dismissed H-1B Case: Broadcast Journalism

U.S. Citizenship 
and Immigration 
Services 
MATTER OF NYS-M-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 3, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a broadcast journalism company, seeks to temporarily employ the Beneficiary as a 
"broadcast news analyst" under the H-1 B 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 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 evidence of 
record does not demonstrate that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits additional evidence and asserts that Director erred in the decision. 
Upon de novo 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: 
( J) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
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Matter of NYS-M-, Inc. 
(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 have consistently interpreted 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. Cherto.ff, 484 F.3d 139, 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as a "broadcast news 
analyst." In response to the Director's request for evidence (RFE), the Petitioner provided the 
following job duties for the position: 
( 1) Review breaking news provided by the and 
various media sources, including social media, and stay up to date with new 
developments of stories so that can be updated with the most current 
information of those stories. (20%) 
(2) Write, review, revise and edit news materials for broadcast by gathering and 
editing information and articles from local and national media. newspapers, 
and other sources in the U.S. relating to business, economics, politics and 
other related fields. ( 
1 0%) 
' (3) Research, organize, review and edit completed news drafts for accuracy, make 
changes to improve overall expression, and ensuring that the news articles 
convey the desired information. (1 0%) 
(4) Monitor broadcast video feeds of news, spmis, business and other programs 
that would be provided to the switching center. (5%) 
(5) Coordinate all written materials and edit such materials for use m the 
production of TV programs such as news and documentaries produced in the 
U.S., and aired in Japan over major TV networks. (1 0%) 
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Matter of NYS- M-, Inc. 
(6) Conduct research in the U.S. in areas of interest to Japanese audiences, gather, 
write and edit such national and local information to producers for their 
reviews. (7%) 
(7) Work closely with broadcasting professionals, such as directors, producers, 
and news gathering teams, assist us in selecting news topics of interest to an 
audience in Japan. ( 1 0%) 
(8) Consult with Japanese broadcasting company and the U.S. media, in both 
Japanese and English languages, in order to complete the above listed duties. 
(10%) 
(9) Communicate and negotiate in Japanese language with executives, 
professionals and news gathering teams of 
in order to discuss their requests on news gathering from the U.S. 
broadcasters and other 
U.S. sources. (1 0%) 
(1 0) Attend professional seminars in this industry to update latest developments 
and exchange information with other professionals in this field. (3%) 
( 11) Review journals, reports, publications, newspapers, and other material related 
to the entertainment and broadcasting industry in order to keep with 
the latest 
trends, news and developments in business, economics, politics and television 
production in the U.S. (5%) 
According to the Petitioner, the position requires a bachelor's degree in political science, journalism, 
or a closely related field and a professional level of Japanese language skills. 
III. ANALYSIS 
For the reasons set out below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation.' Specifically, the record does not establish 
that the job duties require an educational background, or its equivalent, commensurate with a 
specialty occupation? 
1 
Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
2 The Petitioner submitted documentation to support the H-1 B 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. 
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Matter of NY..';-M-, Inc. 
A. Labor Condition Application 
We first turn to the labor condition application (LCA) 3 submitted in support of the H-1 B petition, in 
which the Petitioner designated the proffered position under the occupational category "Broadcast 
News Analysts" corresponding to the Standard Occupational Classification code 27-3021 at a Level 
I wage. The Petitioner reports that a candidate must have a professional level of Japanese language 
skills to qualify for the proffered position. 
The U.S. Department of Labor (DOL) guidance states that wage levels should be determined only 
after selecting the most relevant occupational code classification. Then, a prevailing wage 
determination is made by selecting one of four wage levels for an occupation based on a comparison 
of the employer's job requirements to the occupational requirements, including tasks, knowledge, 
skills, and specific vocational preparation (education, training and experience) generally required for 
acceptable performance in that occupation. Factors to be considered when determining the wage 
level for a position include the complexity of the job duties, as well as the levels of judgment, 
supervision, and understanding required to perform the job duties. 
DOL guidance states that a Level I (entry) 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 she will be closely supervised and her work closely monitored 
and reviewed for accuracy; and (3) that she will receive specific instructions on required tasks and 
expected results.4 According to DOL, a Level I wage should be considered for research fellows, 
workers in training, or internships. 
Therefore, the Petitioner's assertion that the profTered position requires a significant level of 
responsibility and expertise, as well as a foreign language requirement, do not appear to be reflected 
in the wage level chosen by it on the LCA. 5 The statements regarding the claimed level of 
complexity, independent judgment and understanding required for the prot1ered position, as well as 
the requirements, appear to be materially inconsistent with the certification of the LCA for a Level I 
position. 6 This conflict challenges the overall credibility of the petition in establishing the nature of 
3 
The Petitioner is required to submit a certified LCA to us to demonstrate that it will pay an H-1 B 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 experience and qualifications who are performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
4 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.com/download/ NPWHC _Guidance_ Revised 
_I I_2009.pdf. 
5 A petitioner must distinguish its proffered position from others within the occupation through the proper wage level 
designation to indicate factors such as complexity of the job duties, the level of judgment, the amount and level of 
supervision, and the level of understanding required to perform the job duties. !d. Through the wage level, the Petitioner 
reflects the job requirements, experience, education, special skills/other requirements and supervisory duties. /d. 
6 
A language requirement other than English in a job offer generally is considered a special skill for all occupations (with 
the exception of Foreign Language Teachers and Instructors, Interpreters, and Caption Writers). In the instant case, the 
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Matter of NYS-M-, Inc. 
the proffered position and in what capacity the Beneficiary will be employed. Therefore, we are 
precluded from finding that the profTered position is a specialty occupation. Nevetiheless, we will 
now analyze the evidence of record. 
B. First Criterion 
We turn now to the criterion at 8 C.P.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 recognize the U.S. Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the 
duties and educational requirements of the wide variety of occupations that it addresses. 7 
The Petitioner designated the position under the occupation "Broadcast News Analysts" on the LCA, 
therefore, we reviewed the subchapter of the Handbook entitled "How to Become a Broadcast News 
Analyst." The Handbook reports, in relevant part: "Most employers prefer workers who have a 
bachelor's degree in journalism or communications. However, some employers may hire applicants 
who have a degree in a related subject, such as English or political science, and relevant work 
experience. "8 
The Handbook 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 entry into this occupational category. 
Rather, the Handbook states that most employers prefer workers who have a bachelor's degree in 
journalism or communications. However, a preference for such a degree does not establish that it is 
normally the minimum requirement for entry into the particular position. Further, the Handbook 
states that some employers may hire applicants who have a degree in a related subject and relevant 
work experience. The Handbook does not specify the level of such a degree, and it appears that an 
associate's degree may be acceptable. 
The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Thus, the Petitioner has 
not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
Petitioner has not established that its foreign language requirement has been reflected in the wage-level for the proffered 
position. 
7 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. 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 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 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. 
8 For additional information regarding the occupational category "Broadcast News Analysts,'' see U.S. Dep't of Labor, 
Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-2017 ed., Broadcast News Analysts, available at 
https: I lwww. b Is. gov I ooh/m ed i a -and -communication/reporters-correspondents-and -broadcast- news-analysts. h tm#tab-4 
(last visited Mar. 28, 20 17). 
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Matter of NYS-M-, Inc. 
C. 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 
contemplates 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 similarorganizations. 
In determining whether there is such a common degree requirement, factors often considered by us 
include: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry attest that such firms "routinely employ and 
recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quotingHird/Blaker Corp. v. Sava. 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or other authoritative source, reports a 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. 
In support of the assertion that the proffered position is a specialty occupation under this criterion of 
the regulations, the Petitioner submitted a letters from of the 
and of We reviewed the letters in 
their entirety. The writers assert that "an attainment of a Bachelor's Degree in journalism, political 
science, or a closely related major is a standard minimum in Japanese broadcasting industry to work 
as a Broadcast News Analyst. ... " However, the writers did not identify the specific elements of 
their knowledge and experience that they may have applied in reaching their conclusions here. They 
did not indicate that they relied on any authoritative sources to support their assertions, nor did they 
include the results of, for example, outside formal surveys, research, statistics, or other objective 
quantifying information to substantiate their opinions. Thus, without more, we tind that the letters 
are not persuasive in establishing the proffered position as a specialty occupation position under this 
or any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
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Matter ofNYS-M-, Inc. 
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 partjcular 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 pos1t10n qualifies as a specialty occupation, the 
Petitioner submitted descriptions of the proffered position and information regarding its business 
operations. While the Petitioner may believe that the position meets this prong of the regulations, 
we note, however, the record lacks evidence supporting the Petitioner's claim. Further, the 
Petitioner designated the proffered position as an entry-level position within the occupational 
category by selecting a Level I wage. 9 This designation, when read in combination with the 
evidence presented and the Handbook's account of the requirements for this occupation. suggests 
that the particular position is not so complex or unique that the duties can only be performed an 
individual with bachelor's degree or higher in a specific specialty, or its equivalent. 
The Petitioner 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 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 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. 
Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
D. 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 states that it "always requires a bachelor's degree in journalism, political 
science, closely related field or an equivalent in experience" for the proffered position. The 
Petitioner submitted documentary evidence (including academic credentials; Forms W -2, Wage and 
9 
The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In ceria in occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
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Matter of NYS-M-, Inc. 
Tax Statement; and H-lB approval notices); however, the record does not include evidence 
establishing that the persons to whom the evidence relates held substantially the same position with 
the same or similar substantive responsibilities, duties, and performance requirements as the position 
proffered in this petition. 
Without more, the Petitioner has not provided sufficient evidence to establish that it normally 
requires at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered 
position. Therefore, it has not satisfied the third criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
E. 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. 
While the Petitioner provided a more detailed job de'scription in response to the RFE, the description 
does not establish that the duties are more specialized and complex than positions that are not 
usually associated with at least a bachelor's degree in a specific specialty, or its equivalent. We also 
incorporate our earlier discussion and analysis regarding the duties of the proffered position, and the 
designation of the proffered position in the LCA as a Level I position (of the lowest of four 
assignable wage-levels) relative to others within the occupational category. Without further 
evidence, the Petitioner has not demonstrated that its proffered position is one with specialized and 
complex duties as such a position within this occupational category would likely be classified at a 
higher-level, requiring a substantially higher prevailing wage. 10· 
Although the Petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the Petitioner has submitted inadequate 
probative evidence to satisfy the criterion of the regulations at 8 C.F.R. § 214.2(h)( 4 )(iii)( A)( 4). 
IV. CONCLUSION 
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 speciqlty occupation. 
1
° For example, a Level IV (fully competent) position is designated by DOL for employees who ''use advanced skills and 
diversified knowledge to solve unusual and complex problems'' and requires a significantly higher wage. For additional 
information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _I I_ 2009.pdf. 
Q 
Matter of NYS-M-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of NYS-M-. Inc., ID# 315962 (AAO Apr. 3, 20 17) 
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