dismissed H-1B Case: Automotive Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 6689830 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV . 23, 2020 
The Petitioner, an automotive services and parts distribution wholesale business, seeks to temporarily 
employ the Beneficiary as a "market research analyst" under the H-lB nonimmigrant classification 
for specialty occupations . See Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(l5)(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 that the record did not 
establish that the proffered position qualifies as a specialty occupation. 
On appeal , the Petitioner submits a brief and asserts that the Director erred in denying the petition . 
Upon de nova review, we will dismiss the appeal. 1 
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 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010) . 
( I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific 
specialty" as "one that relates directly to the duties and responsibilities of a particular position"). 
II. THE PROFFERED POSITION 
The Petitioner seeks to employ the Beneficiary as a market research analyst. In response to the Director's 
request for evidence (RFE), the Petitioner provided a list of job duties for the proffered position as 
follows: 
• Establish research methods and design a format for gathering data, i.e. sales statistics; research 
and analyze service/product costs and classifications to minimize costs and maximize customer 
satisfaction; analyze the data and prepare reports recommending market penetration strategies; 
• Work with key personnel in Logistics, Finance and Sales on key strategic pricing initiatives to 
ensure industry competitiveness and analyzing existing rates and rate structures; 
• Advise management on the strength of competition, and changes in customer activities; 
• Perform detailed analysis of profitability to recommend effective actions; 
• Analyze market trends and competitor data to forecast pricing models; provide insight on the 
impact of price changes on growth rates and profitability and the impact of price changes to the 
business; 
• Keep abreast of marketing developments, particularly in the graphic design industry; 
• Increasing the market share in existing markets and maximize new business development 
opportunities; 
• Plan, analyze and create marketing strategy plans ( online and offline) to benefit both consumer 
and our company; 
• Gather statistical data on competitors and examining prices, sales, and methods of marketing and 
distribution, and then analyze data on past sales to predict future sales; 
• Prepare rate studies to propose changes in rates and charges to support the costs of distribution 
and the analysis of changes in demand for services; 
• Compile, analyze and distribute monthly reports that detail pricing data; and recommend actions 
to ensure that marketing goals for cost vs. revenue are met; 
2 
• Research and produce detailed reports on consumer adoption trends of social media activities in 
markets relevant to the company and clients; and 
• Investigate and create studies on social media usage by client competitors and company 
competitors. 
The Petitioner stated that the knowledge to perform the duties mentioned above are obtained in the 
senior years of bachelor's degree programs in marketing or business administration, and referenced 
classes such as financial accounting, statistics for social science, marketing, supply chain management, 
strategic management, organizational behavior, entrepreneurial marketing, and economic 
development as being the type of classes offering the education and knowledge required to fulfill the 
stated duties. Furthermore, the Petitioner stated that companies in other industries of all scopes and 
sizes also require a minimum of a bachelor's degree in business administration or marketing for entry 
to the position of Market Research Analyst. 
III. ANALYSIS 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation. Specifically, the record does not: (1) describe the proffered position in sufficient 
detail; and (2) establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation. 2 
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. We recognize the U.S. Department of Labor's (DOL) Occupational 
Outlook Handbook (Handbook) as a source on the duties and educational requirements of the wide 
variety of occupations that it addresses. 3 
On the labor condition application (LCA) 4 submitted in support of the H-1B 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. Thus, we reviewed the Handbook's subchapter entitled "How to Become a Market Research 
Analyst," which states, in pertinent part, that market research analysts typically need a bachelor's 
2 The Petitioner submitted documentation in support of the H-lB petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 We do not 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 proffered 
position, and we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. To satisfy the first criterion, however, the burden ofproofremains 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. 
4 A petitioner submits the LCA to 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. § 655.731(a). 
3 
degree in market research or a related field. 5 According to the Handbook, some individuals have 
degrees in fields such as statistics, math, computer science, business administration, the social 
sciences, or communications. It continues by stating that some jobs require a master's degree and that 
many analysts complete degrees in fields such as statistics and marketing or earn a master's degree in 
business administration (MBA). 6 
The Handbook reports that market research analysts have degrees and backgrounds in a wide-variety 
of disparate fields. The Handbook farther identifies various courses as essential to this occupation, 
including statistics, research methods, and marketing and farther elucidates that courses in 
communications and social sciences (such as economics, psychology, and sociology) are also 
important. Therefore, 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. 7 
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 14 7. 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 normally the minimum requirement for these positions. 
5 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Market Research Analysts 
https://www.bls.gov/ooh/business-and-financial/market-research-analysts.htm#tab-4 (last visited Oct. 20, 2020). 
6 Id. 
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 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 
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 such that the required body of highly specialized knowledge is essentially an amalgamation of these 
different specialties. Section 214(i)( I )(B) of the Act ( emphasis added). 
Whether read with the statutory "the" or the regulatory "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 
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. 
4 
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, 8 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. 9 
We reviewed the Insights Association's website, which confirms 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 arts, 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. 
The Petitioner also references DOL's Occupational Information Network (O*NET) summary report 
for "Market Research Analysts and Marketing Specialists" listed as SOC code 13-1161.00 for our 
consideration under this criterion. 
Though relevant, the information the Petitioner submits from O*NET does not establish the 
Petitioner's eligibility under the first criterion, as it does not establish that a bachelor's degree in a 
specific specialty, or the equivalent, is normally required. The summary report provides general 
information regarding the occupation; however, it does not support the Petitioner's assertion regarding 
the educational requirements for these positions. For example, the Specific Vocational Preparation 
(SVP) rating, which is defined as "the amount oflapsed time required by a typical worker to learn the 
techniques, acquire the information, and develop the facility needed for average performance in a 
specific job-worker situation," cited within O*NET's Job Zone designates this position as having an 
SVP 7 < 8. This indicates that the occupation requires "over 2 years up to and including 4 years" of 
training. 10 While the SVP rating provides the total number of years of vocational preparation required 
8 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 Oct. 20, 2020). The Insights 
Association is therefore the successor to the Marketing Research Association. 
9 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 Oct. 20, 2020). 
10 This training may be acquired in a school, work, military, institutional, or vocational environment. Specific vocational 
5 
for a particular position, it is important to note that it does not describe how those years are to be 
divided among training, formal education, and experience - and it does not specify the particular type 
of degree, if any, that a position would require. 11 The O*NET summary report for this occupation 
also does not specify that a degree is required, but instead states, "most of these occupations require a 
four-year bachelor's degree, but some do not." Similar to the SVP rating, the Job Zone Four 
designation does not indicate that any academic credentials for Job Zone Four occupations must be 
directly related to the duties performed. 
Further, we note that the summary report provides the educational requirements of "respondents." 
However, the respondents' positions within the occupation are not distinguished by career level (e.g., 
entry-level, mid-level, senior-level). Additionally, the graph in the summary report does not indicate 
that the "education level" for the respondents must be in a specific specialty. 12 A requirement for a 
bachelor's degree alone is not sufficient. Instead, 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., 484 F.3d at 147 (describing "a degree requirement in a specific 
specialty" as "one that relates directly to the duties and responsibilities of a particular position"). 
O*NET, therefore, also does not support the assertion that at least a bachelor's degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for these positions. 
The record lacks sufficient probative 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)(]). 
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, 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[.]" 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong casts its gaze upon the common 
industry practice, while the alternative prong narrows its focus to the Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent) 
is common to the industry in parallel positions among similar organizations. 
training includes: vocational education. apprenticeship training, in-plant training, on-the-job training. and essential 
experience in other jobs. 
11 For additional information. see the O*NET Online Help webpage available at http://www.onetonline.org/help/ 
online/svp. 
12 Nor is it apparent whether these credentials were prerequisites to these individuals' hiring. 
6 
We generally consider the following sources of evidence to determine if there is such a common degree 
requirement: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry attest that such firms "routinely employ 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) (considering these "factors" to 
inform the commonality of a degree requirement)). 
The Petitioner has not established that its proffered position is one for which the Handbook ( or other 
independent sources) reports an industry-wide requirement for at least a bachelor's degree in a specific 
specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on the matter. 
Also, there are no submissions from the industry's professional association indicating that it has made a 
degree a minimum entry requirement. 
We do note the Petitioner's submissiJn of a December 2018 letter from I awho identifies 
himself as a "member" ofi which is an automotive services company in Florida.D 
I lstates thatl I has 11 employees and has been in operation since 2006, and offers his 
opinion that the position of Market Research Analyst is so complex and unique that it can be performed 
only by an individual with a bachelor's degree or higher in a business, marketing or closely related field. 
In closing, I I states that "in our company and industry a bachelor's degree in business 
administration, marketing or related field is the minimum entry requirement for the position of Market 
Research Analyst or similar positions." 
While acknowledged, the letter froml I is not persuasive in establishing the proffered position 
as a specialty occupation position under any of the criteria at§ 214.2(h)(4)(iii)(A). First and foremost, 
the letter does not establish that at least a bachelor's degree in a specific specialty, or its equivalent, is 
required for the proffered position. For instance, the letter states the position requires at least a 
bachelor's degree in business administration, marketing, or related field as the minimum requirement 
for entry into the position of market research analyst "or similar positions." 13 
Furthermore, the letter from I I lacks information regarding the specific job duties and 
day-to-day responsibilities for the position claimed to require a bachelor's degree. There is no 
information regarding the complexity of the job duties, supervisory duties (if any), independent 
judgment required or the amount of supervision received. Accordingly, there is insufficient 
information regarding the duties and responsibilities of the organizations' positions to determine 
whether the positions are the same or parallel to the proffered position. Moreover, we observe that 
I ldid not provide sufficient documentary evidence to corroborate thatl I currently, 
or in the past, employed individuals in parallel positions to the proffered position. FinallyJ J 
did not submit sufficient probative evidence of the recruitment and hiring practices fo~~----~I 
The Petitioner also submitted an expert opinion letter, authored byl I Professor of 
Marketing an~ !Faculty Fellow atl I University. In his letter, ._I ____ ___.I (1) 
13 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, 484 F.3d at 147. 
7 
describes the credentials that he asserts qualify him to opine upon the nature of the proffered position 
of market research analyst, and states that based on his review of the complex duties as described by 
the Petitioner, the position would require a bachelor's degree in marketing, business administration, 
or related fields . 
.__ ___ _.I states that, based on his review of the O*NET and the Handbook, a minimum of a 
bachelor's degree is required for the occupation of market research analyst. I I farther 
opines that, based on his own experience as a consult, a bachelor's degree in marketing, business 
administration or related fields is the standard minimum requirement for entry into the occupation. 
Again, the conclusion that a bachelor's degree in business administration is an acceptable 
prerequisite for the occupation of marketing specialist farther negates the assertion that a specialty 
degree requirement is common in the industry. 
I indicated the skills required for the position are developed in the junior and senior years of 
~a_n_un_d_e-rg~raduate program in marketing, business administration or related fields. I I stated 
verbatim that "the duties and educational requirements listed for Market Research Analysts in the 
OOH (the Handbook) align closely with the duties and educational requirements for the position of 
Market Research Analyst at [Petitioner]. However, the duties assigned to the position of Market 
Research Analyst are more specialized than the duties listed for a Market Research Analyst position 
in the OOH. For example, the Market Research Analyst at [Petitioner] must be able to compile, 
analyze, and distribute monthly reports that detail pricing data and recommend actions to ensure that 
marketing goals for cost v. revenue are met and research and produce detailed reports on consumer 
adoption trends of social media activities in markets relevant to the company and clients. As these 
duties surpass the basic responsibilities listed for OOH market research analyst in the OOH, it is clear 
that a bachelor's degree in a market research-related field such as marketing or business administration 
is not merely advantageous but in fact required for the successful execution of the position with 
[Petitioner] ... " 
To execute some functions of the proffered position, related courses may be helpful or necessary. 
However,! lhas not established that a prepared educational program leading to a bachelor's 
degree or higher in a specific specialty, or its equivalent, is required. Moreover,! Is 
conclusion is not supported with the results of formal surveys, research, statistics, or other objective 
quantifying information to substantiate the opinion. As a matter of discretion, we may use opinion 
statements submitted by the Petitioner as advisory. 14 However, we will reject an opinion or give it 
less weight if it is not in accord with other information in the record or if it is in any way questionable. 15 
We are ultimately responsible for making the final determination regarding an individual's eligibility 
for the benefit sought, and the submission of expert opinion letters is not presumptive evidence of 
eligibility. 16 
It is important to note that it appears as though! lused a template with conclusory findings 
and little or no analysis to support the Petitioner's particular position as a specialty occupation. The 
14 See Matter of Caron International, 19 T&N Dec. 791, 795 (Comm'r 1988). 
1s Id. 
16 Id.; see also Matter of V-K-, 24 l&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while undoubtedly a 
form of evidence, does not purport to be evidence as to 'fact' but rather is admissible only if 'it will assist the trier of fact 
to understand the evidence or to determine a fact in issue."'). 
8 
lack of cogent analysis strongly suggests thatl I was asked to confirm a preconceived notion 
as to the required degrees, rather than objectively assess the proffered position and opine on the 
minimum bachelor's degree required, if any. While we will review the opinion presented, it has little 
probative value as it does not include specific analysis of the duties of the particular position that is 
the subject of this petition. 
Therefore, we do not find the assertions ofl !persuasive. 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 (Comm'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 ma} give less weight to that evidence. Id. 
Consistent with Caron Int'l, we find that I 's evaluation does not satisfy 8 C.F.R. 
§ 214 .2(h )( 4 )(iii)( A )(2) and, for the sake of efficiency, hereby incorporate this finding into our analysis 
of the remaining specialty-occupation criteria. 
The Petitioner has not provided sufficient evidence to establish that a bachelor's degree in a specific 
specialty, or its equivalent, is common to the industry in parallel positions among similar 
organizations. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which 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. 
We reviewed the Petitioner's statements regarding the proffered pos1t10n; however, while the 
Petitioner briefly stated that the market research analyst will "analyze and propose ways to improve 
the organization's structure, efficiency and profits," it has not sufficiently developed relative 
complexity or uniqueness as an aspect of the proffered position. That is, the Petitioner has not 
explained in detail how tasks such as: 
• Establish research methods and design a format for gathering data, i.e. sales statistics; research 
and analyze service/product costs and classifications to minimize costs and maximize customer 
satisfaction; analyze the data and prepare reports recommending market penetration strategies; 
• Work with key personnel in Logistics, Finance and Sales on key strategic pricing initiatives to 
ensure industry competitiveness and analyzing existing rates and rate structures; 
• Advise management on the strength of competition, and changes in customer activities; 
• Perform detailed analysis of profitability to recommend effective actions; 
• Analyze market trends and competitor data to forecast pricing models; provide insight on the 
impact of price changes on growth rates and profitability and the impact of price changes to the 
business; 
• Keep abreast of marketing developments, particularly in the graphic design industry; 
• Increasing the market share in existing markets and maximize new business development 
opportunities; 
9 
• Plan, analyze and create marketing strategy plans ( online and oftline) to benefit both consumer 
and our company; 
• Gather statistical data on competitors and examining prices, sales, and methods of marketing and 
distribution, and then analyze data on past sales to predict future sales; 
• Prepare rate studies to propose changes in rates and charges to support the costs of distribution 
and the analysis of changes in demand for services; 
• Compile, analyze and distribute monthly reports that detail pricing data; and recommend actions 
to ensure that marketing goals for cost vs. revenue are met; 
• Research and produce detailed reports on consumer adoption trends of social media activities in 
markets relevant to the company and clients; and 
• Investigate and create studies on social media usage by client competitors and company 
competitors 
require the theoretical and practical application of a body of highly specialized knowledge. These 
listed duties, when read in combination with the evidence found in record of proceedings, suggests 
that this particular position is not so complex or unique relative to other market research analysts that 
the duties can only be performed by an individual with a bachelor's degree or higher in a specific 
specialty, or its equivalent. 
Further, although the Beneficiary's proposed job duties include collaboration with key personnel in 
Logistics, Finance and Sales, and advising management on the strength of competition and changes in 
customer activities, the Petitioner has not identified the individuals the Beneficiary would work with, 
nor any "customers" the Beneficiary would support in the proffered position. 
Additionally, the Petitioner claims that the Beneficiary is well qualified for the position, and references 
his qualifications. The Petitioner provided information about the courses related to the knowledge 
required in order to perform the duties of the proffered position, and indicated that these courses and 
specific coursework have provided the Beneficiary with the skills necessary to perform the listed 
duties. However, the test to establish a position as a specialty occupation is not the education or 
experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. Simply providing a long list of the Beneficiary's 
coursework, or courses available in a degree program, does not sufficiently develop relative 
complexity or uniqueness of the particular position. 
Despite the somewhat lengthy bullet-point list describing the duties of the proffered position, the 
Petitioner simply did not sufficiently develop relative complexity or uniqueness as an aspect of the 
duties of the position, and it did not identify any tasks that are so complex or unique that only a 
specifically degreed individual could perform them. Furthermore, the Petitioner designated the 
proffered position as a Level I position on the LCA. 17 When read in combination with the Petitioner's 
17 The issue here is that the Petitioner's designation of this position as a Level I position undermines its claim that the 
position is particularly complex. specialized, or unique compared to other positions within the same occupation. The 
Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). A Level I wage 
rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding 
of the occupation. This wage rate indicates: (I) that the Beneficiary will be expected to perform routine tasks that require 
limited, if any, exercise of judgment; (2) that he will be closely supervised and his work closely monitored and reviewed 
10 
statements, the evidence presented, and the Handbook's account of the requirements for this 
occupation, this Level I designation suggests that the particular position is not so complex or unique 
to establish the position as a specialty occupation. 
The Petitioner claims that the Beneficiary is well qualified for the pos1t10n, and references his 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. 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. 
In response to the RFE, the Petitioner stated that it has one other employee in a market research analyst 
position and submitted a copy of his degree certificate. However, the Petitioner did not provide evidence 
of his employment and did not submit information pertaining to his job duties and day-to-day 
responsibilities. Accordingly, it is unknown whether the duties and responsibilities of this individual are 
the same or similar to the proffered position. Nor does the record establish that this individual's 
credentials were a prerequisite to his hiring. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference for 
high-caliber candidates but is necessitated instead by performance requirements of the position. See 
Defensor, 201 F.3d at 387-88. Were we limited solely to reviewing a petitioner's claimed self-imposed 
requirements, an organization could bring any individual with a bachelor's degree to the United States to 
perform any occupation as long as the petitioning entity created a token degree requirement. Id. Evidence 
provided in support of this criterion may include, but is not limited to, documentation regarding the 
Petitioner's past recruitment and hiring practices, as well as information regarding employees who 
previously held the position. 
We conclude that the Petitioner did not provide sufficient documentary evidence to support the assertion 
that it normally requires at least a bachelor's degree in a specific specialty, or its equivalent, directly 
related to the duties of the position. The Petitioner has not satisfied the third criterion of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
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 accuracy; and (3) that he will receive specific instructions on required tasks and expected results. DOL guidance, 
available at http://www.foreignlaborcert.doleta.gov/pdfiNPWHC _Guidance_ Revised_ 11 _ 2009 .pdf. A prevailing wage 
determination starts with an entry level wage and progresses to a higher wage level after considering the experience, 
education, and skill requirements of the Petitioner's job opportunity. Id. 
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For reasons similar to those discussed under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), we 
find that the Petitioner has not established 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 therefore incorporate our earlier 
discussion and analysis on this matter. Again, the described duties, when read in combination with the 
evidence found in record of proceedings, suggests that this particular position is not so specialized and 
complex that the duties can only be performed by an individual with a bachelor's degree or higher in 
a specific specialty, or its equivalent. 
It is noted that the Petitioner references Young China Daily v. Chappell, 742 F. Supp. 552 (N.D. Cal. 
1989), asserting that the Director erroneously focused on the size of the Petitioner in reviewing the 
petition and reaching her decision. While we concur that USCIS should not limit its review to the size 
of a petitioner and must consider the actual responsibilities of the proffered position, we conclude that 
it is reasonable to assume that the size of an employer's business has or could have an impact on the 
claimed duties of a particular position. See EG Enterprises, Inc. v. Dep 't of Homeland Sec., 467 F. 
Supp. 2d 728 (E.D. Mich. 2006). The size of a petitioner may be considered as a component of the 
nature of the petitioner's business, as the size impacts upon the actual duties of a particular position. 
In this matter, however, we note that the Director in fact did not reference the size of the Petitioner's 
business as a reason for the denial of the petition. Therefore, the Petitioner's argument on this point 
is clearly misplaced. 
As a final note, we are not persuaded by the Petitioner's comments on Unical Aviation Inc. v. INS, 248 
F. Supp. 2d 931 (D.C. Cal. 2002). The material facts of the present proceedings are distinguishable 
from those in Unical. Specifically, Unical involves: (1) a position for which there was a companion 
position held by a person with a Master's degree; (2) a record of proceedings that included an 
organizational chart showing that all of its employees in the marketing department held bachelor's 
degrees; and, in the court's words; (3) "sufficient evidence to demonstrate that there is a requirement 
of specialized study for [the beneficiary's] position." Also, the proffered position and related duties 
in the present proceeding are different from those in Unical, where the beneficiary was to liaise with 
airline and Maintenance Repair Organization (MRO) customers in China for supply of parts and 
services; analyze and forecast airline and MRO demands to generate plans to capture business; provide 
after-sales services to customers in China; and develop new products and services for the China 
market. Moreover, there is no indication in the record of proceedings that the Petitioner is in the same 
industry or is in any way similar in size or type of business as Unical Aviation Inc. 
Further, in Unical, the Court partly relied upon Augat, Inc. v. Tabor, 719 F. Supp. 1158 (D. Mass. 
1989), for the proposition that Immigration and Naturalization Service (INS, now USCIS) had not 
used an absolute degree requirement in applying the "profession" standard at 8 U.S.C. § 1101(a)(32) 
for determining the merits of an 8 U.S.C. § 1153(a)(3) third-preference visa petition. That proposition 
is not relevant here because the H-1B specialty occupation statutes and regulations, not in existence 
when INS denied the Augat, Inc. third-preference petition, mandate not just a baccalaureate or higher 
degree but a degree "in the specific specialty," or its equivalent. Section 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii). We also note that, 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, 
719-20 (BIA 1993). Although the reasoning underlying a district judge's decision will be given due 
12 
consideration when it is properly before us, the analysis does not have to be followed as a matter of 
law. Id. 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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