dismissed H-1B Case: Graphic Design

MATTER OF W -, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 10, 2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which purports to be a wholesale, e-commerce and web design business, seeks to 
employ the Beneficiary as a graphic designer and to classify him as a nonimmigrant worker in a 
specialty occupation. 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, Vermont Service Center, denied the petition. The matter is 
now before us on appeal. The appeal will be dismissed. 
I. PROCEDURAL BACKGROUND 
The Petitioner filed the Form I-129, Petition for a Nonimmigrant Worker, seeking to employ the 
Beneficiary in what it designates as a part-time graphic designer position. 
The Director denied the petition, finding that the evidence of record did not establish that the 
proffered position qualifies as a specialty occupation. On appeal, the Petitioner asserts that the 
Director's basis for denial was erroneous and contends that it satisfied all evidentiary requirements. 
The record of proceeding contains: (1) the Form I-129 and supporting documentation; (2) the 
Director's two requests for evidence (RFE); (3) the Petitioner's responses to each RFE; ( 4) the 
Director's letter denying the petition; and (5) the Form I-290B, Notice of Appeal or Motion, and 
supporting documentation. 
We reviewed the record in its entirety before issuing our decision. We conduct appellate review on a 
de novo basis. Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); see also 5 U.S.C. 
§ 55 7 (b) ("On appeal from or review of the initial decision, the agency has all the powers which it 
would have in making the initial decision except as it may limit the issues on notice or by rule."); 
Dor v. INS, 891 F.2d 997, 1002 n.9 (2d Cir. 1989). We follow the preponderance of the evidence 
standard as specified in Matter ofChawathe, 25 I&N Dec. 369,375-76. 
For reasons that will be discussed below, we agree with the Director that the Petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
Matter of W-, Inc. 
II. SPECIALITY OCCUPATION 
The primary issue under consideration is whether the Petitioner has provided sufficient evidence to 
establish that it will employ the Beneficiary in a specialty occupation. 
A. Legal Framework 
For an H -1 B petition to be granted, the petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements of a specialty occupation. 
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 m1mmum 
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 
2 
Matter of W-, Inc. 
(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)(l) of the Act and 8 C.P.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 
oflanguage 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 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.P.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.P.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.P.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.P.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, USCIS 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 particular 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. USCIS 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. 
3 
(b)(6)
Matter of W-, Inc. 
B. The Petitioner and the Proffered Position 
The Petitioner described itself on the Form I-129 as a wholesale, e-commerce and web design 
business, established in with three employees. The Petitioner indicated that it seeks to employ 
the Beneficiary as a 
part-time graphic designer at the address of 
. Texas. 1 The Petitioner further indicated that the Beneficiary would not work off-site at any 
other addresses. 
The Petitioner stated in its support letter dated October 13, 2013, that the Beneficiary will perform 
the following duties as a graphic designer: 
• Updating and developing the website; 
• Creating graphic materials related to ongoing business and events; 
• Daily updating of database website; 
• Staying current with state-of-the-art applications and technology in areas of graphic design 
and art applications and techniques; and 
• Create and develop website structure. 
The Petitioner 
further indicated that the minimum educational requirement for the proffered position 
is a Bachelor's degree in Computer Science, Graphic Design, or another related field. 
The Petitioner submitted a Labor Condition Application (LCA) in support of the instant petition. 
The Petitioner indicated that the proffered position corresponds to the occupational category 
"Graphic Designers" with SOC (ONET/OES) code 27-1024, at a Level I (entry level) wage. The 
LCA listed the only place of employment for the Beneficiary as 
Texas. 
In response to the Director's first RFE, the Petitioner reiterated the duties provided in the initial 
support letter 
and stated as follows: 
As a graphic designer for our company, the [B]eneficiary uses his skills to 
create websites and other web design tasks for our clients. We offer three main 
sections of business: 1) a wholesale seafood distribution, 2) beauty supplies, and 3) 
professional web design for companies based in TX. Thus, [B]eneficiary's 
work is a part of our main business as a third of our business is based on graphic 
design as we offer web design services for wholesale ... 
In addition, the Petitioner submitted a lease evidencing that the Petitioner is located in a warehouse 
m . TX, and a copy of its tax return which states its business activity as a wholesale seafood 
vendor. 
1 The Petitioner clarified in another document that the Beneficiary would work between 20-30 hours per week. 
4 
Matter of W-, Inc. 
In response to the second RFE, the Petitioner clarified that the "Beneficiary is the sole graphic 
designer for [its] graphic design department," and that the Petitioner "offer[ s] a full array of graphic 
design services, which Beneficiary is solely responsible for handling." The Petitioner also submitted 
the following breakdown of proffered duties, including percentages of time as indicated: 
• Updating and developing the company website with product illustrations and logos (30% ); 
• Creating graphic designs for ongoing business/clients in accordance to their needs (30%); 
• Daily updating of database website to keep graphic designs current (1 0% ); 
• Staying current with state-of-the-art applications and technology in areas of graphic design 
and art applications and techniques (5%); and 
• Create and develop websites with graphics, logos, and illustrations for clients (25%). 
On appeal, the Petitioner again explains that the "Beneficiary is the only graphic designer for the 
start-up company." The Petitioner further explains: "Although the company originally started off as 
a wholesale seafood company, it has blown up to three distinct departments. There most certainly is 
a wholesale seafood department, but as the company expanded, two other departments of graphic 
design and online store were initiated under the [Petitioner's] company." The Petitioner explained 
that the duties of the Beneficiary, as "the only graphic designer for the design division," include 
meeting with clients, advising them regarding their project, and developing brochures, websites, 
marketing printouts, specific logos, and art. The Petitioner concluded: "The [B]eneficiary is not just 
a web developer, but in fact is a fully qualified graphic designer in a graphic designer position." 
C. Analysis 
When determining whether a position is a specialty occupation, we must look at the nature of the 
business offering the employment and the description of the specific duties of the position as it 
relates to the particular employer. To ascertain the intent of a petitioner, we look to the Form I-129 
and the documents filed in support of the petition. It is only in this manner that we can determine 
the exact position offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 
C.F .R. § 214.2(h)(9)(i), the Director has the responsibility to consider all of the evidence submitted 
by a petitioner and such other evidence that he or she may independently require to assist his or her 
adjudication. Further, 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." 
For H-lB approval, the Petitioner must demonstrate a legitimate need for an employee to exist and 
to substantiate that it has H -1 B caliber work for the Beneficiary for the period of employment 
requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient work to 
require the services of a person with at least a bachelor's degree in a specific specialty, or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition. 
5 
(b)(6)
Matter of W-, Inc. 
Here, the Petitioner asserted that it engages in three distinct business activities through its three 
departments in wholesale seafood, e-commerce, and web design. However, we find that the record 
of proceeding lacks sufficient, consistent documentation regarding the Petitioner's claimed business 
activities and the actual work that the Beneficiary will perform to credibly substantiate the claim that 
the Petitioner has H-lB caliber work for the Beneficiary for the period of employment requested in 
the petition. 
On one hand, the Petitioner submitted evidence indicating that its primary business is as a wholesale 
seafood distributor. The Petitioner stated in 
its November 3, 2014, letter that its three employees 
"mainly work in the warehouse that provides seafood delivery, which is the other half of the services 
[it] offers as wholesale goods." 2 The Petitioner's 2012 federal tax return indicates that its principal 
business is in wholesale seafood. The Petitioner's lease also states that the Petitioner is a "seafood 
distributor" located in a warehouse, and specifies that the Petitioner "shall utilize this space for the 
purpose of a seafood distributor and for no other purpose whatsoever." 
On the other hand, the Petitioner designated its business operations under the North American 
Industry Classification System (NAICS) code 454111, "Electronic Shopping." 3 This NAICS code is 
designated for "establishments engaged in retailing all types of merchandise using the Internet." 
U.S. Dep't of Commerce, U.S Census Bureau, 2012 NAICS Definition, 454111 Electronic 
Shopping, http://www.census.gov/cgi-binlsssd/naics/naicsrch (last visited Oct. 28, 2015). It is not 
apparent how this code corresponds to the Petitioner's wholesale seafood business, or which of the 
Petitioner's three employees at the seafood warehouse works for the online shopping business. 4 In 
addition, the Petitioner stated in its February 19, 2014, letter that it offers "three main sections of 
business: 1) a wholesale seafood distribution, 2) beauty supplies, and 3) professional web design." 
The Petitioner has not further explained and documented its business activities in "beauty supplies." 
It is incumbent upon the Petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless 
the Petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582,591-92 (BIA 1988). 
With regard to the Petitioner's business in "web design," the Petitioner attested that it provides its 
web design services through its "graphic design department" or "division," which consists solely of 
the Beneficiary. The Petitioner further attested that its graphic design department/division came to 
existence after the company's original formation as a seafood wholesaler in However, the 
2 
The Petitioner identified its three employees as a sales representative who "procures contracts for wholesale seafood," 
and a logistics person and a delivery driver, both of whom "get the seafood order out the door to the client." 
3 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used to classify 
business establishments according to type of economic activity and each establishment is classified to an industry 
according to the primary business activity taking place there. See http://www.census.gov/eos/www/naics/ (last visited 
Oct. 28, 20 15). 
4 See, for example, the NAICS codes of 424420 for "Seafoods, packaged frozen, merchant wholesalers," and 424460 for 
"Seafood (except canned, packaged frozen) merchant wholesalers" and "Frozen seafood (except packaged) merchant 
wholesalers," available at http://www.census.gov/eos/www/naics/ (last visited Oct. 28, 2015). 
(b)(6)
Matter of W-, Inc. 
record of proceeding contains insufficient and conflicting information regarding the Petitioner's 
claimed "web design" business. 
Despite the Petitioner's assertion that it provides web design services through its "graphic design 
department" or "division," the Petitioner's website also indicates that it provides these services 
through the company's "brands in action," which are identified as and 
The Petitioner has not sufficiently explained and documented its relationship to 
and and how they relate to the proffered position. For example, 
the website for indicates that it a "company" of the Petitioner, as opposed to a 
"brand," "department," or "division." While the website for lists an office location 
at the same address as the Petitioner, it also lists another office location of 
Texas. The Petitioner has not listed the address of 
Texas as one of its own office locations or as a location where the Beneficiary will 
work. Moreover, the Beneficiary claims on his resume that he has been working for 
as a web developer from August 2001 to August 2006. These dates are inconsistent with the 
Petitioner's explanation that its graphic design 
department/division was initiated after the company's 
original formation as a wholesale seafood company in 2008. 
Contrary to the Petitioner's repeated statements that the Beneficiary is its "only" and "sole" graphic 
designer, the websites of and both indicate that they have more 
than one graphic designer. More specifically, the website of references its 
"friendly team," and the website of references its "consultants" in the plural. These 
umesolved inconsistencies, as discussed above, undermine the credibility of the petition as a whole, 
and particularly with respect to any claims regarding the Petitioner's and Beneficiary's purported 
graphic design services. Again, it is incumbent upon the Petitioner to resolve any inconsistencies in 
the record by independent objective evidence, any attempt to explain or reconcile such 
inconsistencies will not suffice unless the Petitioner submits competent objective evidence pointing 
to where the truth lies. Id. 
In addition, we disagree that the proffered position, as described by the Petitioner, is best classified 
as a graphic designer. Although the Handbook states that graphic designers may develop graphics 
for product illustrations, logos, and websites, these duties are not sufficiently similar to the tasks of 
updating and developing the company's website, daily updating of database website, and creating 
and developing websites for clients, which the Petitioner stated constitutes 65% of the Beneficiary's 
time.5 See U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-
15 ed., "http://www.bls.gov/ooh/arts-and-design/graphic-designers.htm#tab-2 (last visited Oct. 28, 
2015). 
5 We recognize the Handbook as an authoritative source on the duties and educational requirements of the wide variety 
of occupations that it addresses. All references are to the 2014-2015 edition ofthe Handbook, which may be accessed at 
the Internet site http://www.bls.gov/OCO/. The excerpts of the Handbook regarding the duties and requirements of the 
referenced occupational category are hereby incorporated into the record of proceeding. 
(b)(6)
Matter of W-, Inc. 
Instead, we find that the majority of the proffered position's duties most closely fall under the web 
developer occupational classification. The Handbook describes the duties of web developers as 
follows: 
Web developers design and create websites. They are responsible for the look 
of the site. They are also responsible for the site's technical aspects, such as 
performance and capacity, which are measures of a website's speed and how much 
traffic the site can handle. They may also create content for the site. 
Duties 
Web developers typically do the following: 
• Meet with their clients or management to discuss the needs of the website and the 
expected needs of the website's audience and plan how it should look 
• Create and debug applications for a website 
• Write code for the site, using programming languages such as HTML or XML 
• Work with other team members to determine what information the· site will 
contain 
• Work with graphics and other designers to determine the website's layout 
• Integrate graphics, audio, and video into the website 
• Monitor website traffic 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., "Web 
Developers,'' http://www.bls.gov/ooh/computer-and-information-technology/web-developers.htm#tab-2 (last 
visited Oct. 28, 2015). 
Our finding that the proffered position more closely resembles a web developer is consistent with the 
Petitioner's invoices for web design services such as creating dynamic pages, website maintenance, 
search engine optimization, and training. It is also consistent with the Beneficiary's own resume, in 
which he listed his duties as a "web developer" for as "actively engaged with clients to 
analyze business requirements, provide professionally designed website for client, dynamically 
coding and developing websites and web application." 
Even assuming that the Petitioner demonstrated that it had graphic design work for the Beneficiary 
to perform, which it has not, such graphic design work would only entail at most 35% of the 
Beneficiary's overall duties, according to the Petitioner's breakdown of proffered duties.6 Overall, 
6 With respect to the LCA, DOL provides clear guidance for selecting the most relevant O*NET occupational code 
classification. The "Prevailing Wage Determination Policy Guidance" states the following: 
In determining the nature of the job offer, the first order is to review the requirements of the 
employer's job offer and determine the appropriate occupational classification. The O*NET 
description that corresponds to the employer's job offer shall be used to identify the appropriate 
(b)(6)
Matter of W-, Inc. 
the Petitioner has not demonstrated that the majority of the Beneficiary's work would be that of a 
graphic designer, and that its classification of the proffered position under the graphic designer 
occupational classification was appropriate in these circumstances. 
With that being said, we will now proceed to our discussion of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) with the finding and understanding that the proffered position is, more likely 
than not, a web developer position. 
A baccalaureate or higher degree in a specffic specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will first discuss the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), 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. 
Of the education and training required for Web Developers, the Handbook states: 
The typical education needed to become a web developer is an associate's 
degree in web design or related field. Web developers need knowledge of both 
programming and graphic design. 
Education 
Educational requirements for web developers vary with the setting they work 
in and the type of work they do. Requirements range from a high school diploma to a 
occupational classification .... If the employer's job opportunity has worker requirements described 
in a combination of O*NET occupations, the SWA should default directly to the relevant O*NET-SOC 
occupational code for the highest paying occupation. For example, if the employer's job offer is for an 
engineer-pilot, the SWA shall use the education, skill and experience levels for the higher paying 
occupation when making the wage level determination. 
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/pdfl'NPWHC _Guidance_ Revised _II_ 2009.pdf 
Here, the Petitioner indicated that it would pay the Beneficiary the prevailing wage for a Level I graphic designer 
position in the TX MSA, which is $13.93 per hour. In contrast, the prevailing wage for a 
Level I web developer position in the same MSA is $19.15 per hour. Thus, the Petitioner should have defaulted directly 
to the SOC code and category of"15-1134, Web Developers" or another appropriate code which represents the highest 
paying occupation. For more information regarding the prevailing wage, see http://www.tlcdatacenter.com/OESWizard 
· Start.aspx (last visited Oct 28, 20 15). 
Alternatively, if the Petitioner had sought to employ the Beneficiary in two distinct occupations, the Petitioner should 
have filed two separate petitions, requesting concurrent, part-time employment for each distinct occupation. The 
Petitioner would also have needed to ensure that it separately meets all requirements relevant to each occupation and the 
payment of wages commensurate with the higher paying occupation. See generally 8 C.F.R. § 214.2(h); 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 
9 
Matter of W-, Inc. 
bachelor's degree. An associate's degree in web design or related field is the most 
common requirement. 
However, for web architect or other, more technical, developer positions, 
some employers prefer workers who have at least a bachelor's degree in computer 
science, programming, or a related field. 
Web developers need to have a thorough understanding of HTML. Many 
employers also want developers to understand other programming languages, such as 
JavaScript or SQL, as well as have some knowledge of multimedia publishing tools, 
such as Flash. Throughout their career, web developers must keep up to date on new 
tools and computer languages. 
Some employers prefer web developers who have both a computer degree and 
have taken classes in graphic design, especially when hiring developers who will be 
heavily involved in the website's visual appearance. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., "Web 
Developers,'' http://www.bls.gov/ooh/computer-and-information-technology/web-developers.htm#tab-4 (last 
visited Oct. 28, 2015). 
Therefore, as only an associate's degree is typically required for a web developer, the Handbook 
does not indicate that at least a bachelor's degree in a specific specialty is required. 
The fact that a person may be employed in a position designated by a petitioner as that of a graphic 
designer and may apply some graphic design principles in the course of his or her job is not in itself 
sufficient to establish the position as one that qualifies as a specialty occupation. In this case, the 
Petitioner has not established that the proffered position falls under an occupational category for 
which the Handbook, the Occupational Information Network (O*NET) On-line Summary Report, or 
other authoritative source, indicates that normally the minimum requirement for entry is at least a 
bachelor's degree in a specific specialty, or its equivalent. Thus, the Petitioner has not satisfied the 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
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 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. 
10 
(b)(6)
Matter of W-, Inc. 
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 previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook (or other independent, authoritative source) reports a standard industry-wide 
requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. 
There are no submissions from the industry's professional association indicating that it has made a 
degree a minimum entry requirement and no submission of letters or affidavits from firms or 
individuals that attest that such firms routinely employ only individuals with a degree in a specific 
specialty. 
In support of the assertion that the degree requirement is common to the Petitioner's industry in 
parallel positions among similar organizations, the Petitioner submitted copies of job advertisements. 
However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements is misplaced. 
As noted, the Petitioner stated that it is a seafood wholesale, e-commerce and web design business 
established in with three employees and 
$311,293 gross income. For the Petitioner to 
establish that an organization is similar, it must demonstrate that they 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 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). Notably, 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. 
First, as discussed previously, we do not find the proffered position is that of a graphic designer. 
Therefore, the advertisements, which are all for graphic designers, are insufficient under this 
criterion. This aside, the advertisements are also not for similar companies in the Petitioner's 
industry. For instance, the advertisements include a position with (a leading 
supplier of grilles, registers, diffusers and vent systems to the heating, ventilating, and air 
conditioning industry) and (brand consultancy). Without further 
information, these advertisements appear to be for organizations that are not similar to the Petitioner 
or in the Petitioner's industry. Furthermore, the Petitioner submitted job postings placed by other 
entities, including and The Pantagraph, for which little or no information 
regarding the employers is provided. Consequently, the record does not contain sufficient 
1 1 
(b)(6)
Matter of W-, Inc. 
information regarding the employers to conduct a legitimate comparison of the organizations to the 
Petitioner. The Petitioner did not supplement the record of proceeding to establish that the 
employers are similar to it. 
Moreover, some of the advertisements do not appear to be for parallel positions. More specifically, 
the job posting by requires "five years of real-world design experience." As previously 
discussed, the Petitioner designated the proffered position as an entry-level position on the LCA. 
Additionally , the Petitioner has not sufficiently established which primary duties of the advertised 
positions are parallel to the duties ofthe 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, not every deficit of every job posting has been addressed. 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. 7 
Therefore, the Petitioner has not established that a requirement of a bachelor's or higher degree in a 
specific specialty, or its equivalent, is common to the Petitioner's industry in positions that are (1) in 
the Petitioner's industry, (2) parallel to the proffered position, and also (3) located in organizations 
that are similar to the Petitioner. For the reasons discussed above, the Petitioner has not satisfied the 
first alternative prong of8 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. 
7 Although the size of the relevant study population is unknown, the Petitioner does not demonstrate what statistically 
valid inferences , if any, can be drawn from these advertisements with regard to determining the common educational 
requirements for entry into parallel positions in similar companies. 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 acce ss to the body of probability theory, which provides the basis for estimates of population 
parameters and estimates of error.") 
As such, even if the job announcements supported the finding that the position of accountant for companies that are 
similar to the Petitioner requires a bachelor's or higher degree in a specific specialty, or its equivalent, it cannot be found 
that such a limited number of postings that appear to have been consciously selected could credibly refute the findings of 
the Handbook published by the Bureau of Labor Statistics that such a position does not require at least a baccalaureate 
degree in a specific specialty , or its equivalent , for entry into the occupation in the United States. 
12 
Matter of W-, Inc. 
Upon rev1ew, we find that the Petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. In support of its assertion that the proffered 
position qualifies as a specialty occupation, the Petitioner submitted various documents such as 
customer invoices and its own webpages. While these documents provide some insight into the 
Petitioner's business operations, the Petitioner has not explained how the documents establish that its 
particular position is so complex or unique that it can only be performed by an individual with a 
baccalaureate or higher degree in a specific specialty, or its equivalent. In addition, the Petitioner's 
descriptions of the duties do not specifically identify any tasks that are so complex or unique that 
only a specifically degreed individual could perform them. The record lacks sufficiently detailed 
information to distinguish the proffered position as more complex or unique from other web 
developer positions, so as to refute the Handbook's information that a bachelor's degree in a specific 
specialty or its equivalent is not required for the proffered position. 
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. 8 Without further evidence, the record of proceeding does not indicate that the proffered 
position is complex or unique as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a significantly higher prevailing wage.9 For example, a Level IV (fully 
The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage rate is 
described as follows: 
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. 
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.tlcdatacenter.com/download/NPWHC _Guidance_ Revised _11_2009.pdf 
Thus, in accordance with the relevant DOL explanatory information on wage levels, this wage rate indicates that the 
Beneficiary is only required to have a basic understanding of the occupation and carries expectations that the Beneficiary 
perform routine tasks that require limited, if any, exercise of judgment; that he would be closely supervised; that his 
work would be closely monitored and reviewed for accuracy; and that he would receive specific instructions on required 
tasks and expected results. DOL guidance indicates that a Level I designation should be considered for positions in 
which the employee will serve as a research fellow, worker in training, or an intern. 
9 The issue here is that 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, 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 have an entry requirement of at least a bachelor's degree in a specific 
13 
Matter of W-, Inc. 
competent) position is designated by DOL for employees who "use advanced skills and diversified 
knowledge to solve unusual and complex problems." 10 
The Petitioner also claims that the Beneficiary is qualified for the position. However, the test to 
establish a position as a specialty occupation is not the education or experience of a proposed 
beneficiary, but whether the position itself requires at least a bachelor's degree in a specific 
specialty, or its equivalent. The Petitioner did not establish that its particular position is so complex 
or unique that it can only be performed by an individual with at least a bachelor's degree in a 
specific specialty, or its equivalent. Therefore, the Petitioner has not satisfied the second alternative 
prong of8 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 usually 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 in support ofthis criterion of the regulations. 
The Petitioner has stated that the Beneficiary is the first one to be employed in the proffered 
position. While a first-time hiring for a position is certainly not a basis for precluding a position 
from recognition as a specialty occupation, it is unclear how an employer that has never recruited 
and hired for the position would be able to demonstrate that it "normally" requires at least a 
bachelor's degree in a specific specialty or its equivalent for the position. 11 Thus, the petitioner has 
not satisfied the third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). 
The nature of the specific duties is so specialized and complex that knowledge 
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. 
1° 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.tlcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf 
11 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 a petitioner 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 388. In other words, if a petitioner's 
stated degree requirement is only designed to artificially meet the standards for an H-1 B visa and/or to underemploy an 
individual in a position for which he or she is overqualified and if 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 § 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)( 4)(ii) (defining the term "specialty 
occupation"). 
14 
Matter of W-, Inc. 
required to pe~form the duties is usually associated with the attainment ~~a 
baccalaureate or higher degree in a specific specialty, or its equivalent 
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. 
Upon review of the record of the proceeding, we find that the Petitioner has not provided sufficient 
evidence to satisfy this criterion of the regulations. In the instant case, relative specialization and 
complexity have not been credibly 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 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 (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 falling under this occupational category 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. 12 
The Petitioner has submitted insufficient evidence to satisfy the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)( 4). 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. 
Finally, we note that the Petitioner has previously employed the Beneficiary in H-IB status. 
However, the prior approval does not preclude us from denying an extension of the original visa 
based on reassessment of eligibility for the benefit sought. See Texas A&M Univ. v. Upchurch, 99 
Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). 
12 
As previously discussed, a LevellY (fully competent) position, for example, is designated by DOL for employees who 
"use advanced skills and diversified knowledge to solve unusual and complex problems" and requires a significantly 
higher wage. 
15 
Matter of W-, Inc. 
III. CONCLUSION AND ORDER 
The evidence of record is insufficient to establish that the proffered position qualifies for 
classification as a specialty occupation. 13 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 Matter ofW-, Inc., ID# 14229 (AAO Nov. 10, 2015) 
13 
As the identified ground of ineligibility is dispositive of the appeal, we need not address any additional issues in the 
record of proceeding. 
16