dismissed H-1B Case: Basketball Training

U.S. Citizenship 
and Immigration 
Services 
In Re: 17422373 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 11, 2021 
The Petitioner, a basketball skills training company, seeks to temporarily employ the Beneficiary as a 
"director of basketball operations & trainer" under the H-1B 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-1B 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 Vermont Service Center denied the petition, concluding that the record did not 
establish that the proffered position is a specialty occupation. On appeal, the Petitioner submits a brief 
and asserts that the Director erred by denying the petition. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence.1 We review the questions in this matter de nova. 2 Upon de nova 
review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum for entry into the occupation in the United States." The 
regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(I) of the Act but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
1 Section 291 of the Act ; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 3 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " (emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (1) the normal 
minimum educational requirement for entry into the particular position, which is the focus of criterion 
1; (2) industry positions which are parallel to the proffered position and thus appropriate for review 
for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; (4) the factual justification for a petitioner normally requiring a degree or its equivalent, 
when that is an issue under criterion 3; and (5) the degree of specialization and complexity of the 
specific duties, which is the focus of criterion 4. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
II. ANALYSIS 
The Petitioner stated that the Beneficiary will be employed as a "director of basketball operations & 
trainer," and that the position requires a minimum of a bachelor's degree. The Petitioner initially 
provided a list of duties, which was expanded by the Petitioner's job posting in their response to the 
Director's request for evidence (RFE) and then updated and expanded with their appeal submission. 
While we will not list each duty here, we have reviewed and considered each one. 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the duties of the 
proffered position such that we may discern the nature of the position and whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a baccalaureate degree in a specific discipline. When determining whether a position 
is a specialty occupation, we look at the nature of the business offering the employment and the 
description of the specific duties of the position as it relates to the performance of those duties within 
the context of that particular employer's business operations. 
3 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We constrne 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"). 
2 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not adequately established the services the Beneficiary will perform, 
which precludes a determination of whether the proffered position qualifies as a specialty occupation 
under sections 101(a)(15)(H)(i)(b), 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(i)(A)(1), 8 C.F.R. 
§ 214.2(h)(4)(ii) and (iii)(A). 4 
On the labor condition application (LCA) 5 submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category '"Coaches and Scouts" (Coaches) 
corresponding to the standard occupational classification code (SOC) 27-2022 from the Occupational 
Information Network (O*NET), at a wage level 111 rate. According to O*NET's description, positions 
located within the "Coaches and Scouts" occupation primarily "[i]nstruct or coach groups or 
individuals in the fundamentals of sports for the primary purpose of competition" and "[d]emonstrate 
techniques and methods of participation." 6 A review of the O*NET tasks indicate this occupation's 
administrative duties are limited and do not include marketing and promotional duties such as 
developing marketing strategies and conducting marketing campaigns.7 
The Petitioner's description of the proffered position creates ambiguity in the record regarding the 
nature of the position and therefore whether the position actually fal Is within the occupational category 
designated on the LCA. Specifically, the Petitioner's marketing, promotional, and budgeting duties 
appear atypical for positions located within the "Coaches and Scouts" occupation. For example, the 
Petitioner's job description would require the Beneficiary to "[c]onduct promotional marketing 
campaigns on behalf of the company (e.g. manage [Y]elp, blast emails, social media, flyers, etc.)"; 
"[e]stablish relationships with customers and provide customer service to increase enrollment (e.g. 
answering calls, email recaps, info emails)"; "[p]lan and execute community outreach to grow 
clientele"; "[develop] and [execute] marketing strategies to increase enrollment and student retention, 
promoting [the Petitioner's] programs on social media platforms"; and "[create] the marketing budget 
... [monitor] client feedback and retention." The Petitioner's duties suggest the Beneficiary will 
exercise some oversight on promotions and marketing strategy development and developing budgets 
for these strategies. These promotional duties are not found within the O*NET tasks for positions 
located within the "Coaches and Scouts" occupation, but they do appear among the tasks I isted for 
SOC code 11-2011, "Advertising and Promotions Managers,"who are required to "[p]lan and prepare 
advertising and promotional material to increase sales of products or services, working with customers, 
company officials, sales departments, and advertising agencies"; "[ d]evelop communications 
materials, advertisements, presentations, or public relations initiatives to promote awareness of 
products and services"; "[a]ttend or participate in conferences, community events, and promotional 
events related to products or technologies"; "[p]repare budgets and submit estimates for program costs 
4 The Petitioner submitted documentation to support the H-1B 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. 
5 A petitioner submits the LCA to the U.S. Department of Labor (DOL) to demonstrate that it will pay an H-1B 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). 
6 O*NET Summary Report for "Coaches and Scouts," https://www.onetonline.org/link/summary/27-2022.00 (last visited 
Aug. 11, 2021). 
7 Id. 
3 
as part of campaign plan development"; and "[d]evelop comprehensive marketing strategies, using 
knowledge of products and technologies, markets, and regulation." 8 In addition, the position's 
marketing duties appear among those listed for SOC code 11-2021, ''Marketing Managers," who 
"[i]dentify, develop, or evaluate marketing strategy, based on knowledge of establishment objectives, 
market characteristics, and cost and markup factors," and "[f]ormulate, direct, or coordinate marketing 
activities or policies to promote products or services, working with advertising or promotion 
managers." 9 In other words, many of the position's duties are beyond the description of the "Coaches 
and Scouts" SOC code and appear more closely aligned to the duties of the "Advertising and 
Promotional Managers" and "Marketing Managers" SOC codes. With these ambiguities in the record 
regarding the duties of the position, we cannot ascertain the substantive nature of the position. 
The letter authored byl I Chair and Professor in the Department of Sport Management 
atl I University adds similar problems. I !states the Beneficiary will 
perform "significant duties related to business marketing and client relationship management" and 
wi 11 "conduct promotional marketing campaigns"; "participate in the management of [Petitioner's] 
social media presence"; "oversee a team member in blogging, social media video content, and podcast 
marketing"; "manage and track new clients, including handling feedback and tracking retention rates"; 
and "evaluate the success of new programs and marketing campaigns to inform future business 
decisions." Again, these marketing and promotional duties are outside the scope of positions listed 
for positions located within the "Coaches and Scouts" occupational category and appear more 
consistent with those of the "Advertising and Promotional Managers" and the "Marketing Managers" 
occupations. ~------~does not address or explain the apparent conflict between the 
Petitioner's designation of the occupation on the certified LCA and the various duties that fall outside 
the parameters of that occupation. As such,.__ ______ ~'s opinion does not support the 
selected designation on the Petitioner's LCA. 
This is not in and of itself problematic. However, if the duties of a proffered position involve aspects 
of more than one occupational category (e.g., "Coaches and Scouts" and "Advertising and Promotional 
Managers"), U.S. Department of Labor's (DOL) "Prevailing Wage Determination Policy Guidance" 
states that the employer "should default directly to the relevant O*NET-SOC occupational code for 
the highest paying occupation." 10 The Petitioner did not do so. A Level 111 position located within 
the "Advertising and Promotional Managers" (SOC code 11-2011) occupational category would 
necessitate a higher wage of $155,251 rather than the offered wage of $55,000 per year.11 Likewise, 
a Level 111 position located within the "Marketing Managers" (SOC code 11-2021) occupational 
8 O*NET Summary Rep01t for "Advertising and Promotions Managers," https://www.onetonline.org/link/summary/11-
2011.00 (last visited Aug. 11, 2021). 
9 O*NET Summaiy Report for "Marketing Managers," https://www.onetonline.org/link/summary/11-2021.00 (last visited 
Aug. 11, 2021). 
10 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf . .-----------, 11 The Petitioner provided an LCA certified on May 26, 2020 for a position located in.__ ____ __,California. The 
wages for SOC 11-2011, at the time of the LCA' s certification can be found on the Foreign Labor Certification Data Center 
Online Wage Library: https://www.flcdatacenter.com/OesQuickResults.aspx?code=11-
2011&area~&year=20&source=1. 
4 
category would mandate a higher wage of $182,582.12 This wide wage disparity highlights the 
difference between the "Coaches and Scouts" and the "Advertising and Promotional Managers" and 
"Marketing Managers" occupational categories generally, and more specific to this case, the 
significance of the Petitioner's choice of the lower-paying occupational category. In sum, since the 
position's broad description lacks specificity because it includes duties that more likely pertain to other 
occupations, we cannot determine the substantive nature of this particular position. Therefore, we 
cannot conclude that the actual duties of the proffered position require a bachelor's degree in a specific 
specialty, or its equivalent, nor determine that the duties actually correspond to the certified LCA.13 
Moreover, the Petitioner's varying statements regarding the educational requirements for the position 
raise additional, and equally significant, questions as to the substantive nature of this position. They 
also cast doubt as to whether a bachelor's degree in a specific specialty, or the equivalent, is in fact 
required. Prior to the appeal, the record indicated the position requires at least a bachelor's degree, 
but it did not specifically state that the degree needed to be in any particular specialty. For example, 
the position's job posting states only that "a bachelor's degree is required, master's degree is 
preferred." A petitioner must demonstrate that the proffered position requires a precise and specific 
course of study that relates directly and closely to the position in question. Since there must be a close 
correlation between the required specialized studies and the position, the requirement of a generalized 
degree without further specification, does not establish the position as a specialty occupation. Cf. 
Matter of Michael Hertz Assocs., 19 I&N Dec. 558,560 (Comm'r 1988). In addition to demonstrating 
that a job requires the theoretical and practical application of a body of specialized knowledge as 
required by section 214(i)(l) of the Act, a petitioner must also establish that the position requires the 
attainment of a bachelor's or higher degree in a specialized field of study or its equivalent. As noted 
earlier, we interpret 8 C.F.R. § 214.2(h)(4)(iii)(A) as requiring a degree in a specific specialty that is 
directly related to the proposed position. We have consistently stated that, although a general-purpose 
bachelor's degree may be a legitimate prerequisite for a particular position, requiring such a degree, 
without more, will not justify a conclusion that a particular position qualifies for classification as a 
specialty occupation. Royal Siam Corp., 484 F.3d at 147. 
On a eal the Petitioner provides a new set of educational requirements. Specifically, .... I __ ____. 
states that a bachelor's degree in sport management, or a related field, is necessary. 
Although~-----~associates a specific specialty with the degree, the updated requirement 
12 The wages for SOC 11-2021, at the time of the LCA's certification can be found on the Foreign Labor Certification Data 
Center Online Wage Library: https://www.flcdatacenter.com/OesQuickResu1ts.aspx?code=11-
2021&area=e=J&year=20&source=1. 
13 The LCA serves as the critical mechanism for enforcing section 212(n)(1) of the Act, 8 U.S.C. § 1182(n)(1). See Labor 
Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty Occupations 
and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United States, 65 Fed. 
Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage 
protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring 
temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] with 
[DOL]."). While DOL is the agency that certifies LCA applications before they are submitted to U.S. Citizenship and 
Immigration Services (USCIS), DOL regulations note that the Department of Homeland Security (DHS) (i.e., its 
immigration benefits branch, USCIS) is the department responsible for determining whether the content of an LCA filed 
for a particular Form 1-129 actually supports that petition. See 20 C.F.R. § 655.705(b). The regulation at 20 C.F.R. 
§ 655.705(b) requires that USCIS ensure that "the petition is supported by an LCA which conesponds with the 
petition .... " 
5 
materially changes the Petitioner's educational requirement. 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 in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). In sum, the 
position's educational requirements are not consistent throughout the record, which raises yet more 
questions as to the actual substantive nature of the position. 
Absent more specific (and consistent) evidence regarding the nature of the proffered position's duties, 
the Petitioner has failed to demonstrate the substantive nature of the work to be performed by the 
Beneficiary. This, therefore, precludes our ability to ascertain the nature of the position and whether 
the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A).14 Additionally, the 
record does not demonstrate that performing the general duties described would require the theoretical 
and practical application of highly specialized knowledge and attainment of at least a bachelor's degree 
in a specific specialty or its equivalent. See section 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) 
(defining the term "specialty occupation). 
Ill. CONCLUSION 
As set forth above, we conclude that the evidence of record does not establish, more likely than not, 
that the proffered position qualifies for classification as a specialty occupation. Accordingly, 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. 
14 We also note that the ambiguity in the record regarding the nature of the proffered position inhibits a determination that 
the duties correspond to the occupation designated on the LCA. Since the proffered position is not a specialty occupation 
we will not address that issue in detail, but the Petitioner should be prepared to address it in any future H-1B filings. 
6