dismissed H-1B Case: Educational Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF L-S-E-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 29,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an educational consulting business, seeks to temporarily employ the Beneficiary as a 
"market research analyst" under the H-lB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-lB 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, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner had not established the proffered position as a specialty occupation; and had not 
established that the Beneficiary maintained his previously accorded status. The Petitioner filed a 
subsequent combined motion to reopen and reconsider the Director's decision. The Director 
thereafter affirmed the denial of the petition. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erroneously concluded that it had not established that the protiered position 
is a specialty occupation. The Petitioner also asserts that U.S. Citizenship and Immigration Services 
(USCIS) has discretion to excuse a Beneficiary who did not maintain the previously granted status 
under certain conditions. 1 
Upon de novo review, we will dismiss the appeal. 
1 We note here that we have no jurisdiction over issues surrounding the Beneficiary's admissibility and maintenance of 
status as those issues are within the discretion of the Director. See 8 C.F.R. 2 I 4. I §§ (c)( 4) and (5). Accordingly, we 
will not address this issue. The visa petition procedure is not the forum for determining substantive questions of 
admissibility under the immigration laws. When eligibility for the claimed status is established, the petition should be 
granted. Matter o[O, 8 I&N Dec. 295 (BIA I 959). As will be discussed, eligibility for the Beneficiary's employment in 
H-I B status has not been established. 
Matter of L-S-E-, LLC 
L LAW 
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: 
{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). USCIS has consistently interpreted the term "degree" in the criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the 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 
In the H-lB petition, the Petitioner stated that it is a two-employee company and that the Beneficiary 
will serve as a part-time "market research analyst. "2 In a letter submitted in support of the petition, 
the Petitioner provided the following description of the duties of the proffered position: 
2 We note that the Petitioner has also presented evidence that it has paid instructors to work on a contract basis. 
2 
Matter of L-S-E-, LLC 
• Prepare business plan and marketing campaigns for international students and 
domestic students. 
• Establish network with foreign educational institute for sharing marketing 
information and sharing exchange students programs for summer schools 
program. 
• Responsible for the development and management of marketing 
activities/campaigns including implementation of direct marketing strategies and 
plans, advertising, sales events, trade show involvement and sponsorships that 
drive measurable improvement in company performance (gross profit and client 
acquisition/penetration)[.] 
• Provides strategic and planning support of marketing activities as well as prepares 
materials for presentations[.] 
• Assists in the development of web or other media[.] 
• Researches and coordinates outside resources to deliver marketing activities[.] 
• Provides guidance to a team of other marketing professionals who manage and 
implement marketing projects. 
• Analyze effectiveness on various advertisements on newspapers, on-line and other 
media and save the advertisement expenses. 
• Gather data on competitors and analyze their prices, sales, and method of 
marketing and distribution. 
• Collect and analyze data on customer demographics, preferences, needs, and 
buying habits to identify potential markets and factors affecting product demand. 
• Devise and evaluate methods and procedures for collecting data, such as surveys, 
opinion polls, or questionnaires, or arrange to obtain existing data. 
• Monitor industry statistics and follow new trends in education market. 
• Measure the effectiveness of marketing, advertising, and communications 
programs and strategies. 
• Forecast and track marketing and sales trends, analyzing collected data~ 
• Attend staff conferences to provide management with information and proposals 
concerning the promotion, distribution, design, and pricing of company products 
or services. 
According to the Petitioner "an applicant must have at least a bachelor's degree in business 
management, management, or related area" for this position. In response to the Director's request 
for evidence (RFE) the Petitioner referenced some of the duties listed above, referred to the 
description of duties listed in the letter submitted in support of the petition, and modified the 
requirement to perform these duties to "at least a bachelor's in business degrees and experience as a 
market research analyst." 
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. 
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Matter~( L-S-E-, LLC 
Specifically, the record does not (1) describe the position's duties with sufficient detail; and (2) 
establish that the job duties require an educational background, or its equivalent; commensurate v~'ith 
a specialty occupation. 3 
On the labor condition application (LCA) 4 submitted in support of the H-1 B 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 
Upon review of the general description of duties, the Petitioner has not provided sufficient evidence 
of what the Beneficiary will actually do in the proposed position so that we may analyze and 
ascertain the educational requirements required to perform those duties. 
For example, several of the duties listed as duties for the Petitioner's proffered position paraphrases 
the duties listed in the Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) 
subchapter on "Market Research Analysts," rather than describing the actual duties that will engage 
the Beneficiary while working within the Petitioner's organization. See U.S. Dep't of Labor, Bureau 
of Labor Statistics, Occupational Outlook Handbook, 2016-1 7 ed., Market Research Analysts, 
https ://wv.w. bl s. gov I oohlbusiness-and- financial/market -research-anal ysts.htm#tab- 2 (last vi sited 
Dec. 23, 2016). The Petitioner also recites portions of the broadly stated duties outlined in the 
Occupational Information Network (O*NET) Online Summary Report for market research analysts 
and marketing specialists. See http://www.onetonline.org/link/summary/13-1161.00 (last visited 
Dec. 23, 2016). The overview of an occupation as reported in the Handbook and in the O*NET 
summary report cannot be relied upon when discussing the duties attached to specific employment. 
In establishing a position as a specialty occupation, a petitioner must describe the specific duties and 
responsibilities to be performed by a beneficiary in relation to its particular business interests. 
Although the Petitioner generally references a business plan and marketing campaigns for 
international and domestic students and establishing a network with a foreign educational institute, 
the Petitioner does not otherwise tie specific marketing tasks to its college preparatory academy. 
3 The Petitioner submitted documentation to support the H-1 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. , 
4 
The Petitioner is required to submit a certified LCA to USC IS 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 o(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 he 
will be closely supervised and his work closely monitored and reviewed for accuracy: and (3) that he 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://flcdatacenter.com/download/NPWHC_Guidance_Revised_JJ_2009.pdf A prevailing 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 L-S-E-, LLC 
Moreover, the Petitioner indicated that the individual in the proffered position will provide guidance 
to a team of marketing professionals but does not identify a department or other employees or 
contract workers who will perform marketing duties. The Petitioner's overview of the occupation 
does not place the Beneficiary's actual duties within the context of the Petitioner's tvv·o-employee 
organization. Nor does this overview convey an understanding of the Beneficiary's actual duties for 
the Petitioner. Upon review of the Petitioner's general description of the proffered position it is not 
possible to ascertain what duties \viii actually engage the Beneficiary on a day-to-day basis in his 
involvement, if any, in analyzing the Petitioner's market research efforts. 
The Petitioner's vague description of the duties of the proffered position therefore precludes a 
finding that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it 
is the substantive nature of that work that determines (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. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation and the appeal must be dismissed on this basis alone. 
Nevertheless, for the sake of argument and assuming that the Beneficiary will perform the duties of a 
market research analyst as designated on the LCA, we will analyze the position and the evidence of 
record to determine whether the proffered position as described would qualify for classification as a 
specialty occupation. To that end and to make our determination as to whether the employment 
described above qualifies as a specialty occupation, we turn to the criteria at 8 C.F .R. 
§ 214.2(h)(4)(iii)(A). 6 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), 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 DOL's Handbook as an 
authoritative source on the duties and educational requirements of the wide variety of occupations 
that it addresses. 7 
6 
Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
7 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 
5 
Matter of L-S-E-, LLC 
The subchapter of the Handbook entitled "How to Become a Market Research Analyst" states, in 
relevant part, the following: 
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. 
Education 
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. 
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. 
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. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook. 2016-17 ed., 
Market Research Analysts, https://www. bls.gov/ooh/business-and- financial/market -research­
analysts.htm#tab-4 (last visited Dec. 23, 2016). 
When reviewing the Handbook, we note that the Petitioner designated the proffered position under 
this occupational category at a Level I on the LCA. Based upon the Petitioner's designation of the 
proffered position as a Level I position (relative to others with the occupation) it does not appear that 
the Beneficiary will serve in a senior or leadership role or in a position that performs more technical 
research which would require a master's degree. 
The Handbook reports that market research analysts 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, other market research analysts have backgrounds in fields such as business 
general tasks and responsibilities of a proffered position, and USC IS regufarly 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. 
6 
Matter of L-S-E-, LLC 
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 
and further explains that courses in communications and social sciences (such as economics, 
psychology, and sociology) are also important. Therefore, although the Handbook indicates that 
market research analysts typically need an advanced degree, it also indicates that degrees and 
backgrounds in various fields are acceptable for jobs in this occupation, including computer science 
and the social sciences, as well as statistics and communications. 
The Handbook also reports that "others have backgrounds in business administration." While 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, \viii not justify a finding 
that a particular position qualifies for classification as a specialty occupation. See Royal Siam Corp. 
v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007). That is, USCIS interprets the degree requirement at 
8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific specialty (or its equivalent) that is 
directly related to the proposed position. 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 administration, 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). 
Therefore, the Handbook's recognition that a general, non-specialty "background" in business 
administration is sufficient for entry into the occupation suggests that a bachelor's degree in a 
spec(fic specialty is not normally the minimum entry requirement for this occupation. 
Finally, we note that the Petitioner cites to Residential Finance Corp. v. USC!S, 839 F. Supp. 2d 985 
(S.D. Ohio 2012), for the proposition that "[t]he knowledge and not the title of the degree is what is 
important. Diplomas 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." 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 two 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 highly specialized knowledge is essentially an amalgamation 
of these different specialties. Section 214(i)(l)(B) of the Act (emphasis added). For the 
aforementioned reasons, however, the Petitioner here has not met its burden to establish that the 
7 
Matter of L-S-E-, LLC 
particular position offered in this matter requires a bachelor's or higher degree in a specific specialty, 
or its equivalent, directly related to the duties described.8 
In any event, the Petitioner has ,furnished no evidence to establish that the facts of the instant 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. 
In this case, the Petitioner has not established that the proffered position falls under an occupational 
category for which the Handbook, or other authoritative source, indicates that normally the 
minimum requirement for entry is at least a bachelor's degree in a specific specialty, or its 
equivalent. The record lacks sufficient evidence to support a finding that the particular position 
proffered here would normally have such a minimum, specialty degree requirement or its 
equivalent. The duties and requirements of the position as described in the record of proceeding do 
not indicate that this particular position proffered by the Petitioner is one for which a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry. 
Upon review of the totality of the record, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(l). 
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 
concentrates upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
8 The Petitioner in this matter appears to accept a bachelor's degree in business management or a "bachelor's in business 
degrees" with an unspecified amount of market research experience, as sufficient to perform the duties of the proffered 
position. Acceptance of a general degree in business or business management suggests that the proffered position does 
not require a bachelor's or higher degree in a specific specialty, or its equivalent. And the Petitioner here does not 
elaborate on the specific experience required, if any. 
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. 
8 
-----------------------------------
(b)(6)
Matter of L-S-E-, LLC 
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 
equivalent) is common to the industry in parallel positions among similar organizations. 
When determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requir~ment; and whether 
letters or affidavits from firms or individuals in the industry attest 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)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative sources) reports an industry-wide 
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 its assertion that the degree requirement is common to the Petitioner's industry in 
parallel positions among similar organizations, the Petitioner submitted copies of advertisements 
from universities and other educational preparatory/testing companies. 1° For the advertisements to 
be relevant in the analysis of this criterion, the advertisements must be for parallel positions tor 
companies similar to the Petitioner. We have reviewed the two advertisements from 
and and note that although the Petitioner appears to be in 
the education business, these two advertisers are not similar to the Petitioner in scope, size, and 
nature of business. Upon review of the advertisements from and 
although they appear to be in the Petitioner's industry, the Petitioner has not established 
that they are similar to it in scope and size. We also note that the advertisement is 
for a market analyst and requires only a general bachelor's degree, not a bachelor's degree in a 
specific specialty. 11 Thus, not only does the description of duties in this advertisement lack 
sufficient detail to compare it to the proffered position, the advertiser's acceptance of a general 
bachelor's degree, without more, is an acknowledgement that the position is not a specialty 
occupation. Upon review of the advertisement, we note that the advertiser 
accepts a bachelor's degree in a variety of fields, and also requires 10 to 15 years of related 
10 
We note that the Petitioner, in its response to the Director's RFE identified five advertisements from universities 
soliciting market research or marketing analysts; however, the record only includes copies of advertisements from two 
universities. Accordingly, we will not discuss the advertisements that were not submitted for the record. 
11 
As discussed above, there must be a close correlation between the required specialized studies and the position; thus. 
the mere requirement of a degree, without further specification, does not establish the position as a specialty 
occupation. Cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm 'r 1988). 
9 
(b)(6)
Matter ~fL-S-E-, LLC 
experience. As the Petitioner has designated the proffered position at a Level I wage on the LCA, a 
wage suitable for those individuals with only a basic understanding of the occupation, this 
advertisement which requires a significant amount of experience is not for a position that is parallel 
to the proffered position in level of responsibility. 
We have also reviewed the advertisement, information regarding 
organization, and the Petitioner's assertions on motion to the Director and on appeal 
regarding its similarity to in purpose and operation. 12 The Petitioner asserts specifically, that 
although it is not as large as its operations are functionally similar to and 
additionally, the duties of its market research analyst are more technical and complex than those in 
advertisement. The Petitioner also cites Young China Daily v. Chappell, 742 F. Supp. 552 
(N.D. Cal. 1989), asserting that it is not only the size ofthe business but the duties of the position as 
those duties relate to the nature of the petitioner's business that are most relevant. The Petitioner 
claims that, accordingly, its position should qualify as a specialty occupation. 
First, we note that in establishing the first prong of this criterion, we must determine \vhether there is 
a "degree requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or 
its equivalent) that is common to the industry in parallel positions among similar organizations. 
Thus, when analyzing this criterion, our analysis is concentrated on the Petitioner's similarity to 
other organizations in the Petitioner's industry, as well as whether the protTered position is parallel 
to other positions. Here, the Petitioner has not established that its functional operations are similar to 
except in the most general sense. While both entities are engaged in the college preparatory 
and test industry, the record does not include sufficient information to determine the organizational 
complexity of so that we may conclude that and the Petitioner's functional operations 
are similar. That is, it is not possible to properly assess and compare the role of market 
research and consumer insights analyst to the Petitioner's market research analyst role within its 
two-employee organization. Second, as discussed above, the Petitioner identifies only general 
market researching duties and does not establish what duties the Beneficiary will actually perform 
within the context of its organization. For example, although the Petitioner claims that its market 
research analyst position is more technical and complex than the position, the Petitioner does 
not offer an analysis comparing the two positions and explain why the duties of the position 
12 In the Director's motion decision, the Director stated that "[i]fthe [P]etitioner's operations were functionally similar to 
and therefore generated the complexity of work that exists for employees of to perform, the proffered 
position would qualify." We disagree with thi~ general statement based on the specific record before us. That is, this 
record does not include sufficient evidence to establish th~t the proffered position is a specialty occupation even if the 
Petitioner had established that it is similar to The advertisement and the information regarding 
do not establish that a bachelor's degree in a specific specialty is common to the industry in parallel positions among 
similar organizations. The Petitioner does not demonstrate what statistically valid inferences, if any, can be drawn from 
this one job posting with regard to the common educational requirements for entry into parallel positions in similar 
organizations in the college preparatory industry. See generally Earl Babbie, The Practice ()(Social Research 186-228 
(7th ed. 1995). 
10 
(b)(6)
Matter of L-S-E-, LLC 
are simpler than the duties of the proffered position. 13 Moreover, when revie\ving the 
advertisement, requires only a' general bachelor's degree to perform the duties it describes. 
While also indicates that an additional three to five years of experience is required, the 
experience fields are not clearly defined. These deficiencies and lack of information preclude a 
conclusion that advertised position is parallel to the Petitioner's market research analyst 
position. Moreo':'er this advertisement is insufficient to establish that a bachelor's degree in a 
specific specialty is common in the Petitioner's industry in similar organizations for a market 
research analyst position. 
In sum, the advertisement and the other advertisements submitted are insufficient to establish 
that the advertised positions are parallel to the Petitioner's 
proffered position and that the advertisers 
are organizations similar to the Petitioner and are within the same industry. The advertisements do 
not demonstrate that a "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. Thus, 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 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. 
In this matter, the evidence of record does not distinguish the proffered position as unique from or 
more complex than other market research analyst positions that can be performed by persons without 
at least a bachelor's degree in a specific specialty, or its equivalent. To begin with, as determined 
above, the record does not credibly demonstrate exactly what the Beneficiary will do on a day-to-day 
basis such that complexity or uniqueness can even be determined. That is, the evidence of record 
does not establish that this position is significantly different from other market research analyst 
positions such that it refutes the Handbook's information to the effect that there is a spectrum of 
degrees acceptable for market research analysts positions, including degrees in fields of general 
applicability. 
Additionally, although the Petitioner claims that the proffered position's duties are so complex and 
unique that a bachelor's degree is required, the Petitioner does not demonstrate how the market 
research analysts duties described require the theoretical and practical application of a body of 
highly specialized knowledge such that a bachelor's or higher degree in a specific specialty, or its 
equivalent, is required to perform them. For instance, the Petitioner did not submit information 
13 We again note that the Petitioner has designated the proffered position as requiring only a Level I wage. As will be 
discussed, a wage level that requires only a basic understanding of the occupation and the performance of routine job 
duties is not a complex position within the occupation. 
II 
Matter ofL-S-E-, LLC 
relevant to a detailed course of study leading to a specialty degree and did not establish how such a 
curriculum is necessary to perform the duties it claims are so complex and unique. While a few 
related courses may be benet1cial in performing certain duties of the position, the Petitioner has not 
demonstrated how an established curriculum of such courses leading to a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is required to perform the duties of the proffered 
position. This is further evidenced by the LCA submitted by the Petitioner in support of the instant 
petition. 14 Again, the LCA indicates that, relative to other positions located within the "Market 
Research Analysts and Marketing Specialists" occupational category, the Beneficiary would perform 
routine tasks that require only a basic understanding and require limited, if any, exercise of 
judgment. Without further evidence, the record does not demonstrate that the proffered position is 
complex or unique as such a position falling under this occupational category would likely be 
classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) position, 
requiring a significantly higher prevailing wage. 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references his formal 
education and experience as evidence that the protlered position is a specialty occupation. 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 Here, the Petitioner did not sufficiently develop relative complexity or 
uniqueness as an aspect of the duties of the position, and it did not identify any tasks that are so 
complex or unique that only a specifically degreed individual could perform them. Thus, it cannot 
be concluded that the Petitioner has satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The Petitioner indicates that it has not previously employed a market research analyst and states that 
its president had previously performed the duties of the proffered position. We note that the 
Petitioner's president's bachelor's degree is in political science and is not in a field that appears to be 
directly related to the proffered position. 
14 The issue here is that the Petitioner's designation ofthis position as a Level I 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)(l) ofthe Act. 
12 
Matter of L-S-E-, LLC 
Additionally, we note that to satisfy this criterion the record must establish that the specific 
performance requirements of the position generated the recruiting and hiring history. A petitioner's 
perfunctbry declaration of a particular educational requirement will not mask the fact that the 
position is not a specialty occupation. USCIS must examine the actual employment requirements 
and, on the basis of that examination, determine whether the position qualifies as a specialty 
occupation. 15 See generally Defensor v. Meissner, 201 F.3d 384. While a first-time hiring for a 
position is certainly not a basis for precluding a position from recognition as a specialty occupation, 
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). The record here is insufficient to 
conclude that the Petitioner has satisfied the third criterion. 
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. 
The Petitioner asserts that the job duties of the profiered position are specialized and complex and 
references the extremely competitive nature of the college preparation education market in Northern 
Virginia on appeal. The Petitioner also notes that it has invested heavily in market research and 
marketing its services and refers to the Beneficiary's education as essential to its marketing eflorts. 
Again, we point out that the Beneficiary's qualifications do not establish a position is a specialty 
occupation. We recognize that the Petitioner desires to employ an individual with expertise in a 
specific education market. However, we have again reviewed the Petitioner's description of duties 
for the proffered position and find that the Petitioner has not sufficiently developed relative 
specialization and complexity as an aspect of the protiered position. In other words, the proposed 
duties have not been described with sufficient specificity to show that they are more specialized and 
complex than market research analyst positions that are not usually associated with at least a 
bachelor's degree in a specific specialty, or its equivalent. We also incorporate our earlier 
discussion and analysis regarding the duties of the proffered position, and the designation of the 
position in the LCA a~ a Level I position (the lowest of four assignable wage-levels) relative to 
15 The critical element is not the title of the position, or the fact that an employer has routinely insisted on certain 
educational standards, but whether performance of the position actually requires the theoretical and practical application 
of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific 
specialty, or its equivalent, as the minimum for entry into the occupation as required by section 214(i)( I) of the Act. 
According to the Court in D~fensor, "To interpret the regulations any other way would lead to an absurd result." !d. at 
388. If USCIS were constrained to recognize a specialty occupation merely because the petitioner has an established 
practice of demanding certain educational requirements for the proffered position -and without consideration of how a 
beneficiary is to be specifically employed- then any beneficiary with a bachelor's degree in a specific specialty could be 
brought into the United States to perform non-specialty occupations, so long as the employer required all such employees 
to have baccalaureate or higher degrees. See id. 
13 
Matter of L-S-E-, LLC 
others within the same occupational category. Upon review of the totality of the record, it does not 
include probative evidence that the duties as generally described require more than technical 
proficiency in the marketing research field. 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). 
IV. CONCLUSION 
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. The burden is on the 
Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of L-S-E-, LLC, ID# 12555 (AAO Dec. 29, 2016) 
14