dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-ITA-N-S- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 24, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology solutions provider, seeks to temporarily employ the 
Beneficiary as a "marketing manager" under the H -1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the 
specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not establish that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in the 
findings. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) ofthe Act, defines the term "specialty occupation" as an occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
Matter of A-ITA-N-S- LLC 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Cherto_ff, 484 F.3d 139, 147 (1st Cir. 2007) (describing 
"a degree requirement in a specific specialty" as "one that relates directly to the duties and 
responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H -1 B petition, the Petitioner stated that the Beneficiary will serve as a "marketing manager." 
In response to the Director's request for evidence, the Petitioner provided an expanded job 
description of the proffered position, along with the approximate percentage of time the Beneficiary 
will spend on each duty, as follows: 
• Researching and analyzing market trends; identify, develop, or evaluate 
marketing strategy, based on knowledge of establishment objectives, market 
characteristics, and cost and markup factors. 
(1 0% or 4 hours per week) 
• Formulate and direct marketing activities or policies to promote servtces, 
identifying target markets and how best to reach them. 
(20% or 8 hours per week) 
• Evaluate the financial aspects of marketing campaigns, such as budgets, 
expenditures, research and development appropriations, or return-on-investment 
and profit-loss projections. Make sure that campaigns run to deadline and are on 
budget. 
(10% or 4 hours per week) 
• Compile lists describing product of service offerings. Organize the production of 
posters and brochures. Conduct telephone meeting with remote marketing team; 
review weekly marketing plan; review email communications between sales team 
and vendors[.] 
(20% or 8 hours per week) 
• Designing social media strategies. 
(5% or 2 hours per week) 
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Matter of A-ITA-N-S- LLC 
• Attend trade shows, conferences and sales meetings. 
(1 0% or 4 hours per week) 
• Monitoring and reporting on the effectiveness of strategies and campaigns. 
(15% or 6 hours per week) 
• Manage a team of marketing executives and assistants. 
(10% or 4 hours per week) 
The Petitioner stated that the position requires a "BSc degree in related field; MSc is preferred," 
along with one to four years of experience. Thereafter, the Petitioner reported that it requires a 
degree in international development policy, marketing, or a related field. 
III. ANALYSIS 
For the reasons set out below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. 1 Specifically, the record does not establish 
that the job duties require an educational background, or its equivalent, commensurate with a 
specialty occupation. 2 
A. Labor Condition Application 
We first tum to the labor condition application (LCA) 3 submitted in support ofthe H-IB petition, in 
which the Petitioner designated the proffered position under the occupational category "Marketing 
Managers" corresponding to the Standard Occupational Classification code 11-2021 at a Level I 
wage. 
The U.S. Department of Labor (DOL) guidance states that wage levels should be determined only 
after selecting the most relevant occupational code classification. Then, a prevailing wage 
determination is made by selecting one of four wage levels for an occupation based on a comparison 
of the employer's job requirements to the occupational requirements, including tasks, knowledge, 
skills, and specific vocational preparation (education, training and experience) generally required for 
acceptable performance in that occupation. Factors to be considered when determining the wage 
level for a position include the complexity of the job duties, as well as the levels of judgment, 
supervision, and understanding required to perform the job duties. 
1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
2 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 
The Petitioner is required to submit a certified LCA to us to demonstrate that it will pay an H-1 B worker the higher of 
either the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the 
employer to other employees with similar experience and qualifications who are performing the same services. See 
Matter of Simeio Solutions, LLC, 26 J&N Dec. 542, 545-546 (AAO 20 15). 
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Matter of A-/TA-N-S- LLC 
DOL guidance states that a Level I (entry) wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage 
rate indicates: (1) that the Beneficiary will be expected to perform routine tasks that require limited, 
if any, exercise of judgment; (2) that she will be closely supervised and her work closely monitored 
and reviewed for accuracy; and (3) that she will receive specific instructions on required tasks and 
expected results.4 According to the DOL, a Level I wage should be considered for research fellows, 
workers in training, or intemships. 5 
Therefore, the Petitioner's assertion that the proffered pos1t10n requires a significant level of 
experience, responsibility, and expertise do not appear to be reflected in the wage level chosen by it 
on the LCA.6 The statements regarding the claimed level of complexity, independent judgment and 
understanding required for the proffered po~ition, as well as the requirements, appear to be 
materially inconsistent with the certification of the LCA for a Level I position. This conflict 
challenges the overall credibility of the petition in establishing the nature of the proffered position 
and in what capacity the Beneficiary will be employed. Therefore, we are precluded from finding 
that the proffered position is a specialty occupation. Nevertheless, we will now analyze the evidence 
of record. 
B. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the DOL Occupational 
Outlook Handbook (Handbook) as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses.7 
The Handbook is a career resource offering information on hundreds of occupations. The Petitioner 
designated the proffered position under the occupational category "Marketing Managers" on the 
4 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.com/download/ NPWHC _Guidance_ Revised 
_11_2009.pdf. 
5 /d. 
6 A petitioner must distinguish its proffered position from others within the occupation through the proper wage level 
designation to indicate factors such as complexity of the job duties, the level of judgment, the amount and level of 
supervision, and the level of understanding required to perform the job duties. /d. Through the wage level, the Petitioner 
reflects the job requirements, experience, education, special skills/other requirements and supervisory duties. !d. 
7 
All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and we regularly review the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
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Matter of A-ITA-N-S- LLC 
LCA, therefore, we reviewed the subchapter of the Handbook entitled "How to Become an 
Advertising, Promotions or Marketing Manager" which states, in relevant p~rt, the following: 
Most marketing managers need a bachelor's degree. Courses in business, law, 
management, economics, finance, computer science, mathematics, and statistics are 
advantageous. For example, courses in computer science are helpful in developing an 
approach to maximize online traffic, by utilizing online search results, because 
maximizing such traffic is critical for digital advertisements 'and promotions. In 
addition, completing an internship while in school can be useful. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Advertising, Promotions, and Marketing Managers, "http://www. b Is. gov I ooh/management/ advertis­
ing-promotions-and-marketing-managers.htm#tab-4 (last visited Apr. 21, 20 17). 
The Handbook reports that a variety of courses may be advantageous for this occupation, but it does 
not specify that such positions require a bachelor's degree in a specific specialty. Further, given the 
Handbook's indication that typical positions located within this occupational category do not require 
a bachelor's degree in a specific specialty, or the equivalent, it is unclear how an entry-level position 
with the Level I characteristics discussed above would have such a degree requirement. 
A petitioner must demonstrate that the proffered position requires a precise and specific course of 
study that relates directly and closely to the position in question. There must be a close correlation 
between the required specialized studies and the position; thus, the mere requirement of a degree, 
without further specification, does not establish the position as a specialty occupation. Cf Matter of 
Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of a college 
degree for the sake of general education, or to obtain wh~t an employer perceives to be a higher 
caliber employee, also does not establish eligibility."). Thus, while a general-purpose bachelor's 
degree 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. Royal Siam, 484 F.3d at 147. Therefore, the Handbook does not support the assertion 
that a baccalaureate degree in a specific discipline is normally the minimum requirement for entry 
into positions located within this occupational category. 
In support of the petition, the Petitioner references the DOL's Occupational Information Network 
(O*NET) summary report for "Marketing Managers" listed as SOC (ONET/OES Code) 11-2021. 
The summary report provides general information regarding the occupation; however, it does not 
support the Petitioner's assertion regarding the educational requirements for these positions. For 
example, the Specialized Vocational Preparation (SVP) rating cited within O*NET's Job Zone 
designates this occupation as 7 < 8. An SVP rating of 7 to less than ("<") 8 indicates that the 
occupation requires "over 2 years up to and including 4 years" of training. While the SVP rating 
indicates the total number of years of vocational preparation required for a particular position, it is 
important to note that it does not describe how those years are to be divided among training, formal 
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Matter of A-/TA-N-S- LLC 
education, and experience - and it does not specify the particular type of degree, if any, that a 
position would require. 8 
Further, the summary report provides the educational requirements of "respondents," but does not 
account for 100% of the "respondents." The respondents' positions within the occupation are not 
distinguished by career level (e.g., entry-level, mid-level, senior-level). Additionally, the graph in 
the summary report does not indicate that the "education level" for the respondents must be in a 
specific specialty. 
The Petitioner has not provided sufficient documentation from a probative source to substantiate its 
assertion regarding the minimum requirement for entry into this particular position. Thus, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
C. Second Criterion 
The second criterion presents two alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, ari employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
contemplates the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by us 
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 another authoritative source, reports a requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent. We incorporate by reference the previous discussion on th~ 
matter. 
For additional information, see the O*NET Online Help webpage available at 
http://www.onetonline.org/help/online/svp. 
.
Matter of A-/TA-N-S- LLC 
In support of this criterion, the Petitioner submitted several job announcements placed by other 
employers. However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements is misplaced. First, we note that some of the job postings do not appear to involve 
organizations similar to the Petitioner. For example, the Petitioner is a 24-person information 
technology solutions provider that was established in 2011, whereas the advertising organizations 
include: 
• - operating for 118 years and provides products for educational groups; 
• - "investor, developer and operator of retail and retail mixed-
use real estate"; 
• -a 
• - a health analytics solution and services company; 
• - an institution of higher education; and, 
• -in the biotechnology/pharmaceuticals industry; 
Furthermore, some of the postings provide little or no information regarding the hiring employers 
(e.g., and 
and, The Petitioner did not supplement the recotd of proceedings to 
establish that these advertising organizations are similar. 
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). 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. 
Furthermore, some of the postings do not appear to be for parallel positions. That is, some of the 
postings do not appear to have similar job duties. Moreover, some of the advertisements appear to 
be more senior positions. For instance, the job postings include the following positions: 
• A director of marketing operations - requires a degree and 7 to I 0 years of experience and is 
paid over $75, 000 more than the proffered position; 
• A director of product marketing- requires a degree and 10 years of related experience and 10 
years of product management experience; 
• A marketing communication manager - requires a degree and 8 to 1 0 years of experience 
similar experience; and, 
• A marketing communicatio~s manager - requires a degree and 8+ years of experience, 
including 3 years of experience in a management level position. 
In addition, some of the postings do not indicate that at least a bachelor's degree in a directly related 
specific specialty (or its equivalent) is required. The postings listed a range of acceptable degrees. 
Matter of A-ITA-N-S- LLC 
The job postings suggest, at best, that although a bachelor's degree is sometimes required for these 
positions, a bachelor's degree in a specific specialty (or its equivalent) is not.9 -
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.10 That is, not every deficit of every job posting has been addressed. 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's 
degree in a specific specialty, or its equivalent, is common to the industry in parallel positions 
among similar organizations. The Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
Petitioner submitted a description of the proffered position and information regarding its business 
operations. While the Petitioner may believe that the position meets this prong of the regulations, 
we note, however, the record lacks evidence supporting the Petitioner's claim. For example, the 
Petitioner designated the proffered position as an entry-level position within the occupational 
category by selecting a Level I wage. 11 This designation, when read in combination with the 
9 It must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a specific 
specialty is common to the industry in parallel positions among similar organizations (which they do not), the Petitioner 
has not demonstrated what statistically valid inferences, if any, can be drawn from the advertisements with regard to 
determining the common educational requirements for entry into parallel positions in similar organizations. See 
generally Earl Babbie, The Practice of Social Research 186-228 (1995). Moreover, given that there is no indication that 
the advertisements were randomly selected, the validity of any such inferences could not be accurately determined even 
if the sampling unit were sufficiently large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] 
process [of probability sampling]" and that "random selection offers access to the body of probability theory, which 
provides the basis for estimates of population parameters and estimates of error"). 
10 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. Moreover, not all of the postings are for 
parallel positions. 
11 
The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within· the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
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Matter of A-ITA-N-S- LLC 
evidence presented and the Handbook's account of the requirements for this occupation, suggests 
that the particular position is not so complex or unique that the duties can only be performed an 
individual with bachelor's degree or higher in a specific specialty, or its equivalent. 12 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references her 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently develop relative 
complexity or uniqueness as an aspect of the duties of the position, and it did not identify tasks that 
are so complex or unique that only a specifically degreed individual could perform them. 
Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(2). 
D. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. The 
Petitioner did not provide any information of other individuals employed in this position. The 
Petitioner has not provided sufficient evidence in support of this criterion. Therefore, the Petitioner 
has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
E. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
In support of the petition, the Petitioner submitted documentation regarding its business operations 
(including a lease agreement, promotional materials, tax returns, contracts, purchase orders, a 
business plan, as well as other documentation). We reviewed all of the evidence provided, however, 
it does not establish the position as a specialty occupation. For example, the Petitioner has described 
the position in terms of generalized functions that do not convey sufficient substantive information 
to establish the relative complexity, uniqueness or specialization of the proffered position or its 
duties. 
in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
12 The evidence of record does not establish that this position is significantly different from other positions within the 
occupational category such that it refutes the Handbook's information to the effect that some courses are advantageous to 
obtaining such a position, but not specifying that the degree must be in a specific specialty. 
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Matter of A-ITA-N-S- LLC 
According to the Petitioner, the Beneficiary will be responsible for duties, including "researching 
and analyzing market trends;" "identify, develop, or evaluate marketing strategy;" "formulate and 
direct marketing activities or policies to promote services"; "evaluate the financial aspects of 
marketing campaigns"; and "attend trade shows, conferences and sales meetings." While the 
Petitioner provided additional details about the Beneficiary's experience that will assist her in 
performing these duties, the Petitioner's description and supporting evidence does not demonstrate 
that the particular work would require a specialty occupation level of education. 
The Petitioner has not demonstrated in the record that its proffered position is one with duties 
sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-/TA-N-S- LLC, ID# (AAO Apr. 24, 2017) 
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