dismissed H-1B Case: Fuel Retail

(b)(6)
DATE: JUl 1 7 2015 
INRE: Petitioner: 
Beneficiary : 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citi zenship and Immigration Service 
Administrative Appeals Offic e 
20 Massachusetts Ave ., N.W ., MS 2090 
Washington, DC 20529- 2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigr ation and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.P.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requir em ents. Please do not mail any motions directly to the AAO. 
T~~ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
I. PROCEDURALBACKGROUND 
On the Form I -129 visa petition, the petitioner describes itself as a single-employee fuel dealer1 
established in In order to employ the beneficiary in what it designates as a "Budget 
Analyst" position at a salary of $50,000 per year,2 the petitioner seeks to classify him as a 
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The director denied the petition, concluding that the evidence of record did not establish that the 
proffered position qualifies as a specialty occupation. 
The record of proceeding before us contains the following: (1) the Form I-129 and supporting 
documentation; (2) the director's request for additional evidence (RFE); (3) the petitioner's 
response to the RFE; (4) the director's letter denying the petition; and (5) the Form I-290B, Notice 
of Appeal or Motion, and supporting documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record does not 
overcome the director's basis for denying this petition. 3 Accordingly, the appeal will be dismissed, 
and the petition will be denied. 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
To meet the petitioner's burden of proof in establishing the proffered pos1t1on as a specialty 
occupation, the evidence of record must establish that the employment the petitioner is offering to 
the beneficiary meets the following statutory and regulatory requirements. 
1 In its support letter, the petitioner states that it is a holding company and controls three gas stations. The 
record does not contain any agreements or documentation showing that the petitioner has acquired any 
ownership interest in these three companies it claims to control. In the alternative, the record does not 
contain any agreements between the petitioner and these three companies. However, we will not address 
this matter and we will instead reserve our determination on the issue. 
2 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was 
certified for ·use with a job prospect within the "Budget Analysts" occupational classification, SOC 
(O*NET/OES) Code 13-2031, and a Level I (entry-level) prevailing wage rate, the lowest of the four 
assignable wage-levels. 
3 The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's 
claim is "probably true," where the determination of "truth" is made based on the factual circumstances of 
each individual case. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M-, 
20 I&N Dec. 77, 79-80 (Comm'r 1989)). 
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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 
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 
knowledge required to perform the duties is usually associated with the 
attainment of 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)(1) 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. Federal Sav. and Loan Ins. Corp., 489 
U.S. 561 (1989); Matter of W-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 
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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), USCrS 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 position"). Applying this 
standard, USCrS regularly approves H-lB petitions for qualified aliens 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 particul ar 
position, fairly represent the types of specialty occupations that Congress contemplated when it 
created the H-lB 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. users must examine the 
ultimate employment of the alien, 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 nor 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. Analysis 
In its support letter, the petitioner stated that the beneficiary would be responsible for the 
following duties: 
• Analyze expenditures and prepare regular and special budget reports for the 3 
compames. 
• Analyze monthly budgeting and accounting reports to maintain expenditure 
controls. 
• Provide advice and technical assistance with cost analysis, fiscal allocation , and 
budget preparation in acquiring additional companies. 
• Examine budget estimates for completeness, accuracy, and conformance with 
company procedures and federal and tax regulations. 
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• Summarize budgets and submit recommendations for the approval or 
disapproval of funds requested from the upper management of [the petitioner]. 
• Review operating budgets of the companies to analyze trends affecting budget 
needs and propose allocations of appropriate funds to ensure operations of the 
companies[.] 
• Consult with managers to ensure that budget adjustments are made in 
accordance with business needs. 
• Compile and analyze accounting records and other data to determine the 
financial resources required to expand business operations and acquire 
additional companies. 
• Perform cost-benefit analyses to compare operating programs, review financial 
requests, or explore alternative financing methods. 
• Interpret budget directives and establish polices for carrying out directives. 
In its response to the director's request for further evidence, the petitioner revised the duties of the 
proffered position by expanding the beneficiary's responsibilities, and provided the percentage of 
time the beneficiary would spend on each task as follows: 
• Develop analytical frameworks and repeatable models to support Store 
Managers as a guide to determine financial and operational performance; 
including the development of scheduling models, inter-company pricing models 
and labor models[.] 5% 
• Perform data gathering and analyses to identify performance improvement 
opportunities related to labor and cost management[.] 5% 
• Facilitate meetings and lead discussions with key leadership including CEO. 
5% 
• Create winning strategies for each location to ensure each location is 
maximizing it [sic] potential (revenue, cost, and margin). 5% 
• Responsible for purchasing strategy including but not limited to, price 
negotiations, vendor relations and contract management. 5% 
• Participate in the planning, coordination, and execution of the annual budget 
process and quarterly forecast. 5% 
• Develop inventory control procedures with support of the General Manager; 
create and execute training on inventory control procedures for Stores and 
Production Facility. 5% 
• Manage all corporate service contracts and pricing. 5% 
• Analyze expenditures and prepare quarterly and special budget reports, forecast 
and analysis for each of the 5 companies. 5% 
• Analyze monthly budgeting and accounting reports to maintain expenditure 
controls of the companies. Set financial goals and targets and ensures they are 
met. 5% 
• Provide forecasting models cost analysis, fiscal allocation, and budget 
preparation in acquiring additional companies and augmenting the business. 
5% 
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• Develop profitability plans and perform cost-benefit analyses to compare 
operating programs, review financial requests, or explore alternative financing 
methods. 5% 
• Perform various financial simulations, scenario modeling and adhoc financial 
reporting. 5% 
• Prepare yearly budgets for each company and submit recommendations for the 
approval or disapproval of funds requested from the upper management of [the 
petitioner]. 5% 
• Review operating budgets of the companies to analyze trends affecting budget 
needs and propose allocations of appropriate funds to ensure fiscal operations 
of the companies. 5% 
• Review financial health of potential acquisitions. Compile and analyze 
accounting records and other data to determine the financial resources required 
to expand business operations and acquire additional companies. 10% 
• Interpret budget directives and establish policies for carrying out directives . 
5% 
We note that the percent ages of time listed by the petitioner in its RFE response letter only adds to 
90 percent, and the petitioner does not state what the beneficiary's responsibilities would be for the 
remaining 10 percent. 
To make our determination as to whether the proffered position qualifies as a specialty occupation , 
we will turn to the supplemental, additional criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
A baccalaur eate or higher degree in a specific specialty, or its equivalent , is 
normally the minimum requirement for entry into the particular position 
To make our determination as to whether the employment described above qualifies as a specialty 
occupation, we turn first to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which is satisfied by 
establishing that a baccalaureate or higher degree, or its equivalent, in a specific specialty is 
normally the minimum requirement for entry into the particular position that is the subject of the 
petition. 
We recognize the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook (the 
Handbook) as an authoritative source on the duties and educational requirements of the wide 
variety of occupations it addresses. 4 As noted above, the LCA that the petitioner submitted in 
support of this petition was certified for a job offer falling within the "Budget Analysts" 
occupational category. 
The Handbook states the following with regard to the educational requirements necessary for 
entrance into this field: 
4 The Handbook , which is available in printed form, may also be accessed online at 
http://www.stats.bls.gov/oco/. Our references to the Handbook are from the 2014-15 edition available 
online. 
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A bachelor's degree is typically required to become a budget analyst, although 
some employers prefer candidates with a master's degree. 
Education 
Employers generally require budget analysts to have at least a bachelor's degree. 
However, some employers may require candidates to have a master's degree. 
Because developing a budget requires strong numerical and analytical skills, 
courses in statistics or accounting are helpful. For the federal government, a 
bachelor's degree in any field is enough for an entry-level budget analyst position. 
State and local governments have varying requirements but usually require a 
bachelor's degree in one of many areas, such as accounting, finance, business, 
public administration, economics, statistics, political science, or sociology. 
Sometimes, budget-related or finance-related work experience can be substituted 
for formal education. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Budget Analysts," http://www.bls.gov/ooh/business-and-financial/budget-analysts.htm#tab-4 
(last visited July 15, 2015). 
The Handbook does not support the assertion that at least a bachelor's degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for these positions. This section 
of the narrative begins by stating that employers generally require at least a bachelor's degree. 
However, the Handbook does not specify a specific specialty. To the contrary, the Handbook 
states that there is a wide-range of degrees that are acceptable for positions in this occupation, 
including a general purpose degree such as one in business. 
Similarly, the petitioner stated that the proffered position normally requires at least a Bachelor's 
degree or higher in business administration, accounting, finance or a related field. The claimed 
requirement of a degree in such major as "business administration" for the proffered position, 
without specialization, is inadequate to establish that the proposed position qualifies as a specialty 
occupation. A petitioner must demonstrate that the proffered position requires a precise and 
specific course of study that relates directly and closely to the position in question. Since there 
must be a close correlation between the required specialized studies and the position, the 
requirement of a degree with a generalized title, such as business administration, without further 
specification, does not establish the position as a specialty occupation. Cf Matter of Michael 
Hertz Associates, 19 I&N Dec. 558 (Comm'r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly 
specialized knowledge as required by section 214(i)(1) of the Act, a petitioner must establish that 
the position requires the attainment of a bachelor's or higher degree in a specialized field of study 
or its equivalent. As discussed supra, USCIS interprets the degree requirement at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the 
proposed position. Although a general-purpose bachelor's degree, such as a degree in business 
administration, may be a legitimate prerequisite for a particular position, requiring such a degree, 
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Page 8 
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 at 147. 
Again, the petitioner claims that the duties of the proffered position can be performed by an 
individual with only a general-purpose bachelor's degree, i.e., a bachelor's degree in business 
administration. Without more, this assertion alone indicates that the proffered position is not in 
fact a specialty occupation. As such, even if the substantive nature of the work had been 
established, the instant petition could not be approved for this additional reason. 
Furthermore, according to the Handbook, budget-related and finance-related work experience can 
be substituted for formal education. Thus, the Handbook does not support the claim that the 
budget analyst occupational category 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, 
the record lacks sufficient evidence to support a finding that the particular position proffered here, 
an entry-level budget analyst position, would normally have such a minimum, specialty degree 
requirement or its equivalent. 
Regarding the opinion letter submitted by the petitioner, we note that does not 
list the reference materials on which he relies as a basis for his conclusion. It appears that 
did not base his opinion on any objective evidence, but instead restates the proffered 
position description as provided by the petitioner. does not indicate whether he visited 
the petitioner's business, observed the petitioner's employees, interviewed them about the nature of 
their work, or documented the knowledge that these workers apply on the job. His level of 
familiarity with the actual job duties as they would be performed in the context of the petitioner's 
business has therefore not been substantiated. 
Furthermore, description of the position upon which he opines does not indicate that 
he considered, or was even aware of, the fact that the petitioner submitted an LCA certified for a 
wage-level that is only appropriate for a comparatively low, entry-level position relative to others 
within its occupation which, as discussed above, signifies that the beneficiary is only expected to 
possess a basic understanding of the occupation. In any event, he nowhere discusses this aspect of 
the proffered position. We consider this a significant omission, in that it suggests an incomplete 
review of the position in question and a faulty factual basis for his ultimate conclusion as to the 
educational requirements of the position upon which he opines. 
Again, the LCA submitted by the petitioner in support of the instant position was certified for use 
with a job prospect within the "Budget Analysts" occupational category, SOC (O*NET/OES) 
Code 13-2031, and a Level I (entry-level) prevailing wage rate, the lowest of the four assignable 
wage-levels. The Prevailing Wage Determination Policy Guidance issued by the U.S. Department 
of Labor (DOL) states the following with regard to Level I wage rates: 
Level I (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 
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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. 5 
Thus, the proposed duties' level of complexity, uniqueness, and specialization, as well as the level of 
independent judgment and occupational understanding required to perform them, are questionable, as 
the petitioner submitted an LCA certified for a Level I, entry-level position. The LCA's wage-level 
indicates that the proffered position is actually a low-level, entry position relative to others within the 
same occupation. In accordance with the relevant DOL explanatory information on wage levels, 
this wage rate indicates that the beneficiary is only required to possess a basic understanding of the 
occupation; that he will be expected to perform routine tasks requiring limited, if any, exercise of 
judgment; that he will be closely supervised and his work closely monitored and reviewed for 
accuracy; and that he will receive specific instructions on required tasks and expected results. The 
author's omission of such an important factor as the LCA wage-level significantly diminishes the 
evidentiary value of her assertions. The petitioner's LCA wage-level designation does not support 
opinion that the proffered position requires "advanced level" duties to be performed. 
omission of such an important factor as the LCA wage-level significantly 
diminishes the evidentiary value of his assertions. 
We may, in our discretion, use advisory opinion statements submitted by the petitioner as expert 
testimony. Matter of Caron International, 19 I&N Dec. 791 (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. Id. While the assertions of with regard 
to an industry-wide recruiting and hiring standard are acknowledged, the record contains insufficient 
evidence to support these assertions. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm'r 1972)).6 
In the instant case, the duties and requirements of the position as described in the record of 
proceeding do not indicate that this particular position proffered by the petitioner is one for which 
a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the petitioner did not to satisfy the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
5 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_11_2009.pdf (last visited July 15, 2015). 
6 For all of these reasons, opinion letter does not satisfy any of the criteria at 8 C.P.R. 
§ 214.2(h )( 4)(iii)(A). 
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The requirement of a baccalaureate or higher degree in a specific 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. 
Here and as already discussed, the evidence of record does not establish that the petitioner's proffered 
position is one for which the Handbook reports an industry-wide requirement for at least a bachelor's 
degree in a specific specialty or its equivalent. Also, there are no submissions from profession al 
associations in the petitioner's industry attesting that individuals employed in positions parallel to the 
proffered position are routinely required to have a minimum of a bachelor's degree in a specific 
specialty or its equivalent for entry into those positions. 
We will next address the job advertisements submitted by the petitioner. The record of proceeding 
contains copies of 12 job advertisements in support of the petitioner's assertion that its claimed 
degree requirement is common to the petitioner's industry in parallel positions among similar 
organizations. However, upon review of the documents, we find that the petitioner's reliance on 
the job advertisements is misplaced. 
In the Form I -129 petition, the petitioner describes itself as a single-employee fuel dealer 
established in The petitioner states that its gross annual income is $500 ,000. The petitioner 
did not state its net annual income. 
For the petitioner to establish that an organization in its industry is similar, 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 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. 
Upon review, we find that the record does not demonstrate 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 (3) located in 
organizations that are similar to the petitioner. 7 
7 See 8 C.P.R.§ 214.2(h)(4)(iii)(A)(2). 
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For example, in support of its assertion that the degree requirement is common to the petitioner's 
industry in parallel positions among similar organizations, the petitioner provided copies of job 
advertisements. More specifically, the advertisements include: 
• (two advertisements) (a government 
entity) 
• (a grocery store) 
• (a federal government contractor for information solution) 
• (a commercial real estate firm) 
• (a cultural and philanthropic institution) 
• (a global, sports brand that designs footwear and apparel) 
• (a global, humanitarian, nonprofit organization) 
• (transportation) 
• (university) 
• (social service organization) 
• (digital products 
company) 
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 and that are similar to the petitioner, 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 positions. More specifically, one 
of the positions with requires a master's degree or four 
years of experience; the position with prefers 3-5 year experience; the position with 
requires a two-year specialized experience and a four-year general experience; the position with 
requires 2-3 years of experience; the position with The 
requires 5-7 years of experience; the position with requires a minimum of five 
years of experience; the position with requires a graduate degree and 
five or more years of experience; the position with requires experience with 
business and financial systems; the position with requires three or more years of 
experience; the position with prefers non-profit experience; and the position 
with requires a minimum of five years of experience. However, the petitioner designated 
the proffered position on the LCA as a Level I position, and as stated earlier, individuals 
occupying positions within 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. 8 The 
8 The issue here is that the petitioner's designation of this position as a Level I, entry-level pos1t10n 
undermines its claim that the position is particularly complex, specialized, or unique compared to other 
positions within the same occupation. Nevertheless, it is important to note that a Level I wage-designation 
does not preclude a proffered position from classification as a specialty occupation. In certain occupations 
(doctors or lawyers, for example), an entry-level position would still require a minimum of a bachelor's 
degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation 
would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not 
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Page 12 
advertised positions 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 are parallel to those of the proffered position. 
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. 
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 fails to 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"). 
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.P.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.P.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. 
In the instant case, the evidence of record does not credibly demonstrate relative complexity or 
uniqueness as aspects of the proffered position. Specifically, it is unclear how the budget analyst 
position, as described, necessitates the theoretical and practical application of a body of highly 
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 consideration but is not a substitute for a determination of 
whether a proffered position meets the requirements of section 214(i)(l) of the Act. 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
specialized knowledge such that a person who has attained a bachelor's or higher degree in a specific 
specialty or its equivalent is required to perform them. More specifically, the petitioner did not 
demonstrate how the duties described require 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. For instance, the petitioner did not submit information 
relevant to a detailed course of study leading to a specialty degree and did not establish how such 
a curriculum is necessary to perform the duties of the proffered position. While related courses 
may be beneficial, or even essential, in performing certain duties of a budget analyst position, the 
petitioner did not demonstrate how an established curriculum of such courses leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the 
duties of the petitioner's proffered position. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
The LCA indicates that the position is a low-level (entry-level) position relative to others within 
the occupation. Based upon the wage rate, the beneficiary is only required to perform routine 
tasks that require limited, if any, exercise of judgment. Accordingly, given the Handbook's 
indication that typical positions located within the "Budget Analysts" occupational category do not 
require at least a bachelor's degree in a specific specialty, or the equivalent, for entry, it is not 
likely that a position involving limited exercise of judgment would contain such a requirement. 
Without further evidence, it is simply not credible that the petitioner's proffered position is 
complex or unique, as such a position would likely be classified at a higher-level, such as a Level 
IV (fully competent) position, requiring a significantly higher prevailing wage. For instance, 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." Even a position involving a 
Level II wage, which would exceed the complexity of the one proposed by the petitioner, would 
involve only "moderately complex tasks that require limited judgment." 
Finally, we observe that the petitioner has indicated that the beneficiary's experience and his 
educational background make him qualified for the proffered position. However, the test to 
establish a position as a specialty occupation is not the skill set or education of a proposed 
beneficiary, but whether the position itself requires the theoretical and practical application of a 
body of highly specialized knowledge obtained by at least baccalaureate-level knowledge in a 
specialized area. In the instant case, the petitioner does not establish which of the proposed duties, 
if any, would render the proffered position so complex or unique as to be distinguishable from 
those of similar but non-degreed or non-specialty degreed employment. Again, the petitioner did 
not demonstrate 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. 
For all of these reasons, it cannot be concluded that the evidence of record satisfies the second 
alternative prong of 8 C.P.R.§ 214.2(h)(4)(iii)(A)(2). 
(b)(6)
Page 14 
NON-PRECEDENT DECISION 
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. We 
normally review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position. 
To merit approval of the petition under this criterion, the record must establish that the imposition 
of a degree requirement by the petitioner is not merely a matter of preference for high-caliber 
candidates but is necessitated by performance requirements of the position. The record contains 
insufficient evidence demonstrating the petitioner's prior hiring history. 
We note that the petitioner claims repeatedly that the duties of the proffered position can only be 
employed by a degreed individual. While a petitioner may believe or otherwise assert that a 
proffered position requires a degree in a specific specialty, that opinion alone without 
corroborating evidence cannot establish the position as a specialty occupation. Were USCIS 
limited solely to reviewing a petitioner's claimed self-imposed requirements, then any individual 
with a bachelor's degree could be brought to the United States to perform any occupation as long 
as the employer artificially created a token degree requirement, whereby all individuals employed 
in a particular position possessed a baccalaureate or higher degree in the specific specialty or its 
equivalent. See Defensor v. Meissner, 201 F. 3d at 387. In other words, if a petitioner's degree 
requirement is only symbolic and the proffered position does not in fact require such a specialty 
degree or its equivalent to perform its duties, the occupation would not meet the statutory or 
regulatory definition of a specialty occupation. See section 214(i)(1) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining the term "specialty occupation"). The record does not contain sufficient 
documentary evidence demonstrating a hiring history of the petitioner for the proffered position. 
As the record of proceeding does not demonstrate that the petitioner 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.F.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 
Next, we find that the evidence of record does not satisfy the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)( 4), which requires the petitioner to establish that the nature of the proffered 
position's 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 the specific specialty or its 
equivalent. 
Again, relative specialization and complexity have not been sufficiently developed by the 
petitioner as an aspect of the proffered position's duties. In other words, the proposed duties have 
not been described with sufficient specificity to show that their nature is more specialized and 
complex than budget analyst positions whose duties are not of a nature so specialized and complex 
that their performance requires knowledge usually associated with a degree in a specific specialty. 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
With regard to the specific duties of the position proffered here, we find that the record of 
proceeding lacks sufficient, credible evidence establishing that they are so specialized and 
complex that the knowledge required to perform them is usually associated with the attainment of 
a bachelor's degree in a specific specialty, or the equivalent. 
Moreover, we incorporate our earlier discussion regarding the wage-level designation on the LCA, 
which is appropriate for duties whose nature is less complex and specialized than required to 
satisfy this criterion. We find that both on its own terms and also in comparison with the two 
higher wage-levels that can be designated in an LCA, by the submission of an LCA certified for a 
wage-level I (entry-level), the petitioner effectively attests that the proposed duties are of 
relatively low complexity as compared to others within the same occupational category. This fact 
is materially inconsistent with the level of complexity required by this criterion. 
As earlier noted, the Prevailing Wage Determination Policy Guidance issued by DOL states the 
following with regard to Level I wage rates: 
Level I (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 [emphasis in 
original]. 9 
The pertinent guidance from DOL, at page 7 of its Prevailing Wage Determination Policy 
Guidance describes the next higher wage-level as follows: 
!d. 
Level II (qualified) wage rates are assigned to job offers for qualified employees 
who have attained, either through education or experience, a good understanding of 
the occupation. They perform moderately complex tasks that require limited 
judgment. An indicator that the job request warrants a wage determination at Level 
II would be a requirement for years of education and/or experience that are 
generally required as described in the O*NET Job Zones. 
The above descriptive summary indicates that even this higher-than-designated wage level is 
appropriate for only "moderately complex tasks that require limited judgment." The fact that this 
9 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 _11_ 2009 .pdf (last visited July 15, 2015). 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
higher-than-here-assigned, Level II wage-rate itself indicates performance of only "moderately 
complex tasks that require limited judgment," is very telling with regard to the relatively low level 
of complexity imputed to the proffered position by virtue of its Level I wage-rate designation. 
Further, we note the relatively low level of complexity that even this Level II wage-level reflects 
when compared with the two still-higher LCA wage levels, neither of which was designated on the 
LCA submitted to support this petition. 
The aforementioned Prevailing Wage Determination Policy Guidance describes the Level III 
wage designation as follows: 
!d. 
Level III (experienced) wage rates are assigned to job offers for experienced 
employees who have a sound understanding of the occupation and have attained, 
either through education or experience, special skills or knowledge. They perform 
tasks that require exercising judgment and may coordinate the activities of other 
staff. They may have supervisory authority over those staff. A requirement for 
years of experience or educational degrees that are at the higher ranges indicated in 
the O*NET Job Zones would be indicators that a Level III wage should be 
considered. 
Frequently, key words in the job title can be used as indicators that an employer's 
job offer is for an experienced worker. ... 
The Prevailing Wage Determination Policy Guidance describes the Level IV wage designation as 
follows: 
!d. 
Level IV (fully competent) wage rates are assigned to job offers for competent 
employees who have sufficient experience in the occupation to plan and conduct 
work requiring judgment and the independent evaluation, selection, modification, 
and application of standard procedures and techniques. Such employees use 
advanced skills and diversified knowledge to solve unusual and complex problems. 
These employees receive only technical guidance and their work is reviewed only 
for application of sound judgment and effectiveness in meeting the establishment's 
procedures and expectations. They generally have management and/or supervisory 
responsibilities. 
As already noted, by virtue of this submission, the petitioner effectively attested that the proffered 
position is a low-level (entry-level) position relative to others within the occupation, and that, as 
clear by comparison with DOL's instructive comments about the next higher level (Level II), the 
proffered position did not even 
involve "moderately complex tasks that require limited judgment" 
(the level of complexity noted for the next higher wage-level, Level II). 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
For all of these reasons, the evidence in the record of proceeding does not establish that the 
proposed duties meet the specialization and complexity threshold at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(4). 
III. CONCLUSION AND ORDER 
The petition will be denied and the appeal dismissed for the above stated reasons. 10 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. The petition is denied. 
10 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 of the H-lB petition.