dismissed H-1B Case: E-Commerce

U.S. Citizenship 
and Immigration 
Services 
In Re: 10682794 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 20, 2020 
The Petitioner, an online air gun retailer, seeks to temporarily employ the Beneficiary as an 
"international market economist" under the H-1B nonimmigrant classification for specialty occupations. 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-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 attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish that the proffered position is a specialty occupation. On appeal, the Petitioner asserts that 
the Director erred.1 
The Petitioner bears the burden of proof to demonstrate el igibi I ity by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the petition. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(I) of the Act but adds a 
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. 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 2 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... "(emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the substantive nature of the duties the Beneficiary will perform, we are 
unable to determine whether the Beneficiary will be employed in an occupation that meets the statutory 
and regulatory definitions of a specialty occupation and a position that also satisfies at least one of the 
criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position 
determine: (1) the normal minimum educational requirement for entry into the particular position, 
which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and 
thus appropriate for review for a common degree requirement, under the first alternate prong of 
criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of 
the second alternate prong of criterion 2; (4) the factual justification for a petitioner normally requiring 
a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization 
and complexity of the specific duties, which is the focus of criterion 4. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
11. PROFFERED POSITION 
The Petitioner provided the following job duties for the position: 
• Research competitors by analyzing prices and services, and the markets in the U.S., 
Europe, and Asia for related services. (30%) 
• Study economic and statistical data for air gun market across the globe. (30%) 
• Measure and report on effectiveness of marketing both overseas and in the United 
States. (10%) 
• Prepare strategic plans to expand market opportunities by cultivating relationships 
with potential business partners overseas. (10%) 
• Conduct market and economic research related to current and future market trend. 
(10%) 
2 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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. 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"). 
2 
• Interacts with existing and potential new customers, to compile, analyze, and report 
data to the management on various countries economic trends and forecast air gun 
market trends, applying mathematical models and statistical techniques. (5%) 
• Review and advise Sales Director, IT Director and Executive staff about economic 
value ratio from promotional columns and press releases to enhance global market; 
Review sales data driven by informational seminars and internet material; and 
advise Sales Director, IT Director and Executive on economic data related to 
company website materials to educate and inform potential clients and business 
partners worldwide regarding our availability of products and services to coordinate 
and generate marketing leads, then follow, review and report on the data of clicks 
per link, international partners for increased market economic opportunities, and 
inquiries and leads generated. (5%) 
Additionally, the Petitioner provided more detailed supplementary duty descriptions in the body of its 
support letter which will be discussed below as relevant. 
According to the Petitioner, the position requires a bachelor's degree in economics, data science, 
market research, or a related field, as well as a "solid understanding of international markets, financial 
impact of import/export tax and logistic issues relative to Russia, Europe and North America, and 
statistical modeling of market trends." 
Ill. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the substantive nature of the position which precludes a finding that it qualifies as a specialty 
occupation under sections 101(a)(15)(H)(i)(b), 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(i)(A)(1), 
8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 
The Petitioner has not provided sufficient details regarding the nature and scope of the Beneficiary's 
employment or the kind of substantive and probative evidence necessary to determine the actual work 
that the Beneficiary would perform in the position. We first observe that the duties described by the 
Petitioner appear to be inconsistent with the standard occupational classification (SOC) code 
identified. Such an inconsistency calls into question whether the duties are described with insufficient 
detail or whether the labor condition application (LCA) does not properly correspond to the petition.3 
3 The purpose of the U.S Department of Labor's (DOL) wage requirement is "to protect U.S. workers' wages and eliminate 
any economic incentive or advantage in hiring temporary foreign workers." See Labor Condition Applications and 
Requirements for Employers Using Non immigrants on H-1B Visas in Specialty Occupations and as Fashion Models; Labor 
Certification Process for Permanent Employment of Aliens in the United States, 65 Fed. Reg. 80,110, 80,110-11 (proposed 
Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage protections in the Act seek "to protect 
U.S. workers' wages and eliminate any economic incentive or advantage in hiring temporary foreign workers" and that 
this "process of protecting U.S. workers begins with [the filing of an LCA] with [DOL]."). It also serves to protect H-1B 
workers from wage abuses. A petitioner submits the LCA to DOL to demonstrate that it will pay an H-lB 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. While DOL certifies the LCA, 
U.S. Citizenship and Immigration Services determines whether the LCA's content corresponds with and supports the H-
1B petition. See 20 C.F.R. § 655.705(b) ("DHS determines whether the petition is supported by an LCA which corresponds 
with the petition .... "). See also Matter of Simeio Solutions, 26 l&N Dec. 542, 546 n.6 (AAO 2015). 
3 
On the certified LCA, the Petitioner designated the proffered position under the occupational category 
"Market Research Analysts and Marketing Specialists" corresponding to SOC code 13-1161. 
Comparing the Petitioner's duties to those provided in DOL's Occupational Information Network 
(O*NET), while some of the duties correspond, the supplementary duty descriptions from the 
Petitioner's support letter appear to go beyond the scope of the O*NET tasks for market research 
analysts. As such, the Petitioner's duty descriptions undermine its assertions concerning the 
substantive nature of the position. 
First, to determine whether the SOC code identified corresponds to the duties of the proffered position, 
we reviewed information about this occupation found in the DOL's Occupational Outlook Handbook 
(Handbook) and O*NET summary reports. The Handbook indicates market research analysts, "study 
market conditions to examine potential sales of a product or service. They help companies understand 
what products people want, who will buy them, and at what price."4 O*NET indicates that market 
research analysts and marketing specialists generally "[r]esearch market conditions in local, regional, 
or national areas, or gather information to determine potential sales of a product or service, or create 
a marketing campaign" and they "[m]ay gather information on competitors, prices, sales, and methods 
of marketing and distribution."5 While the Petitioner indicates that the proffered position involves 
such information gathering and analysis duties, a number of its duty descriptions appear to go beyond 
the information gathering and analysis described by the DOL and involve more senior-level marketing 
strategy development and customer management. 
For example, the Petitioner indicates the Beneficiary will "[p]repare strategic plans to expand market 
opportunities by cultivating relationships with potential business partners overseas" and "provide 
developmental guidelines for pursuing customers across North America, Europe, and Asia in general 
taking into account demographics, market development, and competitor factors to ensure that any 
business projects our company undertakes effectively meet business goals and objectives." These 
strategy development responsi bi I ities appear to go beyond the scope of the "Market Research Analysts 
and Marketing Specialists" duties listed on O*NET6 and more closely correspond with the duties of 
"Marketing Managers" SOC code 11-2021. For instance, O*NET states "Marketing Managers" 
"[p]lan, direct, or coordinate marketing policies and programs, such as determining the demand for 
products and services offered by a firm and its competitors, and identify potential customers," 
"[d]evelop pricing strategies with the goal of maximizing the firm's profits or share of the market 
while ensuring the firm's customers are satisfied," "[i]dentify, develop, or evaluate marketing strategy, 
based on knowledge of establishment objectives, market characteristics, and cost and markup factors," 
and "[u]se sales forecasting or strategic planning to ensure the sale and profitability of products, lines, 
or services, analyzing business developments and monitoring market trends."7 
4 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Market Research Analysts, 
available at https://www.bls.gov/ooh/business-and-financial/market-research-analysts.htm#tab-2 (last visited Nov. 20, 
2020). 
5 Summary Report for: 13-1161.00 - Market Research Analysts and Marketing Specialists, O*NET Online Archives, 
https://www.onetonline.org/Archive_ONET-SOC_2010_ Taxonomy_09_2020/link/summary/13-1161.00 (last visited 
Nov. 19, 2020). 
6 The closest related task for SOC 13-1161 involves "collaborating with marketing professionals, statisticians, pollsters, 
and other professionals" in order to "[c]onduct research on consumer opinions and marketing strategies." 
7 Summary Report for: 11-2021.00 Marketing Managers, O*NET Online Archives, 
https://www.onetonline.org/Archive_ONET-SOC_2010_ Taxonomy_09_2020/link/summary/11-2021.00 (last visited 
Nov. 19, 2020) .. 
4 
Relatedly, not only does the Petitioner indicate that the Beneficiary will need to cultivate potential 
business relationships for strategy development, but it indicates he will also be responsible for more 
broadly interfacing with business partners and managing client services. Specifically, the Petitioner 
states the Beneficiary will "interface with existing and potential trading partners, industry 
organizations and customers in Europe, Asia, and the United States to update product information and 
pricing, promote our products and services and goodwill, and coordinate logistics related to delivery 
of our services." These duties again appear to better match higher-level management duties. For 
example, O*NET indicates "Marketing Managers" "[o]versee product development or monitor trends 
that indicate the need for new products and services," "[c]ompile lists describing product or service 
offerings," and "[n]egotiate contracts with vendors or distributors to manage product distribution, 
establishing distribution networks or developing distribution strategies."8 Similarly, these proffered 
position duties also correspond to tasks of another occupational category, "Advertising and 
Promotions Managers," SOC code 11-2011, such as "[c]onfer with clients to provide marketing or 
technical advice," "[c]ontact organizations to explain services and facilities offered," and "[a]ssemble 
and communicate with a strong, diverse coalition of organizations or public figures, securing their 
cooperation, support, and action, to further campaign goals."9 
Furthermore, the supplementary job duty descriptions indicate that the Beneficiary will "plan and 
coordinate the development of marketing communications, direct marketing materials, internet 
content, and public relations programs for worldwide sales of [Petitioner's] products," "organize 
marketing campaigns," and "promote [the Petitioner's] business capabilities and increase [its] business 
networks by assisting in the preparation and writing of promotional and informational pieces for trade 
publications, reference materials, advertisements, partnership agreements, online projects, and other 
digital resources." Once more, these duties appear to go beyond the normal scope of duties for 
marketing research analysts and marketing specialists and align more closely with the marketing 
manager or advertising and promotions manager duties. For example, O*NET indicates "Marketing 
Managers" "[f]ormulate, direct, or coordinate marketing activities or policies to promote products or 
services, working with advertising or promotion managers." Likewise, "Advertising and Promotions 
Managers" "[p]lan and execute advertising policies and strategies for organizations," and "[p]lan and 
prepare advertising and promotional material to increase sales of products or services, working with 
customers, company officials, sales departments, and advertising agencies." The level of 
responsibility related to the proffered position's communications, advertising, and promotional duties 
appears to be significant and managerial in nature. Nevertheless, we are unable to determine the actual 
scope of responsibility given the overly broad duty descriptions used. 
The Petitioner also states that the Beneficiary will "attend international sporting goods merchandise 
trade shows and conferences to observe market trending (total trips approximately 8 weeks per year)." 
While O*NET indicates that "[m]onitor[ing] industry statistics and follow[ing] trends in trade 
literature" is a common task for marketing research analysts and marketing specialists, it does not 
indicate that traveling or attending trade shows and conferences are common methods to track industry 
8 Id. 
9 Summary Report for: 11-2011.00 - Advertising and Promotions Managers, O*NET Online Archives, 
https://www.oneton Ii ne .org/ Archive_ ON ET-SOC_ 2010 _Taxonomy_ 09 _ 2020/1 i nk/su mmary/11-2011.00 (last visited 
Nov. 19, 2020) .. 
5 
trends for the occupation.10 However, attending trade shows to promote products is listed as a common 
task associated with "Marketing Managers,"11 "Advertising and Promotions Managers"12 and "Sales 
Managers, "13 all of which occupations also include a variety of other tasks involved with directing and 
coordinating activities related to the sale and promotion of products and services. Considering the 
duties discussed above and lack of clarity in the record, we question whether the Beneficiary's duties 
while attending trade shows will also go beyond information gathering and analysis and include 
higher-level management duties. 
Given the degree to which the proffered job duties match those of other occupations, it appears more 
I ikely than not that the LCA submitted with the petition does not correspond to the proffered position.14 
Where multiple SOC codes correspond with the duties of a proffered position, the SOC code with the 
higher prevailing wage should be selected.15 Although there may be some overlap between the 
"Market Research Analysts and Marketing Specialists" occupation, and the "Marketing Managers," 
"Sales Managers," and "Advertising and Promotions Managers" occupations, the latter managerial 
occupations all command higher prevailing wages.16 The record does not include clarifying 
information or evidence distinguishing the proffered position from the higher paying occupations. We 
are unable to ascertain the nature and level of responsibility of the proposed position from the 
Petitioner's broad description, including whether the duties as described correspond to the occupation 
designated on the LCA. 
Next, the Petitioner generates further questions regarding the substantive nature of the position's duties 
due to ambiguities relating to the level of experience required to perform the duties. The Petitioner does 
not indicate it requires a specific number of years of experience. However, in its support letter it 
indicates that it requires employees in the proffered position to have developed a "solid understanding 
of international markets, financial impact of import/export tax and logistic issues relative to Russia, 
Europe and North America, and statistical modeling of market trends." Although the Petitioner does 
not specifically indicate what level of experience it considers to correlate with a "solid understanding," 
it states that the Beneficiary qualifies for the position because he "has over 20 years of experience in 
10 See https://www.onetonline.org/link/details/13-1161.00 (last visited Nov. 20, 2020). 
11 See https://www.onetonline.org/search/task/choose/11-2021.00 (last visited Nov. 20, 2020). 
12 See https://www.onetonline.org/link/details/11-2011.00 (last visited Nov. 20, 2020). 
13 Summary Report for: 11-2022.00- Sales Managers, O*NET Online Archives, 
https://www.onetonline.org/Archive_ONET-SOC_2010_ Taxonomy_09_2020/link/summary/11-2022.00 (last visited 
Nov. 19, 2020). 
14 See 20 C.F.R. § 655.705(b) ("DHS determines whether the petition is supported by an LCA which corresponds with the 
petition .... "). See also Matter of Simeio Solutions, 26 l&N Dec. at 546 n.6. 
15 DOL guidance indicates, "If the employer's job opportunity has worker requirements described in a combination of 
O*NET occupations, the NPWHC should default directly to the relevant O*NET-SOC occupational code for the highest 
paying occupation. For example, if the employer's job offer is for an engineer-pilot, the NPWHC shall use the education, 
skill and experience levels for the higher paying occupation when making the wage level determination." U.S. Dep't of 
Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009), avai I able at http://www.foreignlaborcert.doleta.gov/pdf/N PWHC _Guidance_ Revised_ 11 _ 2009.pdf. 
16 The Petitioner's LCA certifies that the Level II prevailing wage for a market research analyst and marketing specialist 
is $52,083 per year. Conversely, in the area and for the time period when the petition was filed, the Level I prevailing 
wage would be $77,418 per year for a marketing manager, $57,366 per year for an Advertising and Promotions Manager, 
and $73,798 per year for a sales manager. To determine a prevailing wage and for more information, see the Foreign 
Labor Certification Data Center's Online Wage Library, available at https://www.flcdatacenter.com (last visited 
Nov. 20, 2020). 
6 
international markets, researching and developing sales statistics, competitor pricing, and economic 
marketing data for sales initiatives of various country products ... with specific review and analysis 
for international markets," and that it is this experience which "provides [him] a solid understanding 
of international markets, financial impact of import/export tax and logistic issues relative to Russia, 
Europe and North America, and statistical modeling of market trends."17 The record is not clear as to 
what level of experience is actually required. Given the Petitioner's apparent reliance on the 
Beneficiary's extensive experience and considering the senior-level duties discussed above it appears 
a significant level of experience is needed to perform the duties of the proffered position as described. 
Referencing the DOL's Prevailing Wage Determination Policy Guidance, such an experience 
requirement would increase the wage level for the proffered position.18 
The proffered position is a Job Zone Four occupation with a specialized vocational preparation (SVP) 
rating of 7 < 8. Per the DOL guidance, if more than two years of experience is required for such an 
occupation, the wage level must be increased to accommodate the experience requirement. In this 
instance, if the position requires experience equivalent to the Beneficiary's 20+ years, in addition to 
the required bachelor's degree or its equivalent, as the evidence suggests, a corresponding three-level 
increase above the entry-level requirements for the position is necessary. Accordingly, the required 
wage level for the Petitioner's position would be a Level IV wage. 
Regarding the wage level selected, the Petitioner cites the expert opinion letter it provided and states the 
supplementary detailed duty descriptions in its support letter lead to the conclusion that the position is 
"similar in nature and complexity [to that of] a Market Research Analyst, and even move [it] into the 
Level 11 category for complexity beyond an entry level." While we agree that the duties do not appear to 
be entry level, the Petitioner did not provide the proper five-step wage level analysis as proscribed in the 
DOL guidance to support its assertion that the position requires only a Level 11 wage. Considering the 
evidence discussed, the Level 11 wage designated on the certified LCA also calls into question the 
substantive nature of the position and appears inconsistent with the degree of specialized knowledge and 
experience the Petitioner actually requires to perform the duties.19 
Without more specific evidence regarding the nature of the proffered position's duties, and in the absence 
of a sufficiently reliable job description, the Petitioner has not demonstrated the substantive nature of the 
work to be performed by the Beneficiary. This, therefore, precludes analysis of whether the proffered 
position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). The record also does not demonstrate 
that performing the duties described would require the theoretical and practical application of highly 
specialized knowledge and attainment of at least a bachelor's degree in a specific specialty or its 
equivalent. See section 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty 
occupation). Therefore, the Petitioner has not sufficiently established the proffered position's duties or 
17 The test to establish a position as a specialty occupation is not the Beneficiary's education or experience but whether the 
position itself requires specific specialty knowledge. 
18 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf. 
19 Even if we set aside the ambiguities and inconsistencies discussed, the petition may also not be approved because the 
Petitioner has not provided a certified LCA that corresponds to the petition as required by 20 C.F.R. § 655.705(b). As 
discussed, the record does not include sufficient evidence establishing that the Petitioner designated the proper 
occupational classification and wage level on the certified LCA. 
7 
the educational background required to perform those duties commensurate with a specialty occupation. 
Further, the record is insufficient to establish that the certified LCA corresponds to and supports the 
petition. 
ORDER: The appeal is dismissed. 
8