dismissed H-1B Case: Entertainment

(b)(6)
I 
DATE: 
INRE: 
PETITION: 
JUL 0 1 2015 
PETITION RECEIPT #: 
Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
' /.-::"" 
/Ron Rosenberg 
/ Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the California 
Service Center. In the supporting documents, the petitioner describes itself as a record and 
entertainment company that was established in . In order to employ the beneficiary in what it 
designates as a "coordinator, international marketing and touring" position, the petitioner seeks to 
classify her as a nonimmigrant worker in a specialty occupation pursuant to section 
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101( a)(15)(H)(i)(b ). 
The Director reviewed the record of proceeding and determined that the petitioner did not establish 
eligibility for the benefit sought. Specifically, the Director stated that the petition~r had not 
established that the proffered position qualifies as a specialty occupation in accordance with the 
applicable statutory and regulatory requirements. The Director denied the petition. 
The record of proceeding contains: (1) the petitioner's Form I-129 and supporting documentation; 
(2) the Director's request for evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the 
Director's decision; and (5) the Notice of Appeal or Motion (Form I-290Bl and supporting 
documentation. We reviewed the record in its entirety before issuing our decision. 
For the reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. SPECIALTY OCCUPATION 
The primary issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary 
in a specialty occupation position. 
A. Legal Framework 
For an H-lB petition to be granted, the petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
1 We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
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(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.P.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 
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 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)(1) of the Act and 8 C.P.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. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal 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 
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regulatory definition. See Defensor v. Meissner , 201 F.3d 387. 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. Chertojf; 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"). Applying this standard, USCIS regularly approves H-lB petitions for qualified aliens 
who are to be employ ed 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-lB 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. users must examine the 
ultimate employment of the alien, 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 nor 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. Proffered Position 
In the support letter, the petitioner stated that the beneficiary will perform the following job duties in 
the proffered position ? 
We are currently in search of a qualified candidate to assist with our International 
Marketing and Touring department in developing our international artist roster, 
2 It must be noted for the record that the petitioner also submitted a document entitled "Job Description: 
Coordinator- International Marketing and Touring," which included a new job description. However, the job 
description for the proffered position is not on the petitioner's letterhead and it is not endorsed by the 
petitioner. The record of proceeding does not indicate the source of the additional duties and responsibilities 
that are attributed to the proffered position. Therefore, the document is not probative evidence in the instant 
matter. 
~ ~~~--~-- ~----~ ---------- ---- ---------- -------
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facilitate cost-effective international touring by sourcing local musicians to work with 
our artist roster, locate strategic partnerships abroad, promote [the petitioner's] artists 
and company initiatives across global markets including the United Kingdom, 
Australia, German and Asia. 
The Coordinator, International Marketing & Touring position at [the petitioner] will 
continually be exercising a large degree of discretion, authority and independent 
judgment because as part of her duties she will be involved in reviewing and 
analyzing labor and industry market data, preparing reports of findings, illustrating 
data and translating complex findings into written text. She will further be 
responsible for tracking of musical data and marketing strategies, collaborating with 
marketing and other professionals. 
As part of the duties required from this position, the incumbent will confer with 
management about musical data to promote and work with [the petitioner's] Artists 
and performers. 
* * * 
The proper performance of the professional duties of the Coordinator, International 
Marketing & Touring requires the minimum attainment of a graduate level degree 
with an emphasis on Music and composition? 
C. Analysis 
We will first discuss the record of proceeding in relation 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. 
USCIS recognizes the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook 
(Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
of occupations that it addresses. The petitioner attested in the Labor Condition Application (LCA) 
that the proffered position falls under the occupational category "Marketing Research Analysts and 
Marketing Specialists." 
We reviewed the chapter of the Handbook entitled "Market Research Analysts," including the 
sections regarding the typical duties and requirements for this occupational category. 4 However, the 
3 We observe that the petitioner does not indicate the degree level (e.g., associate's degree, vocational degree, 
baccalaureate, master's degree) for the position. 
4 The Handbook, which is available in printed form, may also be accessed on the Internet , at http:// 
www.stats.bls.gov /oco/. Our references to the Handbook are to the 2014- 2015 edition available online. We 
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Handbook does not indicate that "Market Research Analysts" comprise an occupational group for 
which at least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. 
The subchapter of the Handbook entitled "How to Become a Market Research Analyst" states the 
following about this occupational category: 
Most market research analysts need at least a bachelor's degree. Top research 
positions often require 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, psychology, and 
sociology , 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 of 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, 2014-15 ed., 
Market Research Analysts, available at http://www.bls.gov/ooh/business- and-financial/market­
research-analyst s.htm#tab-4 (last visited June 17, 2015) . 
The Handbook does not state that a baccalaureate or higher degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into the occupation. This passage of the 
Handbook reports that market research analysts have degrees and backgrounds in a wide-variety of 
disparate fields. The Handbook states that employees typically need a bachelor's degree in market 
research or a related field, but the Handbook continues by indicating 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 a background in fields such as business 
administration, one of the social sciences, or communications. The Handbook notes that various 
hereby incorporate into the record of proceeding the chapter of the Handbook regarding "Market Research 
Analysts." 
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courses are essential to this occupation, including statistics, research methods, and marketing and 
reports that courses in communications and social sciences (such as economics, psychology, and 
sociology) are also important. However, since there must be a close correlation between the 
required "body of highly specialized knowledge" and the position, a minimum entry requirement of a 
degree in disparate fields, such as math and communications, 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). 
Here, although the Handbook indicates that an advanced degree is typically needed for these 
positions, it also indicates that baccalaureate degrees in various fields are acceptable for entry into 
the occupation. In addition to recognizing degrees in disparate fields and backgrounds (i.e., social 
science and computer science) as acceptable for entry into this occupation, the Handbook also states 
that "others have a background in business administration." Although a general-purpose bachelor's 
degree, such as a degree in business administration, may be a legitimate prerequisite for a particular 
position, requiring 
such a degree, without more, will not justify a finding that a particular position 
qualifies for classification as a specialty occupation. See Royal Siam Corp. v. Chertoff; 484 F.3d at 
147.5 Therefore, the Handbook's recognition that a general, non-specialty "background" in business 
administration is sufficient for entry into the occupation strongly suggests that a bachelor's degree in 
a specific specialty is not normally the minimum entry requirement for this occupation. The 
Handbook does not support the claim that the occupational category of market research analyst is 
one for which normally the minimum requirement for entry is a baccalaureate degree (or higher) in a 
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 market research analyst position, 
would normally have such a minimum, specialty degree requirement, or its equivalent. 
In addition, the petitioner references the O*NET OnLine Summary Report for the occupational 
category "Market Research Analysts and Marketing Specialists" to support the assertion 
that the 
5 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
!d. 
[t]he courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate prerequisite 
for a particular position, requiring such a degree, without more, will not justify the granting 
of a petition for an H-1B specialty occupation visa. See, e.g., Tapis Int'l v. INS, 94 F.Supp.2d 
172, 175-76 (D.Mass. 2000); Shanti, 36 F. Supp.2d at 1164-66; cf Matter of Michael Hertz 
Assocs., 19 I & N Dec. 558, 560 ([Comm'r] 1988) (providing frequently cited analysis in 
connection with a conceptually similar provision). This is as it should be: elsewise, an 
employer could ensure the granting of a specialty occupation visa petition by the simple 
expedient of creating a generic (and essentially artificial) degree requirement. 
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proffered position qualifies as a specialty occupation. We reviewed the Summary Report in its 
entirety. However, upon review of the Summary Report, we find that it is insufficient to establish 
that the position qualifies as a specialty occupation normally requiring at least a bachelor's degree in 
a specific specialty, or its equivalent. The Summary Report for market research analysts and 
marketing specialists has a designation of Job Zone 4. This indicates that a position requires 
considerable preparation. It does not, however, demonstrate that a bachelor's degree in any specific 
specialty is required, and does not, therefore, demonstrate that a position so designated is in a 
specialty occupation as defined in section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). The 
O*NET OnLine Help Center provides a discussion of the Job Zone 4 designation and explains that 
this zone signifies only that most, but not all of the occupations within it, require a bachelor's degree. 
See O*NET OnLine Help Center at http://www.onetonline.org/help/online/zones. Further, the Help 
Center discussion confirms that a designation of Job Zone 4 does not indicate any requirements for 
particular majors or academic concentrations. Therefore, despite the petitioner's assertion to the 
contrary, the O*NET Summary Report is not probative evidence that the proffered position qualifies 
as a specialty occupation. 
In response to the RFE, the petltmner cites to Residential Fin. Corp. v. U.S. Citizenship & 
Immigration Services, 839 F. Supp. 2d 985 (S.D. Ohio 2012) and UnicalAviation, Inc. v. INS, 248 F. 
Supp. 2d 931 (D.C. Cal 2002) in support of its assertion that the proffered position qualifies as a 
specialty occupation. The petitioner has furnished no evidence to establish that the facts of the 
instant petition are analogous to those in these decisions. 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 (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. I d. at 719.6 
6 With regard to Residential Fin. Corp. v. U.S. Citizenship & Immigration Services, we note that it indicates 
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, 
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In the instant case, the duties and requirements of the pos1t10n 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.P.R. 
§ 214.2(h)(4)(iii)(A)(l). 
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 identifiable as being (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) (quotingHird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the petitioner has not established that its proffered position is one for which 
the Handbook (or other independent, authoritative source) reports a standard 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." 
The petitioner submitted copies of two job advertisements in support of the assertion that the degree 
requirement is common to the petitionds industry in parallel positions among similar organizations. 
However, upon review of the documents, we find that the petitioner's reliance on the job 
announcements is misplaced. 
In the Form I-129, the petitioner stated that it is a record and entertainment company with 16 
employees. The petitioner also reported its gross annual income as $1.3 million and its net annual 
income as $35,000. The petitioner designated its business operations under the North American 
however, the petitioner has not met its burden to establish that the particular position offered in this matter 
requires a bachelor's or higher degree in a specific specialty, or its equivalent, directly related to its duties in 
order to perform those tasks. 
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Industry Classification System (NAICS) code 711100. 7 Notably, the U.S. Department of 
Commerce, Census Bureau website indicates that this is not a valid code. See U.S. Dep't of 
Commerce, U.S Census Bureau, 2012 NAICS Definition, 711100, available at 
http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last visited June 17, 2015). 
Upon review, it does not appear that the advertisements are for parallel positions. For example, the 
posting from states that the position is for a director of tour marketing and 
requires a degree, .along with "7+ yrs music marketing and new media experience." The petitioner 
designated the proffered position on the LCA through the wage level as a Level II position (out of 
four possible wage-levels). 8 The advertised positions appear to be for more senior positions than the 
proffered position. More importantly, the petitioner has not sufficiently established that the primary 
duties and responsibilities of the advertised positions are parallel to the proffered position. 
Further, the postings do not indicate that at least a bachelor's degree in a directly related specific 
specialty (or its equivalent) is required. 9 For instance, the posting from did 
not include the educational requirements for the position. In addition, the posting from 
did not specify the level of education required (e.g., associate's degree, vocational 
degree, baccalaureate, master's degree) for the position. Thus, the qualifications listed in the 
postings do not support a finding that the advertised positions require a baccalaureate (or higher 
degree) in a specific specialty, or its equivalent. 10 
7 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used 
to classify business establishments according to type of economic activity and, each establishment is 
classified to an industry according to the primary business activity taking place there. See 
http://www.census.gov/eos/www/naics/ (last visited June 17, 2015). 
8 The "Prevailing Wage Determination Policy Guidance" issued by DOL provides a description of the wage 
levels. A Level II wage rate is described by DOL as follows: 
Level II (qualified) wage rates are assigned to job offers for qualified employees who have 
attained, either through education or experience, a good understanding of the occupation. 
They perform moderately complex tasks that require limited judgment. An indicator that the 
job request warrants a wage determination at Level II would be a requirement for years of 
education and/or experience that are generally required as described in the O*NET Job 
Zones. 
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. 
9 As discussed, the degree requirement set by the statutory and regulatory framework of the H-1B program is 
not just a bachelor's or higher degree, but a degree in a specific specialty that is directly related to the duties of 
the position. See 214(i)(1)(b) of the Act and 8 C.P.R. § 214.2(h)( 4)(ii). 
10 It must be noted that even if all of the job postings indicated that a bachelor's degree in a specific specialty, 
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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. 
Thus, based upon a complete review of the record, the petitioner has not established that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common to 
the petitioner's industry in 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. For the 
reasons discussed above, the petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
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 support of its assertion that the proffered positiOn qualifies as a specialty occupation, the 
petitioner described the proffered position and its business operations. In addition, the petitioner 
submitted its financial documents, printouts from its website and Facebook page, and articles 
regarding the petitioner. 
Upon review, we find that the petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. 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 it may believe are so complex and unique. 
While a few related courses may be beneficial in performing certain duties of the position, the 
or its equivalent, is common to the industry in parallel positions among similar organizations (which they do 
not), the petitioner does not demonstrate what inferences, if any, can be drawn from two 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). 
As such, even if the job announcements supported the finding that the position required a bachelor's or higher 
degree in a specific specialty, or its equivalent (for organizations in the same industry that are similar to the 
petitioner), it cannot be found that such a limited number of postings that appear to have been consciously 
selected outweigh the findings of the Handbook published by the Bureau of Labor Statistics that such a 
position does not normally require at least a baccalaureate degree in a specific specialty, or its equivalent, for 
entry into the occupation in the United States. 
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 advertised. As the advertisements are 
only solicitations for hire, they are not evidence of the actual hiring practices of these employers . 
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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 does not establish which of the duties, if any, of the proffered position would be so complex 
or unique as to be distinguishable from those of similar but non-degreed or non-specialty degreed 
employment. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level II wage, indicating that it is a position for an employee 
who has a good understanding of the occupation but who will only perform mod.erately complex 
tasks that require limited judgment. Without further evidence, it is not credible that the petitioner's 
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. For example, a Level IV 
(fully competent) position is designated by DOL for employees who "use advanced skills and 
diversified knowledge to solve unusual and complex problems. "12 The evidence of record does not 
establish that this position is significantly different from other positions in the occupational category 
such that it refutes the Handbook's information that a bachelor's degree in a specific specialty, or its 
equivalent is not required for the proffered position. 
The petitioner claims that the beneficiary is well qualified for the position, and references her 
qualifications. 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 has not satisfied the second 
alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires at least a bachelor's degree in a specific specialty, or its equivalent, for the 
position. To this end, we review the petitioner's past recruiting and hiring practices, as well as 
information regarding employees who previously held the position, and any other documentation 
submitted by a petitioner in support of this criterion of the regulations. 
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 specific degree, that statement alone without corroborating evidence 
12 For additional information regarding wage levels as defined by DOL, 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. 
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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 petitioner artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty, orits equivalent. See Defensor v. Meissner, 
201 F.3d at 388. In other words, if a petitioner's stated degree requirement is only designed to 
artificially meet the standards for an H-1B visa and/or to underemploy an individual in a position for 
which he or she is overqualified and if 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)(1) of the Act; 8 C.P.R. 
§ 214.2(h)(4)(ii) (defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. users must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, 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 as the minimum for entry into the occupation as required by the Act. To interpret 
the regulations any other way would lead to absurd results: if users 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 alien 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. at 388. 
In response to the RFE, the petitioner concedes that it has not employed a coordinator, international 
marketing and touring. In addition, the petitioner submitted its internet job vacancy announcement 
for the proffered position. The announcement is dated August 27, 2014. Thus, the job posting was 
posted after the Director's RFE and does not pre-date the filing of the petition. We note that the 
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 8 C.P.R. 
§ 103.2(b)(1). Evidence that the petitioner creates after the Director issues an RFE is not considered 
independent and objective evidence. Necessarily, independent and objective evidence would be 
evidence that is contemporaneous with the event to be proven and existent at the time of the 
Director's notice. Therefore, the posting is not probative evidence establishing that the petitioner has 
satisfied the third criterion of 8 C.F.R. § 214.2(h)( 4 )(iii)( A). 
Moreover, the petitioner stated in the Form I-129 petition that it has 16 employees and that it was 
established in (approximately 17 years prior to the filing of the H-1B petition). The petitioner 
did not provide any further information or evidence regarding its recruiting history for the position 
advertised. Consequently, it cannot be determined how representative one job posting over a 17 
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year period is of the petitioner's normal recruiting and hiring practices for the proffered position. 
Without further information, the submission is not persuasive in establishing that the petitioner 
normally requires at least a bachelor's degree in a specific specialty, or its equivalent, for the 
position. 
The petitioner has not provided sufficient probative evidence to establish that it normally requires at 
least a bachelor's degree in a specific specialty, or its equivalent, for the proffered position. Thus, 
the petitioner has not satisfied the third criterion of 8 C.P.R.§ 214.2(h)(4)(iii)(A). 
The fourth criterion at 8 C.P.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 the.m is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
Upon review of the record of the proceeding, we find that the petitioner has not provided probative 
evidence to satisfy this criterion of the regulations. In the instant case, relative specialization and 
complexity have not been sufficiently developed by the petitioner as an aspect of the proffered 
position. That is, the proposed duties have not been described with sufficient specificity to establish 
that they are more specialized and complex than positions that are not usually associated with at least 
a bachelor's degree in a specific specialty, or its equivalent. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level II position (out of four 
possible wage-levels) relative to others within the occupational category. Without more, the position 
is one not likely distinguishable by relatively specialized and complex duties. That is, without 
further evidence, the petitioner has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position would likely be classified at a higher level, such as 
a Level III (experienced) or Level IV (fully competent) position, requiring a substantially higher 
prevailing wage. 13 The petitioner has submitted inadequate probative evidence to satisfy the 
criterion of the regulations at 8 C.P.R.§ 214.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the petitioner has not established that it has 
satisfied any of the criteria at 8 C.P.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. 
13 As previously discussed, a Level IV (fully competent) position is designated by DOL for employees who 
"use advanced skills and diversified knowledge to solve unusual and complex problems" and requires a 
significantly higher wage. 
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III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende , 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.