dismissed H-1B Case: Fashion

MATTER OF W-F- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 29, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a clothing and fashion wholesaler, seeks to temporarily employ the Beneficiary as a 
"market analyst" under the H-1 B nonimmigrant classification for specialty occupations. 
See Immigration and Nationality Act (the Act) section 1 Ol(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the 
specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish that the job offered qualities as a specialty occupation. 
On appeal, the Petitioner submits additional evidence and asserts that the Director's finding was in 
error. 
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.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: 
Matter of W-F- Inc. 
(I) 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 have consistently interpreted 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. Chert<~[[, 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 
The Petitioner described the duties of the proffered position as follows: 
Percentage Detailed Description of Specific Job Duties 
Time 
26% Market Research-Research market conditions in local, regional, 
and national areas to determine potential sales. By applying his 
10 hours education, a market research analyst will look at the consumer base 
from a micro sale and a macro sale and determine quantifiable 
factors from the research such as buying trends, valuation of certain 
types of goods, the size of various markets in various locales, local 
trends, and outlook trends. Market Analyst will collect and analyze 
data on customer demographics, preferences, needs and buying 
habits to identify potential markets and factors affecting product 
demand. 
26% Gathering Information on Competitors-Market Analyst will 
gather data on our competitors and analyze their prices, sales, and 
10 hours method of marketing and business procedures. He shall use this 
information to ensure that our company is competitive within its 
respective industries and ensure that [the Petitioner] stays 
competitive in the national and international wholesale market. 
2 
Matter of W-F- Inc. 
26% Develop and Implement procedures-Drawing upon his analyses 
of consumer trends, competitor and industry trends as well as [the 
10 hours Petitioner]'s current marketing and advertising strategies, Market 
Analyst will develop and implement procedures for identifying 
advertising needs and cost effective marketing strategies on behalf 
of [the Petitioner]. 
11% Reporting and Presentations-Market Analyst will utilize the 
results of his findings to prepare reports graphically and through 
4 Hours written text. Market Analyst will present the results to both his 
immediate supervisor, the Marketing Manager, as well as, 
periodically, to the President and other officers of [the Petitioner]. 
11% Periodic Industry Conferences-Market Analyst will accompany 
the Marketing Manager to Industry Conferences such as forums as 
4 Hours well as wholesaler conventions to gain a firsthand look into future 
trends and new marketing practices. 
The Petitioner indicated that the proffered position requires a bachelor's degree in marketing or 
business administration. 
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.
1 
A. Specialty Occupation 
Preliminarily, we note that the Petitioner's requirements for the position do not qualify the proffered 
position as a specialty occupation. According to the Petitioner, the minimum education required for 
the position of market analyst is a bachelor's degree in marketing or business administration. At the 
outset, we must note that if the Petitioner's degree requirement can be satisfied by a general 
bachelor's degree in business administration, without further specialization, then it is inadequate to 
establish that the proposed position qualifies as a specialty occupation. A petitioner must 
demonstrate that the proffered position requires a precise and specific course of study that relates 
directly and closely to the proffered position in question. 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. C.Y Matter (~f Michael Hertz Assocs., 19 I&N Dec. 558, 560 
(Comm'r 1988). 
1 On appeal, the Petitioner only claims to meet the first criterion at 8 C.F.R. § 214.2(h)( 4 )(iii)(A)(/) and does not assert 
or provide evidence in support of other criteria. Upon review of the record, we agree with the Director's findings for the 
remaining criteria and will not address them further. 
3 
Matter ofW-F-lnc. 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)( 1) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed, 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. 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. Royal Siam Corp., 484 
F.3d at 147. 
On the basis of the position's educational requirement alone, the proffered position does not qualify 
as a specialty occupation. 
On appeal, the Petitioner asserts it has satisfied the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), 
and, therefore, the proffered position qualifies as a specialty occupation. This criterion 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? 
The Petitioner designated the proffered position on the labor condition application (LCA) 3 under the 
occupational category "Market Research Analysts and Marketing Specialists,'' corresponding to the 
Standard Occupational Classification code 13-1161. 4 
2 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 we regularly review 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. 
3 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either 
the prevailing wage for the occupational classification in the "area of employment'' or the actual wage paid by the 
employer to other employees with similar experience and qualifications who are performing the same services. See 
Matter ofSimeio Solutions. LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
4 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). 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 that the Beneficiary: (I) will be expected to perform routine 
tasks that require limited, if any, exercise of judgment; (2) will be closely supervised and the work closely monitored and 
reviewed for accuracy; and (3) will receive specific instructions on required tasks and expected results. U.S. Dep't of 
Labor, Emp't & Training Admin., Prevailing Wage Determination PoliLJ• Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009). available at http://tlcdatacenter.com/download/NPWHC _Guidance _Revised _II_ 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 ofthe Petitioner's job opportunity. !d. 
4 
Matter of W-F- Inc. 
We reviewed the section of the Handbook covering "Market Research Analysts,'' including the 
section entitled "How to Become a Market Research Analyst," which states the following: 
Most market research analysts need at least a bachelor's degree. Top research 
positions may reqmre a master's degree. Strong math and analytical skills are 
essential. 
Education 
Market research analysts typically need a bachelor's degree in market research or a 
related field. Many have degrees in fields such as statistics, math, and computer 
science. Others have backgrounds in business administration, the social sciences, or 
communications. 
Courses in statistics, research methods, and marketing are essential for these workers. 
Courses in communications and social sciences, such as economics or consumer 
behavior, are also important. 
Some market research analyst jobs require a master's degree. Several schools offer 
graduate programs in marketing research, but many analysts complete degrees in 
other fields, such as statistics and marketing, and/or earn a master's degree in 
business administration (MBA). A master's degree is often required for leadership 
positions or positions that perform more technical research. 
Licenses, Certifications, and Registrations 
Certification is voluntary, but analysts may pursue certification to demonstrate a level 
of professional competency. The Marketing Research Association offers the 
Professional Researcher Certification (PRC) for market research analysts. 
5 
Candidates qualify based on experience and knowledge; they must pass an exam, be a 
member of a professional organization, and have at least 3 years working in opinion 
and marketing research. Individuals must complete 20 hours of industry-related 
continuing education courses every 2 years to renew their certification. 
Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Market Research 
Analysts (2016-17 ed.). 
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 individuals in this 
occupational category 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 sciences, or communications. This passage of the Handbook 
5 
As of January 2017, the PRC is offered by the Insights Association. 
5 
Matter of W-F- Inc. 
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 and consumer behavior) are also important. Therefore. although the Handbook indicates 
that market research analysts typically need a 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. 
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, a minimum entry requirement of a degree in disparate fields 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) of the Act (emphasis added). 
Here, the Petitioner has not done so. 
The Handbook also states that "others have a background in business administration." Again as we 
already discussed, 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 qualities for classification as a 
specialty occupation. See Matter of Michael Hertz Assocs.. 19 I&N Dec.at 558. 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 .spec(fic 
specialty is not normally the minimum entry requirement for this occupation. 
The narrative of the Handbook further reports that some employees obtain professional certification 
to demonstrate a level of professional competency. It continues by outlining the requirements for 
market research analysts to achieve the PRC, and states that candidates qualify based upon their 
experience and knowledge. The credential is granted by the Insights Association (IA) to those who 
pass an exam and have at least three years of relevant industry experience. 7 
6 Whether read with the statutory ''the'' or the regulatory ·'a,'' both readings denote a singular ''specialty.'' Section 
214(i)( I )(B) of the Act; 8 C.F.R. § 214.2(h)( 4)(ii). Still, we do not so narrowly interpret these provisions to exclude 
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 
According to its website, the lA was formed in January 2017 when the Marketing Research Association (founded in 
1957) and the Council of American Survey Research Organization (founded in 1975) merged. For additional 
information, see http://www.insightsassociation.org/about (last visited June 27, 20 17). 
Matter ofW-F- Inc. 
We reviewed the IA website, which confirms the Handbook's statement regarding the requirements 
for professional certification (i.e., passage of an exam and three years of relevant industry 
experience), and further specifies that the education necessary to apply for professional certification 
is "12 industry-related education hours within the two preceding years." It also emphasizes that the 
credentialing program differentiates the individual who takes it and provides a '"badge· of 
competence in the given areas and an assurance that the individual is current in knowledge and 
experience." The narrative continues by stating that the credential "provides a vehicle for 
developing a pool of well-trained, competent marketing researchers, thereby improving both 
perceived and substantive standards." The website includes information regarding "How to Enter 
the Industry" which lists a variety of "[p ]ossible [ d]egrees," such as business administration, liberal 
arts, computer science and communications, and a variety of "[h ]elpful [ s ]kills.'' including '"attention 
to detail," and "basic computer skills." It does not indicate that a market research analyst position 
has any specific minimum academic requirement for entry, nor does it state that it requires any 
particular level of education to be identified as qualified and possessing a level of expertise or 
competence. Instead, IA highlights the importance of professional experience and industry-related 
professional courses (through conferences, seminars, and webinars). 
Thus, the Handbook and the IA website do not support the claim that the occupational category 
"Market Research Analysts" is one for which the minimum requirement for entry is a baccalaureate 
degree (or higher) in a specific specialty, or its equivalent. 
This conclusion is also supported by the submitted job postings, which the Petitioner asserts 
establish that the position requires a minimum of a bachelor's degree in marketing or business 
administration. Contrary to the Petitioner's assertions, however, only one posting indicates that the 
advertised position requires a bachelor's degree in business administration or marketing. Of the 
remaining postings, a few do not require a degree in a specific specialty and one requires a degree in 
a number of specialties including "Marketing Research, Management Consulting, Marketing, 
Statistics, Business, Mathematics, Economics, Communications or related field." Therefore, the 
postings do not sufficiently establish that a bachelor's degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into the particular position. 
We further note that while the Petitioner provided a description of the duties of the protTered 
position, the duties are identical to the tasks in described for this occupational category in the 
Handbook and O*NET OnLine summary for "Market Research Analysts and Marketing 
Specialists." 8 The Petitioner also designated the profTered position as an entry-level position at a 
Level I on the LCA. This designation, when read in combination with the Petitioner's job 
description and the Handbook's account that this occupation can be performed by persons with 
various types of degrees or generalized business administration degree, does not establish that the 
proffered position requires a bachelor's degree in a specific specialty.9 
8 For more information, see https://www.onetonline.org/link/summary/ 13-1161.00 (last visited June 29, 20 17). 
9 Likewise, while the O*NET summary report provides general information regarding the occupation, it does not indicate 
that at least a bachelor's degree in a specific specialty is normally the minimum requirement for entry into this 
Matter ofW-F- Inc. 
The Petitioner discusses the Beneficiary's ·'specialized education" and "relevant coursework,'' and 
claims that the Beneficiary is well-qualified for the position. 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. Further, while a few related courses may be beneficial in performing certain duties of 
the position, the Petitioner has not demonstrated how an established curriculum of 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 Petitioner also cites to Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 
2012), stating that the court "found" that according to the Handbook, "a market research analyst 'is a 
distinct occupation with a specialized course of study that includes multiple specialized fields .. ,. In 
addition, the Petitioner quotes Raj and Co. v. USCIS, 85 F. Supp. 3d 1241, 1246 (W.O. Wash. 2015): 
The first regulatory criterion does not restrict qualifying occupations to those for 
which there exists a single specifically tailored and titled degree program. Indeed, 
such an interpretation ignores the statutory and regulatory allowance for occupations 
that require the attainment of the "equivalent" of specialized bachelor's degree as a 
threshold for entry." 
As stated in Residential Finance and Raj, we agree that the degree does not have to be a degree in a 
single specific specialty. As discussed, however, a minimum entry requirement of a degree in 
multiple fields, 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 ofthese different specialties. Section 214(i)(l)(B) ofthe 
Act (emphasis added). Here, the Petitioner indicates that a general degree in business administration 
is sufficient for entry into the proffered position; thus, the Petitioner has not sufficiently established 
that a bachelor's degree in a specific specialty is normally the minimum requirement for entry into 
the particular position. 
We must also note that in Raj, the court stated that a specialty occupation requires the attainment of 
a bachelor's degree or higher in a specific specialty, or its equivalent. The court confirmed that this 
issue is well-settled in case law and that our interpretation of the regulatory framework is reasonable. 
The court noted that "permitting an occupation to qualify simply by requiring a generalized bachelor 
degree would run contrary to congressional intent to provide a visa program for specialized, as 
occupation. For example, the Specialized Vocational Preparation (SVP) rating cited within O*NET's Job Zone 
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, formal education, and experience- and it does not specifY the particular type of degree, if any, 
that a position would require 
Matter of W-F- Inc. 
opposed to merely educated, workers." The court further stated that the regulatory provisions do not 
restrict qualifying occupations to those for which there exists a single, specifically tailored and titled 
degree program; but rather, the statute and regulations contain an equivalency provision. 
In any event, the Petitioner has not established that the facts of the instant petition are analogous to 
those in Residential Finance 10 or Raj. We also note that, in contrast to the broad precedential 
authority of the case law of a United States circuit court, we are not bound to follow the published 
decision of a United States district court in matters arising even within the same district. See Matter 
of K-S-, 20 I&N Dec. 715, 719-20 (BIA 1993). Although the reasoning underlying a district judge's 
decision will be given due consideration when it is properly before us, the analysis does not have to 
be followed as a matter of law. !d. 
For the aforementioned reasons, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(J). 
B. Prior Approval 
The Petitioner contends that because USCIS approved a prior petition "for the same position" filed 
on behalf of the Beneficiary by a different employer, "the position is a specialty occupation." 11 We 
are not required, however, to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See Matter of" 
Church Scientology Int '1, 19 I&N Dec. 593, 597 (Comm'r 1988); see also Sussex Eng 'g, Ltd v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). Furthermore, we are not be bound to follow a 
contradictory decision of a service center. La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 
WL 282785, at *2 (E.D. La. 2000). 
IV. CONCLUSION 
The Petitioner has not established that the proffered position qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter ofW-F- Inc., ID# 419187 (AAO June 29, 2017) 
10 
It is noted that the district judge's decision in that case appears to have been based largely on the many factual errors 
made by the Director in the decision denying the petition. We further note that the Director's decision was not appealed 
to us. Based on the district court's findings and description of the record, if that matter had first been appealed through 
the available administrative process, we may very well have remanded the matter to the service center for a new decision 
for many of the same reasons articulated by the district court if these errors could not have been remedied by us in our de 
novo review of the matter. 
11 
As evidence, the Petitioner submitted a copy of the prior approval notice which only establishes that the H-1 B petition 
filed by the petitioning employer was approved. The record does not contain additional evidence. such as the duties or 
the requirements for the position, to support the Petitioner's claim. 
9