dismissed H-1B Case: Business Analysis

U.S. Citizenship 
and Immigration 
Services 
In Re: 8989118 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUNE 2, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as an "analyst , pricing strategy and 
optimization" under the H-lB nonimmigrant classification for specialty occupations . See Immigration 
and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S .C. § l 10l(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 Vermont Service Center denied the petition, concluding that the evidence of record 
does not establish that the proffered position qualifies as a specialty occupation. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 
2012). Upon de nova review, we will dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
A. 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: 
( 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"). 
B. Analysis 
For the reasons discussed below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. 1 Specifically, we conclude that the record does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 2 
1. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we will consider the information contained 
in the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the 
duties and educational requirements of the wide variety of occupations it addresses. 3 
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 petition, including evidence regarding the 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. Nevertheless, to satisty the first criterion, the burden of proof remains on the Petitioner to 
submit sufficient evidence to support a finding that its particular position would normally have a minimum, specialty 
degree requirement, or its equivalent, for entry. 
2 
The Petitioner submitted the required DOL ETA Form 9035 & 9035E, Labor Condition Application 
for Nonimmigrant Workers (LCA) with this petition, where it classified the proffered position under 
the occupational title "Computer Occupations, All Other," corresponding to the Standard Occupational 
Classification (SOC) code 15-1199.08; more specifically, the Petitioner stated that the position 
corresponds to the SOC sub-code and category 15-1198.08, "Business Intelligence Analysts." 4 We 
note that there are occupational categories which are not covered in detail by the Handbook. 5 The 
Handbook suggests that for at least some of the occupations, little meaningful information could be 
developed. When the Handbook does not support the proposition that a proffered position is a 
specialty occupation, it is the Petitioner's responsibility to provide probative evidence (e.g., 
documentation from other objective, authoritative sources) that indicates whether the particular 
position in question qualifies as a specialty occupation. 
The Petitioner referenced DOL's Occupational Information Network (O*NET) summary report for 
"Business Intelligence Analysts" - SOC code 15-1199.08 in support of this criterion. The O*NET 
Summary Report provides general information regarding the occupation, but it does not support the 
Petitioner's assertion regarding the educational requirements for the occupation. For example, the Job 
Zone Four designation indicates that most, but some do not, require a four-year bachelor's degree. It 
does not specify the specific field of study, if any, from which the degree must come. The occupation's 
Specialized Vocational Preparation (SVP) rating of 7 < 8 is even less persuasive. An SVP rating of 7 
to less than ("<") 8 indicates that the occupation requires "over 2 years up to and including 4 years" 
of training. While the SVP rating indicates the total number of years of vocational preparation required 
for a particular position, it is important to note that it does not describe how those years are to be 
divided among training, experience, and formal education which, by definition, includes high school 
education and commercial or shop training. 6 The SVP rating also does not specify the particular type 
of degree, if any, that a position would require. Moreover, the report does not indicate that the degrees 
of the respondents were in a specific specialty and does not distinguish the respondents' positions by 
career level (e.g., entry-level, mid-level, senior-level) or other relevant aspects. For all these reasons, 
we are not persuaded by the Petitioner's citations to O*NET. 
In the instant matter, the Petitioner has not provided sufficient documentation from a probative, 
authoritative 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). 
4 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services (USCIS) to demonstrate 
that it will pay the Beneficiary 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. Section 212(n)(l) of the Act; 20 C.F.R. § 655.731 (a). 
5 We note that occupational categories for which the Handbook only includes summary data includes a range of 
occupations, including for example, postmasters and mail superintendents; agents and business managers of artists, 
performers, and athletes; farm and home management advisors; audio-visual and multimedia collections specialists; clergy; 
merchandise displayers and window trimmers; radio operators; first-line supervisors of police and detectives; crossing 
guards; travel guides; agricultural inspectors, as well as others. 
6 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/online/svp. 
3 
2. 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. 
a. 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. 
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)). 
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 this criterion, the Petitioner submitted copies of job announcements placed by other 
employers. However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements is misplaced. First, the Petitioner has not demonstrated that these organizations are 
similar. When determining whether the Petitioner and the organization share the same general 
characteristics, such factors may include information regarding the nature or type of organization, and, 
when pertinent, the particular scope of operations, as well as the level of revenue and staffing (to list 
just a few elements that may be considered). It is not sufficient for the Petitioner to claim that an 
organization is similar and conducts business in the same industry without providing a legitimate basis 
for such an assertion. For instance, the Petitioner did submit information regarding the employers' 
revenue or staffing. The Petitioner did not sufficiently supplement the record of proceedings to 
establish that these advertising organizations are similar. 
Moreover, the advertisements do not appear to involve parallel positions. For example, some of the 
positions appear to be for more senior, experienced employment than the proffered position. 7 Further, 
some of the postings do not include sufficient information about the tasks and responsibilities for the 
7 For instance, the posting placed by Scenic Tours Pty Ltd. states a requirement for a bachelor's degree and "2+ years of 
experience in analytical base role." 
4 
advertised positions. Thus, the Petitioner has not sufficiently established that the primary duties and 
responsibilities of the advertised positions are parallel to those of the proffered position. 
In addition, none of the postings indicate that at least a bachelor's degree in a directly related specific 
specialty ( or its equivalent) is required. 8 For instance, the postings placed by Scenic Tours Pty Ltd. 
and Road Scholar state that a bachelor's degree is required, but they does not state that a specific 
specialty is required. In addition, the advertisement placed by Explorica Inc. states "Bachelor Degree 
preferred in business analytics, mathematics, statistics, accounting or finance." A preference for a 
degree in a field is not necessarily an indication of a minimum requirement. Overall, the job postings 
suggest, at best, that although a bachelor's degree is sometimes required for these positions, a 
bachelor's degree in a spec[fic specialty ( or its equivalent) is not. 9 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. 10 That is, not every deficit of every job posting has been addressed. 
Without more, 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. 
§ 2 l 4.2(h)( 4)(iii)(A)(2). 
b. 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 position; however, the Petitioner has 
not sufficiently developed relative complexity or uniqueness as an aspect of the proffered position. 
For instance, the Petitioner did not sufficiently explain how the following tasks require a bachelor's 
degree in a specific specialty, or its equivalent: 
8 As discussed, the degree requirement set by the statutory and regulatory framework of the H-1 B program is not just a 
bachelor's or higher degree, but a bachelor's degree in a specific specialty that is directly related to the duties of the 
position. See section 214(i)(l)(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
9 It must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a specific 
specialty is common to the industry in parallel positions among similar organizations (which they do not), the Petitioner 
has not demonstrated what statistically valid inferences, if any, can be drawn from the advertisements with regard to 
determining the common educational requirements for entry into parallel positions in similar organizations. See generally 
Earl Babbie, The Practice of Social Research 186-228 ( 1995). Moreover, given that there is no indication that the 
advertisements were randomly selected, the validity of any such inferences could not be accurately determined even if the 
sampling unit were sufficiently large. Sec id. at 195-196 (explaining that "[r]andom selection is the key to [the] process 
[ of probability sampling]" and that "random selection offers access to the body of probability theory, which provides the 
basis for estimates of population parameters and estimates of error"). 
10 The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
5 
• Actively monitoring changes to cabin categories, optional extensions/tours, and port 
taxes, and summarizing changes in daily report (20% ); 
• Tracking revenue of each email, catalog, and direct mail piece ( 10% ); 
• Ensuring correct implementation of pricing and capacity controls of all products (20% ); 
o Conducting competitive marketing analysis 
o Understanding regional itineraries and performance-based profit margins 
o Strategically altering base price in accordance with product demand 
• Collaborating with Operations department in improving trip itineraries to minimize 
cost and maximize demand (10%); 
• Building price grids based on market knowledge for each catalog and direct mail piece 
(15%); 
• Proofing promotional print materials, web product pages, and email pricing content 
(10%); 
• Conducting research of foreign markets, including vendors, competitors, and potential 
customers (5%); 
• Utilizing tools such as SQL and Advanced Microsoft Excel to develop budget forecasts 
which maximize margins (5%); and 
• Assisting Revenue Managers with key analytical projects and ad hoc duties (5%). 
The listed job duties and tasks, when read in combination with the Petitioner's Level I-designation on 
the LCA, suggest that this particular position is not so complex or unique relative to other business 
intelligence 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. 11 The Petitioner stated that it requires a master's 
degree in economics, or a related field. However, while a few related courses may be beneficial in 
performing certain duties of the position, the Petitioner has not sufficiently demonstrated how an 
established curriculum of courses leading to a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is required to perform the duties of the proffered position. 
In addition, the Petitioner provided copies of the Beneficiary's sample work product. However, the 
Petitioner did not sufficiently explain how these documents distinguishes and differentiates the duties 
of the proffered position from the typical duties performed by other business intelligence analysts, and 
why the proffered duties require a baccalaureate ( or higher degree) in a specific specialty, or its 
equivalent, as claimed. 
11 A prevailing wage determination starts with an entry-level wage (Level I) and progresses to a higher wage level (up to 
Level IV) after considering the experience, education, and skill requirements of the Petitioner's job opportunity. U.S. 
Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration 
Programs (rev. Nov. 2009), available at http://flcdatacenter.com/download/NPWHC _Guidance_ Revised_ l l _ 2009.pdf. 
A low wage-level designation does not preclude a proffered position from classification as a specialty occupation, just as 
a high wage-level designation does not definitively establish such a classification. In certain 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 TV 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 2 l 4(i)(l) of the Act. 
6 
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). 
3. 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. 
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. The Petitioner 
asserts that it requires its employees to possess a master's degree in economics for the proffered 
pos1t10n. However, upon review of the record, we observe that the Petitioner did not submit 
information regarding employees who currently or previously held the position. The record does not 
establish that the Petitioner normally requires at least a bachelor's degree in a specific specialty, or its 
equivalent, directly related to the duties of the position. Therefore, the Petitioner has not satisfied the 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
4. 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 the 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 also incorporate our earlier 
discussion and analysis regarding the duties of the proffered position, and the designation of the 
position in the LCA as a Level I position relative to others within the same occupational category. 
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. 
7 
II. LABOR CONDITION APPLICATION 
Finally, we wish to identify an additional issue to inform the Petitioner that this matter should be 
addressed in any future proceedings. 12 Specifically, the Petitioner has not demonstrated that the LCA 
corresponds to the petition. 
As noted above, the Petitioner specified a position located within the "Computer Occupations, All 
Other;" more specifically, the Petitioner stated that the position corresponds to the "Business 
Intelligence Analysts" occupational category, corresponding to the SOC code 15-1199.08. The 
Petitioner farther indicated a Level I wage on the LCA. The Petitioner's minimum requirements for 
the proffered position is a master's degree in economics, or a related field. Considering the Petitioner's 
education requirement, it appears its Level I wage rate designation was incorrect. 
To assess whether the wage indicated on the H-1 B petition corresponds with the wage level listed on 
the LCA, USCIS applies DOL's guidance, which provides a five step process for determining the 
appropriate wage level. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). We will focus 
directly on step three of DO L's aforementioned five step process for wage level determinations. The 
third step involves a comparison of the Petitioner's education requirement to that listed in Appendix 
D of the DOL guidance. 13 The Petitioner's stated minimum education requirement is a master's degree 
in economics, or a related field. Because the education requirement contained in the Appendix 
indicates that the usual education level for business intelligence analysts is a bachelor's degree, the 
Petitioner's master's degree requirement warrants a one level increase in the wage. 
Therefore, we conclude that the Petitioner has not demonstrated that the LCA corresponds with and 
supports the petition. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. 
12 In reviewing a matter de novo, we may identify additional issues not addressed in the Director's decision. See Spencer 
Ente1prises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001 ), affd, 345 F.3d 683 (9th Cir. 2003) ("The 
AAO may deny an application or petition on a ground not identified by the Service Center."). 
13 Appendix D of the DOL guidance provides a list of professional occupations with their corresponding usual education 
level. 
8