dismissed H-1B Case: Jewelry Wholesale

U.S. Citizenship 
and Immigration 
Services 
In Re: 9687043 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN . 29, 2021 
The Petitioner seeks to temporarily employ the Beneficiary under the H-1B nonimmigrant classification 
for specialty occupations.1 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 Vermont Service Center denied the petition, concluding that the record did not 
establish that the proffered position is a specialty occupation. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate el ig ibi I ity by a preponderance of the evidence. 2 
We review the questions in this matter de novo.3 Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(I) of the Act but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position.4 Lastly, 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
2 See Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
4 See 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation 
under section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe 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. 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"). 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... "(emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. To determine 
whether a particular job qualifies as a specialty occupation, we do not rely simply upon a position's 
title or the broader occupational category within which a petitioner claims the position is located. The 
specific duties of the proffered position, combined with the nature of the petitioning entity's business 
operations, are factors to be considered. We must examine the ultimate employment of the individual, 
and determine whether the position qualifies as a specialty occupation. 5 The critical element is not 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. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 6 The Director may request additional evidence 
in the course of making this determination. 7 In addition, a petitioner must establish eligibility at the 
time of filing the petition and must continue to be eligible through adjudication.8 
11. PROFFERED POSITION 
The Petitioner, a wholesaler of precious and semiprecious stones, states the Beneficiary will be 
employed as a "marketing consultant." It designates the proffered position on the labor condition 
application (LCA) as a standard occupational classification (SOC) code 13-1161 "Market Research 
Analysts and Marketing Specialists"9 and provides the following job duties for the position:10 
I Field Research [25%] 
I Developing and proposing the marketing strategies. Prepare the reports and 
presenting the findings to the management/supervisor for further marketing 
strategy [10%] 
I Analysis [15%] 
I Develop brand Standards, mission, and goals for current and future projects 
[10%] 
5 See generally Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
6 See 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
7 See 8 C.F.R. § 103.2(b)(8). 
8 See 8 C.F.R. § 103.2(b)(1). 
9 A petitioner is required to submit an LCA to the Department of Labor to demonstrate that it will pay an H-1B 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 duties, experience, and qualifications. See Section 212(n)(1) of the Act; 
20 C.F.R. § 655.731(a). 
10 While we will not quote the entire description for the sake of brevity, we have reviewed and considered it in full. 
2 
I Oversee implementation of design, content, and deployment of all marketing 
materials [10%] 
I Align with company goals and marketing strategy [10%] 
I Analyzing Consumer behavior and customer psychology [10%] 
I Social media marketing and search engine optimization [10%] 
Ill. ANALYSIS 
As a result of the Petitioner's own stated requirements, the proffered position does not meet the 
statutory or regulatory definition of the term "specialty occupation."11 As noted, both definitions 
require the Petitioner to demonstrate that the proffered position requires: (1) the theoretical and 
practical application of a body of highly specialized knowledge; and (2) the attainment of a bachelor's 
degree in the specific specialty. The record of proceedings satisfies neither. In addition, the record 
has inconsistencies that undermine the Petitioner's claims regarding the nature of the proffered 
position and, as a result, whether the Beneficiary will be employed in an occupation that meets the 
statutory and regulatory definitions of a specialty occupation and a position that also satisfies at least 
one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
A. Minimum Requirements 
In satisfying the specialty occupation requirements, both the Act and the regulations require a 
bachelor's degree in a specific specialty, or its equivalent. However, the Petitioner does not 
consistently identify a degree or related degrees that would be minimally required to perform the duties 
of the proffered position. In its initial filing, the Petitioner's support letter states, "[t]he position 
requires ... education, training and experience in Marketing," which could be interpreted as requiring 
a degree and experience in the field of marketing. However, this statement is followed by, "[w]e also 
believe that [the] specific level of knowledge ... can only be achieved after successfully completing 
a Baccalaureate degree and having experience in marketing and management department," which 
appears to state any bachelor's degree with some undefined amount of experience in marketing and 
management is the minimum requirement for entry into the position. The Petitioner's response to the 
Director's request for evidence (RFE) does not clarify the minimum requirements. Instead, the letter 
initially states, "the necessary degree [is] in the field of Management Studies" and then, a paragraph 
later, states, "only a person, who has a Baccalaureate Degree, will have the specific knowledge of 
Reasoning, Language and Mathematical Development as required for the position of Marketing 
Consultant," again indicating any bachelor's degree would meet the minimum entry requirement for 
the proffered position. The letter also cites to the U.S. Department of Labor's (DOL) Occupational 
Outlook Handbook to support its assertion that a "baccalaureate degree is a minimum requirement for 
this position."12 The letter then references a job posting, "which mentions that bachelor's degree in 
management or marketing is needed for this position," but no such job posting is in the record. 
11 The Petitioner submitted documentation in support of the H-1B 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. 
12 To the extent the Petitioner is asserting the proffered position only requires a general bachelor's degree, requiring such 
a degree, without more, will not justify a conclusion that a particular position qualifies for classification as a specialty 
occupation. See Royal Siam Corp., 484 F.3d at 147; cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 
1988) {"The mere requirement of a college degree for the sake of general education, or to obtain what an employer 
perceives to be a higher caliber employee, also does not establish eligibility.") 
3 
Although not clear from its inconsistent assertions, the Petitioner may be stating that the minimum 
degree requirement would be satisfied by either a marketing or management studies degree. However, 
the Petitioner has not established that these degrees are closely related and are each directly related to 
the proffered position. In general, provided that the specialties are closely related, e.g., chemistry and 
biochemistry, a minimum of a bachelor's or higher degree in more than one specialty is recognized as 
satisfying the "degree in the specific specialty (or its equivalent)" requirement of section 214(i)(1)(B) 
of the Act. In such a case, the required "body of highly specialized knowledge" would essentially be 
the same. Since there must be a close correlation between the required "body of highly specialized 
knowledge" and the position, however, a minimum entry requirement of a degree in disparate fields, 
such as marketing and management studies, 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, which the Petitioner has not 
done here. 13 
The remainder of the record further clouds the proffered position's minimum degree requirement. The 
Petitioner provides educational credentials and pay records for a former employee who "used to do 
the marketing analysis work" but the record evidences this former employee holds a foreign degree 
entitled "bachelor of commerce."14 The Petitioner also submits the degrees of two individuals, who 
it asserts work in parallel positions in similar companies, but provides no supporting evidence to 
substantiate its statements, i.e. the employees' job duties and information on their employers.15 Both 
have foreign degrees entitled, "bachelor of commerce" and one employee also has a U.S. master's 
degree in business administration.16 The Petitioner does not provide the U.S. equivalency of these 
foreign degrees, and has not established how any such U.S. equivalent would directly relate to the 
duties and responsibilities of the particular position. Furthermore, the Petitioner does not explain how 
a foreign degree in commerce supports its assertions that knowledge obtained from the fields of 
marketing or management studies are required to perform the duties of the position. If a degree in any 
of these disparate fields would equally prepare an individual to perform the duties of the proffered 
position, then we question how the position involves a "highly specialized body of knowledge" or 
requires a bachelor's degree, or the equivalent, in a "specific specialty." 
Another interpretation of the Petitioner's statements is that the proffered position's requirements are a 
combination of a general bachelor's degree and experience, which in certain instances, may qualify 
the proffered position as a specialty occupation.17 However, the proffered position's experience 
requirements are also inconsistent throughout record. The Petitioner's initial support letter requires 
experience in marketing and then later states it also requires experience in management. In its response 
13 See Section 214(i){l){B) of the Act (emphasis added) 
14 The 2017 pay records for this employee establishes she was paid an hourly rate of $15.00 per hour. For the 2017 time 
period, the Level I prevailing wage in the area of intended employment for "Market Research Analysts and Marketing 
Specialists" was $22.44 per hour, and for Level 11 was $30.27 per hour. See 
https://flcdatacenter.com/OESWizardStart.aspx. Therefore, the pay records do no support that the former employee's 
position is similar to the proffered position. 
15 The Petitioner states on appeal that it attached further information on these employees' organizations but the information 
was not contained in the appeal. 
16 On appeal, the Petitioner submits two job advertisements to evidence the minimum degree requirements for parallel 
positions in similar industries. Neither specify a degree requirement. The information contained in the advertisements is 
insufficient to ascertain if the companies are similar to the Petitioner and the duties parallel to the proffered position. 
17 See Section 214(i){l){B) of the Act. 
4 
to the RFE, the Petitioner specifies that the proffered position "could only be satisfactorily discharged" 
with "at least 3 years or equivalent in the profession of Marketing & business analysis." The response 
also states the position requires experience in the industry. However, the Petitioner does not describe 
how experience from these areas would create the specialized knowledge necessary to perform the 
duties of the position.18 
The Petitioner does not consistently identify areas of study and/or experience that would be minimally 
required to perform the duties of the proffered position. Moreover, the Petitioner has not established 
how the various degrees identified in the record could form either a body of highly specialized 
knowledge or a specific specialty. Absent this evidence, we cannot conclude that the Petitioner by its 
own standards requires the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation. As the Petitioner has not met the threshold 
requirement of satisfying the statutory and regulatory definitions of the term "specialty occupation," 
it cannot satisfy any of the supplemental specialty-occupation criteria enumerated at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(1)-(4) because, again, we must consider those criteria in harmony with the thrust 
of the related regulatory provisions and with the statute as a whole. In other words, we must construe 
those criteria's references to the term "degree" as meaning not just any baccalaureate or higher degree, 
but one in a specific specialty that is directly related to the proffered position.19 Therefore, the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 20 
B. Nature of the Position 
A crucial aspect in determining specialty occupation is whether the Petitioner has sufficiently 
described the duties of the proffered position. Without a meaningful job description, we are unable to 
ascertain not only the level of education and knowledge necessary to perform the duties of the position 
but also the nature of the work to be performed. With respect to the minimum degree requirements, the 
Petitioner's description of the duties is too vague to determine whether a bachelor's degree in a specific 
specialty, or its equivalent, is required to perform the duties. The Petitioner submits an eighteen-page 
duties table in response to the RFE, providing more description and tasks than first presented in its 
support letter, but not more substantive detail.21 "Field research" is the proffered position's most 
18 The assertions made on appeal do not clarify the record as to the proffered position's minimum degree requirement. The 
Petitioner states, "Marketing Consultant does not need to have a specific specialty, as it depends upon the Industry. For 
example, in pharmaceutical company, the person needs to have knowledge of pharmacy; in health care industries, the 
person needs to have knowledge of healthcare administration etc." The Petitioner does not cite to any authority for its 
assertion and it is unclear what the Petitioner is trying to establish, as it repeats this assertion more than once. To the extent 
the Petitioner is stating the "body of highly specialized knowledge" required to perform the duties of the proffered position 
is industry specific, the burden of proof still remains on the Petitioner to identify the specialized knowledge, which it has 
not done. However, if the Petitioner is again asserting that the position requires applicants to have any bachelor's degree, 
or a bachelor's degree in a large subset of fields, then the position cannot be considered specialized. See Caremax, Inc. v. 
Holder, 40 F.Supp.3d 1182, 1187-88 (N.D. Cal. 2014). 
19 See Royal Siam, 484 F.3d at 147; Caremax, 40 F.Supp.3d at 1187-88; Payjoy v. Cuccinelli, No. 19-cv-03977-HSG, 2019 
WL 3207839 at *3 (N.D. Cal. July 17, 2019) (statutory and regulatory text appear to support USCIS's interpretation that 
the degree requirement must be read in conjunction with the "specific specialty" requirement). 
20 While we could end our analysis here and dismiss the appeal, we note the inconsistencies in the record with respect to 
the nature of the position would similarly preclude it from satisfying both definitions 
21 Embedded within the table are several charts and graphs, which appear to be pasted in from a generic template, 
containing areas labeled "placeholder text" or "insert text here." The purpose of these graphs is unclear. 
5 
time-consuming duty. While the description gives details on the sources of the data to be researched, 
it does not explain what specialized knowledge is necessary to research or gather the data. Under the 
duty labeled "analysis," the Petitioner bullets items that will be evaluated and assessed, such as 
"analyzing cost of production and margins" but does not describe how performing this analysis would 
require a bachelor's degree in a specific specialty. While the Petitioner states the Beneficiary will use 
its proprietary software to analyze statistical data, and Excel and PowerPoint to present work, it does 
not explain what bachelor's-level specialized knowledge, if any, would be required to use the software 
programs. The remaining duties are similarly described, lacking substantive detail and context for the 
tasks the Beneficiary will perform. For example, the Petitioner does not explain for what purpose the 
data is being researched or gathered, or how its analysis relates to the occupation. For these reasons, we 
are also unable to determine the proffered position's overall nature and its role within the organization. 
In addition, while the proffered position is designated under the occupation "Market Research 
Analysts and Marketing Specialists," many of the duties described in the record do not appear to align 
with this occupational category. In the Petitioner's support letter, the duties list only a few tasks that 
appear to be within the scope of the designated occupation, such as, "measuring the effectiveness of 
marketing, advertising, communication programs and strategies," "compiling the report on marketing 
and sales metrics," and "development of marketing strategies."22 However, the absence of substantive 
detail with respect to the duties makes it difficult to understand whether some duties, which would 
appear to align with the occupation, is actually the work of "Market Research Analysts and Marketing 
Specialists." For example, while data gathering and analysis are duties performed within this 
occupational category, because we are given little context for the purpose of this duty, it is unclear 
whether it is being performed for purchasing, pricing and/or marketing, i.e. "gather[ing] information 
of precious stones' cut, quality, shape and size that are being used," "analyzing data [from] competitor 
stores ... and competitor's methods," "[c]ollecting data about customer's preferences and considering 
profit margin, prevailing market rate and production costs in order to determine the price of the item" 
and "[c]ollect[ing] data[] includ[ing] precious stone quality, availability, and technical specifications 
to develop new collection" and "gathering information on jewelry trends." Other duties refer to 
branding and promoting, i.e. developing and implementing brand management strategies, and creating 
social media campaign strategies. These duties, without further context and detail, appear to fall within 
other occupational categories. 
Moreover, the duties described in response to the RFE include additional tasks such as, 
"identify[ing] new business prospects[,] ... recommending ... new plans for 
development of company and ... expand[ing] the business[,] ... research[ing] ... 
strategic partnership[,] .. assess[ing] ... sales and marketing operations and ... project 
22 According to the DOL's Occupational Information Network (O*NET), "Market Research Analysts and Marketing 
Specialists" will "[p]repare reports of findings ... collect and analyze data ... " and "[m]easure the effectiveness of 
marketing, advertising, and communications programs," etc. See O*NET Online Summary Report for "13-1161.00 -
Market Research Analysts and Marketing Specialists," https://www.onetonline.org/Archive_ONET­
SOC_2010_ Taxonomy_09_2020/link/summary/13-1161.00 (last visited Jan. 27, 2020); see also Bureau of Labor 
Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Market Research Analysts, 
https://www.bls.gov/ooh/business-and-financial/market-research-analysts.htm#tab-2 (last visited Jan. 27, 2020) (I isting 
typical duties as "monitor[ing] and forecast[ing] marketing and sales trends[,] measur[ing] the effectiveness of marketing 
programs and strategies," and "analyz[ing] data using statistical software.") 
6 
revenues[,] [a]nalyzing cost of production [and] margins[,] ... setting up standards for 
[the Petitioner's] product line[,] ... develop[ing a] new collection[,] ... considering 
profit margin ... to determine pricing[,] ... collaborating with designers [to] mak[e] . 
. . designs . . . introducing uncommon [jewel] shapes[, and] . . . oversee[ing] 
implementation of design, content and deployment of all marketing materials."23 
While some of these tasks, if more substantively described, may overlap with "Market Research 
Analysts and Marketing Specialists," the tasks related to purchasing, pricing, new business 
development, promotions, and product design align more closely with "Marketing Managers" SOC 
11-2021,24 an occupation that requires a higher wage.25 These duties strongly suggest that the LCA 
does not correspond to the petition, including the occupational category certified therein.26 
In addition, the Petitioner also selected the Level 11 wage as consonant with the job requirements, 
necessary experience, education, and special skills/other requirements of the proffered position.27 
However, the Petitioner's statements and submissions in the record undermine its assertions regarding 
the Level 11 wage. For example, the Petitioner's response to the RFE states, "at least 3 years" of 
experience is required to perform the duties of the position. On appeal, it submits two job 
advertisements that it asserts are for parallel positions. These advertisements require 4 and 5 years of 
experience. According to the O*NET, "Market Research Analysts and Marketing Specialists" are 
categorized under Job Zone 4 with an SVP of 7 < 8. For this Job Zone and SVP range, if the employer 
requires more than three years and up to four years of experience, a two level increase is required, 
which would then render the Level 11 wage rate inappropriate. 28 The Petitioner has not reconciled the 
Level 11 wage rate with its claims about this position's requirements. 
23 On appeal, the Petitioner also provides the duties of a former employee who it claims performed the proffered position's 
tasks. These tasks include some of the aforementioned and adds, "[a]nalyz[ing] and evaluat[ing] current and proposed 
business plans, strategies and programs," "research[ing] and advis[ing] company's management regarding recruitment and 
development of sales and marketing personnel," and "[d]evis[ing] and implement[ing] company's business policies and 
strategies to increase market share with the development of new product line for the company." To the extent the 
Beneficiary will be expected to complete these additional tasks, they would also be outside the scope of "Market Research 
Analysts and Marketing Specialists." 
24 "Marketing Managers" coordinate marketing activities to promote products, develop pricing strategies, direct hiring, 
training of marketing and sales staff, consult with product development, analyze market research studies, identify potential 
markets for products, etc. See O*NET Online Summary Report for "11-2021.00 - Marketing Managers," 
https://www.onetonline.org/Archive_ ONET-SOC _ 2010 _Taxonomy_ 09 _ 2020/1 ink/summary/11-2021.00 (last visited Jan. 
27, 2020). 
25 If the Petitioner's duties for the position fall under more than one related occupational category, it must designate the 
relevant occupational code for the highest paying occupation. 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://flcdatacenter.com/download/NPWHCGuidance_Revised_11_2009.pdf. At the time the Petitioner's LCA was 
certified, the Level 11 prevailing wage in the area of intended employment for "Marketing Managers" was $75.40 per hour, 
which is higher than the prevailing wage for "Market Research Analysts and Marketing Specialists" which was $30.81 per 
hour. See https://flcdatacenter.com/OESWizardStart.aspx. 
26 See Section 212{n)(1) of the Act; 20 C.F.R. § 655.731{a). 
27 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. See Prevailing Wage Determination 
Policy Guidance, available at http://flcdatacenter.com/download/NPWHC_Guidance_ Revised_11_2009.pdf. 
28 The employer's requirements for experience, education, training, and special skills shall be compared to those generally 
required for an occupation as described in O*NET. If there are any requirements above those generally required for an 
occupation, then one or more points should be added to the appropriate wage column(s). U.S. Dep't of Labor, Emp't & 
Training Adm in., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs, supra. 
7 
Furthermore, there are several additional inconsistencies in the record that undermine the overall 
credibility of the filing. According to the organizational chart, the Petitioner is comprised of fourteen 
employees. 29 It has a marketing/sale manager and an overseas marketing/sales team manager, a 
business analyst, an office executive and the proffered position, all reporting to a general manager, 
along with support staff. It is unclear therefore why the Petitioner would need another marketing 
professional to handle these tasks when it already has two marketing managers. In addition, the 
general manager, who the proffered position will be reporting to, is paid $65,000 annually, almost the 
same amount as the proffered position. We also note that the Petitioner is a small organization and its 
organizational chart does not evidence any one employee managing areas such as finance, sales, 
product or purchasing. According to the employees' job descriptions, the other management 
employees share in some of these duties, and it appears, from the record, that the Beneficiary may as 
well. As a result, these discrepancies raise additional concerns regarding the Beneficiary's actual role 
within the Petitioner's organization. 
The inconsistencies in the record with respect to the LCA, the Petitioner's wage level designation, and 
the lack of information regarding the Beneficiary's role within the organization undermine the 
Petitioner's claims regarding the substantive nature of the work to be performed by the Beneficiary. 
Without sufficient evidence regarding the duties the Beneficiary will perform, we are unable to 
determine whether the Beneficiary will be employed in an occupation that meets the statutory and 
regulatory definitions of a specialty occupation and a position that also satisfies at least one of the 
criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position 
determine: (1) the normal minimum educational requirement for entry into 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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
IV. CONCLUSION 
Upon review of the totality of the evidence submitted, the Petitioner has not established that it has 
satisfied the statutory and regulatory definitions of specialty occupation. More specifically, it has not 
established by a preponderance of the evidence the minimum requirements for entry into the 
occupation or the substantive nature of the position. In visa petition proceedings, it is the petitioner's 
29 The petition states the Petitioner has fourteen employees in the United States. The support letter, authored by the 
company's president, states there are ten employees and the organizational chart evidences ten U.S. employees. This may 
be a simple error as the Petitioner also lists 4 additional employees working overseas on its organizational chart. However, 
the discrepancy is one of many throughout the record. Some additional examples include, the support letter referring to 
the male Beneficiary as a "her" in places. The letter also claims the Beneficiary will report to the president of the company 
but the updated organizational chart provided in response to the RFE evidences the Beneficiary reporting to the general 
manager. In addition, the catalog included in the record is for a company that is listed as the Beneficiary's current 
employer. This inconsistency, as with all the others, are not explained. The Petitioner must resolve discrepancies in the 
record with independent, objective evidence pointing to where the truth lies. See Matter of Ho, 19 l&N Dec. 582, 591-92 
(BIA 1988). 
8 
burden to establish eligibility for the immigration benefit sought.30 The Petitioner has not met that 
burden. 
ORDER: The appeal is dismissed. 
30 Section 291 of the Act, 8 U.S.C. § 1361. 
9