dismissed H-1B Case: Apparel

U.S. Citizenship 
and Immigration 
Services 
In Re: 10876304 
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: SEPT. 21, 2020 
The Petitioner, an apparel and clothing wholesale and distribution company, seeks to temporarily 
employ the Beneficiary as a "strategic market research analyst" under the H-lB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-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 know ledge and (b) the attainment 
of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite 
for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the evidence of record 
does not establish that the proffered position qualifies as a specialty occupation. The matter is now 
before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. 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) 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) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entty into the particular position; 
(2) The degree requirement is common to the industty 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. ChertoJJ; 484 F .3d 13 9, 14 7 (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"). 
II. THE PETITIONER AND THE PROFFERED POSITION 
The Petitioner describes itself as an apparel and clothing wholesale and distribution company that is 
'"part of a manufacturing group with factories in Asia and regional offices in the United States." It 
produces "goods such as hand embroidered goods, float jacquard, intarsia, beaded goods, hand crochet 
garments, special stitches, special finishes, [and] various gauges." The Petitioner also states that it 
"operate[s] an EB5 Regional Center,! lin the State of North Carolina." 
The Petitioner seeks to employ the Beneficiary as a "strategic market research analyst" and lists 14 
duties associated with the position. For the sake of brevity, we will not quote the duties; however, we 
have closely reviewed and considered them. 
The Petitioner states that the position requires "a bachelor's degree in marketing" as well as 
"experience in quantitative research processes, including screener and survey design, sampling 
procedures, field management, specialized quantitative techniques (e.g., choice methodologies, paired 
comparison, max-diff, conjoint, etc.), [and] analysis plan design." 
III. ANALYSTS 
Upon review of the record in its totality and for the reasons discussed below, we have determined that 
the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 1 
1 The Petitioner submitted documentation to support the H-1B petition, including evidence regarding the proffered position 
2 
Specifically, we conclude that the record does not establish that the job duties require an educational 
background, or its equivalent, commensurate with a specialty occupation." 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which 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 will consider the information contained 
in the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the 
duties and educational requirements of the wide variety of occupations it addresses. 2 
In the labor condition application (LCA), the Petitioner classified the proffered position under the 
occupational title Market Research Analysts and Marketing Specialists, corresponding to the Standard 
Occupational Classification (SOC) code 13-1161. 3 Under this criterion, the Petitioner addresses the 
Handbook entry for this occupation. The Hand book reports that market research analysts have degrees 
and backgrounds in a wide variety of disparate fields. The Handbook identifies various courses as 
essential to this occupation, including statistics, research methods, and marketing, and further explains 
that courses in communications and social sciences (such as economics, psychology, and sociology) 
are also important. Although the Handbook indicates that market research analysts may need an 
advanced degree, particularly for "leadership positions or positions that perform more technical 
research," it also indicates that degrees and backgrounds in various fields are acceptable for jobs in 
this occupation - including computer science and the social sciences, as well as statistics and 
communications. 4 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
2 All of our references to the Handbook may be accessed at the Internet site http://www.bls.gov/ooh/. We consider the 
information in the Handbook regarding the duties and educational requirements of the wide variety of occupations that it 
addresses. We do not, however, maintain that the Handbook is the exclusive source of relevant information. That is, the 
occupational category designated by the Petitioner is considered as an aspect in establishing the general tasks and 
responsibilities of a proftered position, and we regularly review the Handbook on the duties and educational requirements 
of the wide variety of occupations that it addresses. However, the burden of proof remains on the Petitioner to submit 
sufficient evidence to establish that the proffered position qualifies as a specialty occupation. 
3 A petitioner submits the LCA to the Department of Labor (DOL) to demonstrate that it will pay an H-IB worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, expe1ience, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.73 l(a). 
4 In general, 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 2 l 4(i)(l )(B) of the Act. In such a case, the required "body of highly specialized knowledge" would 
essentially be the same. Since there must be a close correlation between the required "body of highly specialized 
knowledge" and the position, however, a minimum entry requirement of a degree in two disparate fields, such as statistics 
and psychology, would not meet the statutory requirement that the degree be "in the specific specialty ( or its equivalent)," 
unless the Petitioner establishes how each field is directly related to the duties and responsibilities of the particular position 
such that the required body of highly specialized knowledge is essentially an amalgamation of these different specialties. 
Section 214(i)(l )(B) of the Act ( emphasis added). 
Whether read with the statutory "the" or the regulatmy '·a," both readings denote a singular "specialty." Section 
214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). Still, we do not so narrowly interpret these provisions to exclude 
3 
In addition to recognizing degrees in disparate fields, i.e., social science and computer science, as 
acceptable for entry into this field, the Handbook also states that "[ o ]thers have backgrounds in 
business administration." Although a general-purpose bachelor's degree, such as a degree in business 
administration, may be a legitimate prerequisite for a particular position, requiring such a degree, 
without more, will not justify a finding that a particular position qualifies for classification as a 
specialty occupation. Royal Siam Corp., 484 F.3d at 147. Therefore, the Handbook's recognition that 
a general, non-specialty "background" in business administration, or one of a number of other fields, 
is sufficient for entry into the occupation strongly suggests that a bachelor's degree in a specific 
specialty is not a standard, minimum entry requirement for this occupation. The Handbook, therefore, 
does not support the assertion that at least a bachelor's degree in a specific specialty, or its equivalent, 
is nmmally the minimum requirement for these positions. 
The narrative of the Handbook further reports that some employees obtain professional certification 
to demonstrate a level of professional competency. It continues by outlining the requirements for 
market research analysts to achieve the Professional Researcher Certification (PRC), and states that 
candidates qualify based upon their experience and knowledge. According to the Handbook, the PRC 
is granted by the Marketing Research Association, now known as the Insights Association, 5 to those 
who pass an exam, have at least three years of experience working in opinion and market research, 
and complete 12 hours of industry-related education courses. 6 
We reviewed the Insights Association's website, which confams the Handbook's statement regarding 
the requirements for the PRC (i.e., passage of an exam, three years of relevant industry experience, 
and 12 hours of industry-related education), and further specifies that the "education" necessary to 
apply for PRC is "12 industry-related education hours within the two preceding years." The website 
includes information regarding "How to Enter the Industry" which lists a variety of possible degrees, 
such as business administration, liberal mis, statistics/math, qualitative analysts, computer science, 
social science, and communications, and a variety of "helpful skills," including "attention to detail," 
"presentation skills," and "basic computer skills." It does not indicate that a market research analyst 
position has any specific minimum academic requirement for entry, nor does it state that it requires 
any particular level of education to be identified as qualified and possessing a level of expertise or 
competence. Instead, the Insights Association's website highlights the importance of professional 
experience and industry-related professional courses (through conferences, seminars, and webinars). 
Consequently, neither the Handbook nor the Insights Association website 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. 
positions from qualifying as specialty occupations if they permit, as a minimum entry requirement, degrees in more than 
one closely related specialty. This also includes even seemingly disparate specialties provided the evidence of record 
establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
5 The Marketing Research Association merged with the Council of American Survey Research Organizations in 2017 to 
become the Insights Association. See http://www.insightsassociation.org/about (last visited Sep. 11, 2020). The Insights 
Association is therefore the successor to the Marketing Research Association. 
6 The Insights Association website states that it "strives to effectively represent, advance, and grow the research profession 
and industry." For additional information, see http://www.insightsassociation.org/about (last visited Sep. 11, 2020). 
4 
On appeal, the Petitioner cites to a district court case, Raj and Co. v. USCIS, 85 F. Supp. 3d 1241 
(W.D. Wash. 2015), and claims that it is relevant here.7 We reviewed the decision; however, the 
Petitioner has not established that the duties and responsibilities, level of judgment, complexity, or 
amount of supervision in that case are analogous to the position proffered here. 8 There is little 
indication that the positions are similar. 
Further, in Raj, the court stated that a specialty occupation requires the attainment of a bachelor's 
degree or higher in a specific specialty, or its equivalent. The court confirmed that this issue is 
well-settled in case law and with the agency's reasonable interpretation of the regulatory framework. 
In the decision, the court noted that "permitting an occupation to qualify simply by requiring a 
generalized bachelor degree would run contrary to congressional intent to provide a visa program for 
specialized, as opposed to merely educated, workers." The court stated that the regulatory provisions 
do not restrict qualifying occupations to those for which there exists a single, specifically tailored and 
titled degree program; but rather, the statute and regulations contain an equivalency provision. 9 
In Raj, the court concluded that the employer met the first criterion. We must note, however, that the 
court stated that "[t]he first regulatory criterion requires the agency to examine the generic position 
requirements of a market research analyst in order to determine whether a specific bachelor's degree 
or its equivalent is a minimum requirement for entry into the profession." Thus, the decision misstates 
the regulatory requirement. That is, the first criterion requires the petitioner to establish that a 
baccalaureate or higher degree (in a specific specialty) or its equivalent is normally the minimum 
requirement for entry into the particular position. 
Consequently, if the court meant to suggest that any position classified under the occupational category 
"Market Research Analysts" would, as it stated, "come within the first qualifying criteria" - we must 
disagree. 10 The occupational category designated by a petitioner is considered as an aspect in 
establishing the general tasks and responsibilities of a proffered position, and USCIS regularly reviews 
the Handbook on the duties and educational requirements of the wide variety of occupations that it 
addresses. However, to satisfy the first criterion, the burden of proof remains on the petitioner to 
submit sufficient evidence to support a finding that its particular position would normally have a 
minimum, specialty degree requirement or its equivalent for entry. That is, to determine whether a 
particular job qualifies as a specialty occupation, USCIS does not simply rely on a position's title or 
7 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. See Matter of K-S-, 
20 I&N Dec. 715 (BIA 1993). 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. Id. at 719. 
8 We note that the Director's decision was not appealed to our office. Based on the district court's findings and description 
of the record, if that matter had first been appealed through the available administrative process, we may very well have 
remanded the matter to the service center for a new decision in our de nova review of the matter. 
9 We agree with the court that a specialty occupation is one that requires the attainment of a bachelor's or higher degree in 
a specific specialty or its equivalent. We further note that a petitioner must also demonstrate that the position requires the 
theoretical and practical application of a body of highly specialized knowledge in accordance with section 2 l 4(i)(l )(B) of 
the Act and 8 C.F.R. § 214.2(h)(4)(ii), and satisfy one of the four criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
10 In Raj, the court quoted a brief excerpt from the Handbook; however, the quotation is from the 2012-2013 edition 
rather than the current 2014-2015 edition (which contains several revisions). Further, we observe that the court did not 
address the section of the Handbook indicating that there are no specific degree requirements to obtain the Professional 
Researcher Certification credential - and therefore to work as a market research analyst. 
5 
designated occupational category. 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 beneficiary, and determine whether the position qualifies as 
a specialty occupation. See generally Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000). 
Nevertheless, it is important to note that the court in Raj dete1mined that the evidence in the record 
demonstrated that the particular position proffered required a bachelor's degree in market research or 
its equivalent as a minimum for entry. Further, the court noted that "[t]he patently specialized nature 
of the position sets it apart from those that merely require a generic degree." The position in Raj can, 
therefore, be distinguished from the instant position. Here, the duties and requirements of the position 
as described in the record of proceeding do not indicate that this particular position proffered by the 
Petitioner is one for which a baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry. 
On appeal, the Petitioner also cites Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. 
Ohio 2012) and states that the court "strongly criticized USCIS on its restrictive interpretive 
approach." The court in Residential Finance stated that "[t]he knowledge and not the title of the 
degree is what is important" with which we agree. However, in general, 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. Since there must be a close correlation between the 
required "body of highly specialized knowledge" and the position, however, a minimum entry 
requirement of a degree in two disparate fields, such as social sciences and computer science, would 
not meet the statutmy requirement that the degree be "in the specific specialty (or its equivalent)," 
unless the Petitioner establishes how each field is directly related to the duties and responsibilities of 
the particular position. Section 214(i)(1 )(B) of the Act ( emphasis added). 11 However, the Petitioner 
has not met its burden to establish that the particular position offered in this matter requires a 
bachelor's or higher degree in a specific specialty, or its equivalent, directly related to its duties in 
order to perform those tasks. 
In any event, the Petitioner has furnished no evidence to establish that the facts of the instant petition 
are analogous to those in Res;dential Finance. 12 Again, we are not bound to follow the published 
decision of a United States district court in matters arising even within the same district. See K-S-, 20 
I&N Dec. at 719-20. It is also important to note that in a subsequent case reviewed in the same 
jurisdiction, the court agreed with our analysis of Residential Finance. See Health Carousel, LLC v. 
USCIS, No. 1:13-CV-23, 2014 WL 29591 (S.D. Ohio 2014). 
11 The court in Residential Finance did not eliminate the statutmy "bachelor's or higher degree in the specific specialty" 
language imposed by Congress. Rather, it found that the petitioner in that case had satisfied the requirement. 
12 The district judge's decision appears to have been based largely on the many factual errors made by the Director in the 
decision denying the petition. We further note that the Director's decision was not appealed to us. Based on the district 
court's findings and description of the record, if that matter had first been appealed through the available administrative 
process, we may very well have remanded the matter to the service center for a new decision for many of the same reasons 
articulated by the distiict court if these errors could not have been remedied by us in our de nova review of the matter. 
6 
The record lacks sufficient evidence to support a finding that the proffered position is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. For the aforementioned reasons, the Petitioner has not met its burden to 
establish that the particular position offered in this matter requires a bachelor's or higher degree in a 
specific specialty, or its equivalent, directly related to its duties in order to perform those tasks. Thus, 
the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or. ;n the alternative, an employer may show 
that its particular position is so complex or unique that it can be perfmmed only by an individual with 
a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong contemplates 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. On appeal, the Petitioner does not assert, nor does the record demonstrate eligibility under 
the first prong of the criterion. 13 Therefore, we will not further address the first 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. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the Petitioner 
described the proffered position and its business operations. However, the Petitioner has not explained 
its business operations in detail and has not sufficiently developed relative complexity or uniqueness 
as an aspect of the proffered position. In other words, the Petitioner has not demonstrated how the 
duties of the proffered position require the theoretical and practical application of a body of highly 
specialized knowledge such that a bachelor's or higher degree in a specific specialty, or its equivalent, 
is required to perform them. 
On the petition, the Petitioner stated that it is an apparel and clothing wholesale and distribution 
company with nine employees. However, in its letter submitted in support of the petition, the 
Petitioner stated that it is "part of a manufacturing group with factories in Asia and regional offices in 
the United States" and that it "operate[s] an EB5 Regional Center,__ __________ __. in 
the State of North Carolina." The Petitioner did not elaborate on the specifics of the "manufacturing 
group" nor did it provide a detailed information about the EB5 Regional Center it claims to operate in 
North Carolina. Rather, it provided its web address and directed us to obtain fmiher infmmation on 
the company through its Internet website and submitted a printout of its webpage. Notably, the 
information on its website reflects the information it provided in its letter of support. Furthermore, we 
note that the information on its website appears to be mostly from 2016 and indicates only five 
individuals in its team of employees. The website does not contain information regarding the 
Petitioner's operations as an EB5 Regional Center. 
13 Accordingly, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
7 
The Petitioner also did not submit an organizational chart depicting the departments within its 
organization and the positions held by its nine employees. Therefore, the organizational set-up, the 
Beneficiary's position within the Petitioner's overall organizational hierarchy, and the extent of her 
duties cannot be determined. For example, the Petitioner states that the Beneficiary is to 
"[r]ecommend appropriate research methodologies, sampling procedures, survey designs, and analysis 
plans (both qualitative and quantitative research[)]." However, the Petitioner does not elaborate on to 
whom the recommendations would be made, what would be the extend of the Beneficiary's role 
beyond making recommendations for these tasks, and whether the Beneficiary would be working with 
other employees in a collaborative environment or whether she will be performing these duties alone. 
Furthermore, it is not clear whether the Beneficiary's marketing duties would include the EB5 
Regional Center which the Petitioner claims to operate. 
The Petitioner submitted a document describing four projects in which the Beneficiary will participate 
and indicated the approximate percentages of time she would spend on each one as follows: 
I. 3-year Strategic Expansion Plan (Time spending: 70%) 
II. Competitive Spending Analysis (Time spending: 15%) 
III. Lead Flow Analysis (Time spending: 10%) 
IV. Pull out data from Database (Time spending: 5%) 
For each project, the Petitioner indicated the Beneficiary's level of responsibility as "[ a ]ssist" but did 
not specify who the Beneficiary would assist. The Petitioner did not elaborate on the scope and scale 
of these projects and who all will participate in them other than the Beneficiary. It did not submit an 
organizational chart depicting the operational structure within the Petitioner's business operations in 
a manner that would establish the Beneficiaiy' s relative role therein. The Petitioner has not adequately 
evidenced the scope of the Beneficiary's responsibilities within the context of its business operations. 
Moreover, the document outlining the projects provides very little insight into the Beneficiary's 
specific duties associated with such projects. Although the Petitioner listed a few "courses and skills 
related" to each project, it failed to articulate how the duties associated with these projects require an 
individual with a bachelor's or higher degree in a specific specialty, or its equivalent. For example, 
the Petitioner listed a few courses and stated that the 3-year expansion plan "requires deep understanding 
of Macroeconomics, Financial Planning (Cash flow Budgeting and Valuation models) and Modeling 
(Simulation analysis)" (emphasis omitted); however, it did not elaborate on whether such "deep 
understanding" would be gained through experience, training, or fmmal education; nor did it explain 
whether such knowledge should be equivalent to a bachelor's degree or higher in a specific specialty. 
The document describing the projects has little probative value in establishing the complexity and 
uniqueness of the duties to be performed by the Beneficiary and that the proffered position is a 
specialty occupation. 
Moreover, the record does not contain a sufficiently detailed description of the Beneficiary's duties to 
establish that the position 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, 
or its equivalent. For example, the Petitioner states that the Beneficiary's duties will include "data 
collection," "analyze data from digital and print marketing campaigns," "conduct competitive 
marketing research," and "analyze sales funnels and customer intent" but does not explain in detail 
the methods the Beneficiary will use to gather such data and that the knowledge to conduct such tasks 
8 
should be gained through a bachelor's degree or higher in a specific specialty. Again, the Petitioner 
lists a few courses "required" for the duties but fails to articulate how the proffered duties require an 
individual with a bachelor's or higher degree in a specific specialty, or its equivalent. 
The Petitioner discusses the Beneficiary's previous coursework for the purpose of correlating the need 
for the Beneficiary's education with the associated job duties of the position. While a few related 
courses and 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. The Petitioner repeatedly claims that the Beneficiary is well qualified for the position and 
references her qualifications. However, the test to establish a position as a specialty occupation is not 
the education or experience of a proposed beneficiaiy, but whether the position itself requires at least 
a bachelor's degree in a specific specialty, or its equivalent. We are required to follow long-standing 
legal standards and determine first, whether the proffered position qualifies for classification as a 
specialty occupation, and second, whether the Beneficiary was qualified for the position at the time 
the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 
(Comm'r 1988) ("The facts of a beneficiary's background only come at issue after it is found that the 
position in which the petitioner intends to employ him falls within [a specialty occupation]."). 
Duties as described do not illuminate the substantive application of knowledge involved or any 
particular educational requirement associated with such duties. With the broadly described duties, the 
record lacks sufficient information to demonstrate that the 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. 
We reviewed the advisory letter authored byl I submitted in support of the petition. 
Regarding the requirements for the proposed position,! I provided a number of different 
requirements including: (1) conventional industry standards followed by institutions hiring skilled 
labor under the H-lB visa program include a bachelor's degree in marketing or a closely related field, 
as well as 0-4 years of professional work experience in marketing, and among other things, analytical, 
organizational, and management skills with strong problem solving skills; (2) market research analysts 
require specialized knowledge through advanced post-secondary educational programs or through 
progressively responsible work experience in the field of marketing or a closely related field; and, 
(3) the job duties require knowledge of related field that is acquired by a combination of academics, 
specialized training and/or professional experience. I ldoes not consistently identify the 
educational requirements for a market research analyst and he does not discuss why his requirements 
vary. He does not distinguish or otherwise explain his requirements for the proffered position. 
Moreover, he does not discuss the duties of the proffered position in any substantive detail. Rather, 
he restates the same 14 bullet-point duties listed in the Petitioner's submission letter. There is no 
indication that he possesses any knowledge of the Petitioner's proffered position beyond this limited 
job description. The absence of any substantive discussion of the duties raises doubts about his level of 
familiarity with the proffered position and also undermines his conclusion regarding the degree 
requirement of the position. The letter, therefore, is not probative in establishing that a market research 
analyst or the proffered position is a specialty occupation. We may, in our discretion, use opinion 
statements submitted by the Petitioner as advisory. Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 
9 
(Cornm'r 1988). 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. Id. 14 
The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the 
position. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R 
§ 214.2(h)(4)(iii)(A)(2). 
C. 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. On appeal, the 
Petitioner does not assert, nor does the record demonstrate, eligibility under this criterion. 15 
Accordingly, the Petitioner has not satisfied the criterion at 8 C.F.R § 214.2(h)(4)(iii)(A)(3). 
D. 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. 
For 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 demonstrated in the record that its proffered position is one with duties sufficiently 
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. 
Consequently, the Petitioner has not satisfied any of the criteria at 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A). 
ORDER: The appeal is dismissed. 
14 We hereby incorporate our discussion of the advisory letter into our discussion of the other 8 C.F.R. § 214.2(h)( 4)(iii)(A) 
criteria. 
15 The Petitioner states that there is only one "other employee in a position nearly identical to the offered position" who 
holds a bachelor's degree in a related field. However, the Petitioner fails to demonstrate that the duties performed by this 
individual are the same or similar to the duties of the position offered to the Beneficiary. Nevertheless, the Petitioner does 
not contest the Director's conclusion that it has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
10