dismissed H-1B Case: Fashion

MATTER OF U-P-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 3, 2016 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a shoe manufacturer, seeks to continue to employ the Beneficiary as a "market 
research analyst" under the H-1B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner had not demonstrated that the proffered position qualifies as a specialty occupation 
position. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the evidence 
submitted satisfies all evidentiary requirements. 
Upon de novo 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.P.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: 
Matter of U-P-, Inc. 
(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 assqciated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H -1 B petition, the Petitioner stated that the Beneficiary will serve as a "market research 
analyst," and provided the following job duties for the position (note: errors in the original text have 
not been changed): 
1. Research market conditions to determine potential sales of ladies shoes and related 
products; 
2. Gather market data, economic local and international conditions, customer data 
such as customer preferences; 
3. Devise procedures to collect data. Establish research methodology. 
4. Analyze, interpret and present researched data to ownyrs of the company; Analyze 
competitors' product offerings, identify key trends on market strategies and pricing; 
5. Measure effectiveness of marketing programs to and in increasing the volume of 
sale of our services to; 
6. Recommend· and propose changes in our strategies to increase sales, gross receipts 
and profitability 
In a letter submitted in response to a request for evidence (RFE), the Petitioner stated that the 
proffered position, "requires the minimum of a bachelor degree or its equivalent in a specific field of 
Fashion Design and Merchandising." The Petitioner also provided the following additional 
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Matter of U-P-, Inc. 
description of the duties of the proffered position (note: errors in the original text have not been 
changed): 
• Research Market to determine potential market for the brand 20% 
To assure proper and accurate analysis of data and forecasting, [the Beneficiary] 
conducts market research that may be quantitative and/or qualitative as outlined 
above. 
• Devise procedures and design format to gather data 10% 
Develop procedures to collect data such as observational techniques, trend spotting, 
psychodemographic studies, 
• Establish methodology to forecast market trends, customer preferences 
15% 
Review .sample sketches, footwear product specifications, product line sheets to 
capture trends and predict prospective customer buying of footwear products. 
Conduct research for market segmentation of the footwear industry, brand strength 
analysis of footwear retailers, competitor analysis, footwear sample analysis. 
• Analyze and interpret research data regarding global competitors, footwear 
products, market strategies and pricing 15% 
Use techniques (Histograms, key performance indicators) to analyze metrics such as 
market share, buying-frequency per customer, average order value, cost vs. sales 
• Measure effectiveness of forecasting and marketing programs to increase 
volume of sales 10% 
Use techniques like moving average to predict and forecast sales of footwear, adjust 
sales forecast taking into consideration seasonality of product, macro (long term) 
and micro (short term) factors, follow forecast to determine significant deviation 
• Recommend changes in strategies to increase sales, reduce costs for 
profibhllitr 15% 
Recommend new strategies based on changes in global, national and local footwear 
prices, footvv·ear production, economic factors affecting the fashion industry. 
• Finalization of the marketing plan using all raw data and analysis 10% 
Prepare marketing plan for our footwear activities based on findings regarding 
global footwear market, changes in footwear prices, 
• Prepare reports of findings 5% 
Prepare [Excel] spreadsheets, charts and reports of findings for managerial use 
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. I· 
1 Although some aspects ofthe regulatory criteria may overlap, we will address each of the criteria individually. 
3 
Matter of U-P-, Inc. 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation.2 
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 recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses? 
( 
On the labor condition application (LCA) submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Market Research Analysts and 
Marketing Specialists" corresponding to the Standard Occupational Classification code 13-1161.4 
The Handbook states the following about the educational requirements of market research analyst 
positions: 
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. 
2 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
4 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http:/ /flcdatacenter.com/download/NPWHC _Guidance_ Revised_ I I_ 2009.pdf A /prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
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Matter of U-P-, Inc. 
Courses in statistics, research methods, and marketing are essential for these workers. 
Courses in communications and social sciences, such as economics or consumer 
behavior, are also important. 
Some market research analyst jobs require a master's degree. Several schools offer 
graduate programs in marketing research, but many analysts complete degrees in 
other fields, such as statistics and marketing, and/or earn a master's degree in 
business administration (MBA). A master's degree is often required for leadership 
positions or positions that perform more technical research. · 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Market Research Analysts," http://www.bls.gov/ooh/business-and-financiallmarket-research­
analysts.htm#tab-4 (last visited Sept. 29, 2016). 
The Handbook reports that market research analysts have degrees and backgrounds in a wide-variety 
of disparate fields. That is, while the Handbook states that employees typically need a bachelor's 
degree in market research or a related field, it continues by specifying that many market research 
analysts have degrees in fields such as statistics, math, or computer science. According to the· 
Handbook, other market research analysts have backgrounds in fields such as business 
administration, the social sdences, or communications. This passage of the Handbook identifies 
various courses as essential to this occupation, including statistics, research methods, and marketing. 
It further elucidates that courses in communications and social sciences (such as economics, 
psychology, and sociology) are also important. Therefore, although the Handbook indicates that 
market research analysts typically need an advanced degree, it also indicates that degrees and 
backgrounds in various fields are acceptable for jobs in this occupation- including computer science 
and the social sciences, as well as statistics and communications. 5 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor
1
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 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.6 Section 
214(i)(l )(B) ofthe Act (emphasis added). 
5 
Based upon the Petitioner's designation of the proffered position as a Level I position (relative to others with the 
occupation) it does not appear that the Beneficiary will serve in a senior or leadership role or in a position that perfonns 
more technical research. 
6 
Whether read with the statutory "the" or the regulatory "a," both readings denote a singular "specialty." Section 
214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). Still, we do not so narrowly interpret these provisions to exclude 
5 
Matter of U-P-, Inc. 
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 139, 147 (1st Cir. 2007).7 
That is, USCIS interprets the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree 
in a specific specialty (or its equivalent) that is directly related to the proposed position. Since there 
must be a close correlation between the required specialized studies and the position, the 
requirement of a degree with a generalized title, such as business administration, without further 
specification, does not establish the position as a specialty occupation. Cf Matter of Michael Hertz 
Associates, 19 I&N Dec. 558 (Comm'r 1988). 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. 
Moreover, 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 she would be closely supervised; that her work would be closely 
monitored and reviewed for accuracy; and that she 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 Leve~ I wage 
should be considered. 
positions from qualifying as specialty occupations if they permit, as a minimum entry requirement, degrees in more than 
one closely related specialty. This also includes even seemingly disparate specialties provided the evidence of record 
establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
7 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-1 8 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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Matter of U-P-, Inc. 
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 satisfi~s this or one of 
the other three criteria, notwithstanding the absence of the Handbook's support on the issue. In such 
cases, it is the 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 the instant case, however, the Petitioner submitted 
insufficient evidence from any other objective, authoritative source. 
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 
casts its gaze upon the 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 "dt;gree 
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. 
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." 
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Matter of U-P-, Inc. 
Thus, the evidence of record does not establish that a requirement of a bachelor's or higher degree in 
a specific specialty, or its equivalent, is common to parallel positions with organizations that are in 
the Petitioner's industry and otherwise similar to the Petitioner. The Petitioner has not, therefore, 
satisfied the criterion ofthe first alternative prong of8 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. 
A review of the record of proceedings finds 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. While the Petitioner's assertions regarding the 
complexity of the Position are noted, such a wage level is for a position which only requires a basic 
understanding of the occupation; the performance of routine tasks t~at require limited, if any, 
exercise of judgment; close supervision and work closely monitored and reviewed for 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 
8 The issue here is that the Petitioner's designation ofthisposition 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, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an 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 
8 
Matter of U-P-, Inc. 
only basic understanding of the occupation. In order to attempt to show that parallel positions 
require a minimum of a bachelor's degree in a specific specialty or its equivalent, the Petitioner 
would be obliged to demonstrate that other wage Level I market research analyst positions, entry­
level positions requiring only a basic understanding of market research analysis, require a minimum 
of a bachelor's degree in a specific specialty or its equivalent, the proposition of which is not 
supported by the Handbook. 
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 of8 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. 
In a letter submitted on appeal, the Petitioner indicated that it has never hired anyone other than the 
Beneficiary in the proffered position. While a first-time hiring for a position is certainly not a basis 
for precluding a position from recognition as a specialty occupation, it is unclear how an employer 
that has never recruited and hired for the position would be able to satisfy the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3), which requires a demonstration that it normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the position. We cannot conclude that 
the Petitioner has satisfied the third criterion of 8 C.F .R. § 214.2(h)( 4 )(iii)( A). 9 
specialty or its equivalent. That is, a position's wage level designation may be a consideration but is not a substitute for 
a determination of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
9 While a petitioner may believe or otherwise assert that a proffered position requires a degree in a specific specialty, 
that opinion alone 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"). 
9 
Matter of U-P-, Inc. 
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. 
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 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. 10 The 
Petitioner has not demonstrated in the record that its proffered position is one with duties sufficiently 
specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
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. 
IV. BENEFICIARY'S QUALIFICATIONS 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need 
not fully address other issues evident in the record. That said, we wish to identify an additional issue 
to inform the Petitioner that this matter should be addressed in any future proceedings. 11 
Specifically, the record does not currently demonstrate that the Beneficiary's combined education 
and work experience is the equivalent of a U.S. bachelor's degree in a specific specialty. While the 
claimed equivalency is based in part on experience, the record does not establish ( 1) that the 
evaluator has the authority to grant college-level credit for training and/or experience in the specialty 
at an accredited college or university with a program for granting such credit, or (2) that the 
Beneficiary's expertise in the specialty is recognized through progressively responsible positions 
directly related to the specialty. See 8 C.F.R. §§ 214.2(h)(4)(iii)(C)(4}and (D)(l). 
10 
Again, 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. It also 
raises questions as to whether the LCA corresponds to and supports the H-1 B petition. . 
11 
In reviewing a matter de novo, we may identify additional issues not addressed below in the Director's decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
10 
Matter of U-P-, Inc. 
V. PRIORH-1B APPROVALS 
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 evidence 
contained in the current record, its approval would constitute material error on the part of the 
Director. We are not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of 
Church Scientology International, 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 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
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. 55 
Fed. Reg. 2606,2612 (Jan. 26, 1990). · 
VI. CONCLUSION 
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). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of U-P-, Inc., ID# 124801 (AAO Oct. 3, 2016) 
11