation issue below. 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1 )] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] 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. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the m1mmum 
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. 
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Matter ofT-B-O-W- LLC 
As a threshold issue, it is noted that 8 C.F .R. § 214.2(h)( 4 )(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F .R. § 214.2(h)( 4 )(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered 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"). Applying this standard, USCIS regularly approves H -1 B petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which Petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty, or its equivalent, directly related to the duties and responsibilities of 
the particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether 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 the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Proffered Position 
The Labor Condition Application (LCA) submitted to support the visa petitiOn states that the 
proffered position corresponds to Standard Occupational Classification (SOC) code and occupation 
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Matter ofT-B -O-W- LLC 
title "11-2011, Advertising and Promotions Managers" from the Occupational Information Network 
(O*NET). The LCA further states that the proffered position is a Level I, entry-level position. 
In a letter dated March 2 9, 2013, the Petitioner described itself as "an Irish restaurant and bar located 
in the neighborhood of · With respect to the proffered position , the 
Petitioner attested that the "Advertising /Promotions Manager is a key management position which 
encompasses the day-to-day planning and organization of Petitioner 's advertising and marketing 
activities. " The Petitioner stated that the proffered position "requires the minimum of a Bachelor ' s 
degree in marketing , advertising or a closely related degree or its equivalent." The Petitioner listed 
the job duties of the proffered position as including the following: 
• Design , develop and implement annual marketing plans that combine advertising 
with purchasing incentives to increas e sales. 
• Design and develop advertising campaigns for print and other media , including 
using social media for marketing and promotions. 
• Translate business objecti ves and strategies to develop brand objective . 
• Develop print and online promotional materials including marketing collateral and 
print copies . 
• Develop novel ways to use the company's website. 
• Develop a knowledge database of established policy and practices, nature of 
market, cost and markup factors. 
• Plan and administer the company ' s marketing budget and analyze return on 
investment. 
• Negotiate with media agents to secure collaboration agreements across an array of 
media sources. 
• Manage day to day activities with public relations, press and communications 
agenc1es. 
• Liaise with other local businesses to promote the restaurant. 
In a letter dated October 22, 2013 submitted in response to the Director's RFE, the Petitioner 
explained that the Beneficiary will be relieved from performing non-qualifying functions such as 
cooking , serving , dishwashing and bussing tables, as the Petitioner employs a other staff to handle 
such duties. Specifically , the Petitioner claimed that it employs four managers , two hosts , nine 
servers , five bartenders , one barback , six bussers , nine cooks , two dishwashers , and one person to 
clean. The Petitioner stated that the Beneficiary "will only perfonn professional and managerial 
duties." 
On appeal, the Petitioner highlighted that the proffered position is a "key management position 
which encompasses the coordination of day-to-day planning and organization of all advertising and 
marketing activities." The Petitioner emphasized that it has sufficient staffing and funding to relieve 
the Beneficiary from performing non-qualifying duties . The Petitioner also highlighted that "the 
_ restaurant market is growing and is extremely competitive ," and therefore , the 
Petitioner requires a "highly qualified Advertising/Promotions manager with professional knowledge 
Matter ofT-B-O-W- LLC 
m the field of marketing and advertising, which can only be gained through formal higher 
education." 
C. Discussion 
Upon review, we find the evidence of record insufficient to establish that the proffered position is a 
specialty occupation that satisfies any of the supplemental, additional criteria at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A). 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement.for entry into the particular position 
We will first discuss the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which is satisfied by 
establishing that a baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position that is the subject of the 
petition. 
We recognize the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook (Handbook), 
cited by the Petitioner, as an authoritative source on the duties and educational requirements of the wide 
variety of occupations that it addresses.2 In pertinent part, the Handbook states the following with 
regard to the educational requirements necessary for entry into the "Advertising, Promotions, and 
Marketing Managers" occupational group: 
Education 
A bachelor's degree is required for most advertising, promotions, and marketing 
management positions. For advertising management positions, some employers 
prefer a bachelor's degree in advertising or journalism. A relevant course of study 
might include classes in marketing, consumer behavior, market research, sales, 
communication methods and technology, visual arts, art history, and photography. 
Most marketing managers have a bachelor's degree. Courses in business law, 
management, economics, finance, computer science, mathematics, and statistics are 
advantageous. For example, courses in computer science are helpful in developing an 
approach to maximize traffic through online search results, which is critical for digital 
advertisements and promotions. In addition, completing an internship while in school 
is highly recommended. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
http://www. bls. gov I ooh/management/ advertising- promotions-and- marketing- managers .htm#tab-4 
(last visited Sep. 29, 2015). 
2 
The Handbook, which is available in printed form, may also be accessed on the Internet, at http://www.bls.gov/oco/. 
Our references to the Handbook are to the 2014-2015 edition available online. 
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Matter ofT-B-O-W- LLC 
The Handbook does not support a finding that a bachelor's degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into the particular position. Rather, it 
indicates only that a bachelor's degree, without any particular specialty, is required for most 
positions. The requirement of a bachelor's degree, without further specification, is inadequate to 
establish that a position qualifies as a specialty occupation. To prove that a job requires the 
theoretical and practical application of a body of highly specialized knowledge as required by section 
214(i)(l) of the Act, a Petitioner must establish that the position requires the attainment of a 
bachelor's or higher degree in a specialized field of study or its equivalent. Again, USCIS interprets 
the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) as requiring a degree in a specific specialty 
that is directly related to the proposed position . While the Handbook states that some employers 
"prefer" a bachelor's degree in advertising or journalism, this statement falls short of establishing 
that a bachelor's degree in these fields is normally required. Simply stated, a preference is not a 
requirement. 
We withdraw the Director 's statement that "the position of an Advertising and Promotions Manager 
is normally considered professional, and that most of these positions require prospective employees 
to hold at least a bachelor's degree in marketing , business administration , or a closely related field." 
The Director did not provide any analysis for this conclusion. In addition, we disagree with the 
Director's implication that the position of an Advertising and Promotions Manager would normally 
be considered a specialty occupation by virtue of a requirement for a bachelor's degree in business 
administration without further specification. To qualify as a specialty occupation , a proffered 
position must require a precise and specific course of study that relates directly and closely to the 
position in question. Since there must be a close correlation between the required specialized studies 
and the position , the requirement of a degree with a generalized title, such as business 
administration , without further specification , does not establish a position as a specialty occupation . 
Cf Matter of Michael Hertz Associates, 19 I&N Dec. 558 (Comm'r 1988). 
The Petitioner submitted an opinion from , a Professor at the 
School of Business at the who concluded that "the position of 
Advertising/Promotions Manager and the duties inherent therein require the minimum of a U.S. 
bachelor's degree in marketing , advertising or a closely related degree or its equivalent." 
Upon review of the letter, we note that opinion is not based upon sufficient information 
about the Petitioner' s operations or the particular position being proffered here. For instance, 
does not relate any personal observations of the Petitioner 's business operations. We note that 
refers to the competitive nature of the "advertising and marketing industry," but does not 
specifically address the Petitioner's actual industry, i.e., the restaurant industry. also does 
not mention specific, concrete aspects of the proffered position within the scope of the Petitioner's 
business operations. For example, states that Advertising/Promotions Managers "may 
work with sales staff and/or management . .. [and] the finance department." However, she does not 
relate these duties to the Petitioner's actual personnel and staffing, which the Petitioner has 
described as consisting of four managers , two hosts, nine servers, five bartenders, one barback , six 
bussers, nine cooks, two dishwashers, and one cleaning person. 
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Matter ofT-B-O-W- LLC 
Furthermore, does not sufficiently explain the factual bases for her conclusions. In 
particular, she states that a bachelor's degree in marketing, advertising or a closely related degree is 
required and is standard in the industry "in large part, due to the fact that the position of 
Advertising/Promotions Manager is so complex or unique that such a degree or its equivalent is 
required." These brief, circular statements do not shed any light upon the claimed complexity or 
uniqueness of the duties. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). 
Moreover, _ does not indicate whether she considered, or was even aware of, the fact that the 
Petitioner submitted an LCA certified for a wage-level that is only appropriate for a comparatively 
low (entry-level) position relative to others within its occupation which, as discussed above, signifies 
that the Beneficiary is only expected to possess a basic understanding of the occupation. We 
consider this a significant omission, in that it suggests an incomplete review of the position in 
question and a faulty factual basis for her ultimate conclusion as to the educational requirements of 
the position upon which she opines. 
Accordingly, we conclude that opinion letter does not establish the proffered position as 
qualifying as a specialty occupation. We may, in our discretion, use as advisory opinion statements 
submitted as expert testimony. 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. 
Matter of Caron International, 19 I&N Dec. 791 (Comm'r 1988). 
As the evidence of record does not establish that the particular position here proffered is one for 
which the normal minimum entry requirement is a baccalaureate or higher degree, or the equivalent, 
in a specific specialty, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a spec(fic specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). This prong alternatively calls for a Petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions 
that are identifiable as being (1) in the Petitioner's industry, (2) parallel to the proffered position, and 
also (3) located in organizations that are similar to the Petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
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Matter ofT-B -O-W- LLC 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). Here and as 
already discussed, the evidence does not demonstrate that the proffered position is one for which the 
Handbook, or another reliable, authoritative source, indicates that there is a standard, minimum entry 
requirement of at least a bachelor's degree in a specific specialty or its equivalent. 
The Petitioner submitted several opinion letters for consideration under this prong, all of which attest 
to a claimed standard minimum educational requirement in the restaurant industry in general. At the 
outset, we note that these letters are insufficient under the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2), which not only calls for a Petitioner to establish the common degree 
requirement in the industry, but also for positions that are parallel to the proffered position and 
located in similar organizations within the industry. As indicated above, these letters attest to the 
minimum degree requirement in the restaurant industry in general. They do not, however, address 
any specific job duties or characteristics of the restaurants to establish that the positions being 
discussed are parallel to the proffered position, and are located in similar organizations within the 
industry. 
Moreover, these letters are deficient as they largely contain conclusory statements. For instance, the 
opinion letter from _ Professor of Culinary Arts, attests that 
Advertising/Promotions positions and their constituent duties are complex, unique, and highly 
specialized, such that they can only be performed by an· individual with a bachelor's degree in 
marketing, advertising, or its equivalent. does not further explain in factual detail 
why the duties are complex, unique, and highly specialized. He also does not specifically identify 
what bodies of highly specialized knowledge are required to perform the proffered duties, which 
particular courses of study provided such knowledge, and how these courses represent an established 
curriculum leading to a baccalaureate or higher degree in marketing, advertising, or its equivalent. 
Nor is it clear that the types of positions is discussing are the types of entry-level 
positions that the Petitioner claimed the proffered position to be by virtue of its wage-level 
designation on the LCA. 
The letters from several restaurant owners attest, almost identically, that the pos1t1on of 
Advertising/Promotions Mar1ager in the restaurant industry requires an individual who possesses the 
minimum of a U.S. bachelor's degree in marketing , advertising , or a closely related degree or its 
equivalent. 3 The letters do not provide any additional explanation or factual support for these 
assertions. These letters also attest, almost identically as well, that individuals relied upon by their 
restaurants to perform the function of Advertising/Promotions Manager have all possessed a U.S. 
bachelor's degree in marketing, advertising, or a closely related degree or its equivalent. However, 
no corroborating evidence of these individuals' claimed degrees was provided. Again, going on 
3 The use of identical language and phrasing across the various letters suggest that the language in the letters is not the 
authors' own. Cf Surinder Singh v. BIA, 438 F.3d 145, 148 (2d Cir. 2006) (upholding an adverse credibility 
determination in asylum proceedings based in part on the similarity of the affidavits) ; Mei Chai Ye v. U.S Dept. of 
Justice , 489 F.3d 517, 519 (2d Cir. 2007) (concluding that an immigration judge may reasonably infer that when an 
asylum applicant submits strikingly similar affidavits , the applicant is the common source) . 
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Matter ofT-B-O-W- LLC 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden 
of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165. 
Thus, the evidence of record does not establish that a requirement of a bachelor's or higher degree in 
a specific specialty, or its equivalent, is common to the Petitioner's industry in positions that are 
both: (1) parallel to the proffered position; and (2) located in organizations that are similar to the 
Petitioner. The Petitioner has not, therefore, satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
spectfic specialty, or its equivalent 
The evidence of record also does not satisfy the second alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which provides that "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." 
In this matter, the evidence of record does not distinguish the proffered position as unique from or 
more complex than other advertising, promotions, and marketing manager positions that can be 
performed by persons without at least a bachelor's degree in a specific specialty, or its equivalent. 
For instance, the Handbook lists typical duties of advertising, promotions, and marketing managers 
as including directing and overseeing the daily activities of advertising, promotions, and/or 
marketing staff. U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 
2014-15 ed., http://www.bls.gov/oohlmanagement/advertising-promotions-and-marketing­
managers.htm#tab-2 (last visited Sep. 29, 20 15). Consistent with these managerial duties, the 
Petitioner asserted that the proffered position is "a key management position which encompasses the 
day-to-day planning and organization of all advertising and marketing activities." 
However, the Petitioner has not adequately explained which of its employees the Beneficiary will be 
managing. In other words, the Petitioner has not explained who, if not the Beneficiary, will be 
executing the actual, day-to-day advertising, marketing, and promotions-related activities. The 
Petitioner does not expressly claim to have any advertising, promotions, and/or marketing staff. 
Moreover, some of the proffered duties are so generally worded that they could reasonably 
encompass the actual advertising, marketing, and sales-related activities, such as "implement annual 
marketing plans," "develop advertising campaigns for print and other media, including using social 
media for marketing and promotions," and "administer the company's marketing budget." As such, 
it appears that the Beneficiary will be performing the day-to-day advertising, marketing, and 
promotions-related activities, rather than managing them. This aspect of the Beneficiary's duties 
does not support a finding that the proffered position is unique from or more complex than other 
advertising, promotions, and marketing manager positions. 
As the Petitioner does not demonstrate how the proffered position is so complex or unique relative to 
other positions within the same occupational category that do not require at least a baccalaureate 
degree in a specific specialty or its equivalent for entry into the occupation in the United States, it 
I I 
Matter ofT-B-O-W- LLC 
cannot be concluded that the Petitioner has satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
We turn next to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3), which entails an employer 
demonstrating that it normally requires a bachelor's degree in a specific specialty, or its equivalent, 
for the position. To this end, we usually review the Petitioner's past recruiting and hiring practices, 
as well as information regarding employees who previously held the position. In addition, the 
Petitioner may submit any other documentation it considers relevant to this criterion of the 
regulations. 
With respect to this criterion, the Petitioner indicates that it has never previously hired for the 
proffered position. Specifically, the Petitioner stated that "[t]he position of Advertising/Promotions 
Manager with Petitioner is a new professional and managerial position within the organization." 
While a first-time hiring for a position is certainly not a basis for precluding a position from 
recognition as a specialty occupation, it is unclear how an employer that has never recruited and 
hired for the position would be able to satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3), which 
requires a demonstration that it normally requires at least a bachelor's degree in a specific specialty 
or its equivalent for the position. 
The Petitioner repeatedly claims that the duties of the proffered position can only be employed by a 
degreed individual. The Petitioner explains that it previously used the General Manager or other 
restaurant managers to market the restaurant, but that "these duties were not properly handled 
because the managers lacked professional knowledge in the field of marketing and advertising which 
can only be gained through formal higher education." 4 However, while a Petitioner may assert that a 
proffered position requires a degree in a specific specialty, that statement alone without 
corroborating evidence cannot establish the position as a specialty occupation. Were USCIS limited 
solely to reviewing a 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 
employer created a token degree requirement, whereby all individuals employed in a particular 
position possessed a baccalaureate or higher degree in the specific specialty, or its equivalent. See 
Defensor v. Meissner, 201 F. 3d at 387. In other words, if a Petitioner's degree requirement is only 
symbolic and the proffered position does not in fact require such a specialty degree, or its equivalent, 
to perform its duties, the occupation would not meet the statutory or regulatory definition of a 
specialty occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)( 4)(ii) (defining the term 
"specialty occupation"). Here, the Petitioner has not established the referenced criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3) based on its normal hiring practices. 
4 The Petitioner did not submit any evidence regarding the educational credentials of its General Manager or other 
restaurant managers. 
12 
(b)(6)
Matter ofT-B-O-W- LLC 
As the record of proceeding does not demonstrate that the Petitioner normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the proffered position, it does not 
satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
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 in a specific !!pecialty, or its equivalent 
Finally, we will address the alternative criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)( 4), which is 
satisfied if the Petitioner establishes that the nature of the specific duties is so specialized and 
complex that knowledge required to perform them is usually associated with the attainment of a 
baccalaureate or higher degree in a specific specialty or its equivalent. 
In support of the petition, the petitioner submitted documentation regarding the proffered position 
and its business operations. The duties of the proffered position, however, have not been shown to 
be of a nature so specialized and complex that they require knowledge usually associated with 
attainment of a minimum of a bachelor's degree in a specific specialty or its equivalent. In other 
words, the proposed duties have not been described with sufficient specificity to show that they are 
more specialized and complex than the duties of marketing manager positions that are not usually 
associated with at least a bachelor's degree in a specific specialty or its equivalent. We reiterate our 
earlier discussion with regard to the claimed managerial duties of the proffered position and the 
Petitioner's apparent lack of advertising, promotions, and/or marketing staff. 
On appeal, the Petitioner claimed that "the restaurant market is growing and is 
extremely competitive ," and therefore, the Petitioner requires a "highly qualified 
Advertising/Promotions manager with professional knowledge in the field of marketing and 
advertising, which can only be gained through formal higher education." However, the Petitioner 
has not adequately explained how the nature of the proffered 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. 5 In this regard, we note 
again that the Petitioner has designated the proffered position as a Level I (entry level) position on 
the LCA. In designating the proffered position at a Level I wage, the Petitioner has indicated that 
the proffered position is a comparatively low, entry-level position relative to others within the 
occupational group. See U.S. Dep't of Labor, Emp 't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov /pdf/NPWH C _Guidance_ Revised _11_ 2009 .pdf The 
Petitioner's designation of the proffered position as a Level I, entry-level position is inconsistent 
with the claim that the proffered position or the duties comprising it are particularly specialized or 
5 According to the Handbook, advertising , promotions , and marketing managers work in a variety of industries. See 
U.S. Dep't of Labor, Bureau of Labor Statistics , Occupational Outlook Handbook, 2014-15 ed., 
http://www .bls.gov/ooh /management /advertising-promotions-and-marketing-managers .htm#tab-3 (last visited Sep. 29, 
2015). 
13 
Matter ofT-B-O-W- LLC 
complex compared to other positions within the occupation. 6 
For the reasons discussed above, we find that the evidence of record does not satisfy any of the 
criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that the proffered position 
qualifies for classification as a specialty occupation. 
Thus, the Director's December 31, 2013 decision that the proffered position is not a specialty 
occupation was correct. The Director's decision to deny the Petitioner's combined motion to reopen 
and reconsider was also correct. For both of these reasons, the appeal will be dismissed and the 
petition denied. 
III. CONCLUSION 
The Director did not err in the decision to deny the combined motion to reopen and reconsider. 7 
Accordingly, the appeal will be dismissed. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fT-B-0-W-LLC, ID# 13193 (AAO Oct. 2, 2015) 
6 The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its claim 
that the position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an 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 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 consideration but is not a substitute for a 
determination ofwhether a proffered position meets the requirements of section 214(i)(l) ofthe Act. 
7 As the identified ground of ineligibility is dispositive of the appeal, we will not address any of the additional 
deficiencies we have identified. 
14