dismissed H-1B Case: Digital Business Strategy

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-C-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 5, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a digital business strategy, web design, development, and marketing business, seeks 
to temporarily employ the Beneficiary as a "Digital Analyst" under the H-1B nonimmigrant 
classification. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(l5)(H)(i)(b). The Director, California Service Center, denied the petition. The matter is 
now before us on appeal. The appeal will be dismissed. 
I. ISSUE 
The issue before us 1s whether the Petitioner has specialty occupation work available to the 
Beneficiary. 1 
II. SPECIALTY OCCUPATION 
A. 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. 
1 We conduct appellate review on a de novo basis. Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); see 
also 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); Dor v. INS, 891 F.2d 997, 
1002 n.9 (2d Cir. 1989). 
Matter of F-C-, LLC 
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 
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. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-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 under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
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Matter of F-C-, LLC 
As such and consonant with section 214(i)(1) 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 
individuals 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 individual, 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 or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. · 
B. The Proffered Position 
The Petitioner seeks to employ the Beneficiary in a full-time "Digital Analyst" position for a three­
year period from March 15, 2015, to March 14, 2018. The labor condition application submitted to 
support the visa petition states that the proffered position corresponds to Standard Occupational· 
Classification (SOC) code and occupation title 11-2021, "Marketing Managers," from the 
Occupational Information Network (O*NET). The LCA further states that the proffered position is a 
Level I, entry-level, position. 
In a letter dated March 9, 2015, the Petitioner described itself as providing "professional information 
technology consulting services to clients in a broad range of industries." The Petitioner stated the 
following about the proffered position: 
As Digital Analyst, [the Beneficiary] will be responsible for providing digital and UX 
design analysis services and project management for client facing projects. [The 
Beneficiary] will be responsible for the collaboration of design and development of 
websites for client and internal projects (web apps, e-commerce, marketing I campaign 
websites, etc). This includes but not limited to the production of W ordPress-based 
websites (e.g. create themes, custom functionality). [The Beneficiary] will consult on 
client project goals (best practices, conversion, Usability, UI I UX) and handle multiple 
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(b)(6)
Matter of F-C-, LLC 
client and internal projects simultaneously. We require a minimum of a Master's and/or 
Bachelor's degree in business or related field from an accredited university or college. 
[The Beneficiary] holds a Master's degree in Business Administration in from 
(see attached copy of diploma), thus qualifies for the position.2 
In a letter dated April 6, 2015, submitted in response to the Director's request for evidence (RFE), 
the Petitioner provided the following breakdown of the proffered duties: 
• Guide core product development projects, serving as an interface between all 
stakeholders (15%) 
• Create and maintain product definition: create a development product roadmap by 
interviewing market researchers and business leaders and turning their requirements 
into user stories to guide development (15%) 
• Develop and executive product launch plans: scope new releases and iterations based 
backlog priority and size (5%) 
• Establish evaluation criteria to determine product success (5%) 
• Evaluate and provide feedback throughout the development cycle (5%) 
• Continuously improve the product development process (5%) 
• Ensure consistent tracking and tagging across all channels (5%) 
• Work closely with software development and QA teams to manage product launches 
(20%) 
• Align overall product experience with brand identity and overall brand strategy (15%) 
• Identify business improvement opportunities, and strategize the best way to affect 
them (5%) 
• Manage new product releases: conduct outbound customer communications, such as 
webinars, email notifications, and more, around new releases [no percentage given]. 
In the same letter, the Petitioner asserted that the proffered position requires at least a bachelor's 
degree. 
In a letter dated April 7, 2015, also submitted in response to the RFE, the Petitioner stated that it has 
a current job opening for a Digital Analyst position, as it has a Master Services Agreement to 
provide a Digital Analyst to The Petitioner listed the requirements for the Digital 
Analyst position as including an "Advanced Graduate degree MBA or Masters in an equivalent 
discipline (concentration in quantitative marketing or analytics preferred)" and "Bachelor's degrees 
in computer science, statistics, social sciences, business/marketing related fields." Regarding the 
required college degree, the Petitioner elaborated that "[a] successful digital analyst draws from a 
depth of expertise in a technical or creative field, and leverages that knowledge to understand 
business objectives and propose digital solutions." 
2 Please note that errors in the original text, as quoted above and in other parts of this decision, have not been changed. 
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(b)(6)
Matter of F-C-, LLC 
On appeal, the Petitioner submits an affidavit by its director of human resources and recruitment 
attesting that the proffered position is an "internal staff position" which "works on multiple projects 
and for multiple clients at one time." The director of human resources and recruitment attests that 
"[b ]ased on our forecasted needs, including, but not limited to, the contract we have with client 
we plan to employ the Digitial Analyst indefinitely. Other clients we anticipate 
servicing include 
'' She further attested that "[i]f, 
for some reason, there are no clie1;1t projects to service, [the Petitioner] will employ the Digital 
Analyst on internal projects at [the Petitioner's] offices in WA." 
C. Analysis 
As a preliminary matter, we find that the evidence of record is unclear regarding the Petitioner's 
minimum educational requirement for the proffered position. 
For instance, the Petitioner stated in its March 9, 2015, letter that it "require[s] a minimum of a 
Master's and/or Bachelor's degree in business or related field from an accredited university or 
college." In the Petitioner's April 7, 2015, letter, the Petitioner listed the requirements for the 
proffered position as including an "Advanced Graduate degree MBA or Masters in an equivalent 
discipline (concentration in quantitative marketing or analytics preferred)" and "Bachelor's degrees 
in computer science, statistics, social sciences, business/marketing related fields." The Petitioner 
attested in its April 6, 2015, letter, and submitted industry letters attesting to the same, that a Digital 
Analyst position requires "a minimum of a Bachelor's degree in Computer Science, engineering, 
mathematics, statistics, econometrics, social sciences or business/marketing or related fields." It is 
therefore unclear whether the Petitioner requires both a master's and a bachelor's degree, or just a 
bachelor's degree. More importantly, it is unclear whether the required degree(s) must be in 
business or a related field, or whether it can also be in computer science, statistics, engineering, any 
field in the social sciences, and marketing. 
"[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence." 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the Petitioner submits competent objective evidence pointing to 
where the truth lies. !d. at 591-92. 
If the Petitioner's entry requirement can be satisfied by degrees in computer science, statistics, 
mathematics, econometrics, any of the social sciences, marketing, and business, this requirement 
does not establish that the propo·sed position qualifies as a specialty occupation. In general, provided 
the specialties are closely related, e.g., mathematics and statistics, 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 philosophy and 
engineering, would not meet the statutory requirement that the degree be "in the specific specialty 
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Matter of F-C-, LLC 
(or its equivalent)," unless the Petitioner establishes how each field is directly related to the duties 
and responsibilities of the particular position such that the required "body of highly specialized 
knowledge" is essentially an amalgamation of these different specialties. Section 214(i)(l)(B) of the 
Act (emphasis added).3 
Again, the Petitioner claims that the duties of the proffered position can be performed by an 
individual with a degree in computer science, statistics, mathematics, econometrics, any of the social 
sciences, marketing, and business. The issue here is that the Petitioner has not submitted evidence 
establishing that these fields of study are closely related to each other (e.g., how a degree in 
mathematics is related to a degree in the social sciences), or that these fields are all directly related to 
the duties and responsibilities of the particular position proffered in this matter. Absent this 
evidence, it cannot be found that the particular position proffered in this matter has a normal 
minimum entry requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, 
under the Petitioner's own standards. 
The conclusion that the proffered position does not have a normal minimum entry requirement of a 
bachelor's or higher degree in a specific specialty, or its equivalent, is further supported by the 
Petitioner's statementthat "[a] successful digital analyst draws from a depth of expertise in a 
technical or creative field." A "technical or creative field" could refer to a wide variety and number 
of fields that are not all closely related to each other or directly related to the duties and 
responsibilities of the proffered position. We also note that in the Petitioner's vacancy 
announcement for a Director of Business Development position which the Petitioner attested is 
."similar to Digital Analyst," the Petitioner requires only "a Bachelor's degree; all majors 
considered." Thus, based on all of the above factors, we cannot find the proffered position requires 
anything more than a general bachelor's degree. 
The claim that a general bachelor's degree is a sufficient minimum requirement for entry into the 
proffered position is inadequate to establish that the proposed position qualifies as a specialty 
occupation. As explained above, USCIS 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"). 
Even if it is the Petitioner's claim that a bachelor's degree in the social sciences or business is a 
sufficient minimum .requirement for entry into the proffered position, this claim is still insufficient to 
establish that the proposed position qualifies as a specialty occupation. 
3 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)(l)(B) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii). This also includes even seemingly disparate specialties providing, again, 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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Matter of F-C-, LLC 
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, 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). Although a general-purpose bachelor's degree may be a legitimate prerequisite for 
a particular position, requiring a general degree, without more, will not justify a finding that a 
particular position qualifies for classification as a specialty occupation. Royal Siam Corp. v. 
Chertoff, 484 F.3d 139, 147 (1st Cir. 2007).4 
Based on the Petitioner's. claims that the duties of the proffered position can be performed by an 
individual with a degree in a wide variety and number of fields (e.g., mathematics and any field in 
the social sciences), or an individual with only a general-purpose bachelor's degree (e.g., a 
bachelor's degree in business and the social sciences), we find that the proffered position does not 
qualify as a specialty occupation. The appeal must be dismissed on this basis alone. 5 
We further agree with the Director that the Petitioner has not established that it has specialty 
occupation work available to the Beneficiary for the entire validity period requested as of the time of 
filing. 
4 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
I d. 
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'l 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. 
5 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation. 
In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a 
specific specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 484 F.3d at 147. 
It is also important to note that a position may not qualify as a specialty occupation based solely on either a preference 
for certain qualifications for the position or the claimed requirements of a petitioner. See Defensor v. Meissner, 201 F.3d 
384, 387 (5th Cir. 2000). Instead, the record must establish that the performance of the duties of the proffered position 
requires both the theoretical and practical application of a body of highly specialized knowledge and the attainment of a 
baccalaureate or higher degree in a specific specialty, or its equivalent, as the minimum for entry into the 
occupation. See section 214(i)(l) ofthe Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"). 
'7 
(b)(6)
Matter of F-C-, LLC 
According to the Petitioner's March 9, 2015, letter, the Beneficiary will "handle multiple client and 
internal projects simultaneously." On appeal, the Petitioner attested that the Beneficiary will work 
with multiple contracted clients, and "[i]f, for some reason, there are no client projects to service, 
[the Petitioner] will employ the Digital Analyst on internal projects at [the Petitioner's] offices in 
W A." However, the Petitioner has not specifically identified which internal projects the 
Beneficiary will be assigned to during his employment with the Petitioner, nor has the Petitioner 
submitted sufficient documentary evidence regarding these internal projects. 
In addition to the lack of sufficient evidence regarding the Petitioner's claimed internal projects, the 
Petitioner has not submitted sufficient evidence regarding the "multiple clients" assigned to the 
Beneficiary. 
While the Petitioner submitted the statement of work between itself and this SOW was 
for work to be completed within a short period of time, i.e., from April 8, 2015, to July 31, 2015. 
Besides the Petitioner has not specifically identified what other non-speculative, 
definitive clients to which the Beneficiary will be assigned for the duration of the validity period 
requested (until March 14, 2018). Instead, the Petitioner listed 
and as "forecasted" clients whom the Petitioner "anticipate[d] servicing." The Petitioner 
similarly characterized its contracts with these above clients as "representative" of the contracts 
under which the Beneficiary will perform, as opposed to the actual contracts under which the 
Beneficiary will be working. 
Notably, the Petitioner did not submit the statements of work or other equivalent evidence regarding 
the specific contracted work to be performed for 
and 
Furthermore, although the Petitioner submitted the master agreements for several of these 
companies, the master agreements do not provide sufficient details regarding the contracted work, 
including the dates and timelines for the work to be completed. We also note, for example, that the 
master agreements with have "Meet the Team" pages 
in which the Beneficiary or a Digital Analyst position is not listed, while the other master 
agreements do not specifically identify the Petitioner's personnel assigned to the contracts. 
We thus fmd that the Petitioner has not established that the petition was filed for non-speculative work 
for the Beneficiary, for the entire period requested, that existed as of the time of the petition's filing. 
For this additional reason, the appeal must be dismissed. 
USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.P.R. 103.2(b)(1). A visa petition rpay not be 
approved based on speculation of future eligibility or after the Petitioner or Beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l 
Comm'r 1978). Eligibility for the benefit sought must be assessed and weighed based on the facts as 
they existed at the time the instant petition was filed and not based on what were merely speculative 
facts not then in existence. 
8 
Matter of F-C-, LLC. 
The agency made clear long ago that speculative employment is not permitted m the H-1B 
program. For example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H -1 B classification on the basis of 
speculative, or undetermined, prospective employment. The H-lB classification is 
not intended as a vehicle for an alien to engage in a job search within the United 
States, or for employers to bring in temporary foreign workers to meet possible 
workforce needs arising from potential business expansions or the expectation of 
potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1B nonimmigrant under the statute, the Service must first 
examine the duties of the position to be occupied to ascertain whether the duties of 
the position require the attainment of a specific bachelor's degree. See section 214(i) 
of the Immigration and Nationality Act (the "Act"). The Service must then determine 
whether the alien has the appropriate degree for the occupation. In the case of 
speculative employment, the Service is unable to perform either part of this two­
prong analysis and, therefore, is unable to adjudicate properly a request for H-1B 
classification. Moreover, there is no assurance that the alien will engage in a specialty 
occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419'-20 
(proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). 
III. CONCLUSION 
Based upon a complete review of the record of proceeding, we find that the evidence does not 
establish that the proffered position more likely than not constitutes a specialty occupation. We 
further find that the evidence of record is insufficient to establish that, as of the time of filing, the 
Petitioner has specialty occupation work available to the Beneficiary for the entire validity period 
requested. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 136i; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofF-C-, LLC, ID# 15191 (AAO Jan. 5, 2016) 
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