dismissed H-1B Case: Business Development

MATTER OF S-E-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 29,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an importer, exporter, and distributor of consumer electronics and home appliances, 
seeks to temporarily employ the Beneficiary as a "director of business development" 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-IB 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, and affirmed the denial on a subsequent 
motion to reopen and motion to reconsider. 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. 
Matter of S-E-, Inc. 
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 profTered 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). 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.ff, 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 
The Petitioner described itself as "an importer of consumer electronics and home appliances from 
South Korea, China, Thailand and Mexico and wholesale exporter and distributor of such products to 
South America, Central America and the Caribbean." The Petitioner stated that it seeks to employ 
the Beneficiary as its director of business development to "support the creation and management of 
wholesale of [the Petitioner]," and to perform the following duties (verbatim): 
Establishing data for market developments 
• Researching market conditions in selectedmarkets to determine the feasibility 
and potential of the company's activities in selected markets such as 
purchasjng product lines and management of key accounts to maximize 
company growth, expansion and profitability 
• Establishing research methodologies and designing formats for data collection 
for customer behaviors, needs, preferences and attitudes 
• Executing a wide variety of marketing strategies to clients for new product 
lines via involve direct mail, email broadcast campaigns and outbound calls 
2 
Matter ofS-E-, Inc. 
• Providing market and communications information by collecting, analyzing, 
and summarizing data and trends 
Strategic Management 
• Developing and maintaining sales proposals and collateral, identify, develop 
and evaluate marketing strategy based on data collected 
• Writing and maintaining content and providing monthly updates to company 
website 
• Planning, developing, creating and implementing sales and marketing 
strategies, public relations programs, and promotional campaigns in targeted 
markets to ensure compliance with the company's quality system in 
accordance with company requirements 
• Monitoring gross margin for inside sales and outside sales representatives to 
suggest strategies for improvement 
The Petitioner later supplemented the record with an additional description of the proffered position, 
as follows: 
• Promoting company activities and services by the continual development of 
the business and market models, and monitoring the competitive environment 
to identify and maximize key opportunities 
Financial Aspects 
• Examining and analyzing statistical data such as past sales reports, present 
sales and competitor's data to forecast future trends 
• Interact with sales, product development and customer service representatives 
from all the different companies 
• Research pricing for all product lines to determine competitive pricing levels 
• Reviews, Researches and analyzes price override report to determine reasons 
for overrides 
• Evaluate the financial aspects of product development 
• Gathering data on competitors, analyzing prices, rates, sales and methods of 
marketing and collecting data on customer preferences before putting a large 
scale of purchase orders or launching advertisements to potential clients 
According to the Petitioner, the proffered position requires at ·least a bachelor's degree m 
management, business administration, or its equivalent. 
3 
Matter ofS-E-, Inc. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
record does not establish that the proffered position satisfies any of the criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A) in order to qualify as a specialty occupation. 1 
As stated above, USCIS interprets 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_ff, 484 F.3d at 147; Defensor v. 
Meissner, 201 F.3d at 387. Here, the Petitioner's minimum educational requirement for the 
proffered position includes a general-purpose bachelor's degree in business administration. See 
· Royal Siam Corp. v. Cherto_ff, 484 F.3d at 147 (recognizing a business administration degree as a 
"general-purpose" degree). However, a requirement of a general-purpose bachelor's degree, without 
more, will not justify a finding that a particular position qualifies for classification as a specialty 
occupation. !d. 
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 or 
general-purpose degree, without further specification, does not establish the position as a specialty 
occupation. Id: cf Matter of Michael 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 the 
basis of the proffered 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) for the reasons set out below. 2 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses.3 
1 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. 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
4 
Matter ofS-E-, Inc. 
On the labor condition application (LCA)4 submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the standard occupational classification code and title 
13-1161, "Market Research Analysts and Marketing Specialists," at a Level I wage rate.5 
In pertinent part, the Handbook states that "[m]arket research analysts typically need a bachelor's 
degree in market research or a related field. Many have degrees in fields such as statistics, math, and 
computer science. Others have backgrounds in business administration, the social sciences, or 
communications. "6 
The Handbook does not indicate that a bachelor's degree in a spec(fic specialty, or the equivalent, is 
normally required for entry into this occupation. That is, while the Handbook states that market 
research analysts typically need a bachelor's degree in or related to market research, it also states 
that "[ m ]any" market research analysts have degrees in various other fields such as statistics, math, 
and computer science. Based on the various degrees which many research analysts can possess, the 
Handbook does not support the position's eligibility under the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
In general, provided the specialties are closely related, e.g., statistics and math, a mtmmum of a 
bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in the 
specific specialty" 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, 
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 USCIS 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. 
4 The Petitioner is required to submit a certified LCA to USC IS 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). 
5 We will consider the Petitioner's classification of the proffered position at a Levell wage (the lowest of four assignable 
wage levels) in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by the DOL 
provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which the 
Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that the 
Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he will be 
closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive specific 
instructions on required tasks and expected results. 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 II 2009.pdf. A prevailing wage determination starts 
with an entry level wage and progresses to-a higher ;,age level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. A Level I wage should be considered for research fellows, workers 
in training, or' internships. /d. 
6 U.S. Department of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
http://www.bls.gov/ooh/business-and-financiallprint/market-research-analysts.htm (last visited Nov. 29, 20 16). 
5 
Matter ofS-E-, Inc. 
a minimum entry requirement of degrees in disparate fields, such as market research and computer 
science, would not meet the statutory requirement that the degree be "in the specific specialty," 
unless the Petitioner establishes how each field is directly related to the duties and responsibilities of 
the particular position such that the required body of highly specialized knowledge is essentially an 
amalgamation of these different specialties. Section 214(i)(l )(b) of the Act (emphasis added). 7 The 
Petitioner has not done so here. 
Moreover, the Handbook indicates that general-purpose bachelor's degrees in business 
administration and the social sciences are acceptable for entry into the market research analysts 
occupation. This statement is consistent with the Petitioner's educational requirement for the 
proffered position, which includes a bachelor's degree in business administration. But again, a 
minimum requirement of a general-purpose bachelor's degree, such as a business administration 
degree, without more, will not justify a finding that a particular position qualities for classification as 
a specialty occupation. See Royal Siam Corp. v. ChertojJ; 484 F.3d at 147; cf Matter of Michael 
Hertz Assocs., 19 I&N Dec. at 560. 
Citing to Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012) and Raj and 
Co. v. USCIS, 85 F. Supp. 3d 1241, 1246 (W.D. Wash. 2015), the Petitioner asserts that the 
Handbook establishes eligibility under the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(l). However, in 
contrast to the broad precedential authority of the case law of a United States circuit court, we are 
not bound to follow the published decision of a United States district court in matters arising even 
within the same district. See Matter ofK-S-, 20 I&N Dec. 715, 719-20 (BIA 1993). Although the 
reasoning underlying a district judge's decision will be given due consideration when it is properly 
before us, the analysis does not have to be followed as a matter of law. !d. For the reasons 
discussed above, we decline to follow those district judges' analyses, and find that the Handbook 
does not support eligibility under this criterion. 8 
The Petitioner has not provided documentation from another probative source to substantiate its 
assertion regarding the minimum requirement for entry into this particular position under this 
criterion. The Petitioner has not satisfied 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
7 Whether read with the statutory "the" or the regulatory "a," both readings denote a singular "specialty." Section 
214(i)(l )(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). Still, we do not so narrowly interpret these provisions to exclude 
positions from qualifying as specialty occupations ift~ey permit, as a minimum entry requirement, degrees in more than 
one closely related specialty. As just stated, this also includes even seemingly disparate specialties provided the 
evidence of record establishes how each acceptable, specific field of study is directly related to the duties and 
responsibilities of the particular position. 
8 The district judge's decision in Residential Finance Corp. appears to have been based largely on the many factual 
errors made by the Director in the decision denying the petition. We note that the Director's decision was not appealed 
to us. Based on the district court's findings and description of the record, if that matter had first been appealed through 
the available administrative process, we may very well have remanded the matter to the service center for a new decision 
for many of the same reasons articulated by the district court if these errors could not have been remedied by us in our de 
novo review of the matter. 
(b)(6)
Matter ofS-E-, Inc. 
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 
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; wheth er 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 (0. Minn. 
1999) (quoting Hird/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 specialt y, or its equivalent. We incorporate by reference the previous discussion on the 
matter. 
The Petitioner submitted letters from and 
These letters both state an "industry standard " for directors of business 
development to have bachelor's degrees or above in business administration , management, or a 
related field, or the equivalent. But these letters do not further explain the factual bases for their 
ultimate conclusions ; they do not reference any studies , surveys, publications , or other sources of 
empirical information which the writers may have consulted. Moreo ver, the letters are not supported 
by evidence that these firms "routinel y emplo y and recruit only degreed individuals. " See id In this 
vein, the Petitioner submitted evidence for only one employee of 
who holds the position of"controller " and who possesses a U.S. bachelor's degree in 
business administration. This evidence, alone , is insufficient to demonstrate these two firms' 
recruitment and employment history for a position akin to the proffered "director of busine ss 
development" position. And even if the submitted evidence was representative of these companies ' 
employment history for the position (which it is not) , we reiterate our prior comments about the 
insufficiency of a general-purpose business administration degree for purposes of establishing a 
degree requirement in a specific specialty. 
.., 
Matter of S-E-, Inc. 
The Petitioner also submitted several vacancy announcements under the first prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). The advertising companies include two companies in the medica( device 
and X-ray industry, one company in an otherwise unspecified "computer" industry, and another 
company described as "a non-profit start-up . . . [which] is developing and delivering several 
strategic programs that help Korean startups and entrepreneurs." 
The Petitioner has not submitted sufficient evidence to establish that these other compani,es are 
similar to the Petitioner and in the Petitioner's industry. Without such evidence, we cannot 
determine the relevance of these advertisements under this prong of the criterion, which 
encompasses only organizations that are similar to the Petitioner and in the Petitioner's industry. A 
petitioner's unsupported statements are of very limited weight and normally will be insufficient to 
carry its burden ofproof. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter ofChawathe, 25 
I&N Dec. 369, 376 (AAO 2010). 
We also cannot determine whether the advertisements are for parallel positions. Although some 
advertisements may be for positions with similar titles as the proffered position, they do not provide 
sufficiently detailed information about the positions' actual job duties in order to demonstrate that 
they are for parallel positions. In fact, some of the advertisements do not contain any description of 
the proposed job duties. In determining the nature of a position, the critical element is not the title of 
the position, but the position's job duties which then determine the level of education needed to 
perform the position. 
And contrary to the purpose for which the advertisements were submitted, many of companies do 
not require at least a bachelor's degree in a spec?fic specialty, or its equivalent, is required for the 
positions. That is, several of the advertising companies require nothing more than a general, 
unspecified bachelor's degree. We hereby incorporate our previous discussions about the 
insufficiency of a general bachelor's degree. See Royal Siam Corp. v. Cherto.ff; 484 F.3d at 147; cf 
Matter of Michael Hertz Assocs., 19 I&N Dec. at 560. The Petitioner has not satisfied the first 
alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 9 
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, the record does 
not sufficiently develop relative complexity or uniqueness as an aspect of the proffered position. 
9 Because of these fundamental deficiencies, we will not individually address each of the submitted advertisements. 
(b)(6)
Matter of S-E-, Inc. 
Here, the Petitioner repeatedly asserts that its proffered position is complex, and that "the proffered 
position is not an introductory management position." However, the Petitioner's claim is directly 
undermined by its designation of the proffered position as a Level I position falling under the 
"Market Research Analysts and Marketing Specialists" occupational category (on the submitted 
LCA). The position's Level I wage rate, combined with the selected occupational category, is not 
indicative of a position that is particularly complex or unique. Instead, it indicates that the proffered 
position is an entry-level position for an employee who has only basic understanding of the 
occupation. 
In addition, the record does not credibly demonstrate exactly what the Beneficiary will do on a day­
to-day basis such that complexity or uniqueness can even be determined. We agree with the 
Director that there are inconsistencies in the job duties, as the duties presented on motion appear to 
have additional duties than those initially described. 10 Although characterized by the Petitioner as 
"Financial Aspects," these additional duties include sales and sales-manager related duties. For 
example, the newly added duties include "[interacting] with sales, product development and 
customer service representatives from all the different companies," '"[researching] pricing for all 
product lines to determine competitive pricing levels," and "putting a large scale of purchase 
orders." These sales-related duties are not inherent to a position 
classified under the "Market 
Research Analysts and Marketing Specialists" occupational category, particularly not one at a Level 
I wage rate. 11 
Moreover, we agree with the Director that the Petitioner's descriptions of the proffered position are 
insufficiently detailed to convey the actual duties the Beneficiary will perform on a daily basis. The 
Petitioner is a four-employee company consisting of a president/owner a senior sales 
manager and two unspecified employees. The Petitioner stated that "[t]here will be no 
need for the Beneficiary to perform any non-qualifying functions as those are performed by the 
Petitioner's other workers and contracted business partners." But the Petitioner has not further 
identified the job titles, duties, and/or placement within the organizational hierarchy of its other 
employees, nor the roles and responsibilities of its "contracted partners." Without more, the record 
is insufficient to demonstrate that the Petitioner can and willrelieve the Beneficiary from performing 
non-qualifying duties, as claimed. 
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., 
10 USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. 8 C.F.R. § I 03.2(b )(I); Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'! Comm 'r 1978). A 
petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of!zummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
11 For more information about the typical job duties for positions under the "Market Research Analysts and Marketing 
Specialists" occupational category, see the Occupational Information Network (O*NET) OnLine Details Report for this 
occupation, available at http://www.onetonline.org/linkldetails/13-1161.00 (last visited Nov. 29, 2016). A review ofthis 
O*NET report does not indicate that job duties directly involving sales are inherent to a "Market Research Analysts and 
Marketing Specialists" position. 
9 
(b)(6)
Matter ofS-E-, Inc. 
467 F. Supp. 2d 728. A petitioner's size impacts upon the actual duties and responsibilities of a 
particular position. !d. In this matter, the record lacks sufficient evidence to demonstrate that the 
duties, as described, will actually be performed by the Beneficiary and that the Petitioner's 
organization can support the Beneficiary's employment at the level asserted. 
While the Petitioner refers to its distributorship agreements with and 
the Petitioner has not explained in further detail how these agreements reflect upon 
the complexity or uniqueness of the proffered position. Again, a petitioner's unsupported statements 
are of very limited weight and normally will be insufficient to carry its burden of proof. Matter of 
So.ffici, 22 I&N Dec. at 165. A petitioner must support its assertions with relevant, probative, and 
credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376. 
For all of these reasons, the Petitioner has not sufficiently satisfied the second alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
In the appeal brief, the Petitioner does not assert that it satisfies this criterion. Nor does the evidence 
of record demonstrate eligibility under this criterion. 
The Petitioner (established in 1996) claims that its president and senior sales manager "were 
employed in the [sic] similar role," and submits copies of their bachelor's degrees in business 
administration. 12 But without specifying what actual job duties these individuals performed, the 
record is insufficient to demonstrate that they were employed in the proffered position (or a 
sufficiently similar position). And even if they were employed in the same or sufficiently similar 
positions, the Petitioner still has not explained how their business administration degrees 
demonstrate that the Petitioner normally requires a bachelor's degree in a spec?fic specialty, or its 
equivalent, for the position. We reiterate our previous discussion regarding the inadequacy of a 
general-purpose business administration degree for purposes of satisfying the degree requirement in 
a spec?fic specialty. 
The Petitioner does not claim to have previously employed anyone else iwthe proffered position. 
Therefore, it has not satisfied the third criterion of 8 C.F .R. § 214.2(h)( 4 )(iii)( A). 13 
12 The senior sales manager possesses a foreign bachelor's degree in business administration. The Petitioner did not 
submit evidence that his foreign degree is equivalent to a U.S. degree in business administration. 
13 We also note that, to merit approval of the petition under this criterion, the record must also 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, either. 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 ~pecialty occupation. Were USCIS limited solely to reviewing the Petitioner's claimed self-
10 
(b)(6)
Matter ofS-E-, Inc. 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
We reviewed the Petitioner's statements regarding the proffered position's complexity. For the same 
reasons we discussed under the second alternative prong of 8 C.F.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. 
We hereby incorporate our prevwus discussion regarding the position's Level I wage rate 
designation. 14 We also incorporate our previous discussion regarding the insufficient position 
descriptions. Because the record does not adequately describe the job duties the Beneficiary will 
actually perform within the context of the Petitioner's actual business operations, 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 correlatiol). between that work and a need for a particular level education of highly 
specialized knowledge in a specific specialty. The Petitioner has not demonstrated in the record that 
its proffered position is one with duties sufficiently complex and specialized to satisfy 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(4). 
E. Position Evaluation 
We will now address the opmwn letter from assooiate dean of academic 
affairs 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 administration, management, or a related area, 
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 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. 
14 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 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 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)(l) of the Act. 
11 
(b)(6)
Matter ofS-E-, Inc. 
or its equivalent. We have carefully evaluated assertions but, for the following 
reasons, determine his letter does not have significant weight in this matter. 
First, expertise regarding degree requirements for similar positiOns within the 
Petitioner's industry is not established in the record. We withdraw the Director's comment that 
is a "recognized authority in the field." In his letter, states his area of 
expertise as in business management and information science. He does not claim to have expertise 
in the field of marketing. Without further clarification, it is unclear how his education, training, 
skills or experience would translate to expertise regarding the requirements of a position which the 
Petitioner classified as a Level I, entry-level "Market Research Analysts and Marketing Specialists" 
position. 
Furthermore, does not demonstrate in-depth knowledge of the Petitioner's operations 
or how the duties of the position will actually be performed within the context of its actual 
operations. For example, states that the proffered duties "are not those of a lower­
level employee performing tasks such as those duties performed by an Administrative Assistant or 
Office Worker ... [who] execute various day-to-day operational tasks." But he does not relate his 
conclusions to specific, concrete aspects of this Petitioner's four-employee business operations to 
demonstrate a sound factual basis for his conclusions. 
In particular, does not indicate that he considered, or was even aware of, the fact that the 
Petitioner submitted an LCA for Level I, entry-level "Market Research Analysts and· Marketing 
Specialists" position. Through this designation, the Petitioner indicated that the position is a 
comparatively low, entry-level position relative to others within its occupation, which directly 
undermines assessment of the position's "great level of responsibility within the 
company." 15 We consider this a significant omission, in that it suggests an incomplete review of the 
position in question and a faulty factual basis for the professor's ultimate conclusion as to the 
educational requirements of the position upon which he opines. 
Finally, concludes that the proffered position can be performed by an individual with 
a bachelor's degree in business administration. As we discussed earlier, the educational requirement 
of a general-purpose bachelor's degree in business administration, without further specialization, is 
inadequate to establish that the proposed position qualifies as a specialty occupation. See Royal 
Siam Corp. v. Cherto.ff, 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 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 
15 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 
12 
Matter ofS-E-, Inc. 
Caron Int 'l, 19 I&N Dec. 791 (Comm'r 1988). As a reasonable exercise of our discretion, we 
discount his advisory opinion letter as not probative of any criterion under 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
IV. 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. 
16 
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 ofS-E-, Inc., ID# 96545 (AAO Nov. 29, 2016) 
16 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 . . 
13