dismissed H-1B Case: Automotive Parts

U.S. Citizenship 
and Immigration 
Services 
In Re : 10771366 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 23, 2021 
The Petitioner, an automotive parts supplier, seeks to temporarily employ the Beneficiary as a "market 
research analyst" under the H-lB nonimmigrant classification for specialty occupations . 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 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 Director of the California Service Center denied the petition, concluding the record did not 
establish that the position qualified as a specialty occupation. The Petitioner filed combined motions 
to reopen and reconsider with new evidence , and the Director denied the motions stating that the 
motions do not meet the regulatory requirements. On appeal, the Petitioner submits new evidence and 
asserts the Director erred in denying the petition. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence .1 
Upon de nova review, we will dismiss the appeal. 
The issue on appeal is whether the Director properly denied the motions under 8 C.F.R. § 103.5(a) . 
As correctly explained by the Director , a motion to reopen must state new facts and be supported by 
documentary evidence . 8 C.F.R. § 103.5(a)(2) . A motion to reconsider must establish that the 
Director's decision was based on an incorrect application of law or policy and that the decision was 
incorrect based on the evidence in the record of proceeding at the time of the decision. 8 C.F.R. 
§ 103.5(a)(3). 
We conclude that the Director properly evaluated new facts presented on motion and dismissed the 
motion to reopen. 8 C.F.R . § 103 .2(b )(1) requires a petitioner to establish eligibility for the benefit at 
the time of filing . The Petitioner must establish that the position offered to the Beneficiary when the 
petition was filed merits classification for the benefit sought. See Matter of Michelin Tire Corp., 17 
I&N Dec . 248, 249 (Reg'l Comm'r 1978). A petitioner may not make material changes to a petition 
1 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izwnmi, 22 
I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
On the labor condition application (LCA) submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Market Research Analysts and 
Marketing Specialists" corresponding to the Standard Occupational Classification (SOC) code 13-
1161 at a Level I wage rate. 2 However, on motion, the Petitioner stated that it "increased the 
percentage of [the] Beneficiary's time spent on more complex tasks and has eliminated what the 
USCIS may have considered responsibilities for which a degree was not required." The Petitioner 
further asserted "in connection with the more complex and specialized responsibilities of the position, 
[it] has increased the Beneficiary's salary" from $37,500 to $65,000 (Level I to III wage) and 
submitted evidence of the higher salary. 3 In dismissing the motion, the Director concluded the duty 
and wage level modifications were material changes to the terms and conditions of employment and 
that the Petitioner did not establish that the proffered position qualified as a specialty occupation at 
the time of filing. 
Altering the percentage of the duties, including increasing more complex duties and eliminating duties 
that do not require a degree after the petition had been denied, undermines the nature of the proffered 
position, and whether at the time of filing, the Petitioner established that the Beneficiary would 
perform services in a specialty occupation. Section 101(a)(15)(H)(i)(b) of the Act. On appeal, the 
Petitioner asserts that the increase in compensation was "not intended as 'ex post facto' proof but "as 
evidence that the duties of the Position ... do in fact justify the higher compensation." However, 
elevating the wage level on motion raises questions about the nature of the position, and whether the 
wage and the LCA corresponded to the petition at the time of filing. Section 212(n)(l) of the Act; 20 
C.F.R. § 655.73 l(a). 
On appeal, the Petitioner also asserts that the updated requirements submitted with its motion 
demonstrate that the position requires "technical knowledge and skills that even its Vice President of 
Marketing lacks after three decades of analyzing markets." However, at the time of filing, the position 
was listed at a Level I, entry-level, wage rate with no experience requirement. Thus, the record is 
inconsistent and the Petitioner has not established what level of experience and associated knowledge 
is actually required to perform the duties. 4 
2 A petitioner submits the LCA to the U.S. Depaitment of Labor (DOL) to demonstrate that it will pay an H-lB 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, experience, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.73l(a). 
3 The Petitioner did not submit an LCA certified prior to filing of the petition corresponding to the wage level increase. 
4 We look to the record to asce1tain 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 and consistent evidence regarding the substantive 
nature of the duties the Beneficiary will perfonn, 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 a position that also satisfies 
at least one of the four criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). As such, because the Petitioner has not sufficiently and 
consistently described the substantive nature of the position, we need not discuss specific arguments regarding whether 
the position satisfies any of the four regulatory criteria. 
2 
Any material changes in the terms and conditions of employment require filing a new pet1t10n 
accompanied by a current or new LCA. 5 8 C.F.R. § 214.2(h)(2)(i)(E). A visa petition may not be 
approved based on speculation of future eligibility or after the Petitioner or Beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. at 249. Therefore, 
we conclude that the Director properly dismissed the motion to reopen. 
We also conclude that the Director correctly determined that the motion did not meet the requirements 
of a motion to reconsider under 8 C.F.R. § 103.5(a)(3). The Petitioner did not establish that the 
Director's decision was based on an incorrect application of law or policy and that the decision was 
incorrect based on the evidence in the record of proceeding at the time of the decision. On appeal, the 
Petitioner submits a brief urging reconsideration of the evidence and arguments presented with its 
motion. However, the appeal arguments and evidence do not sufficiently identify erroneous 
statements of law or policy relating to denial of the motion but revisit the claims previously presented. 
For example, the Petitioner claims the motion's dismissal did not adequately address its argument that 
many different types of degrees can satisfy the requirements for a specialty occupation. The Petitioner 
explained that the minimum entry requirement for the proffered position is a bachelor's degree in 
"marketing, statistics, business analytics or a related discipline." However, the record indicates that 
other disciplines acceptable for entry include business administration, communication, math, and 
computer science. The Director determined that such a broad range of acceptable degrees supported 
the conclusion that the position is not a specialty occupation. The Petitioner asserts on appeal that the 
Director too narrowly interpreted the statutory requirement that to enter the position an individual must 
possess at minimum a degree in a specific specialty, or its equivalent, and was inappropriately 
"conflating [the s]pecialized [k]knowledge and the [c]redential" elements of the law by requiring the 
degree to be in a single "specific discipline." 6 
Contrary to the Petitioner's assertion, however, the Director did not indicate that only a single specific 
discipline would be acceptable. Rather, in dismissing the motion, the Director affirmed that "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) of the Act," "provided the 
specialties are closely related." 7 Relatedly, we have long held that even seemingly disparate 
specialties may meet the statutory requirements so long as the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
5 See Matter of Simeio Solutions, 26 l&N Dec. 542 (AAO 2015). 
6 See Section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(iii)(A). 
7 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)( 1 )(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 
philosophy and engineering, 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. Section 2 l 4(i)( 1 )(B) of the Act l emphasis added). In other words, while the statutory "the" and the 
regulatory "a" both denote a singular "specialty," we do not so narrowly interpret these provisions to exclude positions 
from qualifying as specialty occupations if they pem1it, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). 
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pos1t10n. Here, however, the Petitioner did not adequately demonstrate such a relationship between 
the various acceptable degrees and the position. 
On appeal, the Petitioner references Royal Siam Corp. v. Chertojfto assert that the range of degrees it 
identified satisfies this requirement because it had previously stated that acceptable degrees must be 
"in a quantitative field of study." 8 The Petitioner also emphasized the Beneficiary's MBA and stated 
that since it was a "quantitative-focused degree that qualified as a STEM-certified MBA" it was not a 
generic degree and satisfied the specialty degree requirement. However, the test to establish a position 
as a specialty occupation is not the education or experience of a particular beneficiary, but whether the 
position itself requires at least a bachelor's degree in a specific specialty, or its equivalent. Here, as 
discussed, the Petitioner did not sufficiently establish the requirements for the position qualify as a 
specialty occupation, and "STEM-certified MBA" is not one of the requirements previously submitted 
at the time of filing. Further, the Petitioner did not present adequate evidence showing why the content 
of the various degrees allowable for entry into the particular position provided sufficiently related 
specialty knowledge. Defining the acceptable degrees as "quantitative"-without more evidence and 
analysis showing how the identified degree in a specific specialty provides a body of highly specialized 
knowledge that is directly related to the duties and responsibilities of the proffered position-does not 
overcome the Director's finding that the acceptable degrees were too broadly defined. Rather than 
explaining the relevance of each of the degrees, the Petitioner restated its erroneous belief that the 
Director requires specialized knowledge attained through a single academic discipline. Such a 
restatement of a previously explored argument is insufficient to support the appeal. 
Next, the Petitioner also references other evidence from third party sources, including opinion letters 
and Internet articles relating to the educational requirements for "Market Research Analysts." 
However, these sources mirrored information from other parts of the record which was already 
specifically addressed in the denial. The sources at issue all suggested a degree in one of several 
disparate fields would be sufficient for entry into the occupation. Thus, by extension, the sources 
related to the basis for the Director's conclusion that the proffered position is not a specialty 
occupation. As such, these sources did not establish that the Director's decision was incorrect. 
The Petitioner's motions did not meet the regulatory requirements . The Petitioner restated its prior 
legal arguments and sought to introduce new and revised information into the record, which did not 
meet the motion requirements under 8 C.F.R. § 103.5(a). Therefore, we conclude that the Director 
properly dismissed the motions. 9 
8 See Royal Siam Corp. v. Chertojf, 484 F.3d 139 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" 
as being "one that relates directly to the duties and responsibilities of a particular position"). 
9 Since the identified basis for denial is dispositive of the Petitioner 's appeal, we need not address another ground of 
ineligibility we observe in the record of proceeding . Nevertheless, we will briefly note and summarize it here with the 
hope and intention that, if the Petitioner seeks again to employ the Beneficiary or another individual as an H-1B employee 
in the proffered position, it will submit sufficient independent objective evidence to address and overcome this additional 
ground in any future filing. Specifically , we note that the Petitioner also has not adequately demonstr ated that certified 
LCA properly corresponds to the duties of the proffered position. Although on the LCA the Petitioner identified the 
occupation as "Market Research Analysts and Marketing Specialists" (SOC code 13-1161.00), it appears that an alternate 
category , "Business Intelligence Analysts" (SOC code 15-1199.08), may have been more appropriate given that the 
position involves the financial and market intelligence duties including building "interactive business intelligence 
dashboards " and developing "business insights and action plans to support enterprise performance and business 
4 
ORDER: The appeal is dismissed. 
development." Compare Summary Report for "15-1199.08 Business Intelligence Analysts," 
https://www.onetonline.org/ Archive_ ONET-SOC _ 2010 _Taxonomy_ 09 _ 2020/link/summary/15-1199 .08 (last visited 
Feb. 22, 2021), with Summary Report for "13-1161.00 - Market Research Analysts and Marketing Specialists," 
https://www.onetonline.org/Archive _ ONET-SOC _ 201 O _Taxonomy_ 09 _ 2020/link/summaiy/13-1161.00 (last visited 
Feb. 22, 2021). DOL guidance indicates, "If the employer's job opportunity has worker requirements described in a 
combination of O*NET occupations, the NPWHC should default directly to the relevant O*NET-SOC occupational code 
for the highest paying occupation. For example, if the employer's job offer is for an engineer-pilot, the NPWHC shall use 
the education, skill and experience levels for the higher paying occupation when making the wage level dete1mination." 
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/pdti'NPWHC _Guidance_ Revised_ 11 _ 
2009.pdf Here, even if the proffered position includes tasks relating to both occupations, the LCA ce1iifies that the Level 
I market research analyst and marketing specialist prevailing wage is $35,818 per year. Conversely, in the area and for 
the time period when the petition was filed, the Level I prevailing wage would be $46,550 per year for a business 
intelligence analyst. Even if the position were a Level III position as later claimed by the Petitioner, a market research 
analyst and marketing specialist wage would be $62,254 per year while a business intelligence analyst wage would be 
$81,557 per year at the same level. As such, the SOC code for business analyst would have most likely been more 
appropriate. To determine a prevailing wage and for more information, see the Foreign Labor Certification Data Center's 
Online Wage Library, available at https://www.flcdatacenter.com (last visited Feb. 22, 2021). 
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