dismissed H-1B Case: Business Development

MATTER OFF-D-N-A- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 9, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT \VORKER 
The Petitioner, which is in the computer components and accessories business, seeks to temporarily 
employ the Beneficiary as a "director of business development" urider the H -1 B nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 10l(a)(l5)(H)(i)(b), S 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, Vermont Service Center, denied the petitiOn. The Director concluded that the 
Petitioner did not establish that the proffered position qualifies as a specialty occupation in 
accordance with the applicable statutory and regulatory provisions. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief and copies of 
previously submitted evidence, and asserts that the Director's decision was erroneous. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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: 
Matter ofF-D-N-A- Inc. 
(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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 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.IJ, 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the initial letter of support, the Petitioner provided the following description for its director of 
business development position: 
As Director of Business Development, [the Beneficiary] develops marketing 
strategies and leads negotiations to develop strong business relationships with 
regional distributors and re-sellers and manages all product distribution channels, 
sales and services with these distributors and re-sellers. She creates and manages 
business plans and budgets for all aspects of business development, marketing and 
sales. [The Beneficiary] performs market research for North America and Latin 
America, and analyzes competitor activity to develop long-term growth strategies. 
She directs the development of marketing and sales plans, creation of forecasts, 
quotas and goals in key markets; and reports to senior-level managers with respect to 
her market analysis and market strategies. 
In this letter, the Petitioner asserted that the proffered position requires "a bachelor's degree in 
Business with a preferred emphasi~ on Sales, Marketing, Finance, Analysis, and International 
Business Practices and Commerce, related field, or its equivalent." The Petitioner further stated that 
the Beneficiary is qualified for the proffered position by virtue of her foreign degree which is 
equivalent to a U.S. bachelor's degree in business administration. 
2 
Matter ofF-D-N-A- Inc. 
In response to the Director's request for evidence (RFE), the Petitioner expanded upon the duties of 
the proffered position as follows: 1 
Sales and Business Development: 40% 
In this role, [the Beneficiary] spends 40% of her time performing the following 
duties: 
• Identify potential clients through market research (attending industry 
events, working with distributor's sales team, studying competitors, online 
0 
research) and lead all aspects of sales executions, including strategic and 
financial assessment and negotiation. 
• Build relationships with new clients by studying their business model. 
Identify needs and define strategies to generate sales. 
• Plan, design and execute training sessions to educate and persuade 
distributors' and resellers' sales teams. 
• Design and implement sales strategies based on market share, supply and 
demand dynamics, changing trends, economic indicators such as exchange 
rates, and competitors. 
• Product pricing setting for each customer based on analysis of factors like 
financial indicators, customer's requirements and company's cost 
associated to agreements with each customer. 
• Identify and attend relevant industry events to reinforce brand presence, 
strengthen current partnerships and generate new leads. 
Customer Sales Management: 35% 
[The Beneficiary] must manage the sales of customers, which requires a number of 
skills in statistical analysis, economic forecasting, oversight of logistics, development 
of strategy based on business intelligence analysis and the application of various 
computer software skills. 
Specifically, [the Beneficiary] spends 35% of her time performing the following 
duties: 
• Build sales run rates, and forecast stock and sales through marketing plans 
and business intelligence analysis. 
• Support customer inventory management using statistical analysis of sales, 
marketing plan, seasonality of demand and logistics. 
1 
This description also lists the classes the Beneficiary completed that are related to the duties. For the sake of brevity, 
those lists of classes are not included here. 
3 
Matter ofF-D-N-A- Inc. 
• Generate sales by proactively proposing stocking order recommendations 
and oversee logistics operations to ensure proper order fulfillment. 
• Review customers' margin and program requirements in order to update 
sales and marketing plans. 
• Present the company's new products and strategies and propose programs 
to connect them with customer's game plan. 
• Manage product lifecycle timelines and prepare strategies for both the 
introduction and sales of the new product and exiting of discontinued 
product. 
Marketing: 25% 
[The Beneficiary] must apply marketing principles to promote and sell [Petitioner's] 
I 
products and apply tactics relevant to the market. As such, she must perform strategic 
planning, market profiling, forecasting, price structuring and implement sales control 
systems in order to effectively market [Petitioner's] products. 
Specifically, [the ~eneficiary] spends 25% of her time performing the following 
duties: 
• Create, execute and evaluate marketing plan for each customer, optimizing 
the assigned budget and negotiating the best exposure for the company. 
• Collect market intelligence to identify competitors' strengths and 
weaknesses, including pricing, promotions, customer reviews, service, 
product listings, and availability in order to pinpoint sales and brand 
positioning opportunities and plan or review strategies. 
• Identify trendsetters and key media players and create alliances to 
advertise and introduce new products in each market. 
• Identify key industry events, including expositions, resellers shows and 
LAN events. Plan and assign resources for participation in said events. 
• Coordinate marketing activities with sales activities. 
• Track end user product feedback through reviews, customer RMA system 
and social media; generate corrective plans and forward findings to PD 
team for future projects. 
According to the Petitioner's RFE response, the position can only be performed by an individual 
with at least "a Bachelor's degree in sales, marketing, finance, analysis, and international business 
practices or commerce, related field, or its equivalent." Elsewhere in the RFE response, the 
Petitioner stated that "a Bachelor's degree in a specific field of study, including business, 
engineering and marketing is a standard minimum requirement for the job offered." 
4 
Matter ofF-D-N-A- Inc. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, wei determine that the 
record does not establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation.2 
In order to demonstrate that the proffered position has an educational requirement commensurate 
with a specialty occupation, the Petitioner must first articulate what the position's actual educational 
requirement is. The Petitioner has not sufficiently done so here. 
The Petitioner initially stated that the proffered position requires "a bachelor's degree in Business 
with a preferred emphasis on Sales, Marketing, Finance, Analysis, and International Business 
Practices and Commerce, related field, or its equivalent (italics added)." While the Petitioner also 
listed other areas of specialization, it specifically stated that these areas of specialization are 
"preferred." A preference, however, is not a requirement. We thus deduce from this statement that 
the Petitioner's requirement is simply a bachelor's degree in business. 
In response to the Director's RFE, the Petitioner provided several iterations of its degree 
requirement. In one part of its RFE response, for instance, the Petitioner stated that the position 
requires "atJeast a Bachelor's degree in a specific field of study, particularly in the concentrations of 
business, sales, marketing, finance, analysis, international business practices or commerce or related 
field." Elsewhere in the RFE response, the Petitioner indicated for the first time that, in addition to 
degrees in business and marketing, it also accepts bachelor's degrees in engineering or electrical 
engineering. The Petitioner has not reconciled its differing statements about the proffered position's 
actual degree requirement. "[I]t is incumbent upon the petitioner to resolve the inconsistencies by 
independent objective evidence." Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). 
If the Petitioner's degree requirement can be satisfied by a wide variety of degrees in disparate 
fields, such as business and engineering, then this indicates that the proffered position does not 
require a degree in a specific specialty. In general, provided the specialties are closely related, e.g., 
sales and marketing, 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 
degrees in disparate fields, such as business 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 
2 The Petitioner submitted documentation to support the H-1 B petition, including ev.idence regarding the proffered 
·position. While we may not discuss every document submitted, we have reviewed and considered each one. 
5 
Matter ofF-D-N-A- Inc. 
amalgamation of these different specialties 3 Section 214(i)(l)(B) of the Act (emphasis added). The 
Petitioner has not made this showing. 
In any event, it appears that the Petitioner's degree requirement can be satisfied by a general 
bachelor's degree in business, without further specialization. If so, then this requirement is 
inadequate to establish that the proposed position qualifies as a specialty occupation. 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. There must be a close correlation between the 
required specialized studies and the position; thus, the mere requirement of a general business 
degree, without further specification, will not justify a finding that a particular position qualifies for 
classification as a specialty occupation. See Royal Siam Corp. v. Cherto.ff, 484 F.3d at 147 
(recognizing a business administration degree as a "general-purpose bachelor's degree"); c:f Matter 
of Afichael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of a 
college degree for the sake of general education, or to obtain what an employer perceives to be a 
higher caliber employee, also does not establish eligibility."). 
On this basis of the position's educational requirement alone, we cannot find that the proffered 
position qualifies as a specialty occupation. 
We also cannot find that the proffered position qualifies as a specialty occupation, as the Petitioner 
has not demonstrated that the proffered position satisfies any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 4 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), 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. 5 
3 While the statutory "the" and the regulatory "a" both denote a singular "specialty," we do not so narrowly interpret 
these provisions to exclude positions from qualifying as specialty occupations if they permit, as a minimum entry 
requirement, degrees in more than one closely related specialty. See section 214(i)(I)(B) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii). This also includes even seemingly disparate specialties providing, again, 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 
Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
5 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 USC IS regularly reviews 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. 
6 
Matter ofF-D-N-A- Inc. 
On the labor condition application (LCA) submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Sales Managers" (corresponding 
to the Standard Occupational Classification code 11-2022). In pertinent part, the Handbook states 
that "[m]ost sales managers have a bachelor's degree, although some have a master's degree. 
Educational requirements are less strict for job candidates who have significant work experience. 
Courses in business law, management, economics, accounting, finance, mathematics, marketing, and 
statistics are advantageous. "6 
The Handbook does not indicate that a bachelor's degree in a specific specialty, or the equivalent, is 
normally required for ef\try into this occupation. That is, while the Handbook states that "[m ]ost 
sales managers have a bachelor's degree," it does not state whether the bachelor's degree must be in 
a specific specialty, and if so, which specific specialty. As previously noted, we interpret the term 
"degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher 
degree, but one in a specific specialty that is directly related to the proffered position. And as also 
previously discussed, the mere requirement of a college degree, or even a general-purpose business 
degree, without more, is insufficient to demonstrate a degree requirement in a spec(fic specialty. See 
Royal Siam Corp. v. Chertoff, 484 F.3d at 147; cf Matter of Michael Hertz Assocs., 19 I&N Dec. at 
560. 
In addition, the Handbook states that courses in a wide range of subjects including business law, 
management, and economics are "advantageous." 7 However, the Handbook does not state that such 
courses are required, or that these courses cumulatively lead to a bachelor's degree in a specific 
specialty. As such, the Handbook does not support the Petitioner's eligibility under the criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
The Petitioner asserts on appeal that, "in comparing the [Handbook's} reference to Sales Manager[s] 
to other confirmed H-lB specialty occupations, it is clear that the [Handbook} does not reference a 
specific bachelor's degree for those roles either." To support its position, the Petitioner cites to 
federal court and administrative decisions which address the occupations of interior designers, 
human resources managers, personal financial advisors, teachers, technical publications writers, and 
market research analysts. 
However, the Petitioner has not further explained and documented the relevance of these decisions 
which addressed occupational categories other than the one relevant here: sales managers. The 
Petitioner has neither summarized nor provided copies of the relevant language in the Handbook for 
each of these different occupational classifications, so as to establish that they are comparable to the 
language found in the Handbook chapter for sales managers. A petitioner's unsupported statements 
are of very limited weight and normally will be insufficient to carry its burden of proof. See Matter 
ofSo.ffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft of Cal., 14 I&N 
6 U.S. Department of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
http://www.bls.gov/ooh/management/sales-managers.htm#tab-4 (last visited Nov. 9, 2016). 
7 /d. 
7 
Matter ofF-D-N-A- Inc. 
Dec. 190 (Reg'l Comm'r 1972)); see also Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 
2010). The Petitioner must support its assertions with relevant, probative, and 1 credible 
evidence. See Matter ofChawathe, 25 I&N Dec. at 376. Nor has the Petitioner furnished evidence 
to establish that the facts of the instant petition are otherwise analogous to those in the cited cases. 
,We additionally observe that unpublished AAO decisions, as are district court decisions, are not 
binding upon us. Cf 8 C.F.R. § 103.3(c). See Matter of K-S-, 20 I&N Dec. 715, 719-20 (BIA 
1993). 
The information found in the Occupational Information Network (O*NET) Summary Report for the 
sales managers occupational classification (a copy of which the Petitioner submitted) does not 
establish that the proffered position satisfies the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), either. 
Specifically, O*NET makes no mention of the specific field of study from which a degree must 
come. In other words, although O*NET indicates that most, but not all, of these positions require at 
least a bachelor's degree (through its Job Zone Four rating), it does not indicate whether these 
bachelor's degree come from a specific specialty, and if so, which specific specialty. 8 Similarly, the 
occupation's Specific Vocational Preparation (SVP) rating is not probative of the proffered position 
being a specialty occupation, as these ratings are meant to indicate only the total number of years of 
training required for a particular position, but do not describe how those years are to be divided 
among training, formal education, and experience, and do not specify the particular type of degree, if 
any, that a position would require. 9 
As the Petitioner has not provided documentation from a probative source to substantiate its 
assertion regarding the minimum requirem~nt for entry into this particular position, the Petitioner 
has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
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 
contemplates the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
For more information about Job Zone ratings, see O*NET Online Help Job Zones, 
https://www.onetonline.org/help/online/zones (last visited Nov. 9, 20 16). 
9 For more information about SVP ratings, see O*NET Online Help Specific Vocational Preparation (SVP), 
https://www.onetonline.org/help/online/svp (last visited Nov. 9, 20 16). 
8 
(b)(6)
Matter ofF-D-N-A- Inc. 
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. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS 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 another 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. Also, there are no submissions from the industry's professional association indicating 
that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did not submit 
any letters or affidavits from similar firms or individuals in the Petitioner's industry attesting that 
such firms "routinely employ and 
recruit only degreed individuals." 
Under this prong of the criterion, the Petitioner submitted several job announcements posted by 
companies such as and But the Petitioner has not submitted sufficient 
evidence to establish that these other companies are similar to the Petitioner. For the Petitioner to 
establish that an organization is similar, it must demonstrate that it shares the same general 
characteristics with the advertising organization, which may be demonstrated by factors such as the 
nature or type of organization, 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 in the same industry without providing a legitimate basis for 
such an assertion. Again, a petitioner's unsupported statements are of very limited weight and 
normally will be insufficient to carry its burden of proof. Matter of Sofftci, 22 I&N Dec. at 165. 
Not only does the record lack information about these companies' general characteristics, but the 
record also lacks sufficient evidence about the Petitioner's own operations - including those of its 
parent company in Sweden. The Petitioner asserts on appeal that, although it only has seven 
employees in the United States, it is "indeed a ' large' company" because it is a "subsidiary of a 
much larger company that is based in Sweden." The Petitioner further explains that its parent 
company "specializes in the design and production of computer tower cases, casing fans, ventilation 
and cooling systems and power supplies for computer hardware." While these statements may 
demonstrate the Petitioner's general industry, they still do not establish the parent C()mpany's scope 
and level of operations, total revenue, staffing, or other relevant aspects of its operations which must 
be considered to demonstrate that the Petitioner is indeed similar to and 
the other advertising companies. 
9 
Matter ofF-D-N-A- Inc. 
On appeal, the Petitioner cites to Fred 26 Importers, Inc. v. DHS, 445 F. Supp.2d 1174, 1180-81 
(C.D. Cal. 2006) to support the assertion that "[t]he determination of a professional position cannot 
be related to the size of company." We disagree. The Petitioner misconstrues the holding in Fred 
26 Importers, Inc., which did not hold that a petitioner's size is irrelevant. And while we generally 
agree that we should not limit our review to the size of a petitioner, we nevertheless find that an · 
employer's size is one of several reasonable factors to consider when assessing an employer's 
similarity to other companies for the purposes of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), among other 
purposes. 10 See EG Enters., Inc. v. Dep't of Homeland Sec., 467 F. Supp. 2d 728 (E.D. Mich. 
2006). 
Without more, the Petitioner has not demonstrated the relevance of the submitted job announcements 
to the first alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which requires evidence about 
organizations that are similar to the Petitioner. Because of this fundamental deficiency, we will not 
further address other deficiencies we observe with the submitted advertisements. 
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 position; however, in the appeal 
brief, the Petitioner does not assert that it satisfies this prong of the second criterion. 
The Fecord does not sufficiently develop relative complexity or uniqueness as an aspect of the 
proffered position. The lack of detailed information regarding the proffered duties, as well as the 
Petitioner's operations, precludes us from understanding exactly what the Beneficiary will do on a 
daily basis such that complexity or uniqueness can even be determined. 
In this matter, the Petitioner claims to be a seven-employee subsidiary of a parent company which 
performs the design and production activities for the company's products. Other than stating that the 
Petitioner sells the products (designed and produced by its parent company) throughout North 
America and Latin America, the Petitioner has not sufficiently explained the scope and nature of its 
local operations in the United States. The Petitioner has not, for example, identified the job titles, 
duties, and/or placement within the organizational hierarchy of its six other employees in the United 
States. The Petitioner also has not explained the nature of the Beneficiary's working relationship 
with the Petitioner's parent company or other affiliated companies that may exist. Without this 
10 As will be discussed infra, a petitioner's size is also a relevant factor to consider when assessing a proffered position's 
qualification as a specialty occupation under other criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A). See EG Enters., Inc. v. Dep 't 
of Homeland Sec., 467 F. Supp. 2d 728 (E.D. Mich. 2006). 
10 
Matter ofF-D-N-A- Inc. 
critical information, we cannot determine whether the Petitioner can actually support the 
Beneficiary's employment in the capacity asserted. 
To illustrate, the Petitioner stated the Beneficiary "will "lead all aspec'ts of sales executions." The 
Petitioner also stated that the Beneficiary will "[g]enerate sales by proactively proposing stocking 
order recommendations and oversee logistics operations to ensure proper order fulfillment." But 
without knowing whether and how the Petitioner's other employees (if any) support the Beneficiary 
in her sales, inventory, logistics, and other dutiys, we cannot determine the exact nature, complexity, 
and/or uniqueness of her daily work. The Petitioner described the proffered job duties in such broad 
terms that effectively preclude us from understanding what exactly the Beneficiary will do, and the 
level of knowledge required to perform all of her duties (e.g., whether her job duty to "lead all 
aspects of sales executions" requires her to perform all levels of direct sales). Overall, the record 
lacks evidence sufficiently concrete and informative to demonstrate that the proffered 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 equivale~t. 
The size of an employer's business is one of several factors that can be considered in assessing a 
position's qualification as a specialty occupation. See EG Enters., Inc. v. Dep 't of Homeland Sec., 
467 F. Supp. 2d 728. A petitioner's size impacts upon the actual duties and responsibilities of a 
particular position. Id In this matter, the record lacks sufficient evidence to demonstrate that the 
duties as described will actually be performed by the Beneficiary or that the Petitioner's organization 
can support the Beneficiary's employment at the level asserted. The Petitioner has not sufficiently 
satisfied the second alternative prong of8 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. 
The Petitioner points out that the Beneficiary has held the proffered position since October 2012. 
The Petitioner does not claim to have employed any other individuals in the proffered position since 
its inception in 2010. The Petitioner thus asserts that it has demonstrated that its proffered position 
normally requires a bachelor's degree in a specific specialty. 
However, to merit approval of the petition under this criterion, the record must establish that a 
petitioner's imposition of a degree requirement is not merely a matter of preference for high-caliber 
candidates, but is necessitated by the actual performance requirements of the position. The record 
does not establish this. While, a petitioner may assert that a proffered position requires a specific 
degree, that statement alone without corroborating evidence cannot establish the position as a 
specialty occupation. Were USCIS limited solely to reviewing the Petitioner's claimed self-imposed 
requirements, then any individual with a bachelor's degree could be brought to the United States to 
perform any occupation as long as the Petitioner created a token degree requirement, whereby all 
1 1 
(b)(6)
Matter ofF-D-N-A- Inc. 
individuals employed in a particular position possessed a baccalaureate or higher degree in the 
specific specialty, or its equivalent. See Defensor v. Meissner, 201 F.3d.at 388 . . 
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). 
D. Fourth Criterion 
Th~ fourth criterion at 8 C.P.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 kpowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
We reviewed the Petitioner's statements regarding the proffered position's complexity; agam, 
however, in the appeal brief, the Petitioner does not assert that it satisfies this criterion. 
For the same , reasons we discussed under the second alternative prong of 8 C.P.R. 
§ 214.2(h)( 4)(iii)(A)(2), we find that the record does not sufficiently develop relative specialization 
or complexity as an aspect of the proffered position. Specifically, the record does not adequately 
describe the job duties the Beneficiary will actually perform within the context of the Petitioner's 
operations. Consequently, we cannot determine that the proffered position requires a specialty 
occupation 's level of knowledge in a specific specialty, as the position descriptions do not 
sufficiently communicate (1) the actual work the Beneficiary will perform, (2) the complexity, 
uniqueness and/or specialization of the tasks, and/or (3) the correlation behyeen that work and a need 
for a particular level education of highly specialized knowledge in a specific specialty. 
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 has not demonstrated in the record 
that its proffered position is one with duties sufficiently specialized and complex to satisfy 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(4). 
E. Position Evaluation 
We will now address the "expert opinion letter" from professor of business 
administration at In his letter, provides a brief 
overview of the Petitioner's operations and the Beneficiary's proposed duties, and states that these 
duties require at least a bachelor's degree in business "with a preferred emphasis on sales, 
marketing, finance, analysis, and international business practices and commerce, related fields, or its 
equivalent." We have carefully evaluated assertions but, for the following reasons, 
determine his letter does not have significant weight in this matter. 
12 
(b)(6)
Matter ofF-D-N-A- Inc. 
For example, expertise regarding degree requirements for sales manager positions within 
the IT industry is not established in the record. states that his "professional marketing 
career has included high-level positions with such industry leaders as 
and He also states that he has had "ample opportunity to observe standard industry 
hiring practices as they pertain to a variety of positions in marketing, business, strategic business 
planning, alliance development, marketing, and other fields germane · to the Director of Business 
Development." But he does not claim to have in-depth knowledge about this and similar positions 
specifically within the comput~r components and accessories industry. 
opinion letter does not cite specific instances in which his past opinions have been 
accepted or recognized as authoritative on this particular issue. There is no indication that he has 
conducted any research or studies pertinent to the educational requirements for sales manager 
positions in the Petitioner's industry, and no indication of recognition by professional organizations 
that he is an authority on those specific requirements. does not reference, cite, or discuss 
any studies, surveys, industry publications, authoritative publications, or other sources of empirical 
information which he may have consulted to complete his evaluation. Without further clarification, 
it is unclear how his education, training, skills or experience would translate to expertise regarding 
the current industry standards for an enterprise such as the Petitioner that is engaged in "computer · 
components and accessories." 
Furthermore, does not demonstrate in-depth knowledge of the Petitioner's operations or 
how the duties of the position will actually be performed in the context of its particular business 
enterprise. He does not relate any personal observations of the Petitioner's seven-employee 
operations in the United States, for example. Nor does he claim to have observed the Beneficiary's 
work so as to ascertain the position's claimed complexity and the level of knowledge required to 
perform the proffered duties. Overall, letter does not sufficiently relate his conclusions 
to specific, concrete aspects of this Petitioner's business operations to demonstrate a sound factual. 
basis for his conclusions about the duties of the proffered position and its educational requirements. 
Finally, concludes that the proffered position requires at least a bachelor's degree in 
business "with a preferred emphasis on sales, marketing, finance, analysis, and international business 
practices and commerce, related fields, or its equivalent." As we discussed earlier, a preference for a 
degree is not a requirement. A degree requirement of a general bachelor's degree, without further 
specialization, is inadequate to establish that the proposed position qualifies as a specialty 
occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d at 147; c.f Matter o.fMichael Hertz Assocs., 
19 I&N Dec. at 560. 
For all of these reasons, findings and his ultimate conclusions are of limited evidentiary 
value in this proceeding. We may, in our discretion, use as advisory opinion statements submitted as 
expert testimony. However, where an opinion is not in accord with other information or is in any 
way questionable, we are not required to accept or may give less weight to that evidence. Matter of 
Caron Int'l, 19 I&N Dec. 791 (Comm'r 1988). As a reasonable exercise of our discretion, we 
13 
Matter ofF-D-N-A- Inc. 
discount his advisory opmwn letter as not probative of any criterion under 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
IV. PRIOR APPROVAL 
The Petitioner repeatedly emphasizes that the proffered position is the same pos1t10n as the 
previously approved H-1 B petition filed by the Petitioner on behalf of the Beneficiary (despite the 
slight change in title). The Petitioner references an April 23, 2004, memorandum authored by 
William R. Yates (Yates memo) as establishing that US CIS must give deference to those prior 
approvals or provide detailed explanations why deference is not warranted. 
First, we note that the Yates memo specifically states as follows: 
Adjudicators are not bound to approve subsequent petitions or applications seeking 
immigration benefits where eligibility has not been demonstrated, merely because of 
a prior approval which may have been erroneous. Matter of Church Scientology 
International, 19 I&N 593, 597 (Comm. 1988). Each matter must be decided 
according to the evidence of record on a case-by-case basis. See 8 C.F.R. § 103.8(d). 
Material error, changed circumstances, or new material information must be clearly 
articulated in the resulting request for evidence or decision denying the benefit 
sought, as appropriate. 
Memorandum from William R. Yates, Associate Director for Operations, The Sign(ficance of a Prior 
CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding 
Eligibility for Extension of Petition Validity, HQOPRD 72/11.3 (Apr. 23, 2004). Thus, the Yates 
memo does not advise adjudicators to approve an extension petition when the facts of the record do 
not demonstrate eligibility for the benefit sought. On the contrary, the memorandum's language 
quoted above acknowledges that a petition should not be approved where, as here, the Petitioner has 
not demonstrated that the petition should be granted. While the Director's RFE and decision to deny 
the petition may not have specifically used the terms "material error," "changed circumstances," or 
"new material information," they nevertheless clearly articulated the reasons why the record was 
insufficient to establish the proffered position's qualification as a specialty occupation. 
Again, as indicated in the Yates memo, we are not required to approve applications or petitions 
where eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See, e.g., Matter of Church Scientology Int '1, 19 I&N Dec. 593, 597 (Comm'r 1988). If 
the previous nonimmigrant petition was approved based on the same description of duties and 
assertions that are contained in the current record, then the Director's prior approval would 
constitute material and gross error. It would be "absurd to suggest that [USCIS] or any agency must 
treat acknowledged errors as binding precedent." Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 
14 
Matter ofF-D-N-A- Inc. 
1090 (6th Cir. 1987). A prior approval does not compel the approval of a subsequent petition or 
relieve the Petitioner of its burden to provide sufficient documentation to establish current eligibility 
for the benefit sought. Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) (to be codified at 8 C.F.R. pt. 214). A 
prior approval also does not preclude USCIS from denying an extension of an original visa petition 
based on a reassessment of eligibility for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 F. 
App'x. 556 (5th Cir. 2004). 
V. CONCLUSION 
The Petitioner has not satisfied one of the criteria at 8 C.F .R. § 214.2(h)( 4 )(iii)(A), and therefore has 
not demonstrated that the proffered position qualifies as a specialty occupation. 
11 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofF-D-N-A- Inc., ID# 55835 (AAO Nov. 9, 2016) 
11 As this issue is dispositive of the Petitioner's appeal, we will not address any of the additional deficiencies we have 
identified in the record. 
15