dismissed H-1B Case: Digital Marketing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G~.._ _ __, 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT . 31, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, ------- - --- ---~--------~ seeks to temporarily 
employ the Beneficiary as a "digital marketing analyst" under the H-1B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § 110l(a)(15)(H)(i)(b). The H-1B 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 attaimnent of a bachelor 's or higher degree in the 
specific specialty ( or its equivalent) as a minimum prerequisite for entry into the position . 
The Vermont Service Center Director denied the petition, concluding that the Petitioner had not 
established that the proffered position is a specialty occupation . 
On appeal, the Petitioner asserts that the Director erred and that it has submitted sufficient evidence to 
establish that the proffered position is a specialty occupation. 1 
Upon de nova review, we will dismiss the appeal. 2 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C . § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
1 The Petitioner submitted documentation to support the H-1B 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. 
2 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of G-D 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(]) 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. See Royal 
Siam Corp. v. Chertojf, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). 
II. PROFFERED POSITION 
The Petitioner designated the proffered position on the labor condition application (LCA) 3 as a 
Standard Occupation Classification (SOC) code 15-1199 "Computer Occupations, All Others" 
occupation. On appeal, the Petitioner identifies the position as falling within SOC code 15-1199.10, 
"Search Marketing Strategists," a sub-category of SOC code 15-1199. 
The Petitioner initially provided a ten-bullet point list of the Beneficiary's proposed duties and 
indicated that "he will research and analyze the options to increase awareness, leads, and sales by 
implementing effective digital marketing programs across a wide range of platforms." The Petitioner 
stated that the duties "require, at a minimum, a Bachelor degree in a related field for the position 
offered." The Petitioner does not identify the "related field." 
In response to the Director's request for farther evidence (RFE), the Petitioner revised the proposed 
duties of the position by listing seven primary functions of the position, the Beneficiary's approximate 
time allocated to those functions, and several sub-categories under each of the primary functions. The 
seven primary functions and allocated time are: 
3 A petitioner is required to submit an LCA to the Depaitment of Labor to demonstrate that it will pay an H-1 B 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)(l) of the Act; 
20 C.F.R. § 655.73l(a). 
2 
Matter of G-D 
• Digital marketing strategy implementation - 15% 
• Multimedia creation - 20% 
• Handle marketing CRM [customer relationship management] - 25% 
• Manage online pay per click search and display network- 15% 
• Metrics report quarterly to upper management - 5% 
• Implementation of search engine optimization - 10% 
• Digital innovation strategy - 5% 
The Petitioner also included the education and experience required to perform these functions. The 
Petitioner listed a "BS/MS in Marketing/Business/Communication/Media" degree as required for 70 
percent of the duties and a "BS in Marketing /Media/Communication" as required for the remaining 
30 percent of the duties. The Petitioner stated that various duties also required one year of related 
work experience and knowledge of digital marketing concepts, tools, media channels, statistical 
analysis and market research as well as search engine optimization best practices. 4 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record 
does not establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation. 
Preliminarily we observe that the Petitioner does not consistently state its actual mm1mum 
requirements to perform the duties of the proffered position. The Petitioner initially appears to accept 
a general bachelor's degree as the minimum requirement to enter into its particular position. In 
response to the Director's RFE the Petitioner claims that the majority of the duties require either a 
bachelor's or master's degree in marketing, business, communication or media. However, if a 
business degree, without further specialization, is sufficient to perform the duties of the position, such 
a requirement is inadequate to establish that the proposed 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, 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). 
If the position actually requires a master's degree in any one of the fields referenced, the Petitioner 
has not submitted an LCA that corresponds to the petition. That is, the Occupational Information 
Network (O*NET) summary report for "Search Marketing Strategists, (SOC code 15-1199.10) 
indicates that the occupation has a Job Zone Four rating, which groups it among occupations for which 
"most ... require a four-year bachelor's degree, but some do not." Thus, if the Petitioner requires a 
master's degree, such a requirement would require a one level increase in the wage. 5 
4 The Petitioner also noted that the duties require certification in HubSpot Inbound Marketing, training in HubSpot CRM 
and Google ads and analytics and that a certification in Google Adwords and Analytics is preferred. 
5 See 8 C.F.R. § 214.2(h); U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
3 
Matter of GO 
Additionally we find that the Petitioner's citations to and assertions regarding Raj and Co. v. USCIS, 
85 F. Supp. 3d 1241, 1246 (W.D. Wash. 2015) and Residential Finance Corp. v. USCIS, 839 F. Supp. 
2d 985 (S.D. Ohio 2012), are not persuasive. The Petitioner asserts that the courts in these two cases 
"determined that the similar position of Market Research Analyst is in fact a 'specialty occupation'." 
We reviewed the decisions; however, the Petitioner has not established that the duties and 
responsibilities, level of judgment, complexity, supervisory duties, independent judgment, or amount 
of supervision in either of those cases are analogous to the position proffered here. Moreover, both of 
these cases arise out of different jurisdictions than this matter. 6 
Further, the court in Raj, for example, determined that the evidence in the record demonstrated that 
the particular position proffered required a bachelor's degree in market research or its equivalent as a 
minimum for entry. The court also noted that "[t]he patently specialized nature of the position sets it 
apart from those that merely require a generic degree." 7 In the decision, the court also noted that 
"permitting an occupation to qualify simply by requiring a generalized bachelor degree would run 
contrary to congressional intent to provide a visa program for specialized, as opposed to merely 
educated, workers." Here, the Petitioner's inconsistent requirements demonstrate at most that the 
position requires only a general bachelor's degree. Although the courts recognized that the regulatory 
provisions do not restrict qualifying occupations to those for which there exists a single, specifically 
tailored and titled degree program but contain an equivalency provision, the Petitioner here does not 
submit evidence establishing "equivalency." That is, the Petitioner does not offer analysis regarding 
the close correlation between the claimed required specialized studies and the position. Here, the 
duties and requirements of the position as described in the record do not indicate that this particular 
position is one that 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) of the Act; 
8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation). Nevertheless, we will briefly 
address the Petitioner's assertions on appeal regarding the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
A. First Criterion 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]), 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. In support of the petition, on appeal, the Petitioner references the Department of Labor's 
(DOL) O*NET summary report for "Search Marketing Strategists." The summary report provides 
general information regarding the occupation; however, it does not support the Petitioner's assertion 
regarding the educational requirements for these positions. For example, the Specialized Vocational 
Preparation (SVP) rating cited within O*NET's Job Zone designates this occupation as 7 < 8. An SVP 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
6 In contrast to the broad precedential authority of the case law of a United States circuit court, we are not bound to follow 
the published decision of a United States district court in matters arising even within the same district. See Matter of K-S-, 
20 I&N Dec. 715 (BIA 1993). Although the reasoning underlying a district judge's decision will be given due 
consideration when it is properly before us, the analysis does not have to be followed as a matter of law. Id. at 719. 
7 The record in this matter does not establish that the proffered position is patently specialized, thus, the positions in Raj 
and Residential are distinguishable from the instant position. 
4 
Matter of GD 
rating of 7 to less than ("<") 8 indicates that the occupation requires "over 2 years up to and including 
4 years" of training. While the SVP rating indicates the total number of years of vocational preparation 
required for a particular position, it is important to note that it does not describe how those years are 
to be divided among training, formal education, and experience - and it does not specify the particular 
type of degree, if any, that a position would require. 8 We have considered the Petitioner's reference 
to the O*NET's summary report of the educational requirements of "respondents" and that 78 percent 
ofrespondents report a bachelor's degree is required. However, the respondents' positions within this 
occupation are not distinguished by career level (e.g., entry-level, mid-level, senior-level). 
Additionally, the graph in the summary report does not indicate that the "education level" for the 
respondents must be in a specific specialty. 
The O*NET summary report for this occupation does not establish the duties of the Petitioner's 
particular position would normally require a baccalaureate or higher degree in a specific specialty, or 
its equivalent. The Petitioner has not provided sufficient documentation from a probative source to 
substantiate its assertion regarding the minimum requirement for entry into this particular position. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. First Prong of the 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 concentrates upon 
the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. The Petitioner discusses the second prong of this criterion in its discussion of the fourth 
criterion, as such we will address it below. 
To satisfy the 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. 
On appeal, the Petitioner refers to the opinion authored by.__---= _____ ___, Associate Professor, 
School of Communication,! I Institute of Technology, in support of this criterion. However, 
the author of this opinion does not offer an analysis of the Petitioner's industry or of companies similar 
to the Petitioner and whether there is an industry standard that is common amongst the companies for 
positions parallel to the position here. That is, the author does not refer to surveys, research, or other 
objective evidence regarding the minimum educational requirements for positions parallel to the 
proffered position. Rather, the author of the opinion seems to suggest that many marketing companies 
rely on untrained employees and that having employees trained in communication provides an 
opportunity to improve the current digital marketing challenges. The author concludes that a degree 
in communication is necessary to fill the skills gap in digital marketing. However, to establish this 
prong of this criterion, the author must point to the current practices of companies and offer evidence 
supporting a claim that a common industry standard exists for specific educational requirements for 
parallel positions by companies similar to the Petitioner. Speculating that a certain degree or range of 
8 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/online/svp. 
5 
Matter of GO 
degrees may fill skill gaps within an occupation does not assist in establishing that a bachelor's degree 
in a specific specialty is currently common to the Petitioner's industry in parallel positions among 
similar organizations; rather it would seem to support a contrary conclusion. 
The Petitioner also refers to a letter written by the human resources director of~------~ 
Inc. who claims that a bachelor's degree in a specific field is a minimum requirement for entry into 
the position of digital marketing analyst. The letter-writer asserts this this is an industry-wide 
requirement and that their company would always require at least a bachelor's degree in marketing, 
communications, media, or equivalent to qualify for a digital marketing analyst position. The 
letter-writer does not claim that they reviewed the duties and responsibilities of the proposed position 
or confirm that the duties of their company's position(s) are parallel to the proffered position. The 
letter-writer did not provide any documentary evidence to corroborate that they currently, or in the 
past, employed individuals in parallel positions to the proffered position, nor did they provide adequate 
documentation to substantiate the claimed academic requirements. This letter does not establish that 
a bachelor's degree in a specific specialty, or its equivalent is common to the industry for parallel 
positions in companies similar to the Petitioner. 
On appeal, the Petitioner also refers to the three job postings previously submitted as evidence to 
establish this prong of this criterion. However, the Petitioner does not include sufficient evidence to 
establish that the three advertising companies are similar to it. Additionally, two of the three job 
postings, in addition to requiring a bachelor's degree in marketing,9 also require three or more years 
of experience to enter into the advertised position. 10 Thus, it appears that these advertised positions 
are for more senior positions than the position proffered here. The third advertisement requires only 
a general bachelor's degree; although it indicates that a graduate degree or scientific education is 
preferred, preference is not a requirement. It is also not possible to determine important aspects of the 
advertised jobs, such as the day-to-day responsibilities, complexity of the job duties, supervisory 
duties (if any), and independent judgment required or the amount of supervision received. The 
Petitioner has not established that the advertised positions are parallel to the proffered position in terms 
of primary duties and responsibilities. The advertisements do not assist in establishing a common 
bachelor's degree requirement in a specific specialty, or its equivalent, in the Petitioner's industry for 
positions that are parallel to its entry-level position. 11 The Petitioner does not advance its claim when 
comparing the proffered position to those positions advertised. 
9 One of these two job postings does not limit the academic requirement to a bachelor's degree in marketing, but also finds 
a bachelor's degree in business, computer science, statistics, or data management acceptable to enter into the adve1iised 
position. We emphasize that since there must be a close correlation between the required "body of highly specialized 
knowledge" and the position, a minimum entry requirement of a degree in two disparate fields 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. Section 214(i)(l )(B) of the Act ( emphasis 
added). 
10 The Petitioner has designated the proffered position as requiring a Level I wage on the LCA. A Level I wage for a Job 
Zone Four occupation is for a position that requires up to two years of experience. Any required additional experience 
would require an increase in the wage level. 
11 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 has not demonstrated 
what statistically valid inferences, if any, can be draV1rn from the advertisements with regard to detennining the common 
educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The Practice 
6 
MatterofG□ 
The record does not satisfy 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. Evidence 
provided in support of this criterion may include, but is not limited to, documentation regarding the 
Petitioner's past recruitment and hiring practices, as well as information regarding employees who 
previously held the position. 
The Petitioner asserts on appeal that it provided evidence that it employed a marketing analyst in 2017 
and that it provided an earnings statement for the employee. The record includes an earnings statement 
for a two-week period and a credentials evaluation indicating this employee has the U.S. equivalent 
of a bachelor's degree in communications. The Petitioner, however, did not provide the job duties and 
day-to-day responsibilities for this individual. Accordingly, it is unclear whether the duties and 
responsibilities of this individual was the same or similar to the proffered position. The Petitioner also 
points out that the digital marketing analyst position is related to the relatively new digital age and that 
such positions did not exist years ago. We understand that this may be a new position, however, if 
this is a first-time hiring for a digital marketing analyst position, it is unclear how an employer that 
has not previously recruited and hired for the position would be able to satisfy the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3). 
We also emphasize here, that the Petitioner must establish that the specific performance requirements 
of the position generated the recruiting and hiring history, not the Petitioner's desire for a specifically 
qualified individual. 12 That is, the Petitioner must establish that the duties of the proposed position 
actually require a bachelor's degree in a specific specialty, or its equivalent, for the position. The 
Petitioner has not established that essential element here. The record does not include the required 
evidence satisfying the criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
D. Second Prong of the 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. 
§ 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. 
of Social Research 186-228 (1995). Moreover, given that there is no indication that the advertisements were randomly 
selected, the validity of any such inferences could not be accurately determined even if the sampling unit were sufficiently 
large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] process [of probability sampling]" and 
that "random selection offers access to the body of probability theory, which provides the basis for estimates of population 
parameters and estimates of error"). 
12 The Petitioner refers to the Beneficiary's educational background as evidence this paiticular position requires a degree 
in a specific discipline. However. the test to establish a position as a specialty occupation is not the skill set or education 
of a proposed beneficiary, but whether the position itself qualifies as a specialty occupation. 
7 
MatterofG.c=] 
The Petitioner asserts on appeal that its elaboration of the proposed duties provided in response to the 
Director's RFE demonstrates that the proffered position is specialized and complex, or unique. 
However, in our review of the duties described we do not find that the Petitioner has sufficiently 
developed the duties of its particular position to establish which of the duties, if any, of the proffered 
position would be so specialized and complex or unique as to be distinguishable from those of similar 
but non-degreed or non-specialty degreed employment. For example, the Petitioner's revised position 
description indicates the Beneficiary will "[i]mplement [m]arketing principles in creation of all 
marketing materials," "[m]ake use of Best Practices when targeting buyers based on lifecycle and 
persona," "[c]reate [d]etailed email workflows for nurturing leads," and "[i]mplement understanding 
of various method, standards and industry best practicing when creating/facilitating the creation of 
media resources." This elaboration of the Beneficiary's duties does not convey an understanding of 
what the Beneficiary will be doing on a day-to-day basis. Moreover, these tasks do not appear to be 
specialized and complex, or unique, but rather indicate the Beneficiary will employ the regular, routine 
"best practices" of a market analyst. 
Other duties also do not demonstrate what the Beneficiary will be required to do on a day-to-day basis. 
For example, it is not clear what tasks will engage in the Beneficiary in "[ d]ashboard essentials 
metrics" although we understand that he will "send updates to managers on a regular basis." The 
Petitioner also does not develop the complexity, specialization, or uniqueness of "[m]anag[ing] and 
advertis[ing] using social media along with long term engagement strategies to boost visibility" The 
Petitioner does not provide meaningful detail and discussion of the tasks that would engage the 
Beneficiary. Nor does the Petitioner explain how those duties actually require the theoretical and 
practical application of a body of highly specialized knowledge. 
The Petitioner's designation of the proffered position as requiring only a Level I wage also undermines 
any claim that the proffered position satisfies these criteria. In other words, as discussed above, if 
typical positions located within the occupational category do not require a bachelor's degree in a 
specific specialty, or the equivalent, then it is unclear how a position with Level I characteristics would 
require a bachelor's degree in a specific specialty, or its equivalent. 
We have reviewed the Petitioner's list of the Beneficiary's undergraduate and graduate courses it 
claims are related to the duties of the position. Again, however, the Beneficiary's educational 
background and experience do not establish the position is a specialty occupation. It is not the skill 
set or education of a proposed beneficiary that establishes a position as a specialty occupation, but 
whether the position itself qualifies as a specialty occupation. Here, the duties as described do not 
illuminate the substantive application of knowledge involved or any particular educational 
requirement associated with such duties. It is not possible to ascertain the nature and level of 
responsibility of the proposed position, and conclude that the duties are particularly specialized and 
complex or unique. 
The record does not include probative evidence establishing that the proposed pos1t10n is so 
specialized and complex or unique such that only an individual with a bachelor's degree in a specific 
specialty, or its equivalent, can perform the position. The Petitioner has not demonstrated that its 
proffered position is one with duties sufficiently specialized and complex or unique to satisfy the 
second prong of the second criterion or the fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
8 
Matter of cQ 
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 
or regulatory definition of specialty occupation. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. 
Cite as Matter of G□ ID# 4683028 (AAO Oct. 31, 2019) 
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