dismissed H-1B Case: Energy Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 11969510 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 24, 2020 
The Petitioner, an energy utility management company, seeks to temporarily employ the Beneficiary as 
a "energy markets manager" under the H-lB 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-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 of the Vermont Service Center denied the petition, concluding that the record did not 
establish that the proffered position qualifies as a specialty occupation. The matter is now before us 
on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge , 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
TI. THE PROFFERED POSITION 
The Petitioner seeks to employ the Beneficiary as an energy markets manager. The Petitioner provided 
a job description for the proffered position that identified the primary duties and responsibilities of the 
Beneficiary, along with the approximate percentage of time the Beneficiary will spend on each duty.1 
The Petitioner stated that the minimum entry requirement for the proffered position is a master's 
degree in business administration or a related field, "plus relevant work experience in addition to: (a) 
an unparalleled understanding of energy markets and demand side management; and (b) the ability to 
work in a fast-paced, entrepreneurial environment." 
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. 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 
Preliminarily, we observe that the Petitioner states that a master's degree in business administration, with 
no further specification, would be sufficient to enter into the position. We note generally that a claimed 
entry requirement for at least a master's degree in business administration, without more, is inadequate to 
establish that the proffered position qualifies as a specialty occupation. 2 A petitioner must demonstrate 
1 For the sake of brevity, we will not quote the job descriptions; however, we have closely reviewed and considered them. 
2 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher degree in business combined with relevant education, training, 
2 
that the proffered position requires a precise and specific course of study that relates directly and closely 
to the position in question. There must be a close correlation between the required specialized studies 
and the position. Thus, the mere requirement of a general degree, such as business administration, without 
further specification, does not establish the position as a specialty occupation. 3 
Therefore, if a master's degree in business administration is sufficient to enter into the proffered position, 
it cannot be concluded that the proffered position requires anything more than a general degree. 
Accordingly, the proffered position does not qualify under the definition of a specialty occupation and 
the appeal must be dismissed on this basis alone. Even setting aside the foregoing analysis, we still 
conclude that the proffered position is not a specialty occupation because the evidence of record does not 
satisfy any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
A. First Criterion 
We tum 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 will consider the information contained 
in the U.S. Department of Labor's (DOL) Occupatfonal OutlookHandbook(Handbook) regarding the 
duties and educational requirements of the wide variety of occupations it addresses. 4 
On the labor condition application (LCA) submitted in support of the H-IB petition, the Petitioner 
designated the proffered position under the occupational category "Market Research Analysts and 
Marketing Specialists" corresponding to the Standard Occupational Classification (SOC) code 13-1161 .5 
The Petitioner asserts that the duties of the proffered position are most closely aligned with the generalized 
duties listed in the Handbook for "Market Research Analysts." The Handbook's subchapter entitled 
"How to Become a Market Research Analyst" does not indicate that a bachelor's degree in a specific 
specialty, or the equivalent, is normally required for entty into market research analysts' positions. 
In the initial summary of this subchapter, the Handbook recognizes that"[ m Jost market research analysts 
need at least a bachelor's degree" while also reporting that "[s]ome research positions may require a 
and/or experience could, in certain instances, qualify the proffered position as a specialty occupation. In either case, it 
must be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a specific specialty that 
is directly related to the proffered position. 
3 Royal Siam Corp., 484 F.3d at 147 (a general-purpose bachelor's degree in business may be a legitimate prerequisite for 
a particular position. but such a degree. without more, will not justify a finding that a particular position qualifies for 
classification as a specialty occupation). See also Irish Help at Home LLC v. Melville, No. 13-cv-00943-MEJ, 2015 WL 
848977 (N.D. Cal., Feb. 24, 2015), aff'd 679 Fed. App'x 634 (9th Cir. 2017). 
4 We do not maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category 
designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered 
position, and we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. Nevertheless, to satisfy the first criterion, the burden of proofremains on the Petitioner to 
submit sufficient evidence to support a finding that its particular position would n01mally have a minimum. specialty 
degree requirement, or its equivalent, for entry. 
5 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. Section 212(n)(l) of the Act: 
20 C.F.R. § 655.73l(a). 
3 
master's degree" and that "[s]trong math and analytical skills are essential." 6 Thus, generally these 
positions may require a bachelor's degree and some skills, but not a bachelor's degree in a specific 
specialty, or its equivalent. Although the Handbook also reports that"[ m ]arket research analysts typically 
need a bachelor's degree in market research or a related field," it then adds that "[ m ]any have degrees in 
fields such as statistics, math, and computer science. Others have backgrounds in business administration, 
the social sciences, or communications." 7 
The Handbook's observation that disparate fields of study, including statistics, computer science, and the 
social sciences, may qualify a worker to enter positions in the "Market Research Analysts" occupational 
category indicates that there is no normal minimum entry requirement that the bachelor's or higher degree 
be in a specffic specialty, or its equivalent. That is, the Handbook does not describe the normal minimum 
educational requirement for the occupation in a categorical manner, other than recognizing that these 
occupations generally require a bachelor's degree. Here, the Handbook does not establish that a 
bachelor's degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry 
into the occupational category. 
The Petitioner relies on the DOL's Occupational Information Network (O*NET) summary report for 
"Market Research Analysts and Marketing Specialists," to support its assertion that a bachelor's 
degree in a specific specialty is the normal minimum requirement for entry into the position. The 
O*NET Summary Report, however, does not establish that a bachelor's degree in a specific specialty, 
or the equivalent, is normally required. It provides general information regarding the occupation, but 
it does not support a conclusion that the proffered position requires a bachelor's degree in a specific 
specialty, or the equivalent. 
Instead, O*NET assigns these positions a "Job Zone Four" rating, which states "most of these 
occupations require a four-year bachelor's degree, but some do not." Moreover, the Job Zone Four 
designation does not indicate that any academic credentials for Job Zone Four occupations must be 
directly related to the duties performed. In addition, the specialized vocational preparation (SVP) 
rating designates this occupation as 7 < 8. An SVP rating of 7 to less than("<") 8 indicates that the 
occupation requires "over 2 years up to and including 4 years" of training. While the SVP rating 
indicates the total number of years of vocational preparation required for a particular position, it is 
important to note that it does not describe how those years are to be divided among training, 
experience, and f mmal education. The SVP rating also does not specify the particular type of degree, 
if any, that a position would require. 8 Moreover, the respondents' positions within the occupation are 
not distinguished by career level ( e.g., entty-level, mid-level, senior-level). Furthe1more, the graph in 
the summary report does not indicate that the "education level" for the respondents must be in a 
specific specialty. For all of these reasons, O*NET does not establish the proffered position as a 
specialty occupation. 
As the foregoing demonstrates, the Petitioner has not provided sufficient documentation from a 
probative, authoritative source to substantiate its assertion regarding the minimum requirement for 
6 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Market Research 
Analysts, at https://www.bls.gov/ooh/business-and-financial/market-research-analysts.htm (last visited Sept. 15, 2020). 
7 Id. 
8 For additional info1mation, see the O*NET Online Help webpage available at http://www.onetonline.org/ 
help/online/svp. 
4 
entry into this particular position. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
B. 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 contemplates 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
We generally consider the following sources of evidence to determine if there is such a common degree 
requirement: whether the Handbook reports that the industty requires a degree; whether the industty' s 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry establish that such firms "routinely employ and 
recruit only degreed individuals." 9 
As noted, the Handbook does not indicate that a bachelor's degree in a specific specialty is a common 
requirement within the industry for parallel positions among similar organizations. In support of this 
criterion, the Petitioner submitted copies of job announcements placed by other employers. Upon 
review of the documents, we conclude that the Petitioner's reliance on the job announcements is 
misplaced. 
First, the Petitioner has not demonstrated that these organizations are similar. When determining 
whether the Petitioner and the 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 
conducts business in the same industry without providing a legitimate basis for such an assertion. For 
instance, the Petitioner did not submit information regarding the employers' revenue or staffing. The 
Petitioner did not sufficiently supplement the record of proceedings to establish that these advertising 
organizations are similar. 
Moreover, the Petitioner has not established that the advertisements involve parallel positions. For 
instance, the advertisements do not include sufficient information about the duties and responsibilities 
for the announced positions. Thus, it is not possible to determine important aspects of the jobs, such 
9 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) (conside1ing these "factors" to infmm the commonality of a degree requirement)). 
5 
as the specific responsibilities, complexity of the job duties, supervisory duties (if any), independent 
judgment required, or the amount of supervision received. Therefore, the Petitioner has not 
sufficiently established that the primary duties and responsibilities of the advertised positions are 
parallel to those of the proffered position. 
In addition, some of the postings submitted lists a bachelor's degree in business as one of the 
acceptable degrees. As we noted earlier, the requirement of a bachelor's degree in business is 
inadequate to establish that a position qualifies as a specialty occupation. 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. at 560. As 
explained above, we interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a 
degree in a specific specialty that is directly related to the proposed position. We have consistently 
stated that, although a general-purpose bachelor's degree, such as a degree in business administration, 
may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will 
not justify a conclusion that a particular position qualifies for classification as a specialty 
occupation. Royal Siam Corp., 484 F.3d at 147. Overall, the job postings suggest, at best, that 
although a bachelor's degree is sometimes required for these positions, a bachelor's degree in a spectfic 
specialty ( or its equivalent) is not. 10 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. 11 That is, not every deficit of every job posting has been addressed. 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's 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. 
' 0 It must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a specific 
specialty is common to the industiy in parallel positions among similar organizations (which they do not), the Petitioner 
has not demonstrated what statistically valid inferences, if any, can be drawn from the advertisements with regard to 
determining the common educational requirements for entry into parallel positions in similar organizations. 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 id. at 195-196 (explaining that "[r]andom selection is the key to [the] process 
[of probability sampling]" and that "random selection offers access to the body of probability theory, which provides the 
basis for estimates of population parameters and estimates of enor"). 
11 The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job adve1iised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
6 
We reviewed the Petitioner's statements regarding the proffered pos1t10n; however, while the 
Petitioner stated that the Beneficiary "will be primarily responsible for managing demand response 
market activities, including auction strategy, asset nomination, and asset optimization," it has not 
sufficiently developed relative complexity or uniqueness as an aspect of the proffered position. That 
is, the Petitioner has not explained in detail how the nature of some of the duties such as: 
• Understanding the role of demand-side resources in energy markets 
• Obtaining series of approvals, capital investments, and IT integrations required for operating 
in power capacity and energy markets 
• Understanding and executing these requirements when the company decides to launch 
operations into a new market or demand response program 
• Working with the engineering team to ensure system integrations, data quality, and reporting 
needs are implemented and met 
• Establishing fail safes and controls to ensure all requirements are permanently met 
• Analyzing new markets and their potential profitability 
• Establishing financial projections for entry into new markets 
• Developing easy to understand products for our customers that meet market participation 
criteria! 
are so complex and unique that the knowledge required to perform them is usually associated with the 
attainment of a bachelor's degree in a specific specialty, or its equivalent. 
In addition to the above, the Petitioner lists one of the duties as "[ d]eveloping guidelines and 
profitability criteria to inform Sales Directors' efforts and strategy when talking to potential customers 
in the markets and programs we operate in." The Petitioner also states that the Beneficiary will be 
"[ d]eveloping and managing performance calculations to track customer participation as demand 
response events are called." However, these duties focus on an outcome or result, rather than the 
process undertaken to produce such an outcome or result. Such circular descriptions do not 
meaningfully convey the duties of the position apart from its overall outcome. Thus, these descriptions 
do not sufficiently convey the nature of the position or why it is so complex. 
The listed job duties and tasks, when read in combination with the Petitioner's Level II-designation 
on the LCA, suggest that this particular position is not so complex or unique relative to other market 
research analysts that the duties can only be performed by an individual with a bachelor's degree or 
higher in a specific specialty, or its equivalent. 12 Although some tasks may connote a requirement of 
12 For additional infmmation, 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://flcdatacenter.com/download/NPWHC _Guidance_ Revised_ I I_ 2009 .pdf. 
We note that a low wage-level designation does not preclude a proffered position from classification as a specialty 
occupation, just as a high wage-level designation does not definitively establish such a classification. In certain 
occupations ( e.g., doctors or lawyers), a Level IT position would still require a minimum of a bachelor's degree in a specific 
specialty, or its equivalent, for entry. Similarly, however, a Level TV 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 
7 
familiarity with general business principles, including marketing knowledge, the record is insufficient 
to establish that the duties require anything more than a few basic courses and a broad educational 
background. While a few such courses may be beneficial in performing certain duties of the position, 
the Petitioner, who bears the burden ofproot: 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. Again, the Petitioner claims that an individual 
with only a general-purpose master's degree can perform the duties of the proffered position. 
However, requiring such a degree, without more, will not justify a finding that a particular position 
qualifies for classification as a specialty occupation. See Royal Siam, 484 F.3d at 147. 
The Petitioner claims that the Beneficiary is well-qualified for the position and provides the 
Beneficiary's relevant coursework. 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. 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. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally 
requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference for 
high-caliber candidates but is necessitated instead by performance requirements of the position. See 
Defensor, 201 F.3d at 387-88. Were we limited solely to reviewing a petitioner's claimed self-imposed 
requirements, an organization could bring any individual with a bachelor's degree to the United States to 
perform any occupation as long as the petitioning entity created a token degree requirement. Id. Evidence 
provided in support of this criterion may include, but is not limited to, documentation regarding the 
Petitioner's past recruitment and hiring practices, as well as information regarding employees who 
previously held the position. 
In support of this criterion, the Petitioner provided a list of its employees in energy markets manager 
positions, which includes their salaiy and educational level. Upon review, it appears that two of the 
energy markets managers are paid substantially more than the salaiy offered to the Beneficiaiy. For 
instance, these individuals are paid over $100,000 per year. Thus, this strongly suggests that they are 
employed in more senior positions. 
Moreover, the Petitioner did not provide the job duties and day-to-day responsibilities of these employees. 
The Petitioner did not provide any inf01mation regarding the complexity of the job duties, supervisory 
duties (if any), independent judgment required, or the amount of supervision received. Accordingly, the 
is not itself conclusive evidence that a proffered position meets the requirements of section 214(i)( 1) of the Act. 
8 
Petitioner has not established that the duties and responsibilities of these individuals are the same as the 
Beneficiary's in the proffered position. 
In sum, the Petitioner has not persuasively established that it normally requires at least a bachelor's degree 
in a specific specialty, or its equivalent, for the position. Therefore, the Petitioner has not satisfied the 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
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. 
For the reasons similar to those discussed under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), 
we find that the Petitioner has not established 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). We incorporate our earlier 
discussion and analysis on this matter. 
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 appeal will be 
dismissed for the above stated reasons. In visa petition proceedings, it is a petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The 
Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
9