dismissed H-1B Case: Business

(b)(6)
DATE: JUN 2 6 Z015 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office 
20 Massac husett s Ave ., N.W. , MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § II 0 I (a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case , you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R . § I 03.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form 1-2908 web page (www .uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. INTRODUCTION 
On the Form I-129 visa petition, the petitioner describes itself as 41-employee office supply 
company established in In order to employ the beneficiary in what it designates as 
"Consultant" position at a salary of $28.24 per hour, 1 the petitioner seeks to classify him as a 
nonimmigrant worker in a specialty occupation pursuant to section 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 denied the petition, concluding that the evidence of record did not establish that the 
proffered position qualifies for classification as a specialty occupation . 
The record of proceeding before us contains the following: (1) the Form I-129 and supporting 
documentation; (2) the director's request for additional evidence (RFE); (3) the petitioner's response 
to the RFE; (4) the director's letter denying the petition; and (5) the Form I-2908 , Notice of Appeal 
or Motion, and supporting documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the director's basis for denying this petition. Accordingly, the appeal will be dismissed, and the petition 
will be denied. 
II. SPECIALTY OCCUPATION 
The primary issue is whether the petitioner has demonstrated by a preponderance of the evidence 
that it will employ the beneficiary in a specialty occupation position. 
1 The LCA submitted by the petitioner in support of the petition was certified for use with a job prospect 
within the "Management Analysts" occupational classification, SOC (O*NET/OES) Code 13-1111, and a 
Level I (entry-level) prevailing wage rate, the lowest of the four assignable wage-levels. However, we note 
that the record of proceeding does not contain a certified LCA that properly corresponds to the petition. 
Each LCA has a unique identification number. On page 4 of the Form 1-129, the petitioner reported that the 
corresponding LCA for the petition was LCA Case Number . The petitioner submitted 
an LCA with a Case Number The record of proceeding contains no explanation for 
this inconsistency. The regulation at 20 C.F.R . § 655.705(b) requires that USCIS ensure that the Form 1-129 
petition is supported by an LCA that corresponds it. Here, the LCA referenced on the Form 1-129 does not 
correspond to the LCA provided to USCIS by the petitioner. 
2 The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's 
claim is "probably true," where the determination of "truth" is made based on the factual circumstances of 
each individual case. Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010) (citing Matter of E-M-, 20 
I&N Dec . 77, 79-80 (Comm'r 1989)). 
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A. Law 
To meet the petitioner's burden of proof in establishing the proffered position as a specialty 
occupation , the evidence of record must establish that the employment the petitioner is offering to 
the beneficiary meets the following statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 11 84(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) 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.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(1) 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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. §_ 214.2(h)(4)(ii). In other words, this regulatory 
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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 of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.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 particular positions meeting a condition tmder 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 aliens 
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-lB 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. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. 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. Analysis 
Based upon a complete review of the record of proceeding, we agree with the director and find that 
the evidence of the record does not establish that the position as described constitutes a specialty 
occupation. 
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In its support letter dated March 26, 2014, the petitioner stated that the beneficiary's duties include 
the following: 
• Utilize working knowledge of standard business policies to ensure that our 
company has a workable budget and implement policies and procedures to meet 
that budget. 
• Create, examine and make suggestions regarding the changes of forms to 
increase efficiency in the flow of information throughout the company. 
• Implement data gathering methods , including personal observations , to obtain 
unit functions, work performed, as well as the equipment , personnel and methods 
used to achieve final production. 
• Collect and prioritize information on all existing problems and procedures within 
our company. 
o Analyze the collected data in order to develop solutions as well as 
additional or alternative methods of completing the same tasks. 
• Develop techniques and implement them to ensure that management has access 
to records, including ensuring the ease of filing and retrieving information while 
assuring security and compliance of the said files. 
• Conduct on-site interviews and confer with personnel concerned to determine 
personnel, equipment and materials needed for production while ensuring that 
newly implemented systems and procedures are operating as they are supposed 
to. 
• Develop and implement training manuals and instruct workers on use of new 
production methods , reporting procedures and equipment use according to 
policy. 
• Make bi-monthly reports to management to ensure that all employees are in 
agreement with newly implemented or to-be-implemented policies and 
procedures. 
• Study organizational problems and efficiency improvement areas to plan new 
procures affecting organizational change, production methods, cost analysis, and 
inventory control. 
• Document findings of all data collected and prepare reports and 
recommendations for new implementation ideas. 
• Analyze forms and reports and then meet with employees regarding format, 
purpose, and distribution improvements , and inquire for any suggestions about 
further problem areas to improve. 
The LCA was certified for use with a job prospect within the "Management Analysts" occupational 
category, SOC (O*NET/OES) Code 13-1111, and a Level I (entry-level). 3 
3 The Prevailing Wage Determination Policy Guidance issued by the U.S. Department of Labor (DOL) states 
the following with regard to Levell wage rates: 
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The director found the initial evidence insufficient to establish eligibility for the benefit sought, and 
issued an RFE. The petitioner was asked to submit probative evidence demonstrating the skills 
required to perform the duties of the proffered position. In its RFE response letter, the petitioner 
expanded the duties of the proffered position by adding additional duties to the previously stated 
duties as follows: 
• Confer with management to identify key business objectives each month, and 
expediently create solutions to achieve these objectives . 
• Innovate solutions to office problems so that we can 
ensure that inventory is properly controlled and that problem areas are quickly 
solved to avoid slowing the growth of the company. 
• Fill voids in business due to lack of internal bandwidth required to address 
critical issues within our company. 
* * * 
• Analyze and interpret financial statements, reporting, and ratios to help 
determine the best course of action for our company's budgeting . 
• Consult with management to make suggestions about necessary changes to 
positions, including creating new positions and eliminating positions that are no 
longer necessary. 
* * * 
• Produce monthly reporting packages and communicate the results to 
management. 
On appeal, the petitioner states that it is "testing three new softwares" that will help track and 
inventory the supplies its clients use. The petitioner further states: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have 
only a basic understanding of the occupation . These employees perform routine tasks that 
require limited, if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices , and programs. The employees may 
perform higher level work for training and developmental purposes . These employees work 
under close supervision and receive specific instructions on required tasks and results 
expected . Their work is closely monitored and reviewed for accuracy. Statements that the 
job offer is for a research fellow, a worker in training, or an internship are indicators that a 
Level I wage should be considered. 
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. 
(b)(6)
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NON-PRECEDENTDEC~ION 
As Project Management Consultant, [the beneficiary] will be tasked with researching 
the needs of our current and prospective clientele , improvise a testing prototype, test 
with method suits best the needs of that particular client, evaluate the results and 
make recommendations as to which method or software is the most relevant for our 
client's needs . We can then present to the clients the results of our testing and work 
out a system that will make the tracking and ordering supplies easier for them. By 
coming up with an efficient tracking system, we will be able to show to our existing 
clients that we are responsive to their needs and we are able to deliver better service 
than our big-name competitors. At the same time, we are able to attract prospective 
clients and expand our client base. 
The petitioner states that a "Bachelor's degree in an analytical field such as business administration, 
operations management or a closely related field" is required for the proffered position. 
As a preliminary matter, we note discrepancies between the duties of the proffered position that the 
petitioner provided in the various stages of the petitioning process. While the duties presented in 
the support letter and the RFE response letter primarily involve business operations , finance, and 
training , the duties presented on appeal focus on determining proper software for the business. The 
record has no explanation regarding the change in the duties of the proffered position. 4 These 
inconsistencies undermine the credibility of the petition, and, in particular , the credibility of the 
petitioner's assertions regarding the demands, level of responsibilities and requirements of the 
proffered position. 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 ofHo , 19 I&N Dec. 582,591-92 (BIA 1988). · 
Furthermore, we find that upon consideration of the totality of all of the petitioner's duty descriptions, 
the evidence of record does not establish the depth, complexity, or level of specialization, or 
substantive aspects of the matters upon which the petitioner claims that the beneficiary will engage. 
Rather, the duties of the proffered position, and the position itself, are described in relatively 
generalized and abstract terms that do not relate substantial details about either the position or its 
constituent duties. For example, the petitioner states that the beneficiary will "[f]ill voids in business," 
"[p]roduce monthly reporting packages," and "[d]ocument findings of all data collected" without 
providing specifics of such duties in relation to the petitioner's operations. Further, we find that the 
petitioner has not supplemented the job and duty descriptions with documentary evidence establishing 
the substantive nature of the work that the beneficiary would perform, whatever practical and 
theoretical applications of highly specialized knowledge in a specific specialty would be required to 
4 
The petitioner must establish that the position offered to the beneficiary when the petition was filed merits 
classification for the benefit sought. Matter of Michelin Tire Corp., 17 J&N Dec. 248, 249 (Reg. Comm'r 
1978). 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. 
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perform such substantive work, and whatever correlation may exist between such work and associated 
performance-required knowledge and attainment of a particular level of education, or educational 
equivalency, in a specific specialty. 
This type of generalized description may be appropriate when defining the range of duties that may 
be performed within an occupational category, but it fails to adequately convey the substantive 
work that the beneficiary will perform within the petitioner's business operations and, thus, cannot 
be relied upon by a petitioner when discussing the duties attached to specific employment. In 
establishing a position as a specialty occupation , a petitioner must describe the specific duties and 
responsibilities to be performed by a beneficiary in the context of the petitioner's business 
operations, demonstrate that a legitimate need for an employee exists, and substantiate that it has 
H-lB caliber work for the beneficiary for the period of employment requested in the petition . For 
these reasons alone, the evidence of record does not demonstrate that the proffered position is a 
specialty occupation. 
We now tum the evidence of record to determine whether the proffered position as described would 
qualify as a specialty occupation. To that end and to make our determination as to whether the 
employment described above qualifies as a specialty occupation , we will first address the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(l) , which is satisfied by establishing that a baccalaureate or higher 
degree, or its equivalent , in a specific specialty is normally the minimum requirement for entry into 
the particular position that is the subject of the petition. 
We recognize the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook (the 
Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
ofoccupations it addresses. 5 As noted above, the LCA that the petitioner submitted in support of 
this petition was certified for a job offer falling within the "Management Analysts" occupational 
category. 
The Handbook states the following with regard to the educational requirements necessary for 
entrance into this field: 
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). 
5 
The Handbook , which is available in printed form, may also be accessed online at 
http://www.stats.bls.gov/oco/
. Our references to the Handbook are from the 2014-15 edition available 
online. 
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NON-PRECEDENT DECISION 
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. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Management Analysts," available at http://www. bls.gov /ooh/business-and- financial/management­
analysts.htm#tab-4 (last visited June 24, 20 15). 
The Handbook does not state a normal minimum requirement of a U.S. bachelor's or higher degree 
in a specific specialty or its equivalent for entry into this occupational category; rather the 
Handbook indicates at most that a bachelor's or higher degree may be a common preference, and 
that the degree preference may be fulfilled by degrees from disparate fields, including a general 
degree, such as a degree in business.6 See id. 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.ff, 484 F.3d at 147. 
Therefore, the Handbook 's recognition that a general, non-specialty "background" in business 
administration is sufficient for entry into the occupation strongly suggests that a bachelor's degree in 
a specific specialty is not a normal, minimum entry requirement for this occupation. Accordingly, 
as the Handbook indicates that working as a management analyst does not normally require at least 
6 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)(I)(B) of the Act. In such a case, the required 
"body of highly specialized knowledge" would essentially be the same. Since there must be a close 
correlation between the required "body of highly specialized knowledge" and the position, however , a 
minimum entry requirement of a degree in two or more disparate fields , such as business, management, 
economics, political science and government, accounting, finance, marketing, psychology, computer and 
information science, and English would not meet the statutory requirement that the degree be "in the specific 
specialty (or its equivalent) ," unless the petitioner establishe s 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)( I )(B) of the Act (emphasis added). 
In other words , while the statutory "the" and the regulatory "a" both denote a singular "specialty," we do not 
so narrowly interpret these provisions to exclude positions from qualifying as specialty occupations if they 
permit , as a minimum entry requirement, degrees in more than one closely related specialty. See section 
214(i)(I)(B) of the Act; 8 C.F.R . § 214.2(h)(4)(ii). As just stated, this also includes even seemingly 
disparate specialties provided the evidence of record establishes how each acceptable, specific field of study 
is directly related to the duties and responsibilities of the particular position . 
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a bachelor's degree in a specific specialty or its equivalent for entry into the occupation, it does not 
support the proffered position as being a specialty occupation. 
When, as here, the Handbook does not support the proposition that the proffered position satisfies 
this first criterion of 8 e.F.R. § 214.2(h)(4)(iii)(A), it is incumbent upon the petitioner to provide 
persuasive evidence that the proffered position otherwise satisfies the criterion, notwithstanding the 
absence of the Handbook's support on the issue. In such case, it is the petitioner's responsibility to 
provide probative evidence (e.g., documentation from other authoritative sources) that supports a 
favorable finding with regard to this criterion. The regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides 
that "[a]n H-1B petition involving a specialty occupation shall be accompanied by [d]ocumentation 
... or any other required evidence sufficient to establish ... that the services the beneficiary is to 
perform are in a specialty occupation ." 
With respect to the position evaluation from Dr. we note that he finds that the 
proffered position requires the attainment of a bachelor's degree or its equivalent in management , 
accounting or related business administration degree. Even if established by the evidence of record, 
which it is not, the requirement of a bachelor's degree in business administration is inadequate to 
establish that a position qualifies as a specialty occupation. A petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly and closely to 
the position in question. 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 Associates, 19 I&N Dec. 558 (eomm'r 1988). In addition 
to demonstrating that a job requires the theoretical and practical application of a body of specialized 
knowledge as required by section 214(i)(l) of the Act, a petitioner must also establish that the 
position requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As explained above, USers 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. users has 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 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 letter from Dr. does not support the petitioner's assertion that the 
proffered position qualifies as a specialty occupation. 
Furthermore, Dr. description of the position upon which he opines does not indicate that 
he considered, or was even aware of, the fact that the petitioner submitted an LeA certified for a 
wage-level that is only appropriate for a comparatively low, entry-level position relative to others 
within its occupation which, as discussed above, signifies that the beneficiary is only expected to 
possess a basic understanding of the occupation. We consider this a significant omission, in that it 
suggests an incomplete review of the position in question and a faulty factual basis for his ultimate 
conclusion as to the educational requirements of the position upon which he opines. The 
petitioner's LeA wage-level designation does not support Dr. conclusion that the 
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proffered position requires "complex" duties to be performed. Dr. _ omission of such 
an important factor as the LCA wage-level significantly diminishes the evidentiary value of his 
assertions. 
For all of these reasons, we find that the letter from Dr. is not probative evidence 
towards satisfying any criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A). We may, in our discretion, use as 
advisory opinion statements submitted as expert testimony. However, where an opinion is not in 
accord with other information or is in any way questionable, we are not required to accept or may give 
less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm'r 1988). 
The evidence of record of proceeding does not establish 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. Furthermore, the duties and requirements of the proffered position as described in 
the record of proceeding do not indicate that the position is one for which a baccalaureate or higher 
degree in a specific specialty, or its equivalent , is normally the minimum requirement for entry. 
Thus, the evidence of record does not satisfy the first criterion at 8 C.P.R.§ 214.2(h)(4)(iii)(A). 
Next, we will review the record of proceeding regarding the first of the two alternative prongs of 
8 C.P.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. 
Here and as already discussed, the evidence of record does not establish that the petitioner's proffered 
position is one for which the Handbook reports an industry-wide requirement for at least a bachelor's 
degree in a specific specialty or its equivalent. Also, there are no submissions from professional 
associations in the petitioner's industry attesting that individuals employed in positions parallel to the 
proffered position are routinely required to have a minimum of a bachelor's degree in a specific 
specialty or its equivalent for entry into those positions. 
We will next address the job advertisements submitted by the petitioner. The record of proceeding 
contains copies of seven job advertisements in support of its assertion that the degree requirement is 
common to the petitioner's industry in parallel positions among similar organizations. However, 
upon review of the documents, we find that the petitioner's reliance on the job advertisements is 
misplaced. 
In the Form I-129 petition, the petitioner describes itself as a 41-employee office supply company, 
established in The petitioner states that its gross annual income is over $7.2 million and its 
net annual income is over $3.4 million. 
For thepetitioner to establish that an organization in its industry is similar, it must demonstrate that 
the petitioner and the organization share the same general characteristics. Without such evidence, 
documentation submitted by a petitioner is generally outside the scope of consideration for this 
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criterion, which encompasses only organizations that are similar to the petitiOner. When 
determining whether the petitioner and the advertising 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). 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, we find that the record does not demonstrate 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) rarallel to the proffered position, and (3) located in 
organizations that are similar to the petitioner. 
For example, in support of its assertion that the degree requirement is common to the petitioner's 
industry in parallel positions among similar organizations, the petitioner provided copies of job 
advertisements. However, we find that the petitioner's reliance on these job postings is misplaced, 
as the advertising organizations do not appear to be similar to the petitioner. More specifically, the 
advertisements include: 
• (distributor of shipping, packaging and industrial supplies); 
• (business development group that help small and medium-size 
business maintain positive cash flow, control cost and accelerate profitable growth); 
• (provides expertise in sales operations); 
• (management consulting services); 
• (management consulting services); 
• (consultant to Federal U.S. Government agencies); and, 
• (education). 
The petitioner did not state which aspects or traits (if any) it shares with the advertising 
organizations. Without further information, the advet1isements appear to be for organizations that 
are not similar to the petitioner and the petitioner has not provided any probative evidence to 
suggest otherwise. The petitioner did not supplement the record of proceeding to establish that the 
advertising organizations are similar to it. 
Moreover, these advertisements do not appear to be for parallel positions. More specifically, the 
position with requires five or more years of experience in Warehouse Management Systems 
in a multi-site warehouse/distributing setting; the position with requires ten 
years of executive, sales or business ownership experience; the position with 
requires project planning and scheduling experience; the position with 
requires a Master's degree or higher and three years of experience; the position with 
7 See 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
requires five or more years of experience in managing government projects; and 
the position with requires at least three years of experience in 
information technology and two years of experience in project management. The petitioner 
designated the proffered position on the LCA as a Level I position , and as stated earlier , individuals 
working in positions at this wage level are expected to have only a basic understanding of the 
occupation and perform routine tasks that require limited, if any, exercise of judgment. The 
advertised positions appear to be for more senior positions than the proffered position. More 
importantly, the petitioner has not sufficiently established that the primary duties and 
responsibilities of the advertised positions are parallel to the proffered position. 
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, as 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, not every deficit of every job posting has been addressed. 8 
Thus, based upon a complete review of the record, we find that the petitioner has not established 
that a requirement for at least a bachelor ' s 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 (3) located in organizations that are similar to the petitioner. Thus, for the 
reasons discussed above, the petitioner has not satisfied the first alternative prong of 8 C.P.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
We will next consider the second alternative prong of 8 C.P.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 the instant case, the evidence of record does not credibly demonstrate relative complexity or 
uniqueness as aspects of the proffered position. Specifically, it is unclear how the consultant position, 
as described, necessitates the theoretical and practical application of a body of highly specialized 
knowledge such that a person who has attained a bachelor's or higher degree in a specific specialty or 
its equivalent is required to perform them. Rather, we find, that, as reflected in this decision's earlier 
8 It must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a 
specific specialty is common to the industry in parallel positions among similar organizations (which they do 
not) , the petitioner fails to demonstrate what statistically valid inferences , if any, can be drawn from the 
advertisements with regard to determining the common educational requirements for entry into parallel 
positions in similar organizations. See generally Earl Babbie , The Practi ce of Social Research 186-228 
(I 995). 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") . 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
quotation of duty descriptions from the record of proceeding, the evidence of record does not 
distinguish the proffered position from other positions falling within the "Management Analysts" 
occupational category, which, the Handbook indicates, do not necessarily require a person with at 
least a bachelor's degree in a specific specialty or its equivalent to enter those positions. 
More specifically, the petitioner did not demonstrate how the duties described require the 
theoretical and practical application of a body of highly specialized knowledge such that a 
bachelor's or higher degree in a specific specialty, or its equivalent, is required to perform them. 
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 
of the proffered position. While related courses may be beneficial, or even essential, in performing 
certain duties of a consultant position, the petitioner did not demonstrate how an established 
curriculum of such courses leading to a baccalaureate or higher degree in a specific specialty, or its 
equivalent, is required to perform the duties of the petitioner's proffered position. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
Again, we incorporate by reference and reiterate our earlier discussion that the LCA indicates that 
the position is a low-level (entry-level) position relative to others within the occupation. 9 Based 
upon the wage rate, the beneficiary is only required to perform routine tasks that require limited, if 
any, exercise of judgment. Accordingly, given the Handbook's indication that typical positions 
located within the "Management Analysts" occupational category do not require at least a bachelor's 
degree in a specific specialty, or the equivalent, for entry, it is not credible that a position involving 
limited exercise of judgment would contain such a requirement. For instance, 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." Even a position involving a Level II wage, 
which would exceed the complexity of the one proposed by the petitioner, would involve only 
"moderately complex tasks that require limited judgment." 
For all of these reasons, it cannot be concluded that the evidence of record satisfies the second 
alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
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. We 
9 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 notreflect 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)( I) of the Act. 
(b)(6)
NON-PRECEDENTDEC~ION 
Page 15 
normally review the petitioner's past recrmtmg and hiring practices, as well as information 
regarding employees who previously held the position. 
To merit approval of the petition under this criterion, the record must establish that the imposition 
of a degree requirement by the petitioner is not merely a matter of preference for high-caliber 
candidates but is necessitated by performance requirements of 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 as a specialty 
occupation. Were USCIS 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 employer 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 387. In 
other words, if a petitioner's degree requirement is only symbolic and 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 section 
214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation") . The 
record does not contain documentary evidence demonstrating a hiring history of the petitioner. As 
the record of proceeding does not demonstrate that the petitioner normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the proffered position, it does not 
satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
Next, we find that the evidence of record does not satisfy the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)( 4), which requires the petitioner to establish that the nature of the proffered 
position's 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 the specific specialty or its 
equivalent. 
Again, relative specialization and complexity have not been sufficiently developed by the petitioner 
as an aspect of the proffered position's duties. In other words, the proposed duties have not been 
described with sufficient specificity to show that their nature is more specialized and complex than 
consultant positions whose duties are not of a nature so specialized and complex that their 
performance requires knowledge usually associated with a degree in a specific specialty. In 
reviewing the record of proceeding under this criterion, we reiterate our earlier discussion regarding 
the Handbook's entries for positions falling within the "Management Analysts" occupational 
category. Again, the Handbook does not indicate that a bachelor's degree in a specific specialty, or 
the equivalent, is a standard, minimum requirement to perform the duties of such positions, and the 
record indicates no factors that would elevate the duties proposed for the beneficiary above those 
discussed for similar positions in the Handbook. With regard to the specific duties of the position 
proffered here, we find that the record of proceeding lacks sufficient, credible evidence establishing 
that they are so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a bachelor's degree in a specific specialty, or the equivalent. 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the 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's has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or LevellY (fully competent) 
position, requiring a substantially higher prevailing wage. 10 
For all of these reasons, the evidence in the record of proceeding fails to establish that the proposed 
duties meet the specialization and complexity threshold at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
As the evidence of record does not satisfy at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position is a specialty occupation. 
Accordingly, the appeal will be dismissed and the petition will be denied on this basis. 
We do not need to examine the issue of the beneficiary's qualifications , because the petitioner has 
not provided sufficient evidence to demonstrate that the proffered position is a specialty occupation. 
In other words, the beneficiary's credentials to perform a particular job are relevant only when the 
job is found to be a specialty occupation. 
III. CONCLUSION AND ORDER 
The petition will be denied and the appeal dismissed for the above stated reason. 11 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; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied. 
10 As previously discussed, 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. 
11 As the grounds discussed above are dispositive of the petitioner's eligibility for the benefit sought in this 
matter , we will not address and will instead reserve our determination on the additional issues and 
deficiencies that we observe in the record of proceeding with regard to the approval of the H-1 8 petition .