dismissed H-1B Case: Business/Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 9140617 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 13, 2020 
The Petitioner , an Internet-based networking service , seeks to temporarily employ the Beneficiary as 
a "creative product strategist" under the H-1B nonimmigrant classification for specialty occupations. 
Immigration and Nationality Act section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b). The 
H-lB program allows a U.S. employer to temporarily employ a qualified foreign worker in a position 
that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty ( or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition , concluding that the proffered 
position did not qualify as a specialty occupation . 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review , we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l) , defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge , 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R . § 214.2(h)(4)(ii) largely restates this statutory definition , but adds a non­
exhaustive list of fields of endeavor. In addition , the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation : 
(1) A baccalaureate or higher degree or its equivalent is nonnally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). 
II. ANALYSIS 
In her decision, the Director concluded, in part, that the Petitioner did not meet the statutory definition 
of a specialty occupation on the basis of its own requirements. For the reasons discussed below, we 
agree with the Director's conclusion. 1 
The Petitioner indicated in its initial filing that the position "requires, at a minimum, a Bachelor's 
degree in Business Administration or a related field, or equivalent." The Petitioner also explained 
that the Beneficiary qualifies for the position on the basis of his "Bachelor's degree in Business 
Administration froml I university I t' which was evaluated to be "the equivalent of 
a Bachelor's degree in Business Administration from an accredited university in the United States." 2 
This issue here is that 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. As explained by 
the Director, since there must be a close correlation 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 of Michael 
Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'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 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 l&N Dec. 369, 375- 76 
(AAO 2010). 
2 The Petitioner submitted a copy of the evaluation from the Trustforte Corporation. We note that the evaluation relies on 
thel l·Bachelor's Degree with Honours" for equivalence which is "[a]warded upon completion of 1 year of 
postsecondary study following a Bachelor's degree." There is no evidence, however, that the Beneficiary's three year 
"Bachelor of Business Administration" degree is comparable to the "Bachelor's Degree with Honours." 
2 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its equivalent. 
We have consistently stated that, 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 conclusion that a particular position qualifies for classification 
as a specialty occupation. Royal Siam Corp., 484 F.3d at 147.3 See also Irish Help at Home LLC v. 
Melville, No. 13-cv-00943-MEJ, 2015 WL 848977 (N.D. Cal. Feb. 24, 2015), aff'd, 679 F. App'x 634 
(9th Cir. 2017). 
The Director's request for evidence (RFE) cited to Royal Siam, explained the insufficiency of the 
Petitioner's requirement of a degree in business administration, and provided that the Petitioner may 
submit such evidence as a letter or an expert opinion letter explaining how a degree in business 
administration "is directly related to the duties and responsibilities of the position." In its response, 
the Petitioner changed the degree requirements to a "Bachelor's degree in Marketing, Business 
Administration with a concentration in Marketing, or a related field, or equivalent" without 
explanation and provided two new evaluations equating the combination of the Beneficiary's degree 
and experience to a bachelor's degree in marketing. The purpose of the RFE, however, is to elicit 
further information that clarifies whether eligibility for the benefit sought has been established. 
8 C.F.R. § 103.2(b)(8). When responding, the Petitioner cannot offer a new position to the 
Beneficiary, or materially change a position's title, its level of authority within the organizational 
hierarchy, its associated job responsibilities, or the requirements of the position. The Petitioner must 
establish that the position offered to the Beneficiary when the petition was filed merits classification 
for the benefit sought. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l 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 Izummi, 22 I&N Dec. 169, 176 (Assoc. 
Comm'r 1998). If significant changes are made to the initial request for approval, the Petitioner must 
file a new petition rather than seek approval of a petition that is not supported by the facts in the record. 
On appeal, the Petitioner incorrectly asserts that the initial petition indicated that the position "requires, 
at a minimum, a Bachelor's degree in Marketing, Business Administration with a Concentration in 
Marketing, or a related field" and that the accompanying evaluation from the Trustforte Corporation 
established that the Beneficiary's "education, combined with more than three years of progressively 
responsible experience in the field, is equivalent of a Bachelor's degree in Marketing." As noted 
above, however, the Petitioner's stated requirements in the initial filing were "a Bachelor's degree in 
Business Administration or a related field, or equivalent" and the Trustforte evaluation was limited to 
the equivalency of the Beneficiary's degree froml I alone. 
3 Specifically, the judge explained in Royal Siam, 484 F.3d at 147, that: 
The courts and the agency consistently have stated that, although a general-purpose bachelor's degree, 
such as a business administration degree, may be a legitimate prerequisite for a particular position, 
requiring such a degree, without more, will not justify the granting of a petition for an H-lB specialty 
occupation visa. See, e.g., Tapis Int'! v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti. 36 F. 
Supp. 2d at 1164-66; cf Matter of Michael Hertz Assocs., 19 I & &N Dec. 558,560 ([Comm'r] 1988) 
(providing frequently cited analysis in connection with a conceptually similar provision). This is as it 
should be: elsewise, an employer could ensure the granting of a specialty occupation visa petition by the 
simple expedient of creating a generic (and essentially artificial) degree requirement. 
3 
For all these reasons, the Petitioner has not overcome the Director's conclusion on this issue. As 
explained above, the statutory and regulatory definition of a specialty occupation requires a degree in 
a spec[fic specialty that is directly related to the proposed position. 
As a result, it is unnecessary to address the regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
Even if the Petitioner were to demonstrate that it satisfied one of the listed criteria, this would not result 
in this petition's approval, as it still has not shown that the proffered position satisfies the statutory or 
regulatory definition of a "specialty occupation."4 The statutory definition constitutes the primary 
requirement for a position to qualify as a specialty occupation. Only after this antecedent requirement 
has been met, may a petitioner move to demonstrate how it may satisfy one of the supplementary criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
III. CONCLUSION 
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 here, 
and the petition will remain denied. 
ORDER: The appeal is dismissed. 
4 See section 214(i)(l) of the Act and 8 C.F.R. § 2 l 4.2(h)( 4 )(ii). 
4