dismissed H-1B Case: Cleaning And Painting Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 8830141 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 28, 2020 
The Petitioner, a cleaning and painting business, seeks to temporarily employ the Beneficiary as a 
" management analyst" under the H-18 nonimmigrant classification for specialty occupations. 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-18 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 record did not 
establish that the proffered position was a specialty occupation. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence.1 We review the questions in this matter de nova. 2 Upon de nova 
review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), 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 
1 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
position must meet one of the following criteria to qualify as a specialty occupation: 
(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. 
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.3 
11. PROFFERED POSITION 
The Petitioner describes itself as a company that prepares vacant apartment units for new clientele, 
providing cleaning, remodeling, and interior painting services.4 The Petitioner currently has one 
employee, its president. The Petitioner designated the proffered position on the labor condition 
application (LCA) as "Management Analysts" corresponding to the standard occupation classification 
(SOC) code 13-1111.5 The Petitioner identifies the proposed duties as follows:6 
I Improve financial indicators through the implementation of strategies that increase 
cashflow and necessary changes inside the corporation. (35% of weekly time) 
I Expand customer base through marketing efforts, strategic partnerships with 
associations or organizations, and the enhancement of communications. (30% of 
weekly time) 
I Design and implement! I Organizational Development Strategy and plans 
inside the organization to support and expand growth and offerings. (35% of weekly 
time) 
3 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"). 
4 The Petitioner submitted documentation to support the H-lB petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
5 A petitioner is required to submit an LCA to the U.S. Department of Labor to demonstrate that it will pay an H-1B worker 
the higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage 
paid by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(1) of the Act; 
20 C.F.R. § 655.731(a). 
6 The Petitioner provided an expanded and revised duties list in response to the Director's request for evidence (RFE). We 
have listed the main categories of duties but will not quote the entire description for the sake of brevity. However, we 
have reviewed and considered the descriptions in full. 
2 
Ill. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record (1) does not describe the position's duties with sufficient detail; (2) does not 
establish that the job duties require an educational background, or its equivalent, commensurate with 
a specialty occupation; and (3) has inconsistencies that undermine the Petitioner's claims regarding 
the proffered position. 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we will consider the information contained 
in the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the 
duties and educational requirements of the wide variety of occupations it addresses. 7 
The subchapter of the Handbook titled "How to Become a Management Analyst" states, in relevant 
part, "[a] bachelor's degree is the typical entry-level requirement8 •.• [M]any 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, accounting, finance, marketing, psychology, and 
computer and information science."9 Because the Handbook recognizes this occupation as 
multidisciplinary, and does not identify a specific discipline to perform the duties of the occupation, 
the Handbook does not support a conclusion that these positions comprise an occupational group for 
which normally the minimum requirement for entry is at least a bachelor's degree in a specific 
specialty, or its equivalent. Thus, the Petitioner, who has the burden of proof in these matters, must 
show that the particular position offered to the Beneficiary is among the positions for which a 
bachelor's degree in a specific discipline, or its equivalent, is required. 
The Petitioner's minimum requirement for the proffered position is a bachelor's degree in business, 
organizational psychology, psychology, or a closely related field.10 However, the Petitioner does not 
7 We do not maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category 
designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered 
position, and we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. Nevertheless, to satisfy the first criterion, the burden of proof remains on the Petitioner to 
submit sufficient evidence to support a finding that its particular position would normally have a minimum, specialty 
degree requirement, or its equivalent, for entry. 
8 In support of the first criterion, the Petitioner relies on the Handbook's statement, "[a] bachelor's degree is the typical 
entry-level requirement" to establish specialty occupation. However, the first criterion is not whether the minimum entry­
level requirement is a bachelor's or higher degree, or its equivalent--it is whether a bachelor's or higher degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for entry into positions in the occupational category. 8 
C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i){l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
9 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Management Analysts, 
https://www.bls.gov/ooh/business-and-financial/management-analysts.htm#tab-4 (last visited Aug. 26, 2020). 
10 On appeal, the Petitioner changes its minimum degree requirement, limiting it to a master's degree level of education, 
and a degree in organizational psychology. However, the underlying record repeatedly states the Petitioner's minimum 
3 
sufficiently explain how disparate academic fields, such as business and psychology, are directly 
related to the duties and responsibilities of the "management analyst" position. 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)(1)(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 disparate fields, such as business and 
psychology, 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.11 
The Petitioner submitted a position description, listing three primary functions of the position, and the 
associated courses that would provide the minimum level of education for the duties. The associated 
courses are all courses taken by the Beneficiary while pursuing a bachelor's degree in psychology and 
while pursuing a master's degree in leadership and organization.12 Courses in the academic field of 
business are not listed. If some of these courses would be taken while pursuing a degree in business, 
this was not established in the record. Moreover, a description of the courses was not provided for us 
to ascertain what specialized knowledge would be gained from these courses and how they would 
assist in performing the correlated duties. For example, under its first primary function, the Petitioner 
lists a duty as "[c]onstantly monitor financial indicators and support the optimization of billing and 
payroll procedures." The courses listed as providing minimum education required for this primary 
function are "Project Development and Execution," "Psychology of Work I," "Principles of Finance 
for Organizations" and/or "Value Driven Decision Making." The titles of the courses alone do not 
provide an explanation for what specialized knowledge would be gained from these courses and how 
they would assist in performing the proffered duties. The position description does not establish that 
a degree in "Business, Organizational Psychology, Psychology, or a closely related field" would create 
a body of specialized knowledge directly related to the duties and responsibilities of the particular 
position.13 
The Petitioner also refers to the DOL 's Occupational Information Network (O*NET), asserting the 
"Management Analyst" occupation is designated as Job Zone Five, a zone for which "most ... 
requirement for the position is a bachelor's degree in "Business, Organizational Psychology, Psychology or closely related 
field." 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 lzummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1998). Moreover, even if the Petitioner 
overcame this inconsistency, the record does not support a master's degree in psychology as normally the minimum 
requirement for entry into the particular position. On appeal the Petitioner asserts "USCIS fails to discuss what specific 
specialty is required," and "how a bachelor's and master's degree in psychology, one of the listed specialties for 
management analysts, fails to meet the regulatory requirements for a 'specialized occupation."' It is not the agency's role 
to disprove or establish a petitioner's claims. As in all visa petition proceedings, the burden of proof rests with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
11 Section 214(i)(l)(B) of the Act (emphasis added). 
12 Notably, the test to establish a position as a specialty occupation is not the education or experience of a proposed 
beneficiary, but whether the position itself requires at least a bachelor's degree in a specific specialty, or its equivalent. 
13 Section 214(i){l)(B) of the Act (emphasis added). 
4 
occupations require graduate school."14 Similarly, the Petitioner relies on the Foreign Labor 
Certification Data Center Online Wage Library's line of text that reads, "Education & Training Code: 
4-Work Experience, plus bachelor's or higher degree."15 However, O*NET, which provides general 
information regarding the occupation, and the Foreign Labor Certification Data Center Online Wage 
Library, which provides prevailing wage guidance, do not specify what field or specialty, if any, the 
occupation requires for the degree. While O*NET assigns this occupation a Job Zone "Five" rating, 
O*NET does not indicate that the graduate degrees must be in a specific specialty directly related to 
the occupation.16 Similarly, the Foreign Labor Certification Data Center Online Wage Library does 
not indicate that the "bachelor's or higher degree" must be in a specific specialty directly related to 
the occupation.17 Therefore, O*NET and the Foreign Labor Certification Data Center Online Wage 
Library information are not probative of the proffered position being a specialty occupation. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1). 
B. First Prong of Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may show 
that its particular position is so complex or unique that it can be performed only by an individual with 
a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong contemplates 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position.18 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. We generally 
consider the following sources of evidence to determine if there is such a common degree requirement: 
whether the Handbook reports that the industry requires a degree; whether the industry's professional 
association has made a degree a minimum entry requirement; and whether letters or affidavits from 
firms or individuals in the industry establish that such firms "routinely employ and recruit only degreed 
individuals."19 
14 O*NET Online Summary Report for "13-1111.00 Management Analysts," 
https://www.onetonline.org/link/summary/13-1111.00 (last visited Aug. 26, 2020); O*NET Online Help - Job Zones, 
http://www.onetonline.org/help/online/zones (last visited Aug. 26, 2020). 
15 Foreign Labor Certification Data Center Online Wage Library at 
https://www.flcdatacenter.com/OesQuickResu1ts.aspx?code=13-1111&area~year=19&source=1. 
16 See O*NET Online Summary Report for "13-1111.00 Management Analysts," 
http://www.onetonline.org/link/summary/13-1111.00 (last visited Aug. 26, 2020); O*NET Online Help - Job Zones, 
http://www.onetonline.org/help/online/zones (last visited Aug. 26, 2020). 
17 See Foreign Labor Certification Data Center.-------Qnline Wage Library at 
https://www.flcdatacenter.com/OesQuickResults.aspx?code=13-1111&area=l__j&year=19&source=1. For more 
information about Education and Training Codes, see http://www.flcdatacenter.com/TrainingCodes.aspx (last visited Aug. 
26, 2020). 
18 As the Petitioner combines its arguments in support of the second prong of the second criterion with criterion four, we 
will analyze these two criteria together. 
19 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) (considering these "factors" to inform the commonality of a degree requirement)). 
5 
As previously discussed, the Petitioner has not established that the Handbook or another authoritative 
source reports at least a bachelor's degree in a specific specialty, or its equivalent, is required for the 
proffered position, and we incorporate our previous discussion on this matter. Also, the Petitioner did 
not submit evidence from an industry professional association indicating such a degree is a minimum 
requirement for entry into the position. 
In support of this prong the Petitioner submitted copies of several job advertisements as evidence that its 
degree requirement is standard among its peer organizations for parallel positions in the industry. 
However, for the petitioner to establish that an advertising organization is similar, it must demonstrate 
that the petitioner and the organization share the same general characteristics. Without such evidence, 
postings submitted by a petitioner are 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 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). A number of the job advertisements do not include a description of the hiring 
company. The job advertisements that do include a description appear to be for companies in the 
construction industry and the record does not establish how, as construction companies, they are 
similar in industry to the Petitioner, who identifies itself on the petition as a cleaning and painting 
company. While we note that the Petitioner's letters submitted in support of the petition state the 
Petitioner also offers remodeling and drywall services, no analysis or supporting documentation was 
provided to establish that the construction companies share the same general characteristics as the 
Petitioner, such as the nature of their business, size, and revenue. For this reason, the Petitioner did 
not establish these job advertisements were for organizations similar to the Petitioner.20 
In addition, the Petitioner does not establish that the positions advertised are parallel to the proffered 
position. The descriptions of the duties contained within the job advertisements are too vague to 
ascertain whether the positions would be parallel to the proffered position. Moreover, the required 
level of experience varies, i.e., some of the job advertisements require 5 or 10 years of experience, 
while others require no experience. The areas of expertise required also differ. For example, one job 
advertisement reads, "support and lead invoicing," while another states, "assist in the preparation of 
the HR Strategic and Operating Plan." Therefore, the job advertisements have little probative value 
in establishing a common industry standard for parallel positions within similar companies. 
Furthermore, the job advertisements require numerous disparate academic fields that would be 
acceptable for entry into the position. For example, some of the required degrees include, business 
administration, human resources, business, finance, accounting, economics, and computer science. 
The advertisements establish, at best, that a bachelor's degree is generally required, but not at least a 
bachelor's degree in a specific specialty, or its equivalent, as common to the industry.21 
20 On appeal, the Petitioner states "USCIS properly determined that the job postings were for similar positions." While 
the Director stated, albeit unclearly, "[y]ou submitted job posting for similar position," immediately following this 
statement, she explained that the postings varied in degree and experience requirements. Read together, we do not interpret 
the decision letter as determining the job advertisements are for parallel positions in similar organizations. 
21 The Petitioner asserts that the degree and experience requirements differ in the job advertisements because "[e]ach 
individual employer's needs are different ... That one position may ask that the management analyst have a degree in 
'Business Administration, Human resources, or other related field' only signals that the needs of that particular 
organization are more focused on human resources (emphasis in original)." This assertion only serves to support that the 
6 
In further support of this prong, the Petitioner submitted a letter from the CEO of R-, who stated his 
company is similar to the Petitioner and he has "collaborators acting in similar positions to the one of 
Management Analyst" and "require a bachelor's degree." Two job advertisements were provided for 
R-. Within the job advertisements the company describes itself as a "24/7/365 emergency service 
restoration company," which handles projects for "fire damage, water damage, mold remediation, and 
asbestos abatement services." The Petitioner did not explain how this company is in the same industry 
as the Petitioner, is similar to the Petitioner in terms of size, revenue, and scope of operations, and 
why it believes this company's job advertisements are for parallel positions. One advertisement was 
for a "Controller" who would handle the financial management and the other was for a "Director of 
Business Operations" who would manage human resources, recruiting, contracts and compliance. 
Both pay over ten thousand dollars more than the proffered position. Both require a BA in business 
management, and 10 years of work experience, which differs from the requirements of the proffered 
position. R-'s job advertisements contain some details on the job duties, but the duties only overlap 
in limited areas with the duties of the Petitioner's proffered position. For these reasons, R-'s letter 
does not establish that firms in the Petitioner's industry "routinely employ and recruit only degreed 
individuals" in a specific specialty and lends little probative value towards satisfying a common 
industry standard for parallel positions within similar companies. 
Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally 
requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
The Director concluded that "[t]his is the first time [the Petitioner] [is] hiring someone for this 
position" and the Petitioner "[had] not shown that [it] would normally require a degree or its equivalent 
in a specific specialty for the position." On appeal, the Petitioner does not contest this basis for the 
denial. 
Upon review of the record, we conclude the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(i i i)(A)(3). 
D. Second Prong of Second Criterion and Fourth Criterion 
The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) is satisfied if the Petitioner shows 
that its particular position is so complex or unique that it can be performed only by an individual with 
at least a bachelor's degree in a specific specialty, or its equivalent. The fourth criterion at 8 C.F.R. 
"Management Analyst" occupation is multidisciplinary. The Handbook, in explaining that the occupation accepts multiple 
degrees, states, "Management analysts address a range of topics, and many fields of study provide a suitable educational 
background ... Organizations that specialize in certain fields typically try to hire candidates who have experience in those 
areas." Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Management Analysts, 
https://www.bls.gov/ooh/business-and-financial/management-analysts.htm#tab-4 (last visited Aug. 26, 2020). The 
Petitioner's explanation for why companies hire management analysts with differing degrees and various areas of expertise 
does not support that a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common to 
the industry in parallel positions among similar organizations. 
7 
§ 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. When 
determining whether a position is a specialty occupation, we look at whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a baccalaureate degree in a specific discipline. 
In support of the specialized nature of the proffered duties, the Petitioner submits the Beneficiary's 
work product. In its response to the RFE, the Petitioner states that the company developed the 
"Workflower App" in order to "manage all of the company's workflow in one place ... and enhance 
communication with contractors." On appeal the Petitioner explains that the Workflower App was 
designed by the Beneficiary. The Petitioner then asserts that "the design and development of the ... 
Workflower App," evidences "the unique or complex nature of the proffered position." However, it 
is not clear from the record that the Beneficiary was responsible for creating this application.22 
Moreover, designing and creating web applications is inconsistent with the position description and 
would be outside the scope of the "Management Analyst" occupation. 23 The record is also unclear 
when the Beneficiary performed this work for the Petitioner. The Beneficiary is not acknowledged as 
a current employee in the record. If this application was created under a separate contractual 
agreement, it is not evidence of the uniqueness or specialization and complexity of the instant proffered 
position. 
As described in the first criterion, the Petitioner submitted a position description listing minimum 
educational requirements. The position description also provides expanded duties, the Beneficiary's 
approximate time allocated to those duties, and the associated technology and software necessary to 
perform the duties. The technology necessary to perform the duties includes the use of a computer, 
online databases and software such as Microsoft Word, Excel, Quickbooks and Workflower, the 
in-house developed web application. The Petitioner does not describe any specialized and complex 
or unique knowledge necessary to use this software and application. 
In addition, the Petitioner's descriptions of the proffered position's duties are too vague to determine 
whether the nature of the position is so specialized and 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. For 
example, the first primary function, which would take up about a third of the Beneficiary's time (35%) 
involves "improving financial indicators" by the "implementation of strategies . . . and necessary 
changes inside the corporation." Under this primary function, the associated duties are "monitor 
financial indicators" and "support the optimization of billing and payroll procedures." This 
description does not explain what financial indicators are being monitored and why or how this 
monitoring requires specialized and complex or unique knowledge. The description of the duties does 
not explain what type of support the Beneficiary would provide to optimize billing and payroll 
procedures and how implementing this optimization is specialized and complex or unique. The 
22 The User Manual for the Workflower App, states, "unpublished work (c) 2019" and lists the Beneficiary's name and 4 
other individuals. Within the manual, one of the images of the Workflower App's page has "Created by University of 
I lworkflower Group." 
23 See O*NET Online Summary Report for "13-1111.00 Management Analysts," 
http://www.onetonline.org/link/summary/13-1111.00 (last visited May 7, 2020); O*NET Online Help - Job Zones, 
http://www.onetonline.org/help/online/zones (last visited Aug. 26, 2020). 
8 
remaining primary functions and their respective duties use similarly vague language. An H-lB 
petition must be supported by a sufficient description of the proffered position's duties to demonstrate 
the substantive nature of that work because it is the substantive nature of a position that may illustrate, 
among other things, the level of specialization and complexity or uniqueness of the proffered position. 
Here, a majority of the duties listed by the Petitioner for the proffered position do not align with that 
of a "Management Analyst," further obscuring the record on the actual nature of the proffered position. 
One of the three primary functions involves the Beneficiary spending 35% of her time on the 
Petitioner's development strategy, focusing on expanding growth and company offerings. However, 
many of the duties listed under this primary function do not require analysis, problem solving, and 
making recommendations, which is central to this occupation.24 Rather, the duties focus on designing 
new business units, coordinating development and design of a web application, formulating and 
coordinating billing, human resources, business development and implementation of new business. 
Another of the three primary functions would take up 30% of the job and would have the Beneficiary 
expanding the customer base through marketing, generating content on the Petitioner's website and 
setting up social media profiles. Again, these duties do not appear to align with the "Management 
Analysts" occupation which analyzes processes and recommends avenues for improvement. 25 Instead, 
it appears as if the Beneficiary would be creating, implementing and performing these duties herself, 
rather than making recommendations for process improvements. 
The Petitioner's letter, submitted with its RFE response, adds other various duties that do not align 
with the "Management Analyst" occupation and raises further concerns on the occupational 
classification of the position. It adds that "[w]ithout the Management Analyst, [it] will continue to 
outsource for assistance and use contractors and other service providers for accounting, legal, and 
management services." In this letter, the Petitioner adds the Beneficiary would "lead in recruitment 
efforts to bring other qualified individuals and staff members to [it]," lead the management of "other 
organizational development projects," "implement a marketing strategy" as the "company has never 
executed any sort of marketing strategy, nor has it used any type of publicity" and "take over all billing 
operations and improve them." 
While we need not determine which occupational category best applies to the proffered position, we 
note similarities between the proffered duties and those of occupations that require a higher wage,26 
strongly suggesting that the LCA does not correspond to the petition, including the occupational 
category certified therein. 27 For example, "Marketing Managers," SOC 11-2021, are tasked with such 
duties as: identifying, developing, evaluating marketing strategy; coordinating marketing activities or 
policies to promote products or services; directing the hiring, training of marketing or sales staff; and 
24 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Management Analysts, 
https://www.bls.gov/ooh/business-and-financial/management-analysts.htm (last visited Aug. 26, 2020). 
25 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Management Analysts, 
https://www.bls.gov/ooh/business-and-financial/management-analysts.htm (last visited Aug. 26, 2020). 
26 If the Petitioner's duties for the position fall under more than one related occupational category, it must designate the 
relevant occupational code for the highest paying occupation. See U.S. Dep't of Labor, Emp't & Training Admin., 
Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009); 
http://flcdatacenter.com/download/NPWHCGuidance_Revised_11_2009.pdf. 
27 See Section 212(n)(1) of the Act; 20 C.F.R. § 655.731(a). 
9 
coordinating promotional activities, and conferring with legal staff to resolve problems. 28 A number 
of the proffered duties also align with that of, "Administrative Service Managers," SOC 11-3011, who 
are tasked with such duties as: analyzing internal processes, recommending and implementing 
procedural improvements, planning and controlling budgets for contracts, hiring and terminating 
personnel, and participating in architectural planning and design.29 At the time the Petitioner's LCA 
was certified, the Level 11 prevailing wage in the area of intended employment for "Marketing 
Managers" was $63.05 per hour, and for "Administrative Service Managers" was $46.29 per hour, 
which are higher than the prevailing wage for "Management Analysts" of $34.32 per hour.30 Such a 
wage disparity highlights the difference between the occupational categories generally, and more 
specific to this case, the significance of the Petitioner's choice of the lower paying occupational 
category. The duties are so broadly described we cannot ascertain either the application of knowledge 
needed to perform the position or the occupation and wage level required. 
The lack of detail in the position description, the breadth of duties expected for the position, and the 
ambiguity regarding the occupational classification cloud the record on the substantive nature of the 
position and our ability to determine the level of specialization and complexity or uniqueness of the 
duties of the position. The Petitioner has not sufficiently developed the specialization and complexity 
or uniqueness aspect of the proposed position such that it satisfies the second alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2) or 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
Upon review of the totality of the evidence submitted, the Petitioner has not established that more 
likely than not, the proffered position is a specialty occupation under any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Moreover, the record does not establish that the Petitioner satisfied the statutory 
and regulatory definitions of specialty occupation. In visa petition proceedings, it is the petitioner's 
burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
28 See O*NET Online Summary Report for "11-2021 Marketing Managers," 
https://www.onetonline.org/link/summary/11-2021.00 (last visited Aug. 26, 2020). 
29 See O*NET Online Summary Report for "11-3011 - Administrative Services Managers," 
https://www.onetonline.org/link/summary/11-3011.00 (last visited Aug. 26, 2020). 
30 See https://flcdatacenter.com/OESWizardStart.aspx. 
10