dismissed H-1B Case: Information Technology Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-E-N-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 29, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: .. FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting firm, seeks to temporarily employ the 
Beneficiary as a "market research analyst" under the H-1B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the 
specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not demonstrated that, if the H -1 B petition were approved, the Petitioner would 
employ the Beneficiary in a specialty occupation position. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of record satisfies all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter ofG-E-N-, Inc. 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Cherto.fj; 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"); Defensorv. 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 full-time "market 
research analyst." In a letter submitted with the H -1 B petition, the Petitioner provided the following 
job duties for the position: 
• You will provide marketing expertise and assist [the Petitioner] in producing 
marketing, social media marketing, creation of marketing content including 
documents, web content, and others. 
• Research market conditions in local, regional, or national areas, or gather 
information to determine potential sales of a product or service, or create a 
marketing campaign. 
• May gather information on competitors, prices, sales, and methods of marketing 
and distribution. 
• Prepare reports of findings, illustrating data graphically and translating complex 
findings into written text. 
• Measure the effectiveness of marketing, advertising, and communications 
programs and strategies. 
• Forecast and track marketing and sales trends, analyzing collected data. 
• Collect and analyze data on customer demographics, preferences, needs, and 
buying habits to identify potential markets and factors affecting product demand. 
2 
Matter ofG-E-N-, Inc. 
As to the educational requirement of the proffered position, the Petitioner stated: 
A Market research Analyst employed at our organization applies both theoretical and 
practical application of a body of highly specialized knowledge based on his or her 
attainment of a bachelor's or master's degree in computer engineering or a related 
field. 
Due to the high level of professional responsibility inherent to the instant position, the 
Petitioner's minimum requirement for this position is a comprehensive understanding 
of computer systems and computer engineering, which comes with at least a 
Bachelor's degree in Fine Arts or a related field. Please note that we would not 
consider anyone with lesser qualifications for this professional level position, and that 
we have demonstrated that this is a typical minimum requirement in the Petitioner's 
industry. 
However, in response to the RFE, the Petitioner indicated that a bachelor's degree was not required. 
Specifically, the Petitioner stated that "a candidate close to completing a bachelor's degree like a 
senior year student[] or one who has less than 12 units of course work remaining." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the -proffered position qualifies as a specialty occupation.' 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation? 
Initially, we observe that the Petitioner does not claim that the proffered pos1t10n requires a 
minimum of a bachelor's degree or its equivalent in a specific specialty directly related to the 
position or, if it does, identified what that specific specialty would be. As noted, the Petitioner 
specifically stated that it would accept an individual who had not yet earned a degree. For this 
reason alone, the proffered position is not a specialty occupation. 
Next, we observe that all of the position's duties, except for the first one, appear to have been copied 
directly from the description of the generic duties of typical market research analyst positions. 
See http://www.onetonline.org/link/summary/13-1161.00. 3 As such, even if the Petitioner has a need 
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 We acknowledge that this derogatory information and an opportunity to respond to it were not provided to the 
Matter ofG-E-N-, Inc. 
for a market research analyst, it is unclear that the duty description provided is an accurate 
description of the duties the Beneficiary would perform in the proffered position in the .context of the 
Petitioner's operations. For this additional reason, the Petitioner has not established the substantive 
nature of the duties of the proffered position. 
That the Petitioner did not establish the substantive nature of the work to be performed by the 
Beneficiary precludes a finding that the proffered position is a specialty occupation under any 
criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 
2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, ·when that is an issue under criterion 3; and (5) the degree of specialization 
and complexity of the specific duties, which is the focus of criterion 4. 
The Petitioner has not satisfied any of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A) and has not, 
therefore, demonstrated that, if the petition were approved, it would employ the Beneficiary in a 
specialty occupation position. The Director's decision must therefore be affirmed and the appeal 
dismissed. Nevertheless, we will continue our analysis of whether the proffered position qualifies as 
a specialty occupation in the interest of performing a comprehensive analysis. We wiU next discuss 
the record of proceedings in relation to each of the four criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A), 
considered individually. This analysis will be conducted based on the assumptions, made arguendo, 
that the duties described by the Petitioner accurately reflect the Beneficiary's potential duties and 
that the proffered position is a market research analyst position. 
A. First Criterion 
We turn first to the criterion at 8 C.P.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. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.4 
Petitioner. However, such notice and opportunity are required by 8 C.F.R. § 103.2(b)(l6)(i) only ifthe Petitioner may be 
unaware of the specific derogatory evidence. In this case, there is no indication that the Petitioner would be unaware of 
the provenance of its own duty description. At the very least, the Petitioner would know whether it provided that duty 
description or whether some other person or entity provided it. As such, 8 C. F. R. § I 03 .2(b )(16)(i) does not require 
notice in this instance. 
4 All of our references are to the 20 16-20,J7 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 USCIS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
4 
Matter ofG-E-N-, Inc. 
On the labor condition application (LCA) submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Market Research Analysts" 
corresponding to the·Standard Occupational Classification code 13-1161.5 The Handbook states the 
following with regard to the educational qualifications necessary for entrance into positions located 
within this occupational category: 
Education 
Market research analysts typically need a bachelor's degree in market research or a 
related field. Many have degrees in fields such as statistics, math, and computer 
science. Others have backgrounds in business administration, the social sciences, or 
communications. 
Courses in statistics, research methods, and marketing are essential for these workers. 
Courses in communications and social sciences, such as economics or consumer 
behavior, are also important. 
Some market research analyst jobs require a master's degree. Several schools offer 
graduate programs in marketing research, but many analysts complete degrees in 
other fields, such as statistics and marketing, and/or earn a master's degree in 
business administration (MBA). A master's degree is often required for leadership 
positions or positions that perform more technical research. 
Licenses, Certifications, and Registrations 
Certification is voluntary, but analysts may pursue certification to demonstrate a level 
of professional competency. The Marketing Research Association offers the 
Professional Researcher Certification (PRC) for market research analysts. Candidates 
qualify based on experience and knowledge; they must pass an exam, be a member of 
a professional organization, and have at least 3 years working in opinion and 
marketing research. Individuals must complete 20 hours of industry-related 
continuing education courses every 2 years to renew their certification. 
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. 
5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC_Guidance_Revised_ll_2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
Matter of G-E-N-. Inc. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
Market Research Analysts, available at http://www.bls.gov/ooh/business-and-financial/market­
research-analysts.htm#tab-4 (last visited Nov. 28, 2016). 
When reviewing the Handbook, we must note again that the Petitioner designated the proffered 
position under this occupational category at a Level I on the LCA. Based upon the Petitioner's 
de~ignation of the proffered position as a Level I position (relative to others with the occupation) it 
does not appear that the Beneficiary will serve in a senior or leadership role or in a position that 
performs more technical research that requires a master's degree. 
The Handbook reports that market research analysts have degrees and backgrounds in a wide-variety 
of disparate fields. That is, while the Handbook states that employees typically need a bachelor's 
degree in market research or a related field, it continues by specifying that many market research 
analysts have degrees in fields such as statistics;, math, or computer science. According to the 
Handbook, other market research analysts have backgrounds in fields such as business 
administration, the social sciences, or communications. This passage of the Handbook identifies 
various courses as essential to this occupation, including statistics, research methods, and marketing. 
It further elucidates that courses in communications and social sciences (such as economics, 
psychology, and sociology) are also important. Therefore, although the Handbook indicates that 
market research analysts typically need an advanced degree, it also indicates that degrees and 
backgrounds in various fields are acceptable for jobs in this occupation- including computer science 
and the social sciences, as well as statistics and communications. 
As discussed, a minimum entry requirement of a degree in disparate fields, such as philosophy and 
engineering, would not meet the statutory requirement that the degree be "in the specific specialty 
(or its equivalent)," unless the petitioner establishes how each field is directly related to the duties 
and responsibilities of the particular position such that the required body of highly specialized 
knowledge is essentially an amalgamation of these different specialties. Section 214(i)( 1 )(B) of the 
Act (emphasis added). 
The Handbook also states that "others have a background in busine~s administration." Again, while 
a general-purpose bachelor's degree, such as a degree in business administration, may be a 
legitimate prerequisite for a particular position, requiring such a degree, without more, will not 
justify a finding that a particular position qualifies for-classification as a specialty occupation. See 
Royal Siam Corp. v. Cherto.ff, 484 F.3d at 147. 
That is, USCIS interprets the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree 
in a specific specialty (or its equivalent) that is directly related to the proposed position. Since there 
must be a close correlation between the required specialized studies and the position, the 
requirement of a degree with a generalized title, such as business administration, without further 
specification, does not establish the position as a specialty occupation. C./. Matter of Michael Hertz 
Associates, 19 I&N Dec. at 558. Therefore, the Handbook's recognition that a general, non-
Matter ofG-E-N-, Inc. 
specialty "background" in business administration is sufficient for entry into the occupation strongly 
suggests that a bachelor's degree in a spec(jic specialty is not normally the minimum entry 
requirement for this occupation. 
The narrative of the Handbook further reports that some employees obtain professional certification 
to demonstrate a level of professional competency. It continues by outlining the requirements for 
market research analysts to achieve the Professional Researcher Certification (PRC), and states that 
candidates qualify based upon their experience and knowledge. According to the Handbook, the 
credential is granted by the Marketing Research Association to those who pass an exam and have at 
least three years of experience working in opinion and market research.6 
We reviewed the Marketing Research Association's website, which confirms the Handbook's 
statement regarding the requirements for professional certification (i.e., passage of an exam and 
three years of relevant industry experience), and further specifies that the "Education" necessary to 
apply for professional certification is "12 industry-related education hours within the two preceding 
years." The Market Research Association website provides the following information about the 
Professional Researcher Certification program: 
The Professional Researcher Certification program (PRC) is designed to encourage 
the highest standards within the marketing, establish an objective measure of an 
individual's knowledge and proficiency and to encourage professional development. 
PRC is a powerful tool for individual researchers of all levels of work experience and 
education. Certification standards increate consumer understanding of research and 
foster premier professional standards in the profession. 
Market Res. Ass'n, http://www.marketingresearch.org/advance-career/prc (last visited Nov. 28, 
2016). 
In the "frequently asked questions" section, the website further states: 
!d. 
The benefits of a Certification program are both industry-wide and individual. For the 
individual, it is a means of differentiating oneself, 11 "badge" of competence in the 
given areas and an assurance that the individual is current in knowledge and 
experience. For the profession/industry as a whole, it provides a vehicle for 
developing a pool of well-trained, competent marketing researchers, thereby 
improving both perceived and substantive standards. 
6 The Marketing Research Association website states that the association was founded in 1957 and is the leading and 
largest · association of opinion and marketing research professions. For additional information, see 
http://www.marketingresearch.org/about (last visited Nov. 28, 20 16). 
Matter ofG-E-N-, Inc. 
The Market Research Association emphasizes that the credentialing program encourages the highest 
standards within the profession, establishes an objective measure of an ind!vidual's knowledge and 
proficiency, and encourages professional development. According to the association's website, the 
credential provides an individual "a badge" of competence in the given areas and that the individual 
is current in knowledge and experience. The narrative continues by stating that the credential 
provides a vehicle for developing a pool of well-trained, competent marketing researchers, thereby 
improving both perceived and substantive standards. The website does not indicate that the market 
research analyst positions have any particular academic requirements for entry, nor does it indicate 
that these positions require any particular level of education to be identified as qualified and 
possessing a level of expertise/competence. In fact, it states that PRC is "a powerful tool for 
individual researchers of all levels of work experience and education." 
Thus, the Handbook and fhe Market Research Association website do not support the claim that the 
occupational category "Market Research Analysts" is one for which normally the minimum 
requirement for entry is a baccalaureate degree (or higher) in a specific specialty, or its 
equivalent. Even if it did (which it does not), to satisfy the first criterion, the Petitioner must provide 
evidence to support a finding that the particular position proffered would normally have such a 
minimum, specialty degree requirement or its equivalent. 
The Petitioner also observed that market research analyst positions are in "an SVP range of at 
least 7," and asserted that, therefore, a bachelor's degree is the minimum requirement. SVP levels 
are assigned by the DOL and reported in the O*NET. O*NET does, in fact, assign market research 
analyst positions an SVP level of7 to <8 at http://www.onetonline.org/link/summary/13-1161.00. 
However, the inclusion of market research analyst positions within SVP level 7.0 to < 8.0 does not 
demonstrate that a particular job requires the attainment of a baccalaureate or higher degree in a 
specific specialty, or its equivalent, as a minimum for entry into the occupation. 
The following is an explanation of the various levels of specific vocational preparation: 
Level 
1 
2 
3 
4 
5 
6 
7 
8 
9 
Time 
Short demonstration only 
Anything beyond short demonstration up to and including 1 month 
Over 1 month up to and including 3 months 
Over 3 months up to and including 6 months 
Over 6 months up to and including 1 year 
Over 1 year up to and including 2 years 
Over 2 years up to and including 4 years 
Over 4 years up to and including 10 years 
Over 1 0 years 
See http://www .onetonline.org/help/ online/svp. 
Matter ofG-E-N-, Inc. 
Thus, an SVP rating is meant to indicate only the total number of years of vocational preparation 
required for a particular position. The SVP level of 7 to <8 indicates that a market research analyst 
position may require as little as two years of preparation. Further, it does not describe how those 
years are to be divided among training, formal education, and experience, and it does not specify the 
particular type of degree, if art!)', that a position would require. For all 0f these reasons, the SVP 
level of market research analyst positions does not indicate that such positions require a minimum of 
a bachelor's degree in a spe.cific specialty or its equivalent, and does not, therefore, demons,trate that 
they qualify as specialty occupation positions. 
The record of proceedings does not contain sufficient persuasive documentary evidence from any 
other relevant authoritative source establishing that the proffered position's inclusion within the 
occupational category of market research analysts establishes the proffered position as, in the words 
of this criterion, a "particular position" for which "[a] baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry." 
Finally, we find that, to the extent that they are described in the record of proceedings, the numerous 
duties that the Petitioner ascribes to the proffered position indicate a need for a range of knowledge 
of market research and analysis, but do not establish any particular level of formal, postsecondary 
education leading to a bachelor's or higher degree in a specific specialty as minimally necessary to 
attain such knowledge. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
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 
casts its gaze upon 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 USC IS 
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) 
(quotingHird/BlakerCorp. v. Sava, 712F. Supp.1095, 1102(S.D.N.Y.1989)). 
9 
Matter ofG-E-N-, Inc. 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative source) reports an 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. 
Furthermore, the Petitioner did not submit any letters or affidavits from similar firms or individuals 
in the Petitioner's industry attesting that such firms "routinely employ and recruit only degreed 
individuals." 
The Petitioner did . provide vacancy announcements placed by other companies to satisfy this 
criterion. They are for positions entitled, Market Research Analyst, Market Research Analyst III, 
Social Media Specialist, and Marketing Campaigns Specialist. 
That one of those positions is entitled Market Research Analyst III suggests that it is not an 
entry-level position, as the Petitioner has designated the proffered position. Further, most of the 
vacancy announcements provided contain an experience requirement, and some state a requirement 
of a very considerable amount of very specific experience. None of the positions they announce 
appear to be entry-level positions and, as explained above, they have not been shown to be directly 
relevant to the analysis of the educational requirements of positions parallel to the proffered position. 
To demonstrate that positions parallel to the proffered position require a minimum of a bachelor's 
degree in a specific specialty or its equivalent, the Petitioner must demonstrate that wage Level I 
market research analyst positions require such a degree. Positions that are not entry-level positions 
are not directly relevant to this inquiry. 
One of the vacancy announcements states a requirement for a degree in marketing, business, or 
communications. Another states a requirement for a degree in life sciences, economics, or business. 
Yet another states a requirement for a degree in business, management, statistics, mathematics, or 
another related field. Those wide arrays of subjects have not been shown to delineate any specific 
specialty. As such, educational requirements that may be satisfied by a degree in those wide arrays 
have not been shown to require a degree in a specific specialty. They do not, therefore, show that 
the proffered position, by virtue of perceived similarity to the positions announced, likely requires a 
minimum of a bachelor's degree in a specific specialty or its equivalent. 
Further, each vacancy announcement suggests that an otherwise undifferentiated bachelor's degree 
in business would be a sufficient educational qualification for the advertised positions. As explained 
above, a requiremen; that may be satisfied by an otherwise undifferentiated degree in business is not 
a requirement of a minimum of a bachelor's degree in a specific specialty or its equivalent. For this 
additional reason, those vacancy announcements do not appear to contain a requirement of a 
minimum of a bachelor's degree in a specific specialty or its equivalent. One of the vacancy 
announcements states a requirement of~ minimum of a master's degree in business administration. 
This is also not a requirement of a minimum of a bachelor's degree in a specific specialty or its 
equivalent, for the same reason. 
10 
Matter ~fG-E-N-, Inc. 
One of the firms that placed those vacancy announcements states that it is a biotech firm. The 
industries of the firms that placed many of the other vacancy announcements are unknown to us. 
Absent evidence of the industries those firms are in, the vacancy announcements they placed are 
generally not amenable to consideration under this criterion, which contemplates comparison to 
positions with organizations in the Petitioner's industry. 
Finally, even if all of the vacancy announcements advertised parallel positions with organizations 
similar to the Petitioner and in. the Petitioner's industry and also stated a requirement for a minimum 
of a bachelor's degree in a specific specialty or its equivalent, we would still find that the Petitioner 
has not demonstrated what statistically valid inferences, if any, could be drawn from a few 
announcements with regard to the common educational requirements for entry into parallel positions 
in similar organizations. 7 
Thus, the evidence of record does not establish that a requirement of a bachelor's or higher degree in 
a specific specialty, or its equivalent, is common to parallel positions with organizations that are in 
the Petitioner's industry and otherwise similar to the Petitioner. The Petitioner has not, therefore, 
satisfied the criterion ofthe first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
2: Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
A review of the record of proceedings finds that the Petitioner has not credibly demonstrated that the 
duties the Beneficiary will be responsible for or perform on a day-to-day basis constitute a position 
so complex or unique that it can only be performed by a person with at least a bachelor's degree in a 
specific specialty, or its equivalent. Even when considering the Petitioner's general descriptions of 
the proffered position's duties, the evidence of record does not establish why a few related courses 
or industry experience alone would be insufficient preparation for the proffered position. 
While a few related courses may be beneficial, or even required, in performing certain duties of the 
position, the Petitioner has not demonstrated 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 
7 USCIS "must examine each piece of evidence for relevance, probative value, and credibility, both individually and 
" within the context of the totality of the evidence, to determine whether the fact to be proven is probably true." Matter of 
Chawathe, 25 I&N Dec. 369,376 (A:A..O 2010). As just discussed, the Petitioner has not established the relevance ofthe 
job advertisements submitted to the position proffered in this case. Even if their relevance had been established, the 
Petitioner still would not have demonstrated 'what inferences, if any, can be drawn from these few job postings with 
regard to determining the common educational requirements for entry into P,arallel positions in similar organizations in 
the same industry. See generally Earl Babbie, The Practice of Social Research 186-228 ( 1995). 
II 
Matter ofG-E-N-, Inc. 
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. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant 
petition. As noted above, the Petitioner attested on the submitted LCA that the wage level for the' 
proffered position is a Level I (entry-level) wage. Such a wage level is for a position which only 
requires the performance of routine tasks that require limited, if any, exercise of judgment; close 
supervision and work closely monitored and reviewed for accuracy; and the receipt of specific 
instructions on required tasks and expected results, and is contrary to a position that requires the 
performance of complex duties.8 It is, instead, a position for an employee who has only basic 
understanding of the occupation. 
Therefore, the evidence of record does not establish that this position is significantly different from 
other positions in the occupation such that it refutes the Handbook's information to the effect that 
there is a spectrum of degrees acceptable for such positions, including degrees not in a specific 
specialty. In other words, the record lacks sufficiently detailed information to distinguish the 
proffered position as unique from or more complex than positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. As the Petitioner did not 
demonstrate how the proffered position is so complex or unique relative to other positions within the 
same occupational category that do not require at least a baccalaureate degree in a specific specialty 
or its equivalent for entry into the occupation in the United States, it cannot be concluded that the 
Petitioner has satisfied the second alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
C. Third Criterion 
We will next address the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which may be satisfied if the 
Petitioner demonstrates that it normally requires a minimum of a bachelor's degree in a specific 
specialty or its equivalent for the proffered position. 
The Petitioner has not expressly asserted eligibility or submitted evidence for our consideration 
under this criterion. Although the Petitioner stated that it was established in 1995, it provided no 
evidence to establish that it has previously employed a market research analyst. 
8 The issue here is that the Petitioner's designation of this position as a Levell, entry-level position undermines its claim 
that the position is particularly complex, specialized, or unique compared to other positions 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 
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 
Matter ofG-E-N-, Inc. 
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 provides insufficient 
evidence that it has ever recruited and hired for the position would be able to satisfy the criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(3), which requires a demonstration that it normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the position. We cannot conclude that 
the Petitioner has satisfied the third criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A).9 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
Again, relative specialization and complexity have not been sufficiently developed by the Petitioner 
as an aspect of the proffered position. The duties of the proffered position, such as providing 
marketing expertise, producing marketing content, researching market conditions, etc., contain 
insufficient indication of a nature so specialized and complex that they require knowledge usually 
associated with attainment of a minimum of a bachelor's degree in a specific specialty or its 
equivalent. In other words, the proposed duties have not been described with sufficient specificity to 
show that they are more specialized and complex than market research analyst positions that are not 
usually associated with at least a bachelor's degree in a specific specialty or its equivalent. 
We again refer to our earlier comments and findings with regard to the implication of the Petitioner's 
designation of the proffered position in the LCA as a Level I (the lowest of four assignable levels) 
wage. That is, the Level I wage designation is indicative of a low, entry-level position relative to 
others within the occupational category, and hence one not likely distinguishable by relatively 
specialized and complex duties. 
Upon review of the totality of the record, the Petitioner has not established that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
9 While a petitioner may believe or otherwise assert that a proffered position requires a degree in a specific specialty, 
that opinion alone without corroborating evidence cannot establish the position as a specialty occupation. Were USCIS 
limited solely to reviewing a petitioner's claimed self-imposed requirements, then any individual with a bachelor's 
degree could be brought to the United States to perform any occupation as long as the employer artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a baccalaureate or higher 
degree in the specific specialty or its equivalent. See Defensor v. Meissner, 20 I F. 3d at 387. In other words, if a 
petitioner's degree requirement is only symbolic and the proffered position does not in fact require such a specialty 
degree or its equivalent to perform its duties, the occupation would not meet the statutory or regulatory definition of a 
specialty occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty 
occupation"). 
13 
Matter ofG-E-N-, Inc. 
its equivalent. For the reasons discussed above, the evidence of record does not satisfy the fourth 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Even given the assumption that the proffered position is a market research analyst position and that 
the duties of the petition have been accurately described, the Petitioner has not satisfied one of the 
criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). The Petitioner has therefore not demonstrated that the 
proffered position qualifies as a specialty occupation. The appeal will be dismissed on this basis. 
E. Unpublished AAO Decisions 
The Petitioner refers to unpublished decisions in which we determined that the positiQns proffered in 
those matters qualified as a specialty occupation. When "any person makes application for a visa or 
any other document required for entry, or makes application for admission, ... the burden of proof 
shall be upon such person to establish that he is eligible" for such benefit. Section 291 of the Act, 8 
U.S.C. § 1361; see also Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972). 
Furthermore, any suggestion that USCIS must review unpublished decisions and possibly request 
and review each case file relevant to those decisions, while being impractical and) inefficient, would 
also be a shift in the evidentiary burden in these proceedings from the Petitioner to USCIS, which 
would be contrary to section 291 of the Act, 8 U.S.C. § 1361. Accordingly, neither the Director nor 
our office was required to request and/or obtain a copy of the unpublished decisions cited by the 
Petitioner. 
If a petitioner wishes to have unpublished decisions considered by USCIS in the adjudication of a 
petition, the petitioner is permitted to submit copies of such evidence that it either obtained itself 
through its own legal research and/or received in response to a Freedom of Information Act request 
filed in accordance with the applicable regulations. Otherwise, "[t]he non-existence or other 
unavailability of required evidence creates a presumption of ineligibility." 8 C.F .R. § 103 .2(b )(2)(i). 
In the instant case, the Petitioner did not submit a copy of the unpublished decisions. As the record 
of proceedings does not contain any evidence of the unpublished decisions, there were no underlying 
facts to be analyzed and, therefore, no prior, substantive determinations could have been made to 
determine what facts, if any, were analogous to those in these proceedings. While 8 C.F.R. 
§ 1 03.3( c) provides that our precedent decisions are binding on all USCIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
IV. BENEFICIARY'S QUALIFICATIONS 
As the Petitioner did not demonstrate that the proffered position is a specialty occypation, we need 
not fully address other issues evident in the record. That said, we wish to identify an additional issue 
to inform the Petitioner that this matter should be addressed in any future proceedings.
10 
10 In reviewing a matter de novo, we may identify additional issues not addressed below in the Director's decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
14 
Matter ofG-E-N-, Inc. 
The Petitioner asserted, in a letter submitted with the H-1B petition, that "[The] Beneficiary is 
qualified for [the proffered position] by virtue of his academic background in Fine Arts and expertise 
in relev[an]t work field." The Petitioner does not appear to assert that the Beneficiary has a 
bachelor's degree per se. 
A transcript provided shows that the Beneficiary majored in fine arts and accumulated 184 quarter 
credit hours. Although a bachelor's degree could typically be earned with a minimum of 180 quarter 
credit hours, the transcript does not indicate that the Beneficiary received a bachelor's degree. 
Rather, the transcript states, "Status: Withdrawn." The Beneficiary, therefore, does not appear to 
qualify to perform the duties of a specialty occupation based upon his educational credentials. 
\ 
When a petitioner seeks to show that a beneficiary is qualified for a specialty occupation position 
based on education and employment experience, considered together, it must provide an evaluation 
of that beneficiary's education and experience that satisfies the requirements of 8 C:F.R. 
§ 214.2(h)(4)(iii)(D)(l). No such evaluation was provided in this case. This is another reason why 
the instant H -1 B petition may not be approved. 
V. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter o.fOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fG-E-N-, Inc., ID# 41002 (AAO Nov. 29, 2016) 
15