dismissed H-1B Case: Healthcare Staffing

(b)(6)
DATE: JUN 1 2 2015 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service~ 
Administrative Appeals Oftice 
20 Massachusetts Ave., N.W., MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT#: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 1 01 (a)( 15)(H)(i)(b) of the 
Immigration 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.F.R. § 1 03.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 da)'S of the date of this 
decision. The Form I-290B web page (ww\v.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURAL BACKGROUND 
In the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as an 
employment and staffing firm, with two employees, established in ln order to employ the 
beneficiary in what it designates as a healthcare recruiter position, the petitioner seeks to classify 
him as a nonimmigrant worker in a specialty occupation pursuant to section 10 I (a)( 15)(H)(i)(b) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 110l(a)(l5)(H)(i)(b). 
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 1-129 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 Notice of Appeal or Motion (Form I-2908) and 
supporting documentation. We reviewed the record in its entirety before issuing our decision.' 
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. 
II. SPECIALITY OCCUPATION 
The primary issue is whether the petitioner bas provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation. 
A. Legal Framework 
For an H-lB 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: 
1 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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(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 [(I)] 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: 
(I) A baccalaureate or higher degree or its equivalent IS normally the mmmmm 
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)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
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 oj' 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 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 
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regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C .F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USC IS regularly approves H-1 B 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 -1 B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the 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. Proffered Position 
As noted above, the petitioner describes itself an employment and staffing firm, established in 
and employing two people? In the letter submitted in support of the instant petition, the petitioner 
states that it is "principally engaged in the business of recruitment, staffing and employment of 
Schedule "A" professionals such as registered nurses and licensed physical therapists." The 
2 In response to the Director's RFE, the petitioner submitted an organizational chart listing 27 positions and 
an unknown number of healthcare professionals and field workers. The petitioner did not provide an 
explanation as to the difference between the organizational chart and the statement on the Form 1-129 that it 
employs two people in the U.S. 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 r?l 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
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petitioner continues, "(a]s a leading provider of healthcare professionals all around the country, our 
organization adheres to its mission of placing highly qualified and ethical professionals to existing as 
well as potential client medical institution including the state of New York. To facilitate and 
maintain this significant objective, our company requires the employment of a Healthcare 
Recruiter." 
With respect to the proffered position, the petitioner states that the position of healthcare recruiter 
requires a bachelor's degree in human resources, marketing, entrepreneurship, commerce or a related 
field. The petitioner states that the duties of the proffered position "include but are not limited to the 
following:" 
• Source, identify and recruit not traditionally and especially through the use of available 
computer-initiated methods, licensed physical therapists, occupational therapists and 
speech therapists, among others for immediate assignments to our affiliated healthcare 
facilities within the _ jurisdiction including utilizing the 
recruitment database to maintain and track relationships with high potential candidates 
for future opportunities; 
• Implement and utilize cost-effective recruitment strategies to attract highly qualified and 
diverse candidates; 
• Identify traditional and non-traditional recruitment sources; 
• Manage the process of selection and placement of qualified candidates; 
• Promote and ensure diverse applicants 
are in the process; 
• Conduct or coordinate interview schedules with hiring managers and candidates; 
• Provide a high-level of client service; 
• Support managers to create job descriptions; (and] 
• Extend offers and negotiate with applicants; ensure on-boarding process is complete 
including background checks, offer letters, new hire paperwork, among others. 
The petitioner submitted a Labor Condition Application (LCA) in support of the instant H-1 B. The 
petitioner indicates that the proffered position corresponds to the occupational category "Human 
Resources, Labor Relations, and Training Specialists, All Other"-SOC (ONET/OES Code) 13-1078, 
at a Level I (entry level) wage. 
In response to the Director's RFE, the petitioner further elaborates upon the duties of the proffered 
position, as follows: 
• Research, design, and implement strategies directed to recrUitmg helthcare [sic] 
professionals chiefly phycian [sic] therapists, occupational therapists and speech 
therapists for placement at our client facilities. Conduct recruitment efforts at target rich 
sources of professional therapists including school placement departments, PT Forum and 
advertising vacancies at professional and trade journals. 
• Gather recruited therapists' documents pertinent to education accomplishment, state 
licenses, work history, criminal background and immigrations. 
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• Research and analyze data gathered in establishing fits or compatibility of available 
personnel to potential assignments using individual competencies, experience, 
educational background, character and distance from residence as some of the yardsticks 
for decision making;. 
• Coordinate and schedule recruited therapists for work assignment orientation and state or 
federal continuing professional education/training requirements. 
• Visit client facilities from time to time, to interview personnel and conduct on-site 
observation to ascertain unit function, work performance and service standards are 
meeting both client 
and company expectations. 
• Conduct screening interviews, administer tests, check references and backgrounds, 
evaluate applicants qualifications and arrange for preliminary training. 
The petitioner further indicates that the proffered position requires a bachelor's degree and that the 
beneficiary will be their first healthcare recruiter. In response to the RFE, the petitioner also 
included, among other things, a printout of the section entitled "Human Resources Specialists or 
Labor Relations Specialists" from the U.S. Department of Labor's (DOL) Occupational Outlook 
Handbook (Handbook). 3 
C. Analysis 
A baccalaureate or higher degree in a :.pec[jic .specially, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will now discuss the proffered position in relation to the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l), which requir.es that a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into the particular position. 
USCIS recognizes the Handbook as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses. The petitioner asserts in the LCA 
that the proffered position falls under the occupational category "Human Resources, Labor 
Relations, and Training Specialists, All Other. "4 . 
3 The petitioner included a printout from an undated version of the Handbook for the occupation "Human 
Resources Specialists or Labor Relations Specialists." The 2014-20 15 version of the Handbook I ists the 
corresponding occupation category as "Human Resources Specialist and Labor Relations Specialist." Upon 
review, we have determined that the education information submitted by the petitioner from the undated 
version of the Handbook, matches the same education information provided in the 2014-2015 version. 
Therefore, all of the references are to the 2014-2015 edition of the Handbook, which may be accessed at the 
Internet site http://www.bls.gov/OCO/. The excerpts of the Handbook regarding the duties and requirements 
ofthe referenced occupational category are hereby incorporated into the record of proceeding. 
4 We withdraw the Director's finding that the duties described for the proffered position are comparable to 
the duties of an administrative services manager. 
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We reviewed the section of the Handbook covering "Human Resources Specialists and Labor 
Relations Specialists," including the section entitled "How to Become a Human Resources Specialist 
or Labor Relations Specialist," which states the following: 
Applicants must usually have a bachelor's degree. However, the level of education 
and experience required to become a human resources specialist or labor relations 
specialist varies by position and employer. 
Education 
Applicants seeking positions as human resources specialists or labor relations 
specialists must usually have a bachelor's degree in human resources, business, or a 
related field. 
Coursework should include business, professional writing, human resource 
management, and accounting. 
Work Experience in a Related Occupation 
Although candidates with a high school diploma may qualify for some interviewing 
and recruiting positions, employers usually require several years of related work 
experience as a substitute for education. 
Some positions, particularly human resources generalists, may require previous work 
experience. Candidates can gain -·experience as human resources assistants, in 
customer service positions, or in other related jobs. 
U.S. Dep't of Labor, Bureau of Labor Statistics. Occupational Oullook Handbook, 2014-15 ed., 
Human Resources Specialists and Labor Relations Specialists, available on the Internet at 
http://wW\v.bls.gov/ooh/business-and-financiai/human-resources-specialists-and-labor-relations­
specialists.htm (last viewed June 9, 2015). 
When reviewing the Handbook, we note that the petitioner designated the proffered position as a 
Level I (entry level) position on the LCA. This designation is indicative of a comparatively low, 
entry-level position relative to others within the occupation. 5 
5 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 
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The Handbook does not support the assertion that at !east a bachelor's degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into this occupation. Instead. it 
states there are a wide range of degrees that are acceptable for positions in this occupation, including 
a general-purpose degree such as business. To demonstrate that a job requires the theoretical and 
practical application of a body of highly specialized knowledge as requir~d by section 214(i)(l) of 
the Act, a petitioner must establish that the position requires the attainment of a bachelor's or higher 
degree in a specific specialty, or its equivalent. USCIS interprets the degree requirement at 8 C.F.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 may be a 
legitimate prerequisite for a particular position, requiring such a degree, without more, will not 
justify a finding that a particular position qualifies for classification as a specialty occupation. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 147.6 Further, the Handbook also indicates that the level of 
education and experience required for a human resources specialist or labor relations specialist vary 
by position and employer, and candidates with a high school diploma may also qualify for some 
interviewing and recruiting positions. The Handbook does not indicate that normally the minimum 
job offer is for a research fellow, a worker in training, or an internship are indicators that a 
Levell 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.foreignlaborcert.doleta.gov/pdf/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. 
6 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
[t]he courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate prerequisite 
for a particular position, requiring such a degree, without more, will not justify the granting 
of a petition for an H-1 B specialty occupation visa. See, e.g., Tapis Int'l v. INS, 94 F .Supp.2d 
172, 175-76 (D.Mass.2000); Shanti, 36 F. Supp.2d at 1164-66; c;f Matter of Michael Hertz 
Assocs., 19 I & N Dec. 558, 560 ([Comm'r] 1988) (providing frequently cited analysis in 
· connection with a conceptually similar provision). This is as it should be: elsewise, an 
employer could ensure the granting of a specialty occupation visa petition by the simple 
expedient of creating a generic (and essentially artificial) degree requirement. 
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Page9 
requirement for entry into the occupation is at least a bachelor's degree in a specific specialty, or its 
equivalent. 
Further, the petitioner's requirement of a bachelor's degree in human resources, marketing, 
entrepreneurship, commerce or related field indicates that the duties of the proffered position can be 
performed by someone with a degree in a number of disparate fields. In other words, the petitioner 
did not identify how the different acceptable fields of study (human resources, marketing, 
entrepreneurship or commerce) are related to one another or how these fields make up a body of 
specialized knowledge that is directly related to the performance of the job duties of the proffered 
position. 
In response to the Director's RFE and again on appeal, the petitioner submits information from 
DOL's The occupation profile for "Human Resources Specialist" for New York 
states the following: 
Education and Training: 
Occupation: Human Resources Specialists 
Typical education needed for entry: Bachelor's degree 
Typical work experience needed for a job in this occupation: None 
Typical on-the-job training once you have a job in this occupation: None 
While this indicates that a bachelor's degree is a typical requirement for entry, it does not indicate 
that a bachelor's degree in a specific specialty is typically required. Again, the degree requirement at 
8 C.F.R. § 214.2(h)(4)(iii)(A) is one that requires a degree in a specific specialty, or its equivalent, 
that is directly related to the proffered position. As such, the information provided by 
is not sufficient to establish that the proffered position qualifies as a specialty 
occupation. 
In the instant case, the petitioner has not established that the proffered position falls under an 
occupational category for which the Handbook, 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 specffic 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 (I) in the petitioner's industry, (2) parallel to the proffered position, and also 
(3) located in organizations that are similar to the petitioner. 
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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 I I 5 I, 1165 (D. Minn. 
I999) (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. Also, there are no submissions from 
the industry's professional association indicating that it has made a degree a minimum entry 
requirement. 
The petitioner submitted copies of job advertisements in support of the assertion that the degree 
requirement is common to its industry in parallel positions among similar organizations. However, 
upon review of the documents, we find that the petitioner's reliance on the job announcements is 
misplaced. 
In the Form I-129 petition, the petitioner states that it is an employment and staffing Jirm with two 
employees, established in The petitioner did not provide its gross annual or net income. The 
petitioner designated its business operations under the North American Industry Classification 
System (NAICS) code 561310; however, this is not a valid code. 7 
For the petitioner to establish that an organization 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. 
We will briefly note that, without more, the job postings do not appear to be from organizations 
similar to the petitioner. 
8 When determining whether the petitioner and the advertising organization 
share the same general characteristics, such factors may include information regarding the nature or 
7 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 June 9, 2015). 
8 Moreover, the petitioner did not provide any independent evidence of how representative the job postings 
are of the particular advertising employers' recruiting history for the type of job advertised. As the 
advertisements are only solicitations for hire, they are not evidence of the actual hiring practices of these 
employers. 
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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. 
More specifically, the advertisements include a position with company 
traded on the and employs 5,100 nationwide. The petitioner also 
provided advertisements that do not provide sufficient information regarding the employers. The 
petitioner did not supplement the record of proceeding with additional information or state which 
aspects or traits it shares with the advertising organizations. Without further information, the 
advertisements appear to be for organizations that are not similar to the petitioner. 
Further, the petitioner has not established that the advertisements are for parallel positiOns. For 
example, the position with requires "2-4 years of specialized recruitment and/or staffing 
experience." As previously discussed, the petitioner designated the proffered position on the LCA 
through the wage level as a Level I (entry level) position relative to others within the occupation. 
The advertised positions appear to be for 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 the proffered position. 
In addition, some job postings do not indicate that a bachelor's degree in a directly related specific 
specialty is required. For example, requires a bachelor's degree, but does not indicate a 
specific specialty. Similarly, do not require a bachelor's 
degree in a specific specialty but indicate that a bachelor's degree in various fields such as Nursing, 
HR, Management, business, marketing or communication is sufficient. As discussed, the degree 
requirement set by the statutory and regulatory framework of the H-1 B program is not just a 
bachelor's or higher degree, but such a degree in a specific specialty that is directly related to the 
specialty occupation claimed in the petition. 
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. 9 That is, as the evidence does not establish that similar organizations in the same industry 
9 
Even if all of the job postings indicated that a bachelor's degree in a specific specialty, or its equivalent, is 
common to the industry in parallel positions among similar organizations (which they do not), the petitioner 
does not demonstrate what inferences, if any, can be drawn from these 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). 
As such, even ifthejob announcements supported the finding that the position required a bachelor's or higher 
degree in a specific specialty, or its equivalent (for organizations in the same industry that are similar to the 
petitioner), it cannot be found that such a limited number of postings that appear to have been consciously 
selected outweigh the findings of the Handbook published by the Bureau of Labor Statistics that such a 
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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. 
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 (I) 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 of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
The particular position is so complex or unique that it can be pe1formed 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. 
In support of its assertion that the proffered pos1t10n qualifies as a specialty occupation, the 
petitioner submitted various documents, including evidence regarding its business operations such as 
incorporation documents and an organization chart. We reviewed the record in its entirety and find 
that the petitioner has not provided sufficient documentation to support a claim 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. 
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. 10 Without further evidence, the evidence does not demonstrate that the proffered 
position is complex or unique as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a significantly higher prevailing wage. 11 For example, a Level IV (fu1ly 
position does not normally require at least a baccalaureate degree in a specific specialty, or its equivalent, for 
entry into the occupation in the United States. 
10 As previously mentioned, the wage-level of the proffered position indicates that (relative to other positions 
falling under this occupational category) the beneficiary is only required to have a basic understanding of the 
occupation; that he will be expected to perform routine tasks that require 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. 
11 The issue here is that the petitioner's designation of this position as a Level I, entry-level pos1t1on 
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 
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competent) position is designated by DOL for employees who "use advanced skills and diversified 
knowledge to solve unusual and complex problems." 12 The evidence of record does not establish 
that this position is significantly different from other positions in the occupational category such that 
it refutes the Handbook' s information that a bachelor's degree in a specific specialty or its equivalent 
is not required for the proffered position. 
Upon review , we find that the petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. 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 it may believe are so complex and 
unique. In response to the RFE, the petitioner listed various courses completed by the beneficiary 
such as Human Resources Management, Personality Development, General Psychology and 
more . While a few related courses may be beneficial, or even required, in performing certain duties 
of the position, the evidence does 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 proffered position . The description of the duties does 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 positions that can be performed by persons without 
at least a bachelor's degree in a specific specialty, or its equivalent. 
The petitioner claims that the beneficiary is well 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 of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
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 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)( I) of the Act. 
12 For additional information regarding wage levels as defined by DOL , see U.S. Dep't of Labor, Emp't & 
Training Admin. , Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. 
Nov. 2009), available at http://www. foreignlaborcert .doleta.gov/pdf/N PWHC _Guidance_ Revised _I I_ 
2009.pdf 
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specific specialty, or its equivalent, for the position 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements ofthe position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could be 
brought to the United States to perform any occupation as long as the petitioner artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor v. Meissner, 
201 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 overqualitied 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"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. USCIS must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the 
specific specialty as the minimum for entry into the occupation as required by the Act. 
The petitioner stated in the Form 1-129 that it has two employees and that it was established in 2010 
(approximately three years prior to filing of the H-1 B petition). In response to the RFE, the 
petitioner indicated that the beneficiary is the first person to fill the position as a healthcare recruiter. 
Therefore, the petitioner has not established a prior history of recruiting and hiring for the proffered 
position only persons with at least a bachelor's degree in a specific specialty, or its equivalent, and 
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 
required to perform the duties is usually associated with the attainment ola 
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Page I 5 
baccalaureate or higher degree in a spec{[ic specially, 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 note that the petitioner has not provided probative 
evidence to satisfy this criterion of the regulations. In the instant case, relative specialization and 
complexity have not been sufficiently 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's 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. 13 
The petitioner has submitted insufficient evidence to satisfy this criterion of the regulations. We, 
therefore, conclude that the petitioner did not 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. The appeal will be dismissed. 
III. BENEFICIARY QUALIFICATIONS 
We do not need to examine the issue of the beneficiary's qualifications, because the petitioner has 
not provided sufficient evidence to demonstrate that the proffered position is a specialty 
occupation. In other words, the beneficiary's credentials to perform a particular job are relevant only 
when the job is found to be a specialty occupation. 
13 As previously discussed, a Level IV (fully competent) position is designated by DOL for employees who 
"use advanced skills and diversified knowledge to solve unusual and complex problems" and requires a 
significantly higher wage. 
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As discussed in this decision, the petitioner did not submit sufficient evidence regarding the 
proffered position to determine whether it will require a baccalaureate or higher degree in a specific 
specialty or its equivalent. Absent this determination that a baccalaureate or higher degree in a 
specific specialty or its equivalent is required to perform the duties of the proffered position, it also 
cannot be determined whether the beneficiary possesses that degree or its equivalent. Therefore, we 
need not and will not address the beneficiary's qualifications further, except to note that, in any 
event, the petitioner did not submit an evaluation of his foreign degree or sufficient evidence to 
establish that his degree is the equivalent of a U.S. bachelor's degree in a specific specialty. As such, 
since evidence was not presented that the beneficiary has at least a U.S. bachelor's degree in a 
specific specialty, or its equivalent, the petition could not be approved even if eligibility for the 
benefit sought had been otherwise established. 
IV. CONCLUSION AND ORDER 
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.