dismissed H-1B Case: Journalism

MATTER OF E-TVB- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 5, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a media production company, seeks to temporarily employ the Beneficiary as a "video 
journalist" 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-1B 
. program allows a U.S. employer to temporarily employ a qualif,ied 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 Form I-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish that the proffered position qualified as a 
specialty occupation. 
On appeal, the Petitioner submits additional evidence and asserts that the proffered position is a 
specialty occupation. 
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.P.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 offered 
position must meet one of the following criteria to qualify as a specialty occupation: 
Matter of E-TVB- LLC 
(1) 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.P.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. 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the petition, the Petitioner stated that the Beneficiary will serve as a "video journalist" and 
submitted a letter that provided the following job duties: 
• Research topics, stories and events that an editor has assigned; 
• Interview people who have information, analysis, or opinions about a story or article; 
• Record and create video programs and clips, and write articles for newspaper, 
journals and magazines, websites and blogs, and write scripts to be read on television 
or radio; 
• Review articles for accuracy and proper style and grammar; 
• Develop relationships with experts and contacts who provide tips and leads on stories 
and events; 
• Analyze and interpret information to increase our audiences' understanding of the 
news and events; 
• Update events and stories as new information becomes available. 
The [Beneficiary] will allocate and devote all his times [sic] to perform the duties listed 
above. Specifically, he will devote approximately fifty (50) percent of his time to 
interview people, record and create video programs and write articles for newspapers and 
journals, thirty (30%) percent time to research, analyze and update events, and twenty 
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(30) [~ic] percent time to develop relationships with experts and contacts for news leads 
and tips. 
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Matter of E- TVB- LLC 
Initially, the Petitioner did not provide any particular requirements for the proffered position. On 
appeal, the Petitioner states that the position requires "a bachelor's degree in minimum [sic] as 
indicated by its job p9sting attached herewith." 1 
III. ANALYSIS 
On appeal, the Petitioner argues that the proffered position qualifies as a specialty occupation as it 
. satisfies two ofthe four regulatory criteria. First, the Petitioner indicates that the degree requirement 
is common to the industry in parallel positions among similar organizations. · 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(2). Second, the Petitione~ claims that it normally requires a bachelor's degree 
in a specific specialty, or its equivalent, for the proffered position. 8 C.P.R. § 214.2(h)(4)(iii)(A)(3). 
We have reviewed the entire record of proceedings before us. For the reasons discussed below, we 
determine that the Petitioner has not demonstrated that the proffered position qualifies as a specialty 
occupation.2 Specifically, we find that the record does not establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation. 3 
In the initial filing and in response to the Director's request for evidence, the Petitioner did not state 
any specific degree requirements for the proffered. position. U.S. Citizenship and Immigration 
Services (USCIS) regulations affirmatively require a petitioner to establish eligibility for the benefit 
it is seeking at the time the petition is filed. 8 C.P.R. §103.2(b)(1).4 Consequently, we agree with 
the Director that the Petitioner did not establish that the proffered position qualifies as a specialty 
occupation. 
Moreover, a crucial aspect of this matter is whether the Petitioner has sufficiently described the 
duties of the proffered position such that we may discern the nature of the position. The Petitioner 
has not done so here. For example, the job duties provided by the Petitioner for the proffered 
position are copied verbatim from the U.S. Department of Labor's (DOL) Occupational Outlook 
Handbook (Handbook). 5 This description may be appropriate when defining the range of duties that 
are performed within an occupation; however, it generally is not sufficient to copy tasks from the 
Handbook to establish a position as a specialty occupation because such a generic description does 
not convey how the tasks would be performed within the Petitioner's business operations. That is, 
1 In response to the Director's request for evidence and on appeal, the Petitioner provided additional details about the 
duties of the position. We reviewed the record in its entirety. , 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 The Petitioner submitted documentation to support the petition, including evidence regarding the position and its 
business operations. While we may not discuss every document submitted, we have reviewed and considered each one. 
4 On appeal, the Petitioner claims that the position requires a bachelor's degree. However, a petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of 
lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm 'r 1998). 
5 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/. For additional information regarding the occupational category "Reporters and 
Correspondents," see the Handbook, Reporters and Correspondents (20 16-17 ed.). 
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Matter of E-TVB- LLC 
the job description does not sufficiently communicate: (1) the actual work that the Beneficiary 
would perform; (2) the complexity, uniqueness, or specialization of the tasks; or (3) the correlation 
between that work and a need for a particular level of knowledge in a specific specialty. 
Nevertheless, assuming, for the sake of argument, that the proffered duties as described in the record 
would in fact be the duties to be performed by the Beneficiary, we will analyze them and the 
evidence of record to determine whether the proffered position as described qualifies as a specialty 
occupation pursuant to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
A. First Criterion 
We turn 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 Handbook as an 
authoritative source on the duties and educational requirements of the wide variety of occupations 
that it addresses.6 On the labor conditjon application (LCA)7 the Petitioner presented in support of 
this petition, it classified the proffered position under the occupational title "Reporters and 
Correspondents," corresponding to the Standard Occupational Classification code 27-3022 at a Level 
I wage rate. 8 
Turning to the Handbook, we note that the chapter on "Reporters and Correspondents" states in 
relevant part: "Most employers prefer workers who have a bachelor's degree in journalism or 
communications. However, some employers may hire applicants who have a degree in a related 
subject, such as English or political science, and relevant work experiynce."9 The Handbook further 
emphasizes the importance of work experience, stating that employers generally require workers to 
have experience gained through internships or by working on school newspapers. 
6 We do not, however, maintain that the Handbook is the exclusive source of relevant information. 
7 The Petitioner is required to submit a certified LCA to USCIS 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 I&N Dec. 542, 545-546 (AAO 20 15). 
8 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 ofthe 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. DOL, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _II_ 2009.pdf A 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. 
9 For additional information regarding the occupational category "Reporters and Correspondents," see the Handbook, 
Reporters and Correspondents (20 16-17 ed.). 
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Matter of E-TVB- LLC 
According to the Handbook, most employers prefer workers who have a bachelor's degree in 
journalism or communications. However, a preference for such a degree does not establish that it is 
normally the minimum requirement for entry into the particular position. Further, the Handbook 
states that some employers may hire applicants who have a degree in a related subject and relevant 
work experience. The Handbook does not specify the level of such a degree, and it appears that an 
associate's degree may be acceptable. 
The Petitioner has not provided 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). 
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 
concentrates on 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. USCIS 
generally considers the following factors to determine if there is such a common degree requirement: 
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 establish that such firms "routinely employ and 
recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or other authoritative source, reports a 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." 
In support of this criterion, the Petitioner submitted a few job postings from other employers. 
However, the Petitioner's reliance on the postings is misplaced. First, we note that the job postings 
do not appear to be organizations similar to the Petitioner. When determining whether the Petitioner 
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Matter of E-TVB- LLC 
and the organization share the same general characteristics. Such factors may include information 
regarding the nature or type of organization, . the particular scope of operations, and the level of 
revenue and staffing (to listjust 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. Further, the Petitioner did not supplement the record of 
proceedings to establish that these advertising organizations are similar to it. 
I,n addition, the postings do not indicate that at least a bachelor's degree in a directly related specific 
specialty (or its equivalent) is required. 10 One of the postings indicates that a bachelor's degree in 
journalism, communications, or commensurate experience is reqqired. However, the posting does 
not specify 
the number of years of experience that it requires as "commensurate experience." 11 
Another posting requires a college degree, but it does not specify that the degree must be a in a 
specific discipline. 12 
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. 13 That is, not every deficit of every job posting has been addressed. 
The Petitioner's additional evidence offered on appeal is also insufficient. The Petitioner submitted 
printouts from and however, both of the documents describe the academic 
requirements for newspaper journalists rather than for video journalists. 14 Thus, the information 
provided is for a different job than the proffered position and the Petitioner has not established the 
10 As discussed, the degree requirement set by the statutory and regulatory framework of the H-1 B program is not just a 
bachelor's or higher degree, but a bachelor's degree in a specific specialty that is directly related to the duties of the 
position. See section 214(i)(l)(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). Although 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. 
11 According to 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), "three years of specialized training and/or work experience must be 
demonstrated for each year of college-level training the alien lacks." 
12 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"). 
13 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. 
14 Notably, both websites also address the academic requirements for television journalists; however, the Petitioner did 
not provide an explanation for failing to submit printouts for this occupation (i.e., the most relevant occupation). 
Furthermore, the Petitioner has not presented evidence demonstrating the process by which each website determined the 
requirements. 
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Matter of E- TVB- LLC 
relevancy of the documentation here. As ·a result, the Petitioner has not shown that either source 
sufficiently refutes the Handbook findings that a bachelor's degree is merely a preference for entry 
rather than a requirement. Nor has the Petitioner demonstrated that either website constitutes an 
industry professional association indicating that it has made a degree a minimum entry requirement. 
The Petitioner claims that journalism positions are specialty occupations because major universities 
in the United States and the world have departments of journalism. According to the Petitioner, to 
deny a petition for a journalist means negating the trade practice and accreditation of these 
universities. We reviewed the Petitioner's statement, but we are not persuaded as its assertion is not 
supported by any research materials or citations to authoritative sources. Further, the record lacks 
information on how the Petitioner's conclusions were reached. For any position (including a video 
journalist) to qualify as a specialty occupation, the position must meet the statutory and regulatory 
requirements as stated at section 214(i)(l) of the Act and 8 C.F.R. §214.2(h)(4)(ii) and (iii), which 
the Petitioner has not done in this case. 
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. Thus, the Petitioner has not satisfied the first prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
The second alternative prong 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. Throughout the proceedings, the Petitioner has not claimed to 
qualify under this criterion, and it has not identified evidence to apply to the regulation at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(f). 
C. 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 record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 
See Defensor v. Meissner, 201 F.3d at 387-88. Were USCIS limited solely to reviewing the 
Petitioner's claimed self-imposed requirements, any individual with a bachelor's degree could be 
brought to the United States to perform any occupation as long as the Petitioner created a token 
degree requirement. !d. Evidence provided in support of this criterion may include, but is not 
limited to, documentation regarding the Petitioner's past recruitment and hiring practices, as well as 
information regarding employees who previously held the position. 
Matter of E- TVB- LLC 
On appeal, the Petitioner states for the first time that it requires that the candidate for this position to 
have a "Bachelor [sic] Degree in Journalism or other related major." The evidence in support of this 
statement consists of an undated document it characterizes as a job posting, which the Petitioner 
asserts it posted in its offices in a conspicuous place for ten consecutive working days. The 
Petitioner did not provide probative material establishing the timeframe that it displayed this job 
posting at its offices. Moreover, the document appears to be a notice in connection with the DOL's 
posting requirements for LCAs. See 20 C.F.R. § 655.734. The purpose of the DOL's posting 
requirement is to notify the bargaining representative and the petitioning company's employees that 
a petitioner intends to hire a foreign worker and provide basic information about the position (e.g., 
occupation, wage, period of employment), as well as to direct complaints to the DOL's Wage and 
Hour Division. In sum, it cannot be determined how representative this one job posting is of the 
Petitioner's hiring practices for the proffered position. 
Furthermore, the Petitioner did not provide additional information or evidence regarding its 
recruiting history for the proffered position. Also, the Petitioner did not submit evidence regarding 
individuals it has previously employed in the proffered position, along with their credentials at the 
time it hired each employee. 
Without additional information, the submission is not persuasive in establishing that the Petitioner 
normally requires at least a bachelor's degree in a specific specialty, or its equivalent, for the 
position. Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
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. We reviewed the Petitioner's statements regarding the proffered position. However, 
it did not assert eligibility under, and has not provided evidence in support of this criterion. As a 
result, the Petitioner has not satisfied the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
As the Petitioner has not satisfied at least 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 E-TVB- LLC, ID# 480353 (AAO June 5, 20 17) 
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