dismissed H-1B Case: Business Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 8774786 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 28, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "director of business development" under 
the H-lB nonimmigrant classification for specialty occupations . See Immigration and Nationality Act 
(the Act) section 101(a)(15)(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 California Service Center Director denied the petition, concluding that the record did not establish 
that an employer -employee relationship exists between the Petitioner and the Beneficiary I and did not 
establish that the proffered position is a specialty occupation. 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 2 
The Administrative Appeals Office (AAO) reviews the questions in this matter de nova. 3 Upon de 
nova review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
We reviewed the evidence of record and the Petitioner's assertions on appeal regarding the 
Beneficiary's ownership of the Petitioner. The record includes sufficient evidence to establish that the 
Beneficiary's brother, not the Beneficiary, is the sole member of this limited liability company. 
Additionally, the Beneficiary's brother is the managing member of the Petitioner. Accordingly, the 
Director's conclusion that the Beneficiary will exercise control over the organization is withdrawn. 
The record is sufficient to establish an employer-employee relationship between the Petitioner and the 
Beneficiary. 
1 We will withdraw the Director's decision on the issue of employer-employee relationship . 
2 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc ., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
II. LABOR CONDITION APPLICATION 
A. Legal Framework 
The purpose of the Department of Labor's (DOL) labor condition application (LCA) wage requirement 
is "to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring 
temporary foreign workers." 4 It also serves to protect H-1B workers from wage abuses. A petitioner 
submits the LCA to DOL to demonstrate that it will pay an H-1B worker the higher of either the 
prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. 5 While DOL 
certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines whether the LCA' s 
content corresponds with and supports the H-1B petition. 6 When comparing the standard occupation 
classification (SOC) code or the wage level indicated on the LCA to the claims associated with the 
petition, USCIS does not purport to supplant DOL's responsibility with respect to wage 
determinations. There may be some overlap in considerations, but USCIS' responsibility at its stage 
of adjudication is to ensure that the content of the DOL-certified LCA "corresponds with" the content 
of the H-1B petition. 
The regulation at 20 C.F.R. § 655.705(b) was amended by 65 Fed. Reg. 80,110, 80,210 (proposed Dec. 
20, 2000) and states: "[i]n [accepting an employer's petition with the DOL-certified LCA attached], 
the [Department of Homeland Security] determines whether the petition is supported by an LCA which 
corresponds with the petition, whether the occupation named in the labor condition application is a 
specialty occupation ... , and whether the qualifications of the nonimmigrant meet the statutory 
requirements for H-1B visa classification." 7 USCIS is authorized to determine the corollary nature of 
the proffered position's elements as represented in an LCA when compared with those same elements 
as represented on the Form 1-129, as well as the Petitioner's actual position requirements. Without 
such a comparison, it is unclear how USCIS would comply with its responsibilities under the statute. 8 
Furthermore, USCIS precedent states: 
DOL reviews LCAs "for completeness and obvious inaccuracies" and will certify the 
LCA absent a determination that the application is incomplete or obviously inaccurate. 
4 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1 B Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that 
the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage 
in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [ the filing of an LCA] 
with [DOL]."). 
5 Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a)); Venkatraman v. REI Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 
2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal Vojtisek-Lom & Adm'r Wage & Hour Div. v. 
Clean Air Tech. Int'l, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
6 See 20 C.F.R. § 655.705(b) ("DHS determines whether the petition is supported by an LCA which corresponds with the 
petition .... "). See also Matter of Simeio Solutions, 26 T&N Dec. 542, 546 n.6 (AAO 2015). 
7 20 C.F.R. § 655.705(b). 
8 See section 212(n)(l) of the Act. 
2 
Section 212(n)(l)(G)(ii) of the Act. In contrast, USCIS must determine whether the 
attestations and content of an LCA correspond to and support the H-1 B visa petition. 9 
In order to determine whether the "attestations and content" ( e.g., the SOC code and the wage level) 
as represented on the LCA corresponds with the information pertaining to the proffered position as 
represented on the Form 1-129, we follow DOL's guidance, which provides a five-step process for 
determining the appropriate SOC code and wage level. 10 
B. Analysis 
The Petitioner is a seven-employee corporate support services entity which provides digital gaming 
product development and digital marketing services to its U.S. affiliates which are all in the gaming 
industry. On the certified LCA the Petitioner designated the position as an SOC code 11-2021 
"Marketing Managers" occupation at a Level II wage. Upon comparing the Petitioner's duties 11 to 
those provided in O*NET, it appears the majority of the proffered duties generally coincide with the 
tasks outlined in the O*NET summary report for this occupation. For the second step in determining 
whether the LCA corresponds with the information pertaining to the proffered position, we look to the 
Petitioner's experience requirements. Here the Petitioner requires a bachelor's degree in marketing or 
a related field and 10 years of experience in a related role in the gaming industry. In response to the 
Director's request for evidence (RFE), the Petitioner revised its requirements to a "Bachelor's Degree in 
Marketing or related field with a minimum of 10 years' experience in a related role within the gaming 
industry" and added that "[ e ]ducational and progressive work experience may be substituted for a 
bachelor's degree at management's discretion." 
We observe that the revision of minimum requirements allows education and progressive work 
experience to be substituted for the required bachelor's degree. The Petitioner, however, does not provide 
its standards for determining such an equivalency. Additionally, both versions of the Petitioner's 
minimum requirements for the proffered position require 10 years of additional experience in the gaming 
industry at a minimum, in addition to the required bachelor's degree in marketing, or its equivalent. This 
experience requirement conflicts with the Level II wage designated on the certified LCA. The proffered 
position is a Job Zone Four occupation with a specialized vocational preparation (SVP) rating of 7 < 8. 
If more than three years of experience is required for such an occupation, the wage level must be 
increased to accommodate the experience requirement. In this instance, the requirement of a minimum 
of 10 years of experience in addition to the required bachelor's degree or its equivalent, requires a 
corresponding three-level increase above the entry-level requirements for the position. Accordingly, 
the required wage level for the Petitioner's position is a wage Level IV. The Petitioner has not 
provided a certified LCA that corresponds with the information pertaining to the proffered position as 
9 Simeio Solutions, 26 T&N Dec. at 546 n.6. 
10 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009) (DOL guidance), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf. 
11 The Petitioner provided a revised description of duties in response to the Director's request for evidence. However, both 
descriptions paraphrase the tasks listed in the O*NET' s summary report for SOC code 11-2021. 
3 
represented by the petition and the Petitioner's own requirements. For this reason, the petition may 
not be approved. 
III. SPECIAL TY OCCUPATION 
A. Legal Framework 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-1B nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines 
the term "specialty occupation" as an occupation that requires "theoretical and practical application of 
a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific 
specialty ( or its equivalent) as a minimum for entry into the occupation in the United States." The 
regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(l) of the Act but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must also meet one of the following criteria to qualify as a specialty occupation 
position: 
( 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). As this regulation must be read with the statutory and regulatory 
definitions of a specialty occupation under section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii), 
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. 12 See Royal Siam Corp. v. Chertoff, 484 F.3d 
12 The Petitioner asserts on appeal that USCIS' interpretation of the regulatory criteria is new, mischaracterizes the statutory 
and regulat01y definitions of specialty occupation, and is inconsistent. The Petitioner does not cite any authority in support 
of this assertion. The Petitioner must satisfy one of the four criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), as well as the 
statutory/regulatory definition of specialty occupation. We emphasize, as set out above, that the terms "degree" and 
"baccalaureate or higher degree" cannot be read without the context of the statutory and regulatory definitions; thus, the 
required degree or baccalaureate or higher degree referred to in the regulatory criteria must be construed to be a 
baccalaureate or higher degree in a specific specialty that is directly related to the proposed position. To reiterate further, 
even if the Petitioner satisfies one or all four of the regulat01y criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), which it has not, it 
still has not established the proposed position is a specialty occupation until it also satisfies the statutory/regulatory 
definition of specialty occupation at section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l); 8 C.F.R. § 214.2(h)( 4)(ii). 
4 
13 9, 14 7 (1st Cir. 2007) ( describing "a degree requirement in a specific specialty" as "one that relates 
directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 
384, 387-88 (5th Cir. 2000). By regulation, the Director is charged with determining whether the 
petition involves a specialty occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. 
§ 214.2(h)( 4)(i)(B)(2). 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record 
does not establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation. 
Preliminarily, we observe that on appeal, the Petitioner submits a letter prepared by the vice president 
of AGS, a manufacturer and supplier of slot machines as well as several job postings, to support its 
claim that there is a common industry requirement for a bachelor's degree in a specific specialty, or 
its equivalent, for this occupation. However, the Petitioner was put on notice of required evidence and 
given a reasonable opportunity to provide it for the record before the visa petition was adjudicated. 
The Petitioner did not submit the requested evidence and now submits it on appeal. The regulations 
indicate that the Petitioner shall submit additional evidence as the Director, in his or her discretion, 
may deem necessary in the adjudication of the petition. See 8 C.F.R. §§ 103.2(b)(8), 214.2(h)(9)(i). 
The purpose of the request for evidence is to elicit farther information that clarifies whether eligibility 
for the benefit sought has been established, as of the time the petition is filed. See id. §§ 103.2(b)(l), 
103.2(b )(8), 103.2(b )(12). "Failure to submit requested evidence which precludes a material line of 
inquiry shall be grounds for denying the [petition]." Id. § 103.2(b)(l4). As such, we will not accept 
evidence offered for the first time on appeal. 13 The appeal will be adjudicated based on the record of 
proceedings before the Director. 
1. First Criterion 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]) 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 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. 14 
13 See Matter of Soriano, 19 T&N Dec. 764, 766 (BIA 1988); see also Matter of Obaigbena, 19 T&N Dec. 533, 537 (BIA 
1988). If the Petitioner had wanted the submitted evidence to be considered, it should have submitted the documents in 
response to the Director's request for evidence. Id. 
14 We do not maintain that the Handbook is the exclusive source ofrelevant 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. N eve1iheless, to satisfy the first criterion, the burden of proofremains on the Petitioner to 
submit sufficient evidence to support a finding that its particular position would n01mally have a minimum, specialty 
degree requirement, or its equivalent, for entry. 
5 
The Handbook is a career resource offering information on hundreds of occupations. The Petitioner 
designated the proffered position under the occupational category "Marketing Managers" on the LCA, 
therefore, we reviewed the subchapter of the Handbook entitled "How to Become an Advertising, 
Promotions or Marketing Manager" which states, in relevant part, the following: 
Most marketing managers need a bachelor's degree. Courses in business law, 
management, economics, finance, computer science, mathematics, and statistics are 
advantageous. For example, courses in computer science are helpful in developing an 
approach to maximize online traffic, by utilizing online search results, because 
maximizing such traffic is critical for digital advertisements and promotions. In 
addition, completing an internship while in school can be useful. 15 
Although the Handbook reports that a variety of courses may be advantageous for this occupation, it 
does not specify that such positions require a bachelor's degree in a specific specialty, or its equivalent. 
The Petitioner also refers to the DOL's Occupational Information Network (O*NET) summary report 
for "Marketing Managers," standard occupational classification (SOC) code 11-2021. The summary 
report provides general information regarding the occupation; however, it does not support the 
Petitioner's assertion regarding the educational requirements for these positions. For example, the 
specialized vocational preparation (SVP) rating cited within O*NET's Job Zone Four designates this 
occupation as 7 < 8. 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, formal education, and experience -­
and it does not specify the particular type of degree, if any, that a position would require. 
On appeal the Petitioner cites to several cases to demonstrate that the required bachelor's degree does 
not have to be in a single specific specialty. In particular, the Petitioner cites to Tapis Int 'l v. 
Immigration and Naturalization Service, 94 F. Supp. 2d 172 (D. Mass. 2000) asserting that the 
Director did not properly account for the equivalent experience language in the statutory and 
regulatory definition of specialty occupation. The Tapis court held that in positions where an employer 
requires a bachelor's degree, but does not specify a field, the regulatory definition of specialty 
occupation may be satisfied by looking at a combination of education with experience in a specific 
field. We agree with the district court judge in Tapis that in satisfying the specialty occupation 
requirements, both the Act and the regulations require a bachelor's degree in a specific specialty, or 
its equivalent, and that this language indicates that the degree does not have to be a degree in a single 
specific specialty. We also agree that, if the requirements to perform the duties and job responsibilities 
of a proffered position are a combination of a general bachelor's degree and experience such that the 
standards at both section 214(i)(l)(A) and (B) of the Act have been satisfied, then the proffered 
position may qualify as a specialty occupation. We do not conclude, however, that any position can 
qualify as a specialty occupation based solely on the claimed requirements of a petitioner. Further, 
we do not conclude that Tapis stands for either (1) that a specialty occupation is determined by the 
15 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Advertising, Promotions, and 
Marketing Managers, https://www.bls.gov/ooh/management/advertising-promotions-and-marketing-managers.htm (last 
visited Jul. 24, 2020). 
6 
qualifications of a beneficiary being petitioned to perform it; or (2) that a position may qualify as a 
specialty occupation even when there is no specialty degree requirement, or its equivalent, for entry 
into a particular position in a given occupational category. 
The Petitioner also cites 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), 16 for the proposition that 
"[t]he knowledge and not the title of the degree is what is important. Diplomas rarely come bearing 
occupation-specific majors. What is required is an occupation that requires highly specialized 
knowledge and a prospective employee who has attained the credentialing indicating possession of 
that knowledge." We agree with the aforementioned proposition that "[t]he knowledge and not the 
title of the degree is what is important." In general, provided the specialties are closely related, e.g., 
chemistry and biochemistry, 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. However, as just discussed neither the Handbook nor O*NET discuss 
a requirement for a "bachelor's or higher degree in a particular specialty." 17 Thus, the Petitioner's 
reliance on the Handbook and O*NET to establish that this occupation normally requires a bachelor's 
or higher degree in a specific specialty, or its equivalent, is not persuasive. 
The Petitioner has not provided sufficient documentation from a probative source to substantiate its 
assertion regarding the minimum requirement for entry into this particular position. Thus, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I). 
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 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 
16 it is important to note that the court in Raj determined that the evidence in the record demonstrated that the particular 
position proffered required a bachelor's degree in market research or its equivalent as a minimum for entry. Further. the 
court noted that "[t]he patently specialized nature of the position sets it apart from those that merely require a generic 
degree." The position in Raj can, therefore, be distinguished from the instant position. Here, the duties and requirements 
of the position as described in the record before the Director do not indicate that this particular position proffered by the 
Petitioner is one for which a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the 
minimum requirement for entry. 
17 The Petitioner asserts that USCIS' reasoning would require that the Petitioner's position require a degree in online/digital 
gaming business development. The Petitioner's characterization is flawed. The Director did not indicate, for example, 
that the proffered position, a marketing manager occupation, could only qualify as a specialty-occupation position if the 
Petitioner mandated a degree in online/digital gaming business development. Instead the Director determined that neither 
the Handbook nor O*NET reported that this occupation normally required a bachelor's degree in a specific specialty, or 
its equivalent. We observe that if the Handbook or O*NET is insufficient to establish that a particular occupation is 
categorically a specialty occupation under the first criterion, the Petitioner may submit evidence from other probative 
sources to support a finding that its particular position would normally have a minimum, specialty degree requirement, or 
its equivalent, for entry. Here, the Petitioner simply has not satisfied its burden of proof establishing that its particular 
position normally requires a minimum of a bachelor's degree in marketing, or a related field. 
7 
As the Director determined, the record did not include evidence that a bachelor's degree in a specific 
specialty, or its equivalent, is a common industry standard for parallel positions among organizations 
similar to the Petitioner. Thus, the record does not establish the first prong of the second criterion. 
We also note here that we will discuss the second prong of the second criterion in section 4 below. 
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. Evidence 
provided in support of this criterion may include, but is not limited to, documentation regarding the 
Petitioner's past recruitment and hiring practices, as well as information regarding employees who 
previously held the position. While a petitioner may believe or otherwise assert that a proffered 
position requires a degree in a specific specialty, that opinion alone without corroborating evidence 
cannot establish the position is a specialty occupation. 
On appeal, the Petitioner refers to other employees and their degrees to establish this criterion. 
However, this is a new position and while a first-time hiring for a position is certainly not a basis for 
precluding a position from recognition as a specialty occupation, it is unclear how an employer that 
has not previously recruited and hired for the position would be able to satisfy the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(3). We note further that even if the Petitioner always requires a bachelor's degree 
in a specific specialty to perform the duties of the proffered position, which it has not corroborated in 
this record, and which could possibly satisfy the regulatory requirement at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(3), the Petitioner must still satisfy the statutory requirement at section 214(i)(l) 
of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation). The Petitioner has not 
done so here. 
4. Second Prong of the Second Criterion and Fourth Criterion 
As noted above, the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), 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. The fourth 
criterion at 8 C.F.R. § 2 l 4.2(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. 
On appeal, the Petitioner asserts that in its response to the Director's RFE, it provided specific details 
of the social gaming industry, the nature of the company, the importance of the proffered position, the 
Beneficiary's qualifications for the position, and a more detailed statement of duties. We have 
reviewed the Petitioner's response and understand the nature of the Petitioner's business and the role 
the Beneficiary will play in its business operations. However, the importance of the position to the 
Petitioner's mission does not establish the specialized nature, complexity, or uniqueness of the 
position. The importance of the work to the Petitioner's organization, the proffered position's role 
within the organization and the number of staff and their degrees cannot substitute for specialization 
and complexity, or uniqueness of the actual duties of the position. 
8 
Additionally, the Beneficiary's past work, 18 his academic and experience qualifications do not 
establish that the proposed position is a specialty occupation. 19 While the Petitioner provided 
additional details about the Beneficiary's experience that will assist him in performing the proposed 
duties, the Petitioner's description and supporting evidence does not demonstrate that the particular 
work would require a specialty occupation level of education. Moreover, the test to establish a position 
as a specialty occupation is not the skill set or education of a proposed beneficiary, but whether the 
position itself qualifies as a specialty occupation. Thus, whether or not the Beneficiary in this case 
has been a key or accomplished employee in previous positions or has many years of experience is 
irrelevant to the issue of whether the proffered position itself qualifies as a specialty occupation, i.e., 
whether the duties of the proffered position require the theoretical and practical application of a body 
of highly specialized knowledge and the attainment of a bachelor's degree or higher in a specific 
specialty, or its equivalent. Section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). 
We reviewed the descriptions of duties and understand that the Beneficiary will identify new markets 
for the Petitioner's products, identify competitors in order to establish bench marks with regards to 
pricing, product appeal, and technical standards, identify local partners/distributors for the products, 
will make critical decisions on the game products to introduce to the market, and seek new business 
opportunities with potential new partners. The Petitioner's overview of the proposed position does 
not establish that this position is significantly different from other marketing managers positions that 
do not require a bachelor's degree in a specific specialty. That is, the Petitioner has described the 
position in terms of generalized functions that do not convey sufficient substantive information to 
establish the relative specialization and complexity, or uniqueness of the proffered position or its 
duties. 
Moreover, the Petitioner's designation of this position as requiring only a Level II wage, 20 conflicts 
with the Petitioner's assertion that the proposed position is specialized and complex or unique. That 
is, this designation when read in combination with the evidence presented and the Handbook's account 
of the requirements for this occupation, suggests that this particular position is not so specialized and 
complex or unique that the duties could only be performed by an individual with a bachelor's degree 
or higher in a specific specialty, or its equivalent. If typical positions located within the occupational 
category do not require a bachelor's degree in a specific specialty, or the equivalent, then it is unclear 
how a position with wage level II characteristics would, regardless of the Petitioner's assertions. The 
record lacks sufficiently detailed and unambiguous information to distinguish the proffered position 
as unique from or more specialized and complex than other closely related positions that can be 
performed by persons without at least a bachelor's degree in a specific specialty, or its equivalent. 
18 The Petitioner refers to the Beneficiary's previous work for the Petitioner's foreign affiliates as examples of how the 
Beneficiary has been key to the business development of the affiliated companies. 
19 A beneficiary's credentials to perform a particular job are relevant only when the job is first found to qualify as a 
specialty occupation. We are required to follow long-standing legal standards and determine first, whether the proffered 
position qualifies as a specialty occupation, and second, whether the beneficiary was qualified for the position at the time 
the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 T&N Dec. 558, 560 (Comm'r 1988) 
("The facts of a beneficiary's background only come at issue after it is found that the position in which the petitioner 
intends to employ him falls within [a specialty occupation]."). 
20 DOL's wage-level guidance specifies that a Level II designation is reserved for positions involving only moderately 
complex tasks requiring limited judgment. 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/NPWH C _Guidance_ Revised_ 11 _ 2009 .pdf 
9 
Finally, we note that the Petitioner's job description includes functions that do not appear to fall within 
the parameters of the occupation designated on the LCA. For example the Beneficiary's duties 
include: working with team, factory, and logistics to place order and provide timeline for product 
delivery to distributors and casinos; recommending technical set up for best performance; monitoring 
ongoing performance game by game; and recommending game adjustments, floor relocation or game 
changes to improve earning potential. These duties do not appear to relate to managing and developing 
the Petitioner's marketing strategy or other typical marketing managers' tasks, and the Petitioner has 
not established that such duties require a bachelor's degree in a specific specialty, or its equivalent. 
Upon review of the totality of the evidence submitted, the Petitioner has not established that more 
likely than not, the proffered position is a specialty occupation under any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Moreover, the record does not establish that the Petitioner satisfied the statutory 
and regulatory definitions of specialty occupation. 
IV. CONCLUSION 
The Petitioner has not established the LCA corresponds to and supports the position described in the 
petition and has not established the proposed position is a specialty occupation. The appeal will be 
dismissed for these 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. 
10