dismissed H-1B Case: Electrical Contracting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-H-E-, INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 30,2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an electrical contractor, seeks to temporarily employ the Beneficiary as a "Business 
Manager" under the H -1 B nonimmigrant classification. See Immigration and Nationality Act (the 
Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, California Service 
Center, denied the petition. The matter is now before us on appeal. The appeal will be dismissed. 
I. ISSUE 
The issue before us is whether the proffered position qualifies as a specialty occupation m 
accordance with the applicable statutory and regulatory provisions. 1 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
1 We conduct appellate review on a de novo basis. Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); see 
also 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); Dar v. INS, 891 F.2d 997, 
1002 n.9 (2d Cir. 1989). 
Matter of B-H-E-, Inc 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Cherto_ff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
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Matter of B-H-E-, Inc 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-lB petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Proffered Position 
The Petitioner claims in the Labor Condition Application (LCA) submitted to support the visa 
petition that the proffered position corresponds to Standard Occupational Classification (SOC) code 
and title 11-2022, Sales Managers, from the Occupational Information Network (O*NET). The 
Petitioner further states on the Form I-129 that it would like to hire the Beneficiary on a part-time 
basis. 
In a letter dated August 6, 2014, the Petitioner described the duties of the proffered position and the 
Beneficiary's performance in the position as follows: 
As the [Petitioner] develops, we continue to be in need of a general business 
manager who will be responsible for planning, directing and coordinating [the 
Petitioner's] operations, compensation and benefits of our employees. He will 
administer, direct and review employee benefit program, coordinate work activities 
related to employment, compensation, labor relations. [The Beneficiary] has been 
also preparing budget for our operations. I would like to emphasize that the majority 
of our employees and clients are Polish. [The Beneficiary] has been as such be [sic] a 
great asset to our company not only because of his education and qualifications, but 
also because of his language skills. 
In response to the Director's RFE, the Petitioner provided a document headed, "Specialty 
Occupation Requiring Attainment of a Bachelor's Degree." That document contains the following 
description of the duties of the proffered position: 
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Matter of B-H-E-, Inc 
• Plan, direct and coordinate [the Petitioner's] operations, compensation and 
benefits of employees 
• Administer, direct and review employees' benefit program 
• Coordinate work activities relating to employment, compensation, labor relations 
• Prepare budget 
• Resolve customer complaints 
• Plan and direct staffing and performance evaluations 
• Determine price and discount rates 
• Direct and coordinate activities involving sales of manufactured products, 
serv1ces 
• Confer with potential customers regarding services needed 
• Confer with current and new suppliers 
• Prepare bids for construction projects 
• Draw up contracts for projects 
C. Analysis 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirementfor entry into the particular position 
Turning to the criteria at 8 C.P.R.§ 214.2(h)(4)(iii)(A), we will first discuss the record of proceeding 
in relation to the criterion at 8 C.P.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. 
As was noted above, the Petitioner claims in the LCA that the proffered position corresponds to SOC 
code and title 11-2022, Sales Managers, from O*NET. The LCA further states that the proffered 
position is a wage Level I, entry-level, position. 
We recognize the U.S. Department of Labor's Occupational Outlook Handbook (Handbook), cited 
by the Petitioner, as an authoritative source on the duties and educational requirements of the wide 
variety of occupations that it addresses? The Handbook states the following about the educational 
requirements of sales manager positions: 
How to Become a Sales Manager 
Most sales managers have a bachelor's degree and work expenence as a sales 
representative. 
2 The Handbook, which is available in printed form, may also be accessed on the Internet, at http://www.bls.gov/oco/. 
Our references to the Handbook are to the 2014-2015 edition available online. 
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Matter of B-H-E-, Inc 
Education 
Most sales managers have a bachelor's degree: some have a master's degree. 
Educational requirements are less strict for job candidates who have significant 
experience as a sales representative. Courses in business law, management, 
economics, accounting, finance, mathematics, marketing, and statistics are 
advantageous. 
Work Experience in a Related Occupation 
Work experience is typically required for someone to become a sales manager. The 
preferred duration varies, but employers usually seek candidates who have at least 1 
to 5 years of experience. 
Sales managers typically enter the occupation from other sales and related 
occupations, such as sales representatives or purchasing agents. In small 
organizations, the number of sales manager positions often is limited, so advancement 
for salesworkers usually comes slowly. In large organizations, promotion may occur 
more quickly. 
Important Qualities 
Analytical skills. Sales managers must collect and interpret complex data to target the 
most promising geographic areas and/or demographic groups, and determine the most 
effective sales strategies. 
Communication skills. Sales managers need to work with people in other 
departments and with customers, so they must be able to communicate clearly. 
Customer-service skills. When helping to make a sale, sales managers must listen and 
respond to the customer's needs. 
Leadership skills. Sales managers must be able to evaluate how their sales staff 
performs and must develop strategies for meeting sales goals. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Sales Managers," http://www.bls.gov/ooh/management/sales-managers.htm#tab-4 (last visited Nov. 
27, 2015). 
The Handbook does not indicate that a bachelor's degree in a specific specialty, or the equivalent, is 
normally required for entry into this occupation. That is, while the Handbook states that "[ m ]ost 
sales managers have a bachelor's degree," it does not state whether the bachelor's degree must be in 
a specific specialty, and if so, which specific specialty. As was noted previously, we interpret the 
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Matter of B-H-E-, Inc 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. In 
addition, the Handbook states that courses in a wide range of subjects including business law, 
management, and economics are "advantageous." However, the Handbook does not state that such 
courses are required, or that these courses cumulatively lead to a bachelor's degree in a specific 
specialty. As such, the Handbook does not support the Petitioner's eligibility under the criterion at 
8 C.F .R. § 214.2(h)( 4 )(iii)( A)( 1). 
When reviewing the Handbook, it also must be noted that the Petitioner designated the proffered 
position as a Level I (entry level) position on the LCA. The wage levels are defined in DOL's 
"Prevailing Wage Determination Policy Guidance." A Level I wage rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees 
who have only a basic understanding of the occupation. These employees perform 
routine tasks that require limited, if any, exercise of judgment. The tasks provide 
experience and familiarization with the employer's methods, practices, and programs. 
The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored 
and reviewed for accuracy. Statements that the job offer is for a research fellow, a 
worker in training, or an internship are indicators that a Level I wage should be 
considered. 
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. 
Thus, in designating the proffered position at a Level I wage, the Petitioner has indicated that the 
proffered position is a comparatively low, entry-level position relative to others within the 
occupation. That is, in accordance with the relevant DOL explanatory information on wage levels, 
this wage rate indicates that the Beneficiary is only required to have a basic understanding of the 
occupation and carries expectations that the Beneficiary perform routine tasks that require limited, if 
any, exercise of judgment; that he would be closely supervised; that his work would be closely 
monitored and reviewed for accuracy; and that he would receive specific instructions on required 
tasks and expected results. As noted above, according to DOL guidance, a statement that the job 
offer is for a research fellow, worker in training or an internship is indicative that a Level I wage 
should be considered. 
In certain instances, the Handbook is not determinative. When the Handbook does not support the 
proposition that a proffered position is one that meets the statutory and regulatory provisions of a 
specialty occupation, it is incumbent upon the Petitioner to provide persuasive evidence that the 
proffered position more likely than not satisfies this or one of the other three criteria, 
notwithstanding the absence of the Handbook's support on the issue. In such case, it is the 
(b)(6)
Matter of B-H-E- , Inc 
Petitioner's responsibility to provide probative evidence (e.g., documentation from other objective, 
authoritative sources) that supports a finding that the particular position in question qualifies as a 
specialty occupation. Whenever more than one authoritative source exists, an adjudicator will 
consider and weigh all of the evidence presented to determine whether the particular position 
qualifies as a specialty occupation . 
In that regard, the Petitioner cited the O*NET OnLine Summary Report for Sales Managers as 
evidence that the proffered position requires a bachelor's degree.3 The classification of sales 
manager positions in Job Zone Four rating groups them among occupations of which "most," but not 
all, "require a four-year bachelor's degree." 4 It indicates, therefore, that some such positions do not 
require a bachelor's degree. Further, even as to those sales manager positions that may require a 
degree, O*NET does not indicate that the requisite degrees must be in a specific specialty closely 
related to the requirements of that occupation. Therefore, the classification of sales manager 
positions in Job Zone Four is not probative of the proffered position's being a specialty occupation. 
Similarly, an SVP rating is meant to indicate only the total number of years of vocational preparation 
required for a particular position:5 It does not describe how those years are to be divided among 
training, formal education , and experience, and it does not specify the particular type of degree, if 
any, that a position would require. Thus, an SVP rating of7.0 to < 8.0 does not indicate that at least 
a four-year bachelor's degree is required, or more importantly, that such a degree must be in a 
specific specialty closely related to the occupation to which this rating is assigned. 
We will now address the evaluation of the proffered position that the Petitioner provided on appeal. 
The evaluation was prepared by an associate dean of the 
states that, based on the nature of the Petitioner's 
business and the duty description provided, the proffered position requires a minimum of a 
bachelor 's degree in business management, operations management , or a related area. We reviewed 
the opinion letter in its entirety. However, as discussed below, the letter from does 
not persuade us that the proffered position is a specialty occupation. 
opinion appears to be based entirely on the duty description provided by the 
Petitioner. There is no indication that possesses any knowledge of the Petitioner's 
proffered position beyond this brief description. He does not discuss the duties of the proffered 
position in any substantive detail. Further, while he provided a brief description of the Petitioner's 
business ("renowned provider of quality electrical services for all aspects of residential projects") , he 
does not demonstrate or assert in-depth knowledge of the specific business operations or how the 
duties of the position would actually be performed in the context of the Petitioner's business 
enterprise. For instance, there is no evidence that visited the Petitioner's business, 
3 Although the Petitioner mistakenly attributed that classification to the Handbook, it appears that the Petitioner intended 
to refer to the classification contained in O*NET. 
4 Foran explanation of Job Zones, see http://www.onetonline.org/help/online/zones . 
5 For an explanation of SVP levels see http://www .onetonline.org/help /online/svp . 
(b)(6)
Matter of B-H-E- , Inc 
observed the Petitioner's employees, interviewed them about the nature of their work, or 
documented the knowledge that they apply on the job. 
asserts a general industry educational standard for business manager or sales manager 
positions without referencing any supporting authority or any empirical basis for the pronouncement. 
He does not provide a substantive, analytical basis for his opinion and ultimate conclusion. He does 
not relate his conclusion to specific, concrete aspects of the Petitioner's business operations to 
demonstrate a sound factual basis for the conclusion about the educational requirements for the 
particular position here at issue. Accordingly, the very fact that he attributes a degree requirement to 
such a generalized treatment ofthe proffered position undermines the credibility of his opinion. 
Furthermore, there is no indication that the Petitioner advised that the Petitioner 
characterized the proffered position as a low, entry-level sales manager position, for a beginning 
employee who has only a basic understanding of the occupation (as indicated by the wage-level on 
the LCA) relative to other positions within the occupational category. It appears that 
would have found this information relevant for his opinion letter. Moreover, without this 
information, the Petitioner has not demonstrated that possessed the requisite 
information necessary to adequately assess the nature of the Petitioner's position and appropriately 
determine parallel positions based upon job duties and responsibilities . 
In summary, for the reasons discussed above, we conclude that the opinion letter rendered by 
is of limited probative value and does not establish that the proffered position qualifies as 
a specialty occupation. The conclusions reached by lackthe requisite specificity and 
detail and are not supported by independent, objective evidence demonstrating the manner in which 
he reached such conclusions. There is an inadequate factual foundation established to support the 
opinion and we find that the opinion is not in accord with other information in the record. 
We may, in our discretion, use as advisory opinion statements submitted as expert testimony. 
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. Matter of Caron International, 
19 I&N Dec. 791 (Comm'r 1988). As a reasonable exercise of our discretion we discount the 
advisory opinion letter as not probative of any criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). For 
efficiency's sake, we hereby incorporate the above discussion and analysis regarding the opinion 
letter into each of the bases in this decision for dismissing the appeal. 
Further still, we find that, to the extent that they are described in the record of proceeding, the 
numerous duties that the Petitioner ascribes to the proffered position indicate a need for a range of 
business knowledge, but do not establish any particular level of formal, postsecondary education 
leading to a bachelor's or higher degree in a specific specialty as minimally necessary to attain such 
knowledge. 
The Handbook does not support the claim that the occupational category of sales managers is one for 
which normally the minimum requirement for entry is a baccalaureate degree (or higher) in a 
Matter of B-H-E-, Inc 
specific specialty, or its equivalent. Even if it did, the record lacks sufficient evidence to support a 
finding that the particular position proffered here, an entry-level sales manager position (as indicated 
on the LCA), 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. Thus, the petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a spec~fic specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions 
that are: (1) in the petitioner's industry, (2) parallel to the proffered position, and also (3) located in 
organizations that are similar to the petitioner. 
In 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 requirement; 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 source) 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. Furthermore, the Petitioner did not submit any letters or affidavits from similar firms 
or individuals in the Petitioner's industry attesting that such firms "routinely employ and recruit only 
de greed individuals." 
We note that the Petitioner provided printouts of several online job announcements. However, this 
documentation also does not establish that the proffered position qualifies as a specialty occupation. 
We note that the Petitioner did not provide any independent evidence of how representative these job 
advertisements are of the particular advertising employers' recruiting history for the type of jobs 
advertised. Further, as they are only solicitations for hire, they are not evidence of the employers' 
actual hiring practices. 
For the Petitioner to establish that an organization is similar, it must demonstrate that it shares the 
same general characteristics with the advertising organization. Without such evidence, the submitted 
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Matter of B-H-E-, Inc 
documentation is generally outside the scope of consideration for this criterion, which encompasses 
only organizations that are similar to the Petitioner. When determining whether the Petitioner and 
the advertising organization share the same general characteristics, such factors may include 
information regarding the nature or type of organization, and, when pertinent, the particular scope of 
operations, as well as the level of revenue and staffing (to list just a few elements that may be 
considered). It is not sufficient for the Petitioner to claim that an organization is similar and in the 
same industry without providing a legitimate basis for such an assertion. 
None of the submitted advertisements provide sufficient information regarding the advertising 
organizations to establish that the advertising organizations are similar to the Petitioner. Further, all 
of the advertisements provided state the duties of the advertised positions in such abbreviated terms 
that we are unable to ascertain if the duties are parallel to the proffered position. While we are 
unable to determine the duties of the advertised positions, most appear to be for experienced 
individuals. Several of the advertisements state a minimum of five years of experience. As 
previously noted, the Petitioner has characterized the proffered position as a Level I (entry-level) 
position on the LCA, a position that would not include advanced and independent responsibilities. 
DOL guidance states that Level I positions are appropriate for a worker-in-training or an individual 
performing an internship. 6 
Additionally, contrary to the purpose for which the advertisements were submitted, the postings do 
not establish that at least a bachelor's degree in a specific specialty, or its equivalent, is required for 
the positions. For example, several advertisements require only a bachelor's degree without 
specifying that the degree must be in a specific specialty. Some vacancy announcements indicate 
that an otherwise undifferentiated bachelor's degree in business administration would be a sufficient 
educational qualification for the positions they announce. A degree with a generalized title, such as 
business administration, without further specification, is not a degree in a specific specialty. Cf 
Matter of Michael Hertz Assocs., 19 I&N Dec. 558 (Comm'r 1988). As such, an educational 
requirement that may be satisfied by an otherwise undifferentiated bachelor's degree in business 
administration is not a requirement of a minimum of a bachelor's degree in a specific specialty or its 
equivalent. Those vacancy announcements do not contain a requirement of a minimum of a 
bachelor's degree in a specific specialty or its equivalent. 
The job advertisements do not establish that similar organizations to the Petitioner routinely employ 
individuals with degrees in a specific specialty, in parallel positions in the Petitioner's industry. 
Further, it must be noted that even if all of the job postings indicated that a bachelor's degree in a 
specific specialty is common to the industry in parallel positions among similar organizations (which 
they do not), the Petitioner does not demonstrate what statistically valid inferences, if any, can be 
6 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 _II_ 2009.pdf. 
10 
Matter of B-H-E-, Inc 
drawn from the advertisements with regard to determining the common educational requirements for 
entry into parallel positions in similar organizations. 7 
Based upon a complete review of the record of proceeding, the Petitioner has not established that a 
requirement for at least a bachelor's degree in a specific specialty, or its equivalent, is (1) common 
to the Petitioner's industry (2) in parallel positions (3) among organizations similar to the Petitioner. 
For these reasons, the Petitioner has not satisfied the first alternative prong of 8 C.P.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
spec?fic specialty, or its equivalent 
The evidence of record also does not satisfy the second alternative prong of 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(2), which provides that "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." A review of the 
record of proceedings indicates that the Petitioner has not credibly demonstrated that the duties the 
Beneficiary will be responsible for or perform on a day-to-day basis constitute a position so complex 
or unique that it can only be performed by a person with at least a bachelor's degree in a specific 
specialty, or its equivalent. Even when considering the Petitioner's general descriptions of the 
proffered position's duties, the evidence of record does not establish why a few related courses or 
industry experience alone is insufficient preparation for the proffered position. While a few related 
courses may be beneficial, or even required, 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. The description of the duties does not specifically identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. The 
record lacks sufficiently detailed information to distinguish the proffered position as more complex 
or unique from other positions that can be performed by persons without at least a bachelor's degree 
in a specific specialty, or its equivalent. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant 
petition. As noted above, the Petitioner attested on the submitted LCA that the wage level for the 
proffered position is a Level I (entry-level) wage. Such a wage level is for a position which only 
requires a basic understanding of the occupation; the performance of routine tasks that require 
limited, if any, exercise of judgment; close supervision and work closely monitored and reviewed for 
7 See generally Earl Babbie, The Practice of Social Research 186-228 ( 1995). Moreover, given that there is no 
indication that the advertisements were randomly selected, the validity of any such inferences could not be accurately 
determined even if the sampling unit were sufficiently large. See Jd. at 195-96 (explaining that "[r ]andom selection is 
the key to [the] process [of probability sampling]'' and that "random selection offers access to the body of probability 
theory, which provides the basis for estimates of population parameters and estimates of error"). 
II 
Matter of B-H-E-, Inc 
accuracy; and the receipt of specific instructions on required tasks and expected results, is contrary 
to a position that requires the performance of complex duties.8 It is, instead, a position for an 
employee who has only basic understanding of the occupation. 
The evidence of record does not demonstrate that the duties that collectively constitute the proffered 
position 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 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 of the proffered position. While a few related courses may be beneficial, or even 
required, in performing certain duties of the proffered 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 particular position here. 
Therefore, the evidence of record does not establish that this position is significantly different from 
other positions in the occupation such that it refutes the Handbook's information to the effect that 
there is a spectrum of degrees acceptable for such positions, including degrees not in a specific 
specialty. In other words, the record lacks sufficiently detailed information to distinguish the 
proffered position as unique from or more complex than positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. As the Petitioner did not 
demonstrate how the proffered position is so complex or unique relative to other positions within the 
same occupational category that do not require at least a baccalaureate degree in a specific specialty 
or its equivalent for entry into the occupation in the United States, 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). 
The employer normally requires a baccalaureate or higher degree in a 
spec(fic specialty, or its equivalent, for the position 
We will next address the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3), which may be satisfied if the 
Petitioner demonstrates that it normally requires a minimum of a bachelor's degree in a specific 
specialty or its equivalent for the proffered position. 
8 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 wagecdesignation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Levell, 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) of the Act. 
12 
Matter of B-H-E-, Inc 
On appeal, the Petitioner asserts that its having employed the Beneficiary in the proffered position is 
sufficient evidence that it normally requires a minimum of a bachelor's degree in a specific specialty 
or its equivalent for the proffered position. 
The visa petition states that the Petitioner was established in 2005. In the August 6, 2014, letter 
submitted with the visa petition, the Petitioner asserted that the Petitioner then had over 11 years of 
industry experience. In either event, USCIS records indicate that the Petitioner only began to 
employ the Beneficiary on March 5, 2012. The record contains no evidence pertinent to anyone the 
Petitioner previously employed in the proffered position. The Petitioner has not revealed who 
performed the duties of the proffered position prior to March 5, 2012, or what their educational 
qualifications are. 
We also point out that to merit approval of the petition under this criterion, 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 by performance requirements of the position. While a 
petitioner may assert that a proffered position requires a degree or even a degree in a specific 
specialty, such statements without corroborating evidence cannot establish the position as a specialty 
occupation. Were USCIS limited solely to reviewing a 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 employer artificially created a token degree requirement, 
whereby all individuals employed in a particular position possessed a baccalaureate or higher degree 
in the specific specialty, or its equivalent. See Defensor v. Meissner, 201 F. 3d at 387. In other 
words, if a petitioner's degree requirement is only symbolic and the proffered position does not in 
fact require such a specialty degree, or its equivalent, to perform its duties, the occupation would not 
meet the statutory or regulatory definition of a specialty occupation. See section 214(i)(l) of the 
Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"). Here, the evidence of 
record is insufficient to establish the referenced criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3) based 
on the Petitioner's normal hiring practices. 
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 in a specific specialty, or its equivalent 
Finally, we will address the alternative criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4), which is 
satisfied if the evidence of record establishes that the nature of the specific duties is so specialized 
and complex that knowledge required to perform them is usually associated with the attainment of a 
baccalaureate or higher degree in a specific specialty or its equivalent. In the instant case, relative 
specialization and complexity have not been sufficiently developed by the Petitioner as an aspect of 
the proffered position. We again refer to our earlier comments and findings with regard to the 
implication of the Petitioner's designation of the proffered position in the LCA as a Level I (the 
lowest of four assignable levels) wage. That is, the Level I wage designation is indicative of a low, 
entry-level position relative to others within the occupational category, and hence one not likely 
distinguishable by relatively specialized and complex duties. Upon review of the totality of the 
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(b)(6)
Matter of B-H-E- , Inc 
record, the Petitioner has not established that the nature of the specific duties is so specialized and 
complex that the knowledge required to perform the duties is usually associated with the attainment 
of a baccalaureate or higher degree in a specific specialty, or its equivalent. Although the Petitioner 
may desire a candidate that has a bachelor's degree, the Petitioner does not submit sufficient 
probative evidence explaining in detail how or why the duties are so complex or specialized that they 
require a bachelor's degree in a specific specialty, or its equivalent. 
For the reasons discussed above, the evidence of record does not satisfy the fourth criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
The Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it 
cannot be found that the proffered position qualifies as a specialty occupation. The appeal will be 
dismissed and the petition denied for this reason. 
As a final matter, we will address a decision issued by the U.S. District Court for the 
of Washington cited by the Petitioner in its appeal brief. In that case, the District Court 
found that the plaintiff, a company that runs gas stations, convenience stores, and hotels, had 
demonstrated that the particular Marketing Analyst & Specialist position for which it was petitioning 
qualified as a specialty occupation position. 
The Petitioner submitted insufficient evidence to demonstrate that the facts of that case are 
analogous to those of the instant case. Additionally, 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 within the same district. See Matter of K-S-, 20 I&N 
Dec. 715 (BIA 1993). Although the reasoning underlying a district judge's decision will be given 
due consideration when it is properly before us, the analysis does not have to be followed as a matter 
of law. !d. at 719. The Petitioner's reference to the district court decision is neither precedent nor 
otherwise persuasive. 
III. CONCLUSION 
We recognize that this is an extension petition. The Director's decision does not indicate whether 
she reviewed the prior approval of the previous nonimmigrant petition filed on behalf of the 
Beneficiary. If the previous nonimmigrant petition was approved based on the same unsupported 
and contradictory assertions that are contained in the current record, the approval would constitute 
material and gross error on the part of the Director. We are not required to approve petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See Matter ofChurch Scientology Int'l, 19 I&N Dec. 593, 597 (Comm'r 1988). It would 
be "absurd to suggest that [USCIS] or any agency must treat acknowledged errors as binding 
precedent." Sussex Eng 'g, Ltd. v. Montgomery, 825 F .2d 1084, 1090 (6th Cir. 1987). 
A prior approval does not compel the approval of a subsequent petition or relieve the Petitioner of its 
burden to provide sufficient documentation to establish current eligibility for the benefit 
sought. Temporary Alien Workers Seeking Classification Under the Immigration and Nationality 
14 
Matter of B-H-E-, Inc 
Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) (to be codified at 8 C.F.R. pt. 214). A prior approval 
also does not preclude USCIS from denying an extension of an original visa petition based on a 
reassessment of eligibility for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 F. App'x 
556 (5th Cir. 2004). Furthermore, our authority over the service centers is comparable to the 
relationship between a court of appeals and a district court. Even if a service center director had 
approved the nonimmigrant petitions on behalf of a beneficiary, we would not be bound to follow 
the contradictory decision of a service center. See La. Philharmonic Orchestra v. INS, 44 F. Supp. 
2d 800, 803 (E.D. La. 1999). 
As set forth above, we agree with the Director's findings that the evidence of record does not 
demonstrate that the proffered position qualifies as a specialty occupation. Accordingly, the 
Director's decision will not be disturbed. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofB-H-E-, Inc, ID# 14650 (AAO Nov. 30, 2015) 
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