dismissed H-1B Case: Fashion

U.S. Citizenship 
and Immigration 
Services 
MATTER OFN-.1T- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 17, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an importer and wholesaler, seeks to temporarily employ the Beneficiary as a 
"fashion merchandising & marketing specialist" under the H -1 B nonimmigrant classification. See 
Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The Director, California Service Center, denied the petition. The matter is now before us on appeal. 
Upon de novo review, we will dismiss the appeal. 
I. ISSUE 
The issue before us is whether the proffered position qualifies as a specialty occupation m 
accordance with the applicable statutory and regulatory provisions. 1 
II. SPECIALTY OCCUPATION 
A. 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) 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 
1 We reviewed the record in its entirety before issuing our decision. We follow the preponderance of the evidence 
standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
Matter of N-.1 T- Inc. 
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)(l) of the Act and 8 C.F.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. Fed. 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 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 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. 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 
2 
Matter of N-.1 T- Inc. 
position"). Applying this standard, USCIS regularly approves H-lB petltwns for qualified 
individuals who are to be employed 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 -1 B 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. USCIS must examine the 
ultimate employment of the individual, 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 or 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. The Proffered Position 
In its support letter, the Petitioner stated that the duties of the fashion merchandising and marketing 
specialist would include, but not be limited to, the following (verbatim): 
Will coordinate development of individual fashion products, fashion lines, and 
seasonal, special edition and sales lines between the design and pre-production 
department; will communicate new and emerging fashion tips, trends, and 
developments with overseas and domestic fashion apparel vendors; will partner with 
the design department on tracking all elements of product development including 
fittings, lab-dip approvals, artwork approval, manage development of sales sample 
line to meet target deadlines, review seasonal sales to analyze sell-ability of future 
designs; identifying current fashion market trends to incorporate changing fashion 
trends into current fashion design lines and women's fashion apparel products for 
wholesale and retail sales to third party vendors; will identify and target local, 
regional, national, and overseas women's apparel merchandising consumers, vendors, 
and markets to determine demand for specific apparel trends, types, products, and 
lines; will detect and monitor competing merchandising companies and ascertain 
market conditions or changes in supply and demand in the fashion merchandising 
industry that may affect sales and will use up-to-date market data to recommend sales 
and discounts or alternatively increase manufacturing production of certain product 
types and lines to upper management for review and final decision. 
The worker will have no supervisory duties. The worker will be required to 
work forty ( 40) hours per week. 
3 
Matter of N-.1 T-Ine. 
The Petitioner further stated that the "job duties can only be performed competently by an applicant 
with a college degree relevant to the proffered specialty occupation." 
In its response to the request for evidence, the Petitioner expanded the above duties by breaking 
them into four "specific job duty" categories as follows, and provided the following levels of 
responsibilitl for each category, as well as the percentage of time the Beneficiary will spend 
performing these duties (errors in original) ("background on duty" sections omitted): 
Principal Position Responsibilities/Duties Estimate Responsibility 
% ofTime Level (1-5) 
1. Specific Job Duty #1: Will research local, 
regional, national, and international market areas and 30% 5 
conditions using concepts of macro and micro 
economics and supply and demand theory to 
determine demand for specific types of our 
company's fashion merchandising products and 
accessories products. Using this information, will 
utilize scatter plot statistical analysis software to 
create real-time fashion merchandising marketing 
reports relevant to our company in order to test pre-
targeted markets to analysis and assess whether more 
customers will be interested in certain types of 
fabrics and materials, nail products, eye & make up 
products, hair products and accessories, and other 
fashion merchandising products and accessories. 
Will use market condition and demand information to 
advise overseas manufacturers on pre-production 
design concepts and other emerging fashion tips and 
trends to securing manufacturing sourcing to secure 
purchase contracts for the most marketable fashion 
products and accessories. Will make inventory 
adjustment recommendations to management 
including pre-sale orders to overseas factories and 
other marketing and advertising recommendations 
particularly items and product lines that should be 
targeted for fire-sales. Will pitch new targeted 
advertising and sales campaign ideas and 
propositions to management for review, discussion, 
and implementation. Will otherwise monitor and 
forecast marketing and sales trends and will measure 
2 The Petitioner did not define each level of responsibility. 
4 
Matter of N-.1 T- Inc. 
the effectiveness of company's current marketing 
programs and strategies and make real-time 
modifications as necessary and as approved by 
management. 
2. Specific Job Duty #2: Will help determine our 
company's current position in the industry by 25% 4 
researching, identifying and monitoring competitors 
and analyzing their prices, sales, and marketing 
methods and tactics. Using this information, will 
determine potential markets, product demand, and 
pricing. Will target new customers by assisting in the 
development of new advertising brochures and 
commercials, sales plans, and product promotions. 
Will suing fashion merchandising market data and 
analysis to adjust and market in-season and trendy 
fashion merchandising into the "New Arrivals" 
section on our e-commerce platform and use similar 
marketing data research to adjust e-sales marketing 
promotions for hard to move inventory into the 
online "loss leader" category. Will utilize the same 
marketing data research and analysis to make lateral 
inventory adjustments, wholesale showroom display 
adjustments, and wholesale bulk item sales discount 
for fashion merchandising inventory at our brick and 
mortar showroom and warehouse for local clients, 
vendor, business, retailers, and wholesalers. 
3. Specific Job Duty #3: Will research general 
fashion merchandising market conditions or changes 25% 4 
in the local, domestic, and international industries 
that may affect our sales and customer retention and 
recruitment capabilities; will regularly generate and 
interpret these marketing reports to update 
management with competitive information such as 
ideal sales, prices and inventory levels and new 
general and seasonal product lines. 
4. Specific Job Duty #4: Will conduct secondary 
market research on client companies and business 20% 
'1 
-' 
partnerships (overseas suppliers & manufacturers, 
wholesale vendors, textile/fabric manufacturers and 
sellers, raw materials companies, shipping and 
logistics companies) to analyze fundamental market 
supply and demand dynamics to create secondary 
market research evidence to create analytics 
proposals on current fashion merchandising market 
5 
Matter of N-.1 T- Inc. 
supply and demand; will prepare, revise and process 
market data for review by management; will analyze 
market data with management in regularly scheduled 
meetings for strategic insights, new marketing 
proposals, new advertising, campaigns and to analyze 
current inventory and product line profitability to 
determine allocation of advertising or marketing 
resource investments. 
The Petitioner stated that a fashion merchandising marketing specialist "must possess a bachelor's 
degree or higher in a relevant field of endeavor to be minimally qualified." 
C. Analysis 
Turning to the criteria set forth at 8 C.F.R. § 214.2(h)(4)(iii)(A), we will now review the Director's 
decision denying the petition. 
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) Occupational Outlook Handbook 
(Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
of occupations that it addresses. 3 The Petitioner asserted in the labor condition application (LCA) 
that the proffered position falls under the occupational category "Market Research Analysts and 
Marketing Specialists." 
The Handbook states the following with regard to the educational requirements necessary for 
entrance into this field: 
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. 
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/. The excerpts of the Handbook regarding the duties and requirements of the referenced 
occupational category are hereby incorporated into the record of proceeding. 
Matter of N-.1 T- Inc. 
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. 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. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
Market Research Analysts, on the Internet http://www.bls.gov/ooh/business-and-financial/market­
research-analysts.htm#tab-4 (last visited Feb. 17, 2016). 
The Handbook reports that individuals in this occupational category 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 individuals employed in this occupational category have 
backgrounds in fields such as business administration, the social sciences, 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 employees in this occupational category 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. 
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 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 
Matter of N-.1 T- Inc. 
highly specialized knowledge is essentially an amalgamation of these different specialties.4 Section 
214(i)(l)(B) ofthe Act (emphasis added). 
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 at 147.5 
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. 6 
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 Professional Researcher Certification (PRC), and states that 
candidates qualify based upon their experience and knowledge. According to the Handbook, the 
4 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 
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. 
5 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
[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. 
!d. 
6 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation. 
In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a 
specific specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 484 F.3d at 147 
(b)(6)
Matter of N-. IT- Inc. 
credential is granted by the Marketing Research Association to those who pass an exam and have at 
least three years of experience working in opinion and market research. 7 
We reviewed the Marketing Research Association's 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). Specifically, the Market Research Association 
emphasizes that the credentialing program recognizes the qualifications and expertise of marketing 
and opinion research professionals, encourages high standards within the profession, and establishes 
an objective measure of an individual's knowledge and proficiency. According to the association's 
website, the credential indicates to the public an individual's ability to conduct market research. 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 does not indicate that the market research analyst positions have any 
particular academic requirements for entry, nor does it indicate that these positions require any 
particular level of education to be identified as qualified and possessing a level of 
expertise/competence. Instead, the Market Research Association highlights the importance of 
professional experience and industry-related professional courses (through conferences, semmars, 
and webinars ). 
Thus, the Handbook and the Market Research Association website do not support the claim that the 
occupational category "Market Research Analysts" 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 (which it does not), to satisfy the first criterion, the petitioner must provide 
evidence to support a finding that the particular position proffered would normally have such a 
minimum, specialty degree requirement or its equivalent. 
In addition, we note that the Occupational Information Network (O*NET) Summary Report, 
referenced by the Petitioner, is insufficient to establish that the proffered position qualifies as a 
specialty occupation normally requiring at least a bachelor's degree or its equivalent in a specific 
specialty. Contrary to the assertions of the Petitioner, O*NET does not state a requirement for a 
bachelor's degree. Rather, it assigns this occupation a Job Zone "Four" rating, which groups it 
among occupations of which "most," but not all, "require a four-year bachelor's degree." Further, 
O*NET does not indicate that four-year bachelor's degrees required by Job Zone Four occupations 
must be in a specific specialty directly related to the occupation. Therefore, the O*NET information 
is not probative of the proffered position being a specialty occupation 
The Petitioner also submitted an advisory opinion letter from a professor 
at We reviewed the opinion letter in its entirety. However, the letter 
is not persuasive in establishing 
the proffered position as a specialty occupation position. 
7 The Marketing Research Association website states that the association was founded in 1957 and is the leading and 
largest association of opinion and marketing research professions. For additional information, see http://www. 
marketingresearch.org/information (last visited Feb. 17, 2016). 
9 
(b)(6)
Matter of N-.1 T- Inc. 
In her letter, asserts that the proffered position requires "a Bachelor's Degree in Fashion 
Design or a related area, or the equivalent." lists the duties of the proffered position and 
states that after "examining the responsibilities" of the proffered position "in detail," she concludes 
the position is "specialized and complex." does not identify the source of the duties she 
lists. Furthermore, she does not discuss the duties of the proffered position in any substantive detail. 
Thus, there is no indication that she possesses any knowledge of the Petitioner's proffered position 
beyond the information provided by the Petitioner. She does not demonstrate or assert in-depth 
knowledge of the Petitioner's specific business operations or how the duties of the position would 
actually be performed in the context of the Petitioner's business enterprise. For instance, there is no 
indication that visited the Petitioner's business, observed the Petitioner's employees, 
interviewed them about the nature of their work, or documented the knowledge that they apply on 
the job. opinion does not relate her conclusion to specific, concrete aspects of this 
Petitioner's business operations so as to demonstrate a sound factual basis for her conclusions about 
the educational requirements for the particular position here at issue. Importantly, her statements, 
particularly those regarding an industry-wide recruiting and hiring standard, are not supported by 
copies or citations of research material that may have been used. She has not provided sufficient 
facts that would support the contention that the proffered position requires at least a bachelor's 
degree in a specific specialty. 
Finally, there is no indication that was aware of the fact that the Petitioner designated 
the proffered position as an entry-level position relative to others within the occupational cate~ory. 
We consider this a significant omission, in that it indicates an incomplete review of the position. 
We may, in our discretion, use as advisory opinion statements submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable, we 
are not required to accept or may give less weight to that evidence. Matter of Caron Int 'l, Inc. , 19 
I&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in accord with other 
information or is in any way questionable , we are not required to accept or may give less weight to 
that evidence. !d. As a reasonable exercise of our discretion we discount the advisory opinion letter 
as not probative of any criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
It is incumbent upon the Petitioner to provide persuasive evidence that the proffered position 
qualifies as a specialty occupation under this criterion, notwithstanding the absence of Handbook 
support on the issue. The regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-lB petition 
involving a specialty occupation shall be accompanied by [ d]ocumentation ... or any other required 
evidence sufficient to establish ... that the services the Beneficiary is to perform are in a specialty 
occupation." [G]oing on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. In re Soffici , 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter ofTreasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Thus, the Petitioner has not satisfied the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
8 For all of the reason s discussed, 
§ 214.2(h)(4)(iii)(A). 
letter also does not satisfy any of the remaining criteria at 8 C. F. R. 
10 
(b)(6)
Matter of N-.1 T- Inc. 
The requirement of a baccalaureate or higher degree in a spec[fic specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record of proceeding 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 his August 11, 2015, letter, the Controller at states that a requirement of a 
bachelor's degree in business or fashion-related degrees is "a common industry practice." 
claims to base his opinion upon his experience at as the company's "controller," and as a 
project manager in an international business setting. However, the evidence of record does not 
establish his expertise pertinent to assessing the minimum requirements for entry into the proffered 
position. For example, the Petitioner does not submit any objective evidence regarding 
work experience and educational attainment. Again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
In re Soffici, 22 I&N Dec. at 165. 
Furthermore, provides insufficient information demonstrating that is similar to 
the Petitioner. For example, states that "provides quality women's apparel 
products to the U.S. and international retail and wholesale market," and that many of 
products are "designed in-house." However, does not provide information regarding the size 
of its gross and net earnings; and whether there is a marketing specialist on its staff and 
the educational requirements of such position. The information contained in letter is 
insufficient to demonstrate that is similar to the Petitioner. 
Moreover, it does not appear that the Petitioner notified that it designated the proffered 
position on the LCA as a Level I (entry) position relative to others within the occupational category. 
It appears that this information would have been relevant for his assessment of the proffered 
position's similarity to positions within his company. Therefore, letter is insufficient to 
satisfy the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
We will next address the job advertisements submitted by the Petitioner. Upon review of the 
documents, we find that the Petitioner's reliance on the job advertisements is misplaced. 
For the Petitioner to establish that an organization in its industry is also similar to it, it must 
demonstrate that the Petitioner and the organization share the same general characteristics. Without 
such evidence, documentation submitted by a petitioner is generally outside the scope of 
consideration for this criterion, which encompasses only organizations that are similar to the 
Petitioner. When determining whether the Petitioner and the advertising organization share the same 
general characteristics , such factors may include information regarding the nature or type of 
organization, and, when pertinent, the particular scope of operations , as well as the level of revenue 
11 
(b)(6)
Matter of N-.1 T- Inc. 
and staffing (to list just a few elements that may be considered). It is not sufficient for the Petitioner 
to claim that an organization is similar and in the same industry without providing a legitimate basis 
for such an assertion. 
For example, the Petitioner submitted advertisements from, among others, 
toilet repair products company), 
(a 
The Petitioner did not state which aspects or traits (if 
any) it shares with the advertising organizations. Without further information, the advertisements do 
not appear to involve organizations that operate in the Petitioner's industry that are also similar to it, 
and the Petitioner has not provided any probative evidence to suggest otherwise. The Petitioner did 
not supplement the record of proceeding to establish that the advertising organizations are similar to 
it. 
Moreover, these advertisements do not appear to involve parallel pos1t10ns. For example, the 
Petitioner submitted its job advertisement for the "Director, commercial and Industrial Design" 
position, which requires a minimum of a master's degree. In contrast, the positions at 
(requires five to seven years of experience), (requires 
two to five years of experience), and (requires a minimum of three years of 
experience) appear to be for more senior positions than the proffered position. However, the 
Petitioner designated the proffered position on the LCA as a Level I position. 9 As noted, individuals 
occupying positions at this wage level are expected to have only a basic understanding of the 
occupation and perform routine tasks that require limited, if any, exercise of judgment. The 
advertised positions therefore appear to involve 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 parallel those of the proffered position. 
Furthermore, we note that some of the advertisements 10 state that the bachelor's degree is 
"preferred," which undermines the Petitioner's assertion that the proffered position is a specialty 
occupation requiring at least a bachelor's degree in specific specialty. 
9 The "Prevailing Wage Determination Policy Guidance" issued by the U.S. Department of Labor (DOL) provides a 
description of the wage levels. A Level I wage rate is described by DOL as follows: 
Levell (entry) wage rates are assigned to job offers for beginning level employees who have only a basic 
understanding of the occupation. These employees perform routine tasks that require limited, if any, 
exercise of judgment. The tasks provide experience and familiarization with the employer's methods, 
practices, and programs. The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific instructions on required tasks 
and results expected. Their work is closely monitored and reviewed for accuracy. Statements that the job 
offer is for a research fellow, a worker in training, or an internship are indicators that a Level I wage should 
be considered. 
U.S. Dep't of Labor, Emp't & Training 
Immigration Programs (rev. Nov. 
NPWHC Guidance Revised 11 2009.pdf. 
10 See ad~ertisement"; from - -
Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
2009), available at http://www.foreignlaborcert.doleta.gov/pdf/ 
12 
Matter of N-.1 T- Inc. 
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. That is, as the evidence does not establish that similar organizations in the same industry 
routinely require at least a bachelor's degree in a specific specialty, or its equivalent, for parallel 
positions, not every deficit of every job posting has been addressed. 11 
Thus, based upon a complete review of the record, we find that the Petitioner has not established that 
a requirement for at least a bachelor's 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. Thus, 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). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
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. 
The Petitioner's multiple positions that the proffered position satisfies this prong are acknowledged. 
However, we find that the Petitioner did not sufficiently develop relative complexity or uniqueness 
as an aspect of the proffered position of fashion merchandising and marketing specialist. 
Specifically, the record does not demonstrate how, by a preponderance of the evidence, the position 
described requires the theoretical and practical application of a body of highly specialized 
knowledge such that a bachelor's or higher degree in a specific specialty or its equivalent is required 
to perform them. 
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 I (entry) wage, which is the lowest of four assignable 
wage levels. Without further evidence, the evidence does not demonstrate that the proffered position 
is complex or unique as such a position falling under this occupational category would likely be 
11 It must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a specific 
specialty is common to the industry in parallel positions among similar organizations (which they do not), the Petitioner 
does not demonstrate what statistically valid inferences, if any, can be drawn from the advertisements with regard to 
determining the common educational requirements for entry into parallel positions in similar organizations. See 
generally Earl Babbie, The Practice of Social Research 186-228 (1995). Moreover, given that there is no indication that 
the advertisements were randomly selected, the validity of any such inferences could not be accurately determined even 
if the sampling unit were sufficiently large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] 
process [of probability sampling]" and that "random selection offers access to the body of probability theory, which 
provides the basis for estimates of population parameters and estimates of error"). 
13 
Matter of N-.1 T- Inc. 
classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) position, 
requiring a significantly higher prevailing wage.12 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." 13 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 employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
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. 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 
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 
12 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. Nevertheless, a 
Level 1 wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, 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 specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( 1) of the Act. 
13 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_ll_ 2009.pdf 
14 
Matter of N-.1 T- Inc. 
possessed a baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor 
v. Meissner, 201 F.3d at 388. 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. USCIS 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. 
The Petitioner submitted a petition approval notice, a support letter, and a degree certificate for 
another nonimmigrant worker. However, the ·Petitioner submitted insufficient evidence to 
demonstrate that this individual was in fact employed by the Petitioner and that the position held by 
this individual was the same as the proffered position. 
Furthermore, we are not required to approve 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 (Cornrn'r 1988). If any of the previous 
nonimmigrant petitions were approved based on the same unsupported assertions that are contained 
in the current record, they would constitute material and gross error on the part of the Director. 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). A prior approval also does not preclude 
USCIS from denying an extension of an original visa petition based on a reassessment of eligibility 
for the benefit sought. See Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th 
Cir. 2004). Furthermore, our authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director had approved 
nonimmigrant petitions on behalf of a beneficiary, we would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
Therefore, the Petitioner has not demonstrated that it normally requires at least a bachelor's degree 
in a specific specialty or its equivalent for the proffered position, it does not satisfy 8 C.P.R. 
§ 214.2(h)( 4)(iii)(A)(3). 
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 in a specific specialty, or its equivalent 
15 
(b)(6)
Matter ofN-.JT- Inc. 
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. 
As we discussed earlier, the evidence of record does not establish expertise pertinent to 
assessing the minimum requirements for entry into the proffered position. Furthermore, it does not 
appear that was aware of the specifics of the proffered position other than the duty 
description provided by the Petitioner, for example, that the Petitioner designated the proffered 
position at Level I wage level, which would have been relevant for his assessment of the proffered 
position - especially with regard to this criterion. Again, it appears that assessment of 
the proffered position was based on incomplete information provided by the Petitioner. Thus, we 
find letter regarding the proffered position insufficient to satisfy this criterion.14 
Upon review of the record of the proceeding, we find that the Petitioner has not provided sufficient 
probative evidence to satisfy this criterion of the regulations. In the instant case, relative 
specialization and complexity have not been adequately 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 in the occupational 
category 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 I position (of the lowest 
of four assignable 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. 
15 
The Petitioner has submitted inadequate probative evidence to satisfy this criterion of the 
regulations. Thus, the Petitioner has not established that the duties of the position are 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. We 
therefore, conclude that the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)( 4). 
14 We incorporate by reference our earlier discussion regarding letter, and reiterate that his letter also does not 
satisfy any of the remaining criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
15 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 significantl y higher 
wage 
16 
Matter of N-.1 T- Inc. 
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. 
III. CONCLUSION AND ORDER 
The petition will be denied and the appeal dismissed for the above stated reasons. 16 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. 
Cite as Matter ofN-.IT- Inc., ID# 15799 (AAO Feb. 17, 2016) 
16 As the grounds discussed above are dispositive of the Petitioner's eligibility for the benefit sought in this matter, we 
will not address and will instead reserve our determination on the additional issues and deficiencies that we observe in 
the record of proceeding with regard to the approval ofthe H-18 petition. 
17