dismissed H-1B Case: Fashion

U.S. Citizenship 
and Immigration 
Services 
MATTER OF L-D-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 26,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an accessories wholesaler, seeks to temporarily employ the Beneficiary as a "fashion 
designer" 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 of the California Service Center denied the petition, concluding that, based upon the 
nature of the Petitioner's business as an accessories wholesaler, the Petitioner had not credibly 
demonstrated a full-time need for a fashion designer. 
On appeal, the Petitioner submits additional evidence and asserts that it also designs its "own 
signature handbags and shoes." 
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 L-D-, 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 associated with the 
attainment of a baccalaureate or higher degree. 
8 C.P.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. 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. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that, as a 
result of inconsistencies in the record, the Petitioner has not demonstrated that the proffered position 
qualifies as a specialty occupation. The Petitioner has not established that it has a legitimate need 
for a fashion designer or that it has H-1B caliber work for the Beneficiary for the period of 
employment requested in the petition. 1 The Petitioner must resolve these inconsistencies in the 
record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N 
Dec. 582,591-92 (BIA 1998). 
When determining whether a position is a specialty occupation, we must consider the nature of the 
business offering the employment and the role of the potential employee as it relates to the particular 
employer. To ascertain a petitioner's intent, we look to the Form I-129, Petition for a Nonimmigrant 
Worker, and the documents filed in support of the petition. It is only in this manner that we can 
determine the exact position offered, the nature of the business, the proffered wage, et cetera. 
The Petitioner has not provided sufficient information regarding the nature of its business and, 
subsequently, it has not established that it has a legitimate need for a fashion designer. The Petitioner 
indicated on the Form I-129 that it is a "[w]holesale[r] of handbags and shoes." In a letter filed with the 
Form I -129, the Petitioner claimed that it "focus[ es] its business in designing the most fashionable and 
1 
While we may not discuss every document submitted in support of the H-1 B petition, we have reviewed and considered 
each one. 
2 
.
Matter of L-D-, Inc. 
stylish handbags and shoes for women." The Petitioner asserted that "the role of a fashion Designer is 
crucial in creating marketable designs and attracting more customers." 
However, on the Form 1-129, the Petitioner classified its industry as "wholesale trade agents and 
brokers,"2 which is described in pertinent part: 
This industry comprises wholesale trade agents and brokers acting on behalf of buyers 
or sellers in the wholesale distribution of goods. Agents and brokers do not take title to 
the goods being sold but rather receive a commission or fee for their service? 
This description does not satisfactorily establish that the Petitioner will be engaged in the design of 
goods, but appears to indicate that the Petitioner is engaged in the wholesale distribution of goods. This 
is further supported by the Petitioner's tax return, in which the Petitioner also lists its business activity 
as "wholesale agents." As noted by the Director, the 
tax documents do not indicate any "cost associated 
with the manufacturing of goods." Further, the Petitioner's "largest deduction was towards 
commission[s]." The fact the Petitioner's tax returns do not indicate manufacturing costs, but instead 
lists commissions, appears to suggest that the Petitioner's role is limited to wholesale distribution. 
On appeal, the Petitioner does not address the Director's concerns regarding the tax documents, but 
asserts that their "business operations include the design of our signature handbags and shoes as well as 
the wholesale and distribution of our products to reputable U.S. retailers." A review of the submitted 
evidence, including purchase orders and invoices, appears to indicate that the Petitioner has business 
transactions with factories in China. However, the documents do not sufficiently demonstrate that the 
Petitioner's business is more than "wholesale and distribution of [its] products to reputable U.S. 
retailers." The documents merely describe transactional details such as quantity, description or price, 
but do not corroborate that the Petitioner's business also "include the design of [its] signature handbags 
and shoes." 
Similarly, the submitted "design samples and instructions" do not adequately demonstrate that the 
Petitioner is "engaged in the design of all their handbags and shoes by their own fashion designers." 
For example, the Petitioner submitted a 
document entitled ' but 
the document does not indicate its original design by the Petitioner's designers. Likewise, the sample 
request for the same design does not sufficiently establish that the Petitioner is responsible for the 
design work. The request lists some details and instructions regarding how the product should be 
manufactured, but does not list the recipient or sender of the document and does not sufficiently 
demonstrate that the Petitioner is providing the instructions or engaged in the design process. Notably, 
2 
On the Form 1-129, the Petitioner provided the North American Industry Classification System (NAlCS) code 425120 to 
describe its industry. According to U.S. Census Bureau , 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 Office of Management and Budget , Executive Office of the President , North American industry 
Classification System (20 17), https://www.census.gov /eos/www/naics/ (Apr . 25, 20 17). 
3 !d. 
3 
Matter of L-D-, Inc. 
the document contains another company's logo. We further note that other documents in the record 
contain foreign language and are not translated, and we are unable to determine whether they support 
the Petitioner's claims. 
The evidence in the record contains inconsistencies that undermine the Petitioner's claim that it engages 
in design work, and therefore, has a legitimate rteed for a fashion designer. 
The Petitioner has also provided conflicting information regarding the proffered position. On the labor 
condition application (LCA)4 submitted in support of the H-1B petition, the Petitioner designated the 
proffered position under the occupational category for fashion designers, corresponding to the 
standard occupational classification code 27-1022. The Petitioner initially stated that the 
Beneficiary (note: errors in original have not been changed) "will be responsible and in charge for 
creating the designs of all our handbags and shoes, thereby spearheading our overall operations" and 
that the Beneficiary will be "the Fashion Designer for our company" (emphasis added). In response 
to the Director's request for evidence, however, the Petitioner stated that she will be "responsible for 
creating the designs of the Petitioner's signature apparel line" and will "[c]ollaborate with [the] 
Chief Designer" (emphasis added). 5 As a result, it is unclear what items, handbags and shoes or 
apparel, the Beneficiary is supposed to be designing and whether she is to be "in charge" or will 
"collaborate with [the] ChiefDesigner." 
Further, in either case, the Petitioner's designation of the proffered position at a Level I wage (the 
lowest of four assignable wage levels) is inconsistent with the Beneficiary's claimed levels of 
responsibility. The "Prevailing Wage Determination Policy Guidance" states that this entry-level 
wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to 
have only a basic understanding of the occupation. This wage rate indicates: (1) 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_11_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. Thus, the Petitioner's designation of this 
position as a Level I, entry-level position undermines its claim that the Beneficiary will be "in 
charge" and "spearheading our overall operations." 
4 
The Petitioner is required to submit a certified LCA to USCIS 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 of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
5 
This statement is also inconsistent with the Petitioner's statements regarding the nature of its business, which had not 
previously claimed to design apparel. 
4 
Matter of L-D-, Inc. 
The Petitioner must demonstrate that a legitimate need for an employee exists and substantiate that it 
has H-1B caliber work for the Beneficiary for the period of employment requested in the petition. 
Without probative evidence of the Petitioner's actual operations and the Beneficiary's proposed 
responsibilities as they relate specifically to its business, the Petitioner has not established that the 
Beneficiary will be employed in the proffered position or that the Petitioner's organization actually 
has the need for an individual to perform the proposed duties. 
\ 
_ Therefore, the Petitioner has not established the substantive nature of the work to be performed by 
the Beneficiary, which precludes a finding that the proffered position satisfies any criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) 
the normal minimum educational requirement for entry into the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 
2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization 
and complexity of the· specific duties, which is the focus of criterion 4. 
III. CONCLUSION 
As the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter of L-D-, Inc., ID# 327625 (AAO Apr. 26, 20 17)