dismissed H-1B Case: Business Management

MATTER OF D- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 16,2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a travel truck stop with a restaurant, seeks to employ the Beneficiary as a management 
analyst and to classify him as a nonimmigrant worker in a specialty occupation. See Immigration 
and Nationality Act (the Act) § 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, Vermont Service Center, denied the petition. 
The matter is now before us on appeal. The appeal will be dismissed. 
The Director denied the petition, finding that the evidence of record did not establish that the 
proffered position qualifies as a specialty occupation. On appeal, the Petitioner asserts that the 
Director's basis for denial was erroneous and contends that it satisfied all evidentiary requirements. 
We reviewed the record in its entirety before issuing our decision. We conduct appellate review on a 
de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). We follow the preponderance 
ofthe evidence standard as specified in the Matter ofChawathe, 25 I&N Dec. 369, 375-376 (AAO 
201 0). For reasons that will be discussed below, we agree with the Director that the Petitioner has 
not established eligibility for the benefit sought. 
I. SPECIALITY OCCUPATION 
The primary issue under consideration is whether the Petitioner has provided sufficient evidence to 
establish that it will employ the Beneficiary in a specialty occupation. 
A. Legal Framework 
For an H-1B petition to be granted, the Petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the Petitioner must establish that the employment it is offering to the Beneficiary meets the 
applicable statutory and regulatory requirements of a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
Matter of D- Inc. 
(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.P.R. § 214.2(h)( 4 )(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.P.R.§ 214.2(h)(4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the m1mmum 
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. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281,291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ~fW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
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Matter of D- Inc. 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)( 4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently 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 proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-1B petitions for qualified 
beneficiaries who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position; fairly represent the types of specialty occupations that 
Congress contemplated when it created the H -1 B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the Beneficiary, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor y. Meissner, 201 F. 3d 3 84. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Proffered Position 
The Petitioner stated in its support letter dated March 28, 2014, that the Beneficiary may perform the 
following duties as a management analyst: 
• Formulate all strategic plans, growth initiatives, programs, and objectives to 
promote and ensure the company's profitability. 
• Study trends in related business and do strategic planning of existing and potential 
business to help refine and establish management control systems. 
• Identify and develop plans for product development and product and market 
expansion including pricing competitive sourcing and trend evaluations and 
evaluate price quality grades within professional service categories. 
3 
Matter of D- Inc. 
• Review financial and assortment plans to analyze performance to maximize 
opportunities. 
• Execute the strategic and tactical operational growth plans for the company, with 
particular emphasis on achieving profitability with sales to core 
industries/markets and future expansion into new markets. 
• Drive the development and implementation of new technology, with a focus on 
rapid development methodology, flexibility, financial integrity, bottom line 
results, coordinating logistics and web marketing strategy. 
• Help to identify strategic alliance candidates for growing business. 
The Petitioner further indicated that the minimum educational requirement for the proffered position 
is a Bachelor's degree in Business Administration or arelated field. 
The Petitioner submitted a Labor Condition Application (LCA) in support of the instant H-1B. The 
Petitioner indicated that the proffered position corresponds to the occupational category 
"Management Analysts" with SOC (ONET/OES) code 13-1111, at a Level I (entry level) wage. 
In response to the Director's Request for Evidence (RFE), the Petitioner provided a more detailed 
job description for the proffered position with a breakdown of duties into percentages as follows: 
Please note, however, that it is very difficult to estimate the time spent on 
duties of a Management Analyst or any other position within the company at any 
given point in time. As business and staffing needs change, an employee may engage 
in a slightly different mix of functions from day to day or month to month. However, 
we have done our best at providing an estimate of time that a Management Analyst 
spends on the respective job duties. 
Long & Short Term Business Strategy 
Developing new and innovative strategies for more efficient distribution 
networking, marketing, coordinating logistics, expansion and management control 
systems; Formulate management strategies to expand customer base and customer 
retention strategies and working on management business related analysis for 
preparing forecast by managing business relationships and negotiations on rebates 
and contracts; Work on a detailed business plan, work simplification studies, assist to 
determine company structure required to define and implement marketing strategy; 
assist in developing strategies by monitoring and coordinating entire cycle of our 
business trends, planning and designing management ideas from analyzing and 
development of business structure to assist in growth of the operations. Formulate all 
strategic plans, growth initiatives, programs and objectives to promote and ensure the 
company's profitability.- 40% 
4 
Matter of D- Inc. 
Financial Analysis & Profit Maximization 
Review financial and assortment plans to analyze performance to maximize 
opportunities; maintain proper business budgets and financial plans for executing the 
financial and assortment plans to analyze performance to maximize opportunities; 
Execute the strategic and tactical operational growth plans for the company, with 
particular emphasis on achieving profitability with sales to core industries/markets 
and future expansion into new markets. - 20% 
Market Research 
Identify and develop plans for managing marketing strategies and market 
expansion including pricing competitive sourcing and trend evaluations Research 
marketing conditions and gather data to forecast local trends and provide information 
regarding desired policies and strategies. Study trends in related business and do 
strategic planning of existing and potential business to help refine and establish 
management control systems. - 10% 
New Product/Service Offering Development & Operations Improvements 
Identify and develop plans for product development and product and market 
expansion including pricing competitive sourcing and trend evaluations and evaluate 
price quality grades within professional services categories; assist in implementing 
management strategies to operate more efficiently and effectively using specific 
technologies ensuring data integrity; Drive the development and implementation of 
new technology, with a focus on rapid development methodology, flexibility, 
financial integrity, bottom line results, coordinating logistics and web marketing 
strategy; - 15% 
Business Relationship 
Assist in establishing positive vendor relationship and timely procurement 
consistent with pertinent management considerations to obtain optimum efficiency 
and reduce costs; Help to identify strategic alliance candidates for growing business. 
-10% 
Continuing Education 
Attend professional conferences to keep the management informed of the 
current status in the industry.- 5% 
C. Analysis 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirementfor entry into the particular position 
Matter of D- Inc. 
We will now discuss the proffered pos1t10n in relation 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. 
USCIS recognizes the U.S. Department of Labor (DOL)'s Occupational Outlook Handbook 
(Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
of occupations that it addresses. 1 We reviewed the section of the Handbook on "How to Become a 
Management Analyst," which states the following, in part: 
Most management analysts have at least a bachelor's degree. The Certified 
Management Consultant (CMC) designation may improve job prospects. 
Education 
A bachelor's degree is the typical entry-level requirement for management 
analysts. However, some employers prefer to hire candidates who have a master's 
degree in business administration (MBA). 
Few colleges and universities offer formal programs in management 
consulting. However, many fields of study provide a suitable education because of the 
range of areas that management analysts address. Common fields of study include 
business, management, economics, political science and government, accounting, 
finance, marketing, psychology, computer and information science, and English. 
Analysts also routinely attend conferences to stay up to date on current 
developments in their field. 
Licenses, Certifications, and Registrations 
The Institute of Management Consultants USA (IMC USA) offers the 
Certified Management Consultant (CMC) designation to those who meet minimum 
levels of education and experience, submit client reviews, and pass an interview and 
exam covering the IMC USA's Code of Ethics. Management consultants with a CMC 
designation must be recertified every 3 years. Management analysts are not required 
to get certification, but it may give jobseekers a competitive advantage. 
Handbook, 2014-15 ed., Management Analysts, available on the 
http://www. bls. gov I ooh/business-and-financial/management -analysts .htm#tab-4 
Oct.l3,2015). 
Internet at 
(last viewed 
1 
All references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/OCO/. The excerpts of the Handbook regarding the duties and requirements of the referenced 
occupational category are hereby incorporated into the record of proceeding. 
(b)(6)
Matter of D- Inc. 
The Handbook reports that certification may be advantageous for some management analyst 
positions. However , we note that there is no indication that the Petitioner requires the Beneficiary to 
have obtained the designation CMC or any other professional designation to serve in the proffered 
position. 
The Handbook does not indicate that at least a bachelor's degree in a specific specialty , or its 
equivalent , is normall y the minimum requirement for entry into this occupation. Rather , the 
occupation accommodates other paths for entry , including a bachelor 's degree in a wide variety of 
fields, including business, management , economics , political science and government, accounting , 
finance, marketing, psychology, computer and information science , and English. Thus, the 
Handbook does not support the claim that the occupational category of management analysts is one 
for which normally the minimum requirement for entry is a baccalaureate degree (or higher) in a 
specific specialty, or its equivalent. Even if it did (which it does not), the record lacks sufficient 
evidence to support a finding that the particular position proffered here (an entry-level management 
analyst position relative to others within the occupation - as indicated on the LCA), would normally 
have such a minimum , specialty degree requirement , or its equivalent. 
Further, the Petitioner ' s requirement of a bachelor's degree in Business Administration for the 
proffered position, without specialization, is inadequate to establish that the proposed position 
qualifies as a specialt y 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. Since there must be a close con-elation between the required specialized studies and the 
position , the requirement of a degree with a generalized title , such as business administration , 
without further specification , does not establish the position as a specialty occupation . Cf Matter qf 
Michael Hertz Associates, 19 I&N Dec. 558 (Cornrn'r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed supra, USCIS interprets the degree requirement at 8 C.P.R. § 
214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
position. Although a general-purpose bachelor's degree , such as a degree in business administration , 
may be a legitimate prerequisite for a particular position , requiring such a degree , without more, will 
not justify a finding that a particular position qualifies for classification as a specialty occupation . 
See Royal Siam Corp. v. Cherto,[f, 484 F.3d 139, 147 (1st Cir. 2007). As such, even if the 
substantive nature of the work had been established, the instant petition could not be approved for 
this reason. 
The Petitioner submitted two expert opinion evaluations to establish that the proffered position 
qualifies as a specialty occupation. The evaluations are provided by: (1) Associate 
Professor of Marketing at and (2) Professor at the Department 
of Finance and Business Management at . The 
letter from states that the proffered position requires "at least a Bachelor's Degree in 
(b)(6)
Matter of D- Inc. 
Business Administration, or a related business discipline, from an accredited institution of higher 
education in the United States." The letter from states, "[i]t is truly a business 
necessity for a company such as [the Petitioner] to hire an individual with at least a bachelor 's 
degree in business administration or a closely related field or its equivalent given the complexity of 
the position of Management Analyst." 
As noted, the requirement of a bachelor 's degree in business administration or a related field is 
inadequate to establish that a position qualifies as a specialty occupation. As explained above, 
USCIS interprets 
the supplemental degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) as requiring 
a degree in a specific specialty that is directly related to the proposed position. Although a general­
purpose bachelor's degree, such as a degree in business administration, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a finding 
that a particular position qualifies for classification as a specialty occupation. See Royal Siam Corp. 
v. Chertoff, 484 F.3d at 147. Therefore, the letters from · and do not support 
the Petitioner 's assertion that the proffered position qualifies as a specialty occupation. 
We further note that both letters do not provide a substantive, analytical basis for their opinion and 
ultimate conclusion. For example, states "the norm for management analysts employed 
in companies similar to [the Petitioner] is to hire individuals with at least a bachelor's degree in 
business administration or a closely related field or the equivalent." However, does not 
reference or discuss any studies, surveys, industry publications, authoritative publications, or other 
sources of empirical information which he may have consulted in making this conclusion. Further, 
both letters do not relate their conclusion to specific, concrete aspects of the Petitioner's business 
operations to demonstrate a sound factual basis for the conclusion about the educational 
requirements for the particular position here at issue. The job duties provided in both letters appear 
to be verbatim from the job description provided by the Petitioner to USCIS. The letters provide a 
brief, general description of the Petitioner's business activities; however, they do not demonstrate or 
assert in-depth knowledge of the Petitioner's specific business operations or how the duties of the 
position would actually be performed in the context of the Petitioner's business enterprise. 
We may, in our discretion, use advisory opinion statements submitted by the Petitioner as expert 
testimony. Matter of Caron International, 19 I&N Dec. 791 (Cornm'r 1988). 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. !d. For efficiency 's sake, we hereby incorporate the 
above discussion regarding the letters into our analysis of each criterion at 8 C.F.R. § 
214.2(h)( 4)(iii)(A) . 
We will tum next to DOL's Occupational Information Network (O*NET OnLine), an alternative 
authoritative source cited by the Petitioner. We find that O*NET OnLine also does not establish that 
the proffered position qualifies as a specialty occupation. In general, O*NET OnLine is not 
particularly useful in determining whether a baccalaureate degree in a specific specialty, or its 
equivalent, is a standard entry requirement for a given position , as O*NET OnLine's Job Zone 
designations make no mention of the specific field of study from which a degree must come. Again, 
we interpret the tenn "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
Matter of D- Inc. 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Chertoff, 484 F.3d at 147. Furthermore, the Specialized 
Vocational Preparation (SVP) ratings, which are cited within O*Net OnLine's Job Zone 
designations, are meant to indicate only the total number of years of vocational preparation required 
for a particular position. The SVP ratings do 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. 
Finally, we note that the Petitioner cites to Residential Fin. Corp. v. US Citizenship & Immigration 
Services, 839 F. Supp. 2d 985 (S.D. Ohio 2012), for its 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." The Petitioner also refers to several unpublished decisions in which we determined 
that "the requisite 'degree in a specific specialty' is related not to the specific academic major or area 
of academic concentration, or to the label affixed to the academic field of study, but rather, to the 
specialized nature of the body of knowledge that was acquired by the individual." 2 
We agree with the aforementioned proposition that "[t]he knowledge and not the title of the degree is 
what is important." As mentioned, since there must be a close correlation between the required 
"body of highly specialized knowledge" and the position, a minimum entry requirement of a degree 
in two disparate fields, such as philosophy 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 amalgamation 
of these different specialties. Section 214(i)(l )(B) of the Act (emphasis added). For the 
aforementioned reasons, however, the Petitioner has not met its burden to establish that the particular 
position offered in this matter requires a bachelor's or higher degree in a specific specialty, or its 
equivalent, directly related to its duties in order to perform those tasks. 
The Petitioner also cited to Tapis Int'l v. INS, 94 F. Supp. 2d 172 (D. Mass. 2000). In Tapis Int'l v. 
INS, the U.S. district court found that while the former Immigration and Naturalization Service 
(INS) was reasonable in requiring a bachelor's degree in a specific field, it abused its discretion by 
ignoring the portion of the regulations that allows for the equivalent of a specialized baccalaureate 
degree. According to the U.S. district court, INS's interpretation was not reasonable because then 
H-lB visas would only be available in fields where a specific degree was offered, ignoring the 
statutory definition allowing for "various combinations of academic and experience based 
training." Tapis Int'l v. INS, 94 F. Supp. 2d at 176. The court elaborated that "[i]n fields where no 
specifically tailored baccalaureate program exists, the only possible way to achieve something 
2 While 8 C.F.R. § l03.3(c) provides that our precedent decisions are binding on all USCIS employees m the 
administration of the Act, unpublished decisions are not similarly binding. 
9 
Matter of D- Inc. 
equivalent is by studying a related field (or fields) and then obtaining specialized experience." Id. at 
177. 
We agree with the district court judge in Tapis Int 'l v. INS, 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. Moreover, 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 find, however, 
that the U.S. district court is stating that any position can qualify as a specialty occupation based 
solely on the claimed requirements of a petitioner. 
Instead, USeiS must examine the actual employment requirements, and, on the basis of that 
examination, determine whether the position qualifies as a specialty occupation. See generally 
Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of the 
position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge and the attainment of a baccalaureate or higher degree in a 
specific specialty as the minimum for entry into the occupation as required by the Act. 
In addition, the district court judge does not state in Tapis Int 'l v. INS that, simply because there is 
no specialty degree requirement for entry into a particular position in a given occupational category, 
users must recognize such a position as a specialty occupation if the beneficiary has the equivalent 
of a bachelor's degree in that field. In other words, we do not find that Tapis Int 'lv. INS stands for 
either (1) that a specialty occupation is determined by the qualifications of the 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. 
First, users cannot determine if a particular job is a specialty occupation based on the qualifications 
of the Beneficiary. A beneficiary's credentials to perform a particular job are relevant only when the 
job is first found to qualify as a specialty occupation. users is required instead to follow long­
standing legal standards and determine first, whether the proffered position qualifies as a specialty 
occupation, and second, whether a beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. C.f Matter of Michael Hertz Assoc., 19 I&N Dec. at 560 ("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]."). 
Second, in promulgating the H -1 B regulations, the former INS made clear that the definition of the 
term "specialty occupation" could not be expanded "to include those occupations which did not 
require a bachelor's degree in the specific specialty." 56 Fed. Reg. 61111, 61112 (Dec. 2, 1991). 
More specifically, in responding to comments that "the definition of specialty occupation was too 
10 
Matter of D- Inc. 
severe and would exclude certain occupations from classification as specialty occupations," the 
former INS stated that "[t]he definition of specialty occupation contained in the statute contains this 
requirement [for a bachelor's degree in the specific specialty or its equivalent]" and, therefore, "may 
not be amended in the final rule." !d. 
In any event, the Petitioner has furnished no evidence to establish that the facts of the instant petition 
are analogous to those in Tapis Int 'lor Residential Fin. Corp. 3 We also note that, 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 of K-S-, 20 I&N Dec. 715 (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. at 719. It is important to note that in a 
subsequent case that was reviewed in the same jurisdiction, the court agreed with our analysis of 
Residential Fin. Corp. See Health Carousel, LLC v. US. Citizenship & Immigration Services, No. 
1:13-CV-23, 2014 WL 29591 (S.D. Ohio 2014). 
The fact that a person may be employed in a position designated by a petitiOner as that of a 
management analyst and may apply some analytical principles in the course of his or her job is not in 
itself sufficient to establish the position as one that qualifies as a specialty occupation. In this case, 
the Petitioner has not established that the proffered position falls under an occupational category for 
which the Handbook, or other authoritative source, indicates that normally the minimum requirement 
for entry is at least a bachelor's degree in a specific specialty, or its equivalent. Thus, the Petitioner 
has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement. 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions 
that are identifiable as being (1) in the Petitioner's industry, (2) parallel to the proffered position, and 
also (3) located in organizations that are similar to the Petitioner. 
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 
3 The district judge's decision in that case appears to have been based largely on the many factual errors made by the 
service center in its decision denying the petition. We further 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. 
I 1 
(b)(6)
Matter of D- Inc. 
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 de greed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook (or other independent, authoritative source) reports a standard industry-wide 
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. 
There are no submissions from the industry's professional association indicating that it has made a 
degree a minimum entry requirement and no submission of letters or affidavits from firms or 
individuals that attest that such firms routinely employ only individuals with a degree in a specific 
specialty. 
We acknowledge that the Petitioner submitted letters from and However, 
for the reasons previously discussed in detail, the letters are of limited value in satisfying any 
criterion at 8 C.F.R. 214.2(h)(4)(iii)(A) or establishing that the proffered position qualifies as a 
specialty occupation. 
In support of the assertion that the degree requirement is common to the Petitioner's industry in 
parallel positions among similar organizations, the Petitioner submitted copies of job advertisements. 
However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements is misplaced. 
As noted, the Petitioner stated that it is a travel truck stop with a restaurant business established in 
2012 with eight employees and gross annual revenue of $14 million. The Petitioner designated its 
business operations under the North American Industry Classification System (NAICS) code 
447110.4 This NAICS code is designated for "Gasoline Stations with Convenient Stores." The U.S. 
Department of Commerce, Census Bureau website describes this NAICS code by stating the 
following: 
This industry comprises establishments engaged in retailing automotive fuels (e.g., 
diesel fuel, gasohol, gasoline) in combination with convenient store or food mart 
items. These establishments can either be in a convenient store (i.e. food mart) 
setting or a gasoline setting. These establishments may also provide automotive 
repair services. 
4 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used to classify 
business establishments according to type of economic activity and each establishment is classified to an industry 
according to the primary business activity taking place there. See http://www.census.gov/eos/www/naics/ (last visited 
Oct. 13, 2015). 
12 
(b)(6)
Matter of D- Inc. 
U.S. Dep't. of Commerce, U.S. Census Bureau, 2012 NAICS Definition, 447110-Gasoline Stations 
with Convenient Stores, on the Internet at http://www.census.gov/cgi-binlsssd/naics/naicsrch (last 
visited Oct. 13, 2015). 
For the Petitioner to establish that an organization is similar, it must demonstrate that it shares the 
same general characteristics. Without such evidence, documentation submitted by a petitioner is 
generally outside the scope of consideration for this criterion, which encompasses only organizations 
that are similar to the Petitioner. When determining whether the Petitioner and the organization 
share the same general characteristics, such factors may include information regarding the nature or 
type of organization, and, when pertinent, the particular scope of operations, as well as the level of 
revenue and staffing (to list just a few elements that may be considered). Notably, 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. 
Upon review of the documentation , the Petitioner did not establish that a requirement of a bachelor's 
or higher degree in a specific specialty, or its equivalent, is common for positions that are 
identifiable as being (1) in the Petitioner's industry, (2) parallel to the proffered position, and also (3) 
located in organizations that are similar to the Petitioner. 
For instance, the advertisements include a position with (a 
focused supplier of consultancy, 
engineering and product management services), (a luxury transportation 
· company), (a government and commercial services provider), 
(a non-profit organization), and (an aluminum company). Without further 
information, these advertisements appear to be for organizations that are not similar to the Petitioner 
and the Petitioner has not provided additional evidence to suggest otherwise. Furthermore, the 
Petitioner submitted advertisements for 
and a bank in Manhattan advertising through staffing firm _ _ for which 
little or no information regarding the employers is provided. Consequently, the record is devoid of 
sufficient information regarding the employers to conduct a legitimate comparison of the 
organizations to the Petitioner. The Petitioner did not supplement the record of proceeding to 
establish that the employers are similar to it. 
Moreover, some of the advertisements do not appear to be for parallel positions. For example, the 
job posting by is for a transportation asset management analyst and posting 
is for an asset management analyst. Several advertisements also require at least two to five years of 
experience. As previously discussed, the Petitioner designated the proffered position as an entry­
level position on the LCA. A number of the advertised positions appear to be for more senior 
positions than the proffered position. Moreover, the Petitioner has not sufficiently established which 
primary duties of the advertised positions are parallel to the duties of the proffered position. 
Further, contrary to the purpose for which the advertisements were submitted, the postings do not 
establish that at least a bachelor's degree in a specific specialty, or its equivalent is required for the 
positions. For example, some employers require a bachelor 's degree in business and/or business 
13 
Matter of D- Inc. 
administration. As discussed, a general-purpose degree such as a degree in business administration, 
may be a legitimate prerequisite for a particular position; however, requiring such a degree, without 
more, 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 139, 147 (1st Cir. 2007). 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. That is, not every deficit of every job posting has been addressed. The evidence does not 
establish that similar organizations in the same industry routinely require at least a bachelor's degree 
in a specific specialty or its equivalent for parallel positions. 5 
Therefore, the Petitioner has not established that a requirement of a bachelor's or higher degree in a 
specific specialty, or its equivalent, is common to the Petitioner's industry in positions that are (1) in 
the Petitioner's industry, (2) parallel to the proffered position, and also (3) located in organizations 
that are similar to the Petitioner. For the reasons discussed above, the Petitioner has not satisfied the 
first alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
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. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
Petitioner submitted various documents such as tax records and a business plan.6 We reviewed the 
5 Although the size of the relevant study population is unknown, the Petitioner does not demonstrate what statistically 
valid inferences, if any, can be drawn from these advertisements with regard to determining the common educational 
requirements for entry into parallel positions in similar companies. See generally Earl Babbie, The Practice of Social 
Research 186-228 (1995). Moreover, given that there is no indication that the advertisements were randomly selected, 
the validity of any such inferences could not be accurately determined even if the sampling unit were sufficiently large. 
See id. at 195-196 (explaining that "[r]andom selection is the key to [the] process [of probability sampling]" and that 
"random selection offers access to the body of probability theory, which provides the basis for estimates of population 
parameters and estimates of error.") 
As such, even if the job announcements supported the finding that the position of accountant for companies that are 
similar to the Petitioner requires a bachelor's or higher degree in a specific specialty, or its equivalent, it cannot be found 
that such a limited number ofpostings that appear to have been consciously selected could credibly refute the findings of 
the Handbook published by the Bureau of Labor Statistics that such a position does not require at least a baccalaureate 
degree in a specific specialty, or its equivalent, for entry into the occupation in the United States. 
6 The documents undermine the Petitioner's claim regarding its income. In the Form 1-129, the Petitioner indicated that 
its gross annual income is $14 million. However, the income statement ending June 30, 2014, indicates that its total 
14 
Matter of D- Inc. 
record in its entirety and find that while the documents provide some insight into the Petitioner's 
business operations, the Petitioner has not explained how the documents establish that its particular 
position is so complex or unique that it can only be performed by an individual with a baccalaureate 
or higher degree in a specific specialty, or its equivalent. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant petition. 
The LCA indicates a wage level at a LeveU (entry) wage, which is the lowest of four assignable 
wage levels. 7 Without further evidence, the evidence does not demonstrate that the proffered 
position is complex or unique as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a significantly higher prevailing wage.8 For example, a Level IV (fully 
competent) position is designated by DOL for employees who "use advanced skills and diversified 
knowledge to solve unusual and complex problems." 9 The evidence of record does not distinguish 
this particular position from other positions in the occupational category such that it refutes the 
Handbook's information that a bachelor's degree in a specific specialty or its equivalent is not 
required for the proffered position. 
Upon review, we find that the Petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. For instance, the Petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform the duties it may believe are so complex and 
unique. While a few related courses may be beneficial, or even required, in performing certain 
duties of the position, the Petitioner has not demonstrated how an established curriculum of such 
sales is approximately $5 million, which is significantly less than $14 million, and its gross profit is $229,903. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
7 The wage-level of the proffered position indicates that (relative to other positions falling under this occupational 
category) the Beneficiary is only required to have a basic understanding of the occupation; that he will be expected to 
perform routine tasks that require limited, if any, exercise of judgment; that he will be closely supervised and his work 
closely monitored and reviewed for accuracy; and that he will receive specific instructions on required tasks and 
expected results. 
8 The issue here is that 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, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an 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 consideration but is not a substitute for 
a determination of whether a proffered position meets the requirements of section 214(i)(l) of the Act. 
9 For additional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & Training 
Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available 
at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 2009.pdf 
15 
Matter of D- Inc. 
courses leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is 
required to perform the duties of the proffered position. The description of the duties does not 
specifically identify any tasks that are so complex or unique that only a specifically degreed 
individual could perform them. The record lacks sufficiently detailed information to distinguish the 
proffered position as more complex or unique from other positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. Therefore, the 
Petitioner has not satisfied the second alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
spec?fic specialty, or its equivalent, for the position 
The third criterion. of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we review the Petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
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 performance requirements of the position. 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 we limited solely to reviewing a 
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 artificially 
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. In other words, if a petitioner's stated degree requirement is only 
designed to artificially meet the standards for an H-1B visa and/or to underemploy an individual in a 
position for which he or she is overqualified and if the proffered position does not in fact require 
such a specialty degree or its equivalent, to perform its duties, the occupation would not meet the 
statutory or regulatory definition of a specialty occupation. See § 214(i)(1) of the Act; 8 C.F.R. 
§ 214.2(h)( 4 )(ii) (defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. USCIS must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v, Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the 
specific specialty as the minimum for entry into the occupation as required by the Act. 
16 
Matter of D- Inc. 
The Petitioner has stated that the proffered position is a new one for the company. As such, the 
Petitioner has not asserted that it has a history of recruiting and hiring only persons with at least a 
bachelor's degree in a specific specialty, or its equivalent, for the proffered position. Additionally, 
we have reviewed the record and find no evidence that the Petitioner normally requires a 
baccalaureate or higher degree in a specific specialty, or its equivalent, for the proffered position. The 
Petitioner indicated that its vice president performed some of the duties proffered in this petition. 
However, it appears that the vice president has a bachelor's degree in Biochemistry. Therefore, the 
Petitioner has not satisfied the third criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
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 in a specffic specialty, or its equivalent 
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. 
Upon review of the record of the proceeding, we note that the Petitioner has not provided sufficient 
evidence to satisfy this criterion of the regulations. In the instant case, relative specialization and 
complexity have not been credibly developed by the Petitioner as an aspect of the proffered position. 
That is, the proposed duties have not been described with sufficient specificity to establish that they 
are more specialized and complex than positions that are not usually associated with at least a 
bachelor's degree in a specific specialty, or its equivalent. 
We reiterate our earlier discussion regarding the Petitioner's designation ofthe proffered position in 
the LCA as a Level I position (the lowest of four assignable wage-levels) relative to others within 
the occupational category. Without more, the position is one not likely distinguishable by relatively 
specialized and complex duties. That is, without further evidence, the Petitioner has not 
demonstrated that its proffered position is one with specialized and complex duties as such a position 
would likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully 
competent) position, requiring a substantially higher prevailing wage. 10 
Although the Petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the Petitioner has not satisfied the 
criterion of the regulations at 8 C.F .R. § 214.2(h)( 4 )(iii)(A)( 4). 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. 
1° For example, a Level IV (fully competent) position is designated by DOL for employees who "use advanced skills and 
diversified knowledge to solve unusual and complex problems" and requires a significantly higher wage. 
1 -, 
Matter of D- Inc. 
II. CONCLUSION AND ORDER 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe 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 ofD- Inc., ID# 14029 (AAO Oct. 16, 2015) 
18