dismissed H-1B Case: Food Distribution

MATTEROFB-INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision ofthe 
Administrative Appeals Office 
DATE: JULY21,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a food and snack distributor, seeks to temporarily employ the Beneficiary as a 
"management analyst" under the H-1 B nonimmigrant classification. See Immigration and 
Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C. § 110l(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, Vermont Service Center, denied the petitiOn. The Director concluded that the 
evidence of record does not establish the proffered position as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the proffered position qualifies as a specialty occupation under the applicable 
regulations. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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 B- 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.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCJS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
The Petitioner identified the proffered position as a "management analyst" on the H-1 B petition, and 
attested on the required labor condition application (LCA) that the occupational classification for the 
position is "Management Analysts," corresponding to Standard Occupational Classification code 
13-1111, at a Level I wage.1 
In its letter of support, the Petitioner stated that the duties of its "senior management analyst" are 
"quite complex and requires a thorough understanding of the food distribution industry." The 
Petitioner described the duties as follows: 
1 We will consider the Petitioner's classification of the proffered position at a Level I wage (the lowest of four assignable 
wage levels) in our analysis of the position. The ''Prevailing Wage Determination Policy Guidance'' issued by the 
Department of Labor provides a description of the wage levels. A Level I wage rate is generally appropriate for 
positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage 
rate indicates: (I) that the Beneficiary will be expected to perfonn routine tasks that require limited, if any, exercise of 
judgment; (2) that he will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that 
he 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://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 of the Petitioner's job opportunity. !d. 
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Matter of B- Inc 
• [G]ather and organize information on distribution procedures; 
• [A ]nalyze data gathered and develop solutions for distribution processing; 
• [D]evelop and implement detailed record management program for current and 
potential clientele; 
• [P]repare manuals and train workers in [use] of equipment and ordering reports 
according to organizational policy; 
• [D]esign, evaluate, recommend and approve changes of distribution, invoice, orders, 
and bill of laden reports; 
• [I]nterview workers and conduct on-site observations to ascertain unit functions, 
work performed and methods, equipment and man-power used; 
• [P]lan overall work procedures such as organizational changes, information flow, 
integrated food distribution methods, inventory control and cost analysts[; and] 
• Confer with ownership to ensure successful functioning of newly implemented 
systems and procedures. 
In response to the Director's request for evidence (RFE), the Petitioner again referred to the 
proffered position as a "senior management analyst" and provided a slightly modified description of 
duties as follows: 
• [T]o gather and organize information used for the distribution of our food and snack 
products to various customers in and outside of the city; 
• [A ]nalyze the distribution patterns and develops solutions for increasing efficiency 
[of! the delivering [of! the products; 
• [P]repares manuals [for] training of new employee or existing employees in working 
with equipment that we use to prepare the products we sell and distribute 
accordingly; 
• [E]valuate and improve our invoicing procedures and also confers with vendors for 
price reduction strategies; 
• [l]nterview employees and customers on-site to make sure that our distribution 
operations is following smooth[ly] for utmost customer service; 
• (D]esign and facilitate inventory control, cost analys[is ], and distribution procedures 
for effective cost management and budgeting purposes; and 
• [C]onfers with ownership to report the results of distribution, inventory control, and 
other management implementations. 
In its RFE response, the Petitioner indicated that the proffered position requires a bachelor's degree 
in "business or related fields." On appeal, the Petitioner indicates that the proffered position requires 
a bachelor's degree in "business, management, economics, etc." 
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Matter of B- Inc 
Ill. 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? 
Specifically, the record (I) does not describe the position's duties with sufficient detail;3 and (2) 
does not establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation 4 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.5 
In pertinent part, the Handbook states that that "many fields of study provide a suitable education 
because of the range of areas that management analysts address." The Handbook further reports that 
"[ c ]ommon fields of study include business, management, economics, political science and 
government, accounting, finance, marketing, psychology, computer and information science, and 
English. "6 
The Handbook states that a variety of fields of study are suitable for management analyst position. 
In general, provided the specialties are closely related, e.g., accounting and finance, 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. Further, since 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 For example, many of the job duties provided by the Petitioner are recited verbatim or paraphrased from the U.S. 
Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) and from the O*NET Online Summary 
Report for "Management Analysts.'! 
4 The Petitioner submitted documentation to support the H-1 8 petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
5 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 USC IS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
6 For more information about "Management Analysts," see U.S. Dep't of Labor, Bureau of Labor Statistics, 
Occupational Outlook Handbook, 2016-17 ed., "Management Analysts," http://www.bls.gov/ooh/business-and­
financial/print/management-analysts.htm (last visited Jun. 22, 20 16). 
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Matter of B- Inc 
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 
accounting and English or political science and computer information science, 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.7 Section 214(i)(l)(B) of the Act (emphasis added). The 
Petitioner has not done so here.8 Accordingly, the Handbook does not support the claim that the 
proffered position falls under an occupational group for which normally the minimum requirement 
for entry is a baccalaureate degree (or higher) in a specific specialty, or its equivalent. 
The Petitioner also referenced the Occupational Information Network (O*NET) OnLine Summary 
Report for "Management Analysts." The summary report provides general information regarding 
the occupation; however, it does not support the Petitioner's assertion regarding the educational 
requirements for the 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. 
Further, 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.9 
The Petitioner has not provided sufficient documentation from a probative source to substantiate its 
assertion regarding the minimum requirement for entry into this particular position. Thus, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
7 While the statutory "the" and the regulatory "a" both denote a singular "specialty," 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. See section 214(i)( I )(B) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii). This also includes even seemingly disparate specialties providing, again, the evidence of record 
establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
R Generally, a requirement of a bachelor's degree in business is inadequate to establish that a position qualifies as a 
specialty occupation. As previously stated, a petitioner must demonstrate that the required degree must be in a specific 
specialty that relates directly to the position in question. Royal Siam Corp. v. Chertoff, 484 F.3d at 147. 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, without further specification, does not establish the position as a specialty occupation. 
Cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988). 
9 For additional information, see the O*NET Online Help webpage available at 
http://www .oneton I ine.org/he lp/onl ine/svp. 
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Matter of B- Inc 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
contemplates common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
I. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird!Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N. Y. 1989)). 
As discussed above, the Petitioner has not established that its proffered position is one for which the 
Handbook (or another independent, authoritative source) reports a requirement for at least a 
bachelor's degree in a specific specialty or its equivalent. We incorporate by reference the previous 
discussion on the matter. There are also no submissions from the industry's professional association, 
nor are there letters or affidavits from similar firms or individuals in the Petitioner's industry in the 
record. 
In support of the petition, the Petitioner submitted several job announcements. This documentation, 
however, does not establish that the proffered position qualifies as a specialty occupation. Both 
advertisements appear to be issued by staffing companies for positions within the energy industry. 
The advertisements do not contain sufficient evidence that the companies actually employing the 
successful candidates are similar to the Petitioner and in the Petitioner's industry of food and snack 
distribution. The Petitioner's assertion that the advertised positions and the proffered position share 
some common duties in vendor management, even if true, does not establish that the advertising 
organizations are similar to the Petitioner and in the Petitioner's industry. 
Moreover, one advertisement states that a business degree in management is preferred. A preference 
for a degree is not synonymous with a requirement for a degree. The other advertisement states that 
a general bachelor's degree in business is required. As previously discussed, a requirement of a 
general-purpose bachelor's degree in business, without more, is inadequate to establish that a 
position qualifies as a specialty occupation. Royal Siam Corp. v. Chertojj; 484 F.3d at 147. Cf 
Matter ofMichae!Hertz Assocs., 19 I&N Dec. at 560. 
Further, even if the job postings indicated that 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 
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Matter of B- Inc 
does not demonstrate what statistically valid inferences, if any, can be drawn from two 
advertisements with regard to determining the common educational requirements for entry into 
parallel positions in similar organizations. See generally Earl Babbie, The Practice of Social 
Research 186-228 (1995). We also note that the Petitioner did not provide any independent 
evidence of how representative these job advertisements are of the advertising employers' recruiting 
and hiring history for the type of jobs advertised, as advertisements are only solicitations for hire and 
are not evidence of actual hiring practices. 
Based upon a complete review of the record, we conclude that the Petitioner has not satisfied the 
first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
Upon review, we find that the Petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. The Petitioner here has submitted descriptions of 
job duties that are copied or paraphrased from the Handbook and O*NET reports for management 
analyst positions. Such descriptions are appropriate for defining the range of duties that may be 
performed within an occupation, but generally cannot be relied upon by a petitioner when discussing 
the duties attached to specific employment. In establishing a position as a specialty occupation, the 
Petitioner must describe the specific duties and responsibilities the Beneficiary will perform within 
the context of the Petitioner's particular business operations. 
Although the Petitioner added a few details regarding its vending business to the general description 
initially submitted, the resulting descriptions of the duties do not identify tasks that are so complex 
or unique that only a specifically degreed individual could perform them. We note that the 
Petitioner has not provided sufficient analysis establishing why its management analyst position 
requires a detailed course of study in a specific discipline in order to perform the associated duties. 
We have also reviewed the Petitioner's documentation regarding its products and vendors/customers 
(e.g., invoices, item lists, and product descriptions). However, contrary to the Petitioner's belief that 
this documentation supports a finding that the proffered position satisfies the requirements of a 
specialty occupation, the record does not include probative evidence elevating the duties of the 
proffered position associated with the Petitioner's vending business to a specialty occupation. 
Further, the Petitioner submitted an LCA for a position at a Level I (entry) wage level, which, as 
noted above, is the lowest of four assignable wage levels. In designating the proffered position at a 
Level I wage, the Petitioner has therefore indicated that the proffered position is a comparatively 
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Matter of B- Inc 
low, entry-level postlion relative to others within the occupation. 10 Based upon the Petitioner's 
designation of the protiered position as a Level I (entry) position, it does not appear that the 
Beneficiary will be expected to serve in a "senior" or advanced role, as claimed by the Petitioner.11 
Without further evidence, the record of proceedings does not indicate that the proffered position is so 
complex or unique as such a position falling under this occupational category would likely be 
classified at a higher-level, requiring a significantly higher prevailing wage. 12 The record does not 
distinguish this position as more unique or complex than other entry-level management analyst 
positions that can be performed by persons without at least a bachelor's degree in a specific 
specialty, or its equivalent. 
The Petitioner has not satisfied the second alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we usually review a petitioner's past recruitin~ and hiring practices, as well as information 
regarding employees who previously held the position. 1 
In support of this criterion, the Petitioner referenced an individual previously employed as its 
"Management/Relations Analyst who performed some of these tasks several years ago." 14 The 
10 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_ I I_ 2009.pdf. 
11 Although the Petitioner listed the job title as "management analyst" on the H-I B petition, it referred to the proffered 
position as a "senior management analyst" elsewhere in the record. 
12 The Petitioner's designation of this position as a Levell, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions with;n the same occupation. Nevertheless, a 
Level I 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)(l) of the Act. 
13 While a petitioner may believe or otherwise assert that a proffered position requires a degree in a specific specialty, 
that opinion alone without corroborating evidence cannot establish the position as a specialty occupation. Were USCIS 
limited solely to reviewing a petitioner's claimed self-imposed requirements, then any individual with a bachelor's 
degree could be brought to the United States to perform any occupation as long as the employer artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a baccalaureate or higher 
degree in the specific specialty or its equivalent. See Defensor v. Meissner, 20 I F. 3d at 387. In other words, if a 
petitioner's degree requirement is only symbolic and the proffered position does not in fact require such a specialty 
degree or its equivalent to perfonn its duties, the occupation would not meet the statutory or regulatory definition of a 
specialty occupation. See section 214(i)(I) of the Act: 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty 
occupation"). 
14 The Petitioner here is referring to the description of duties it submitted in response to the Director's RFE. 
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Matter of B- Inc 
Petitioner does not sufficiently describe which tasks this individual performed, and therefore has not 
established that this individual is representative of the Petitioner's normal employment practices for 
this position. 
Additionally, the Petitioner provided evidence that this individual possesses the U.S. equivalent to a 
bachelor of arts degree in mass communication. When considered with the Petitioner's other 
accepted degrees- including a degree in commerce as the Beneficiary possesses - the record further 
supports the conclusion that the duties of the proffered position do not require a bachelor's degree in 
a specific specialty, or its equivalent. The Petitioner has not demonstrated that its minimum entry 
requirement which can be satisfied by degrees in seemingly disparate tields, e.g., mass 
communication, commerce, and business, meets the statutory requirement that the degree be "in I he 
specific specialty (or its equivalent)." Section 214(i)(l)(B) of the Act (emphasis added). We 
incorporate our previous discussion on the deficiencies of degrees in disparate tields, as well as 
general-purpose business degrees. 
Without more, the Petitioner has not established the referenced criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(J). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
In the instant case, relative specialization and complexity have not been sufficiently developed by 
the Petitioner as an aspect of the proffered position. The Petitioner does not establish how the duties 
of its management analyst elevate the proffered position to a specialty occupation. Again, the 
Petitioner here has provided an overview of the duties of a management analyst position, but has not 
offered sufficient analysis as to how and why the stated job duties specifically relate to the 
Petitioner's operations, and moreover, will require more than general business knowledge. 
We again refer to our comments regarding the Petitioner's attestation on the LCA that the proffered 
position is for a Level I, entry-level position. A designation of a Level I entry wage within the 
occupational category is for a position that is not likely distinguishable by relatively specialized and 
complex duties. Upon review of the totality of the record, we conclude that the Petitioner has not 
established that the nature of the specific duties is so specialized and complex that the knowledge 
required to perform the duties is usually associated with the attainment of a baccalaureate or higher 
degree in a specific specialty, or its equivalent. 
For the reasons discussed above, the evidence of record does not satisfy the fourth criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
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Matter of B- Inc 
IV. CONCLUSION 
The Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). Therefore, it 
cannot be found that the proffered position qualifies as a specialty occupation. 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 
2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Maller of B- Inc, lD# I 7063 (AAO July 21, 20 16) 
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