dismissed H-1B Case: Digital Marketing

MATTER OF D-A-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 21,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETTION FOR A NONIMMIGRANT WORKER 
The Petitioner, a digital marketing agency, seeks to temporarily employ the Beneficiary as an "ad 
operations coordinator" under the H-IB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 11 01(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 ofhighly 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 Petitioner did 
not establish, as required, that the proffered position is a specialty occupation. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)( 4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter of D-A-, Inc. 
(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 have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing 
"a degree requirement in a specific specialty" as "one that relates directly to the duties and 
responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
The Petitioner stated in the H-1B petition that the Beneficiary will serve as an "ad operations 
coordinator." In its support letter, the Petitioner stated that the Beneficiary would perform the 
following duties (note: errors in the original text have not been changed): 
• She will plan and oversee the execution select digital advertising campaigns. ,This 
involves eliciting intelligence from clients and engaging in market research and 
analysis to gain a deep understanding of our clients' target audi.ences/markets and 
developing campaign plans and content to best reach those audiences. [The 
Beneficiary] must align the culture and objectives of our clients with the culture of 
their target markets, and this must be reflected in the messaging and campaign 
content of her marketing plans. [The Beneficiary] will also work with clients to 
establish pncmg parameters, campaign targeting a_nd placement, tlmmg 
considerations and similar matters. This also includes helping clients establish digital 
communication guidelines for social media and other digital marketing, including 
social media, influencer/affiliate marketing programs, website communications, e­
mail and digital marketing campaigns, etc. that ~ill ensure consistency in their 
messaging and branding efforts. 
• Once the campaign plan and budget has been established, [the Beneficiary] will 
coordinate with her team to oversee campaign execution, which includes developing 
2 
Matter of D-A-, Inc. 
creative and written content, launch digital ad campmgns, setting up analytical 
tracking tools, etc. 
• [The Beneficiary] will also be responsible for overseeing performing analysis of 
campaigns. She will analyze with her team data analytics for campaigns, such as 
click through rates, conversations, and other metrics. Through such analysis, she will 
identity user profiles and viewing patterns as well as other relevant metrics to develop 
plans for enhancing and improving the campaigns. This may include altering 
messaging, creative content, placement locations, etc. to test and improve 
performance. 
• [The Beneficiary] will also provide full campaign analysis, reporting and 
recommendations to our clients at the conclusion of campaigns. These insights and 
recommendations will be relied upon by our clients in their future digital marketing 
efforts. 
• [The Beneficiary] will also help us to research and secure new media partnerships, 
mobile application partners, etc. based on placement criteria and the goals of our 
client. This requires an understanding of reach, ad targeting goals, user profiles and 
related variables relevant to our clients. She will also help to provide support to our 
sales team, offering her communications and digital media culture expertise to help us 
market our own agency. 
The Petitioner stated that the proffered position requires a bachelor's degree m marketing, 
advertising, communications, or a closely-related field. 
III. 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. 1 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation.2 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), 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 recognize the U.S. Department of Labor's 
1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
2 The Petitioner submitted documentation to support the H-I B 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. 
3 
Matter of D-A-, Inc. 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.3 
On the labor condition application (LCA)4 submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Market Research Analysts and 
Marketing Specialists" corresponding to the Standard Occupational Classification code 13-1161.5 
The Handbook states the following with regard to the educational requirements of positions located 
within this occupational category: 
Most market research analysts need at least a bachelor's degree. Top research 
positions may reqmre a master's degree. Strong math and analytical skills are 
essential. 
Market research analysts typically need a bachelor's degree in market research or a 
related field. Many have degrees in fields such as statistics, math, and computer 
science. Others have backgrounds in business administration, the social sciences, or 
communications. 
Education 
Courses in statistics, research methods, and marketing are essential for these workers. 
Courses in communications and social sciences, such as economics or consumer 
behavior, are also important. 
3 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however,/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 USC IS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of.occupations that it addresses. To satisfY the first criterion, however, 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. 
4 
The Petitioner is required to submit a certified LCA 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 experience and qualifications who are performing the same services. See 
Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
5 
The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http:/ lflcdatacenter.com/down load/N PWH C ~Guidance~ Revised~ I I~ 2009. pdf. A prevai I ing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
4 
Matter of D-A-, Inc. 
Some market research analyst jobs require a master's degree. Several schools offer 
graduate programs in marketing research, but many analysts complete degrees in 
other fields, such as statistics and marketing, and/or earn a master's degree in 
business administration (MBA). A master's degree is often required for leadership 
positions or positions that perform more technical research. 
Licenses, Certifications, and Registrations 
Certification is voluntary, but analysts may pursue certification to demonstrate a level 
of professional competency. The Marketing Research Association offers the 
Professional Researcher Certification (PRC) for market research analysts. Candidates 
qualify based on experience and knowledge; they must pass an exam, be a member of 
a professional organization, and have at least 3 years working in opinion and 
marketing research. Individuals must complete 20 hours of industry-related 
continuing education courses every 2 years to renew their certification. 
Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Market Research 
Analysts (2016-17 ed.). 
The Handbook reports that individuals working in pos1t10ns located within this occupational 
category have degrees and backgrounds in a wide variety of disparate fields. That is, while the 
Handbook states that employees typically need a bachelor's degree in market research or. a related 
field, it continues by specifying that many market research analysts have degrees in fields such as 
statistics, math, or computer science. According to the Handbook, others have backgrounds in fields 
' such as business administration, the social sciences, or communications. This passage of the 
Handbook identifies various courses as essential to this occupation, including statistics, research 
methods, and marketing. It further elucidates that courses in communications and social sciences 
(such as economics, psychology, and sociology) are also important. Therefore, although the 
Handbook indicates that market res'earch analysts typically need a degree, it also indicates that 
degrees and backgrounds in various fields are acceptable for jobs located within this occupational 
category - including computer science and the social sciences, as well as statistics and 
communications. 
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)(l )(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 disparate fields, such as 
philosophy and engineering, 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 such that the required body of 
5 
.
Matter of D-A-, Inc. 
highly specialized knowledge is essentially an amalgamation of these different specialties. 6 Section 
214(i)(l)(B) ofthe Act (emphasis added). 
The Handbook also states that "others have a background in business administration." Although a 
general-purpose bachelor's degree, such as a degree in business administration, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a finding 
that a particular position qualifies for classification as a specialty occupation. See Royal Siam Corp., 
484 F.3d at 147. Therefore, the Handbook's recognition that a general, non-specialty "background" 
in business administration is sufficient for positions located within this occupational category 
strongly suggests that a bachelor's degree in a spec(fic specialty is not normally the minimum entry 
requirement for this occupation. 
The narrative of the Handbook further reports that some employees obtain professional certification 
to demonstrate a level of professional competency. It continues by outlining the requirements for 
market research analysts to achieve the PRC, and states that candidates qualify based upon their 
experience and knowledge. According to the Handbook, the credential is granted by the 
- now known as the 7 - to those who pass an exam and 
have at least three years of experience _working in market research. 8 
We reviewed the _ website, which confirms the Handbook's statement 
regarding the requirements for professional certification (i.e., passage of an exam and three years of 
relevant industry experience), and further specifies that the "Education" necessary to apply for 
professional certification is "12 industry-related education hours within the two preceding years." It 
also emphasizes that the credentialing program differentiates the individual who takes it and 
provides a '"badge' of competence in the given areas and an assurance that the individual is current 
in knowledge and experience." The narrative continues by stating that the credential "provides a 
vehicle for developing a pool of well-trained, competent marketing researchers, thereby improving 
both perceived and substantive standards." The website includes information regarding "How to 
Enter the Industry" which lists a variety of possible degrees, such as business administration, liberal 
arts, computer science and communications, and a variety of "helpful skills," including "attention to 
detail," and "basic computer skills." It does not indicate that a market research analyst position has 
any specific minimum academic requirement for entry, nor does it state that it requires any particular 
6 Whether read with the statutory "the" or the regulatory "a," both readings denote a singular "specialty." Section 
214(i)(l )(B) of the Act; 8 C.F.R. § 214.2(h)( 4)(ii). Still, 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. This also includes even seemingly disparate specialties provided the evidence of record 
establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
7 The _ merged with the 
2017 to become the See http://www. 
The is therefore the successor to the 
in January 
1about (last visited June 19, 20 17). 
8 The website states that it "strives to effectively represent, advance, and grow the research 
profession and industry." For additional information, see http://www 'about (last visited June 19, 
2017). 
6 
.
Matter of D-A-, Inc. 
level ·of education to be identified as qualified and possessing a level of expertise/competence. 
Instead, highlights the importance of professional experience and industry-related professional 
courses (through conferences, seminars, and webinars). 
Thus, the Handbook and the _ website therefore do not support the claim" that the 
occupational category "Market Research Analysts" is one for which normally the minimum 
requirement for entry is a baccalaureate degree (or higher) in a specific specialty, or its equivalent. 
The article printed from 
the website of . is insufficient for similar reasons. While the 
article states a bachelor's degree is required, it goes on to state that the degree could come from a 
number of fields, including business administration. In other words, it does not indicate that a 
bachelor's degree in a specific specialty, or the equivalent, is required. 
The materials from · do not satisfy the first criterion either, as they do not 
state that a bachelor's degree or the equivalent is required, let alone one in a specific specialty. 
Nor does the position evaluation the Petitioner submits meet its burden. According to Professor 
_ a bachelor's degree in business would adequately prepare an individual to perform the 
duties of the proffered position. That conclusion is consistent with the Handbook. Once again, 
however, the issue here is that a requirement for a bachelor's degree in business is inadequate to 
establish that the position qualifies as a specialty occupation. For this reason alone, Professor 
evaluation does not satisfy 8 C.P.R. § 214.2(h)(4)(iii)(A). 
However, even if we set that foundational deficiency aside, we would still find that Professor 
evaluation did not satisfy the first criterion. Professor _ does not discuss the 
duties of the proffered position or the Petitioner's business operation in meaningful detail beyond a 
three-sentence summarization. Nor does he describe the duties of the proffered position in any 
meaningful detail, and he does not describe then within the context in which they actually be 
performed within the Petitioner's specific business operation. Moreover, he does not reference the 
Petitioner's Level I wage-level designation, and we question whether he was aware that the 
proffered position is an entry-level position. Considered collectively, we find that these 
shortcomings indicate an incomplete review of the proffered position. 
We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of 
Caron lnt'l, Inc., 19 I&N Dec. 791, 79
1
5 (Comm'r 1988). However, where an opinion is not in 
accord with other information or is in any way questionable, we are not required to accept or may 
give less weight to that evidence. Jd. Consistent with Caron lnt 'l, we find that this evaluation does 
not satisfy 8 C.F .R. § 214.2(h)( 4 )(iii)(A)(l) and, for the sake of efficiency, hereby incorporate this 
finding into our analysis of the remaining specialty-occupation criteria. 
Nor are we persuaded by the case law cited by the Petitioner on appeal. First, the Petitioner cites to 
Residential Finance Corp. v. USCJS, 839 F. Supp. 2d 985 (S.D. Ohio 2012), which is often cited for 
the proposition that "[t]he knowledge and not the title of the degree is what is important. Diplomas 
Matter of D-A-, Inc. 
rarely come bearing occupation-specific majors. What is required is an occupation that requires 
highly specialized knowledge and a prospective employee who has attained the credentialing 
indicating possession of that knowledge." 
We agree with the aforementioned proposition that "[t]he knowledge and not the title of the degree is 
what is important." For the aforementioned reasons, however, the Petitioner has not met its burden 
to establish that the particular position offered in this matter requires a bachelor's or higher degree in 
a specific specialty, or its equivalent, directly related to its duties in order to perform those tasks. 
Further, the Petitioner has furnished no evidence to establish that the facts of this petition are 
analogous to those in Residential Finance. 9 We also note that, 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, 719-20 (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. !d. It is important to note that in a subsequent case reviewed in the 
same jurisdiction, the court agreed with our analysis of Residential Finance. See Health Carousel, 
LLC v. USCIS, No. 1 :13-CV-23, 2014 WL 29591 (S.D. Ohio 2014). 
Next, the Petitioner cites an unpublished AAO decision involving an immigrant visa petition and 
whether the beneficiary of that petition was a member of the professions as defined in section 
101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32). However, the issue before us is whether the 
Petitioner's proffered position qualifies as a nonimmigrant H -1 B specialty occupation - not whether 
it is a profession. 10 This decision, therefore, is irrelevant. Further, while 8 C.P.R. § 103.3(c) 
provides that our precedent decisions are binding on all agency employees in the administration of 
the Act~ unpublished decisions are not similarly binding. 
For all of these reasons, we find that the Petitioner has not established that the proffered position is 
located within an occupational category for which the Handbook, or any other relevant, authoritative 
source, indicates that the normal minimum entry requirement is at least a bachelor's degree in a 
specific specialty, or the equivalent. Consequently, the evidence of record does not support a finding 
that the particular position proffered here, an entry-level position located within the "Market 
9 It is noted that the district judge's decision in that case appears to have been based largely on the many factual errors 
made by the Director in the decision denying the petition. We further note that the Director's decision was not appealed 
to us. Based on the district court's findings and description of the record, if that matter had first been appealed through 
the available administrative process, we may very well have remanded the matter to the service center for a new decision 
for many of the same reasons articulated by the district court if these errors could not have been remedied by us in our de 
novo review of the matter. 
10 
The primary and fundamental difference between qualifying as a profession and qualifying as a specialty occupation is 
that specialty occupations require the U.S. bachelor's or higher degree to be in a specific specialty, or its equivalent. 
Thus, although an occupation may be specifically identified as qualifying as a profession as that term is defined in 
section IOI(a)(32) of the Act, that occupation would not necessarily qualify as a specialty occupation unless it met the 
definition of that term at section 214(i)( I) of the Act. 
8 
.
Matter of D-A-, Inc. 
~ 
Research Analysts and Marketing Specialists" occupational category, would normally have such a 
minimum specialty degree requirement, or the equivalent. The Petitioner therefore has not satisfied 
the criterion at 8 C.F .R. § 214.2(h)( 4 )(iii)(A)( 1). 
B. 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 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
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 
~qui valent) 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." 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)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion 
on the matter. Also, there are no submissions from the industry's professional association indicating 
that it has made a degree a minimum entry requirement. 
In support of this prong, the Petitioner submitted a letter from which the Petitioner 
generally describes as conducting business within the same industry. Though we have considered 
the claims made in this letter that employs two individuals in a capacity similar to the one 
proposed for the Beneficiary, we find them insufficient to satisfy this prong. First, the record does 
not contain copies of common business documents such as paystubs or payroll records to 
demonstrate that the company actually employs either of these individuals. Nor does the record 
contain documentary evidence to substantiate that is a "similar organization" conducting 
business within the Petitioner's industry. Therefore, the letter is not sufficient to establish that firms 
in the Petitioner's industry 
"routinely employ and recruit only degreed individuals." 
9 
Matter of D-A-, Inc. 
The record also contains seven job vacancy announcements for our consideration under this prong. 
To be relevant for this consideration, the job vacancy announcements must advertise "parallel 
positions," and the announcements must have been placed by organizations that conduct business in 
the Petitioner's "industry" and are also otherwise "similar" to the Petitioner. Upon review, we find 
that these job vacancy announcements do not satisfy that threshold. 
The Petitioner has not established that the advertised positions are "parallel positions." As noted, the 
Petitioner attested to DOL that the proffered position is an entry-level position with the Level I 
characteri.stics outlined above. However, six of the seven advertised positons require work 
experience, and the seventh company seems to prefer experience, and also lists "the ability to work 
independently" as a job qualification. In addition, we observe that one of the advertised positions 
requires experience "leading and supervising teams," another requires the "[a]bility to work well 
without constant direction," and another requires the ability to "lead" and "take charge." Two of the 
job vacancy announcements/specifically state the following: "Career Level Experienced." These 
factors indicate that the advertised positions are not the type of Level I, entry-level position proffered 
here, and that they are therefore not "parallel positions" to the proffered position. 
Nor did the Petitioner submit sufficient evidence to establish that these job vacancy announcements 
were placed by companies that (1) conduct business in the Petitioner's industry and (2) are also 
"similar" to the Petitioner. The Petitioner is a digital marketing company with 44 employees. The 
Petitioner has not adequately explained how these job vacancy announcements are relevant here. 
For example, one advertisement was placed by a company describing itself as a "business-to­
business product innovator, catalog, marketer, and internet retailer." Another describes itself as a 
fast-growing information technology company. Another advertiser states that it provides cloud 
presence solutions, online resources, and security and business applications. Two of the 
advertisements were placed anonymously. Notably, several advertisers do not provide sufficient 
information about their businesses, and we are unable to ascertain the nature of their businesses to 
conduct a legitimate comparison of the advertisers to the Petitioner. 
Two of the advertisements may have been placed by companies which conduct business within the 
Petitioner's industry. However, the record does not contain documentary evidence establishing the 
similarity of either company to the Petitioner in terms of size, scale and scope of operations, or any 
other essential nature in order to demonstrate that it is also "similar" to the Petitioner for purposes of 
the first prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
For all of these reasons, the Petitioner has not established that these job vacancy announcements are 
relevant. 11 
11 
In addition, the Petitioner does not demonstrate what stati~tically valid inferences, if any, could be drawn from the job 
postings with regard to the common educational requirements for entry into parallel positions in similar organizations. 
See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 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 195-96 (explaining that "[r]andom selection is the 
10 
Matter of D-A-, Inc. 
The Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so compl~x 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 Handbook does not indicate that a bachelor's degree in a specific specialty, or the equivalent, is/ 
normally required for positions located within the occupational category designated by the 
Petitioner. The Petitioner's implications that the knowledge and associated entry requirements 
associated with the proffered position exceed those of other positions located within the occupational 
category are acknowledged. For example, the Petitioner emphasizes the complex nature of the 
position and its constituent duties throughout the petition, and in its RFE response characterized the 
proffered position as a "vital role" and one that requires a "true expert." On appeal, the Petitioner 
emphasizes "the sophistication of our clients and the size and complexity of the campaigns" and 
states that the Beneficiary will "play a crucial· role." However, the Petitioner's Level I wage 
designation undercuts any claim that it satisfies this criterion.12 In other words, 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 the Level I characteristics described above 
would, regardless of these assertions. 
/ 
The Petitioner claims that the Beneficiary is well-qualified for the pos1t10n, and references her 
qualifications repeatedly. However, 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. We find that Petitioner did not 
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"). 
As such, even if the job vacancy announcements supported the finding that the position requires a bachelor's or higher 
degree in a specific specialty, or its equivalent, it could not be found that such a limited number of postings that appear to 
have been consciously selected could credibly refute the findings of the Handbook published by the Bureau of Labor 
Statistics that such a position does not normally require at least a baccalaureate degree in a specific specialty, or its 
equivalent, for entry into the occupation in the United States. 
12 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
II 
Matter of D-A-, Inc. 
sufficiently develop relative complexity or uniqueness as an aspect of the duties of the position, and 
that it did not identify any tasks that are so complex or unique that only a specifically degreed 
individual could perform them. Accordingly, the Petitioner has not satisfied the second 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 
record must establish that a petitioner's imposition of a degree requirement is not merely a matter of 
preference for high-caliber candidates, but is necessitated instead by performance requirements of 
the position. See Defensor, 201 F.3d at 387-88. If we were solely limited to reviewing the 
Petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the Petitioner created a token 
degree requirement. Id. 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 record contains information regarding the credentials of two individuals the Petitioner claims to 
currently employ, and one it claims to have employed in the past. However, we find this evidence 
insufficient to satisfy the third criterion, as it is not apparent that these individuals hold, or held, the 
same position proffered here. For example, two of these individuals describe their role at the 
Petitioner as that of a "senior" account manager. This contrasts with the proffered position, which is 
an entry-level position with the Level I characteristics outlined above.13 In any event, it undermines 
the claim that these individuals hold, or held, the same position as the one proffered here. 
Without more, the Petitioner has not provided sufficient evidence to establish that it normally 
requires at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered 
position. Therefore, it has not satisfied the third criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
D. Fourth Criterion 
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. 
13 
The DOL wage-level guidance referenced above states that the word "senior" in a job title is an indicator that a Level 
III wage should be considered. This discrepancy raises questions as to whether the LCA corresponds to and supports the 
H-1 8 petition, as required. Because the proffered position is not a specialty occupation we will not address this issue 
further, except to notify the Petitioner that it should be prepared to address it in any future H-1 8 filings. 
12 
Matter of D-A-, Inc. 
We acknowledge the Petitioner's assertions regarding the specialization and complexity of the 
position's duties. However, as above, those claims are undermined by the Petitioner's Level I wage 
designation. Again, in classifying the proffered position at a Level I (entry-level) wage, the 
Petitioner effectively attested to DOL that the Beneficiary would perform routine tasks that require 
limited, if any, exercise of judgment, that she would be closely supervised and her work closely 
monitored and reviewed for accuracy, and that she would receive specific instructions on required 
tasks and expected results.
14 
The DOL guidance referenced above states that an employer should 
consider a Level I wage designation when the job offer is for a research fellow, a worker in training, 
or an internship. 
The Petitioner has not demonstrated in the record that its proffered position is one with duties 
sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
IV. CONCLUSION 
The Petitioner has not established that the proffered position is a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-A-, Inc., ID# 400666 (AAO June 21, 2017) 
14 
Again, the Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same occupation. 
13