dismissed H-1B Case: Landscape/Horticulture

(b)(6)
DATE: MAR 2 u 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of llomeland Security 
U.S. Citizenship umllmmigration Snvicc 
AJministrutivc Appeals Ofticc (AAO) 
20 Massachusetts Ave .. N.W .. !"viS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE : VERMONT SERVICE CENTER FI LE: 
PETITIO N: Petition for a Nonimmigrant Worker Pursuant to Section !Ol(a)(l5)(H)(i)(b) of the 
Immig ration and Nationality Act, 8 U .S.C. § 1101 (a)( 15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly appl ied current law 
or policy to your case or if you seek to present new facts for consideration, you may file a motion to 
reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or 
Motion (Form 1-2908) within 33 days of the date of this decision. Please review the Form l-2908 
instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and 
other requirements. See also 8 C.F.R. § I 03.5. Do not file a motion directly with the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
(b)(6)
NON-PRECEDENT DECiSiON 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition, and the 
matter is now on appeal before the Administrative Appeals Office (AAO). The appeal will be 
dismissed. The petition will be denied. 
I. BACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 25-
employee landscape business established in In order to employ the beneficiary in what it 
de signates as a "horticulturist" position , the petitioner seeks to classify him as a nonimmigrant 
worker in a specialty occupation pursuant to section l01(a)(I5)( H)(i)(b) of the Immigration and 
Na tionality Act (the Act), 8 U.S.C. § l10 1(a)(l5)( H)(i)(b). 
The director denied the petition, finding that the petitioner did not establish that the proffered 
position qualifies as a specialty occupation, and the beneficiary did not qualify for the proffered 
job. The petitioner timely submitted a Form I-2908, Notice of Appeal or Motion, on September 
2, 2014, and submitted a brief thereafter. 
The record of proceeding contains the following: (I) the Form l-129 and supporting 
documentation; (2) the director's request for additional evidence (RFE); (3) the petitioner' s 
response to the RFE; (4) the director's letter denying the petition; (5) a letter asking for 
supervisory· review after the initial denial; and (6) the Form l-290B and supporting 
documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record supports the 
director's decision to deny the petition for its failure to establish the proffered position as a spec ialty 
occupation.1 Accordingly, the appeal will be dismissed, and the petition will be denied. 
II. SPECIALTY OCCUPATION 
A. Law 
To meet its burden of proof in establishing the proffered position as a spec ialty occupation, the 
petitioner must establish that the employment that it is offering to the benefi ciary meets the 
following statutory and regulatory requi rements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(l) defines 
the term " specialty occupation" as one that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
1 We conduct appellate review on a de novo basis. See So/tune v. DO.!, 381 F.3d 143, 145 (3d Cir. 2004). 
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(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 term "specialty occupation" is further defined at 8 C. F.R. § 214.2(h)(4)(ii) as: 
An occupation which requires [( 1 )] theoretical and practical application of a body 
of highly specialized knowledge in fields of human endeavor including, but not 
limited to, architecture, engineering, mathematics, physical sciences, social 
sciences, medicine and health, education, business specialties, accounting, law, 
theology, �md the arts, and which requires [(2)] the attainment of a bachelor's 
degree or higher in a specific specialty, or its equivalent, as a minimum for entry 
into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must 
also meet one of the following criteria: 
(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 pos1t10ns 
among similar organizations or, in the alternative, an employer may show 
that its particular position is so complex or unique that it can be performed 
only by an individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; 
or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4 )(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the 
statute as a whole. See K Mart Corp. v. Cartier Inc., 486 U.S. 281 , 29 1 ( 1988) (holding that 
construction of language \Vhich takes into account the design of the statute as a whole is 
preferred); see also COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 
U. S. 561 (1989); Malter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 
C.P.R. § 214 .2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily 
sufficient to meet the statutory and regulatory definition of specialty occupation. To otherwise 
interpret this section as stating the necessary and sufficient conditions for meeting the definition 
of specialty occupation would result in patiicular positions meeting a condition under 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
F.3d 38 4, 387 (5th Cir. 2000). To avoid this illogical and absurd result, 8 C.F.R. 
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NON-PRECEDENT DECISION 
Page 4 
§ 2 1 4.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that must be met 
in accordance with, and not as alternatives to, the statutory and regulatory definitions of specialty 
occupation. 
As such and consonant with section 214(i)( 1) of the Act and the regulation at 
8 C.F.R. § 21 4.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USC IS) consistently 
interprets the term "degree" in the criteria at 8 C.F. R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proffered position. See Royal Siam Corp. v. Cherto.fj; 484 F.3d 139, 14 7 (l st Cir. 2007) 
(describing "a degree requirement in a specific specialty" as "one that relates directly to the 
duties and responsibilities of a particular position"). Applying this standard, USCIS regularly 
approves H-1 B petitions for qualified aliens who are to be employed as engineers, computer 
scientists, certified public accountants, college professors, and other such occupations. These 
professions, for which petitioners have regularly been able to establish a minimum entry 
requirement in the United States of a baccalaureate or higher degree in a specific specialty or its 
equivalent directly related to the duties and responsibilities of the particular position, fairly 
represent the types of specialty occupations that Congress contemplated when it created the H­
I B visa category. 
To determine whether a particular jo b qualifies as a specialty occupation, USCIS does not rely 
simply upon a proffered position's title. The specific duties of the position, combined with the 
nature of the petitioning entity's business operations, are factors to be considered. USCIS must 
examine the ultimate employment of the beneficiary, and determine whether the position 
qualifies as a specialty occupation. See generally Defensor v. Meissner, 201 F. 3d at 38 4. The 
critical element is not the title of the position nor an employer's self-imposed standards, but 
whether the position actually requires the theoretical and practical application of a body of highly 
specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific 
specialty as the minimum for entry into the occupation, as required by the Act. 
B. Position 
The petitioner provided a letter of suppot1 with the Form I-129. In the letter, it stated that it 
contracts with landscape architects to install and maintain gardens for high end estates in the 
The petitioner's business includes "site work, soil remediation, plant selection and 
installation, masonry work, construction of outdoor structures and maintenance of the grounds" 
post completion. 
The petitioner describes the proffered position as follows: 
(The beneficiary] is being offered a position as a Horticulturist for three years. In 
this role, [the beneficiary] wil l be responsible for overseeing all of our landscape 
projects. He will work with the managers to ensure each project is executed in a 
professional and expeditious manner. 
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]1/0N-PRECEDENT DECISION 
[The beneficiary] , who has the equivalent of US degree in horticulture, will work 
with the landscape architects to ensure the landscape design as it concerns site 
work and plantings are successfully executed. When a landscape architect comes 
in to price a project our managers review the blueprints and work with our 
estimators to calculate the cost of a project based on the amount of materials and 
labor necessary to complete the proj ect. Once an estimate has been accepted he 
will work with the other managers to plan, and organize the projects under their 
control. He will interpret and explain the plans and contract terms to 
administrative staff, workers, and clients. 
He wi ll work with the Landscape Architect to set budgets for the plant material 
based on his familiarity with the materials set for the [sic] [sic] blueprints. He 
will research the nurseries that have the best quality at [the] best price to ensure 
our costs are contained. He may suggest alternative plant materials if a particular 
plant is not available or is too cost prohibitive. He may also do so when soil 
conditions and or shade conditions make a particular plant choice unsuitable for a 
particular location. He will research and visit nurseries in search of difficult to 
find plant material to ensure we have the material we need in the quantity 
necessary at the price that makes the proje ct cost efficient. 
At the outset of any project he will test the soil to determine what nutrient loading 
if any it requires and what plant material is best suited to that soil type based both 
on the specifications and the client's input. In conjunction with our engineer, he 
will determine what site work is necessary based on the elevation of the project. 
He wi ll ensure crew members on each project understand the complexity of the 
given project and will ascertain that they are knowledgeable about the plant 
material being utilized and explain to them the necessary care to take if they are 
not. He will inspect plant material before installation to ensure plant quality and 
re-inspect after installation to ascertain that the plant material is thriving in the 
new environment and that there is no need to replace the plants due to poor 
installation and or quality issues. 
He wi ll train, oversee and work with new employers to teach correct techniques 
and procedures for plant installation, soil remediation and the placement of plant 
material in the correct areas. He will direct the activities of the crews concerned 
with the site preparation and plant installation and give them detailed instructions 
based on his know ledge of the specifications and the materials being utilized. He 
will work wi th subcontractors when an installation cannot be done with in-house 
workers and or is more efficient in terms of time and scale to contract out the 
work. He wi ll order and maintain the materials necessary for each project. He 
will ensure that the materials delivered to the site meet the specifications for the 
job. If any plant material is inferior he will ensure it is promptly replaced with the 
correct material. He will visit the site at the appropriate intervals to ensure that 
the crews are completing their duties at both a level that meets our corporate 
standards and that conforms to the job specifications. He will confer with 
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NON-PRECEDENT DECiSiON 
supervisory personnel to discuss such matters as schedules, work procedures, 
complaints, and problems at the site whether it is with materials, workers or other 
departments within the company. 
In response to the director's RFE, the petitioner provided an advisory opinion from the 
which included a list of twenty-five job duties as reflected above. These duties 
em phasized that the petitioner will coordinate with landscape architects, select and inspect plant 
materials, and will supervise laborers when installing plant materials. 
In filing the Labor Condition Application (LCA) with the U.S. Department of Labor (DOL) the 
petitioner described the proffered job as a "h orticulturist" and indicated that the position 
corresponds to the Standard Occupational Classification (SOC) Code 11-9121, Natural Sciences 
Managers, occupational group. 
C. Analysis 
Upon review, we find that the job duties as described do not establish that the position falls under 
the described SOC code. Specifically, according to DOL's Occupational Outlook Handbook 
(Handbook), the duties of natural sciences managers are as follows: 
• Work with top executives to develop goals and strategies for researchers and 
develo pers 
• Make budgets for projects and programs by determining staffing, training, and 
equipment needs 
• Hire, supervise, and evaluate scientists, technicians, and other staff members 
• Review the methods used in their staffs work and the accuracy of the work 
produced 
• Ensure that laboratories are stocked with equipment and supplies 
• Monitor the progress of projects, review research, and draft operational reports 
• Provide technical assistance to scientists, technicians, and support staff 
• Establish and follow administrative procedures, policies, and standards 
• Communicate project proposals, research findings, and the status of projects to 
clients and top management. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
http://www. bls.gov/ooh/management /natural-sciences-managers.htm#t ab-2 (last visited March 
17, 2015). 
As shown in the Handbook, the natural sciences manager career field focuses on the 
management and direction of scientists and research projects. Nothing in the record supports a 
finding that the proffered job requires managing of scientist or research laboratories or any other 
duties as described in the natural sciences manager category. Rather, the record suggests that the 
proffered position requires the incumbent to work with contractors and landscape architects, and 
provide direction to laborers to install landscape features. Nothing in the record supports a 
finding that the proffered position could meet the definition of a natural sciences manager. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
On appeal, the petitiOner concedes that the pos1t10n is not properly in the natural sciences 
manager category, but it was the closest available match to the proffered job? Notably, in the 
LCA, the petitioner indicated that the prevailing wage for "Natural Sciences Managers"­
SOC/(ONET/OES) code 11-9121 at a Level I (entry-level) is $52,000 per year. However, a 
search of the Foreign Labor Certification Data Center Online Wage Library indicates that the 
correct prevailing wage for natural sciences managers at Level I is $104,042 per year. 
With respect to the LCA, the U.S . Department of Labor (DOL) provides guidance for selecting 
the most relevant O*NET classification code. DOL's "Preva iling Wage Determination Policy 
Guidance" states the following: 
In determining the nature of the job offer, the first order is to rev1ew the 
requirements of the employer's job offer and determine the appropriate 
occupational classification. The O*NET description that corresponds to the 
employer's job offer shall be used to identify the appropriate occupational 
classification . . . . If the employer's job opportunity has worker requirements 
described in a combination of O*NET occupations, the [determiner] should 
default directly to the relevant O*NET -SOC occupational code for the highest 
paying occupation. For example, if the employer's job offer is for an engineer-
2 A rev iew of the DOL's Occupat ional Information Network (O*NET OnLine) provides an occupation 
with an SOC Code much closer in line with the duties ofthe proffered position. SOC 37-1 012, First-L ine 
Supervisors of Landscap ing, Lawn Service, and Groundskeeping Workers, is substantially similar to the 
proffered job. Its duties include: 
• Establish and enforce operating procedures and wor k standards that will ensure adequate 
performance and personnel safety. 
• Inspect completed work to ensure conformance to specifications, standards, and contract 
requirements. 
• Direct activities of workers who perform duties such as landscaping, cultivating lawns, or pruning 
trees and shrubs. 
• Schedule work for crews, depending on work priorities, crew or equipment availab ility, or 
weather conditions. 
• Plant or maintain vegetation through activities such as mulching, fertilizing, watering, mowing, or 
pruning. 
• Mon itor project activities to ensure that instructions are followed, deadlines are met, and 
schedules are maintained. 
• Train workers in tasks such as transplanting or pruning trees or shrubs, finishing cement, using 
equipment, or caring for turf. 
• Provide workers with assistance in performing duties as necessary to meet deadlines. 
• Inventory supplies oftools, equipment, or materials to ensure that sufficient supplies are available 
and items are in usable condition. 
• Confer with other supervisors to coordinate work activities with those of other departments or 
units. 
See http ://www.onetonline.org/link/summary/3 7-l 012.00 (last visited March 17, 20 15). 
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NON-PRECEDENT DECISION 
pilot, the [determiner] shall use the education, skill and experience levels for the 
higher paying occupation when making the wage level determination. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www .foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_l l_2009.pdf. 
Here, while the petitioner asserts that the occupational category natural sciences manager is the 
closest category to the proffered position, the LCA filed in support of the Form I-129 does not 
reflect the correct prevailing wage for natural sciences manager. Under the H-1 B program, a 
petitioner must offer a beneficiary wages that are at least the actual wage level paid by the 
petitioner to all other individuals with similar experience and qualifications for the specific 
empl oyment in question, or the prevailing wage level for the occupational classification in the 
area of employment, whichever is greater, based on the best information available as of the time 
of filing the application. See section 212(n)( 1 )(A) of the Act, 8 U .S .C. § 1182(n)( I )(A). 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, 
DOL regulations note that the Department of Homeland Security (DHS) (i.e., its immigration 
ben efits branch, USCIS) is the department responsible for determining whether the content of an 
LCA filed for a particular Form I-129 actually supports that petition. See 20 C.F.R. 
§ 65 5. 705(b), which states, in pertinent part (emphasis added): 
For H-1 B visas ... DHS accepts the employer's petition (DHS Form I-129) with 
the DOL certified LCA attached. In doing so, the DHS determines whether the 
petition is supported by an LCA which corre:,pond�· with the petition, wh ether the 
occupation named in the [LCA] is a specialty occupation or whe ther the individual 
is a fashion model of distinguished merit and ability, and whether the 
qualifications of the nonimmigrant meet the statutory requirements of H-1 B visa 
classification. 
The regulation at 20 C.F .R. § 65 5. 705(b) requires that USCIS ensure that an LCA actually 
supports the H-lB petition filed on behalf of the beneficiary. 
The petitioner was required to provide, at the time of filing the H-1 B petition, an LCA certified 
for the correct occupational classification in order for it to be found to correspond to the petition. 
To permit otherwise would result in a petitioner paying a wage lower than that required by 
section 212(n)( l) (A) of the Act, by allowing that petitioner to simply submit an LCA for a 
different occupational category at a lower prevailing wage than the one that it claims it is 
offering to the beneficiary. Here, the LCA does not properly reflect the correct occupational 
category and thus does not correspond to the H-1 B petition. Further, the petitioner has not 
demonstrated that it would pay an adequate salary for the beneficiary's work, as required under 
the Act, if the petition were granted. For this reason alone the appeal must be dismissed and the 
petition must be denied; an inaccurate statement anywhere on the Form I-129 or in the evidence 
submitted in connection with the petition mandates its denial. See 8 C.F. R. § 214.2 (h)(l O)(ii); 
see also 8 C.F.R. § 103.2(b)( l) . 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
However, in the interests of providing a more comprehensive and informative decision for the 
petitioner's benefit, we will now discuss the issue of specialty occupation. In this context we will 
now discuss the application of each supplemental, alternative criterion at 8 C.F.R. 
§ 214.2( h)(4)(iii)(A) to the evidence in this record of proceeding. 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) is satisfied by establishing that a baccalaureate 
or higher degree, or its equivalent, in a specific specialty is normally the minimum requirement 
for entry into the particular position that is the subject of the petition. Here, as previously 
discussed, the petitioner has not established that it selected the proper occupational category for 
the proffered position on the LCA, which precludes the discussion of the Handbook. 
In the petitioner's letter asking for a supervisory review, the petitioner asserts that the North 
American Free Trade Agreement (NAFTA) at Appendix 1603.0 .1 indicates that the protfered 
position is a specialty occupation. We note that the entry of Canadian and Mexican nationals 
pursuant to NAFTA is governed by section 214(e) of the Act and 8 C.F.R . §214.6 , and those 
provisions are not relevant here since TN visa is a separate category from the H-1 B 
classification. However, assuming arguendo that TN visa is relevant to our discussion, the 
petitioner asserts that the minimum education requirement and alternative credentials for the 
position of horticulturist is a baccalaureate or licenciatura degree, and the horticulturist 
occupation was first listed in the United States-Canada Free Trade Agreement in 1989. 
However, in order to be classified as a specialty occupation, the position must require a degree in 
a specific specialty. The NAFTA Appendix does not demonstrate that a bachelor's degree in a 
specific specialty is required, and does not demonstrate that a position so designated qualities as 
a specialty occupation as defined in section 214(i)( 1) of the Act and 8 C.F.R. § 214. 2(h)( 4)(ii) . 
Therefore, despite counsel's assertion to the contrary, the documentation is not probative of the 
proffered position qualifying as a specialty occupation.3 
Further, the petitioner provided an advisory opinion report drafted by of 
Ms. states that the position of horticulturist for the petition requires a 
minimum of the U.S. Bachelor's degree in Horticulture or related area. We reviewed the opinion 
letter in its entirety. However, as discussed below, the report is not persuasive in establishing the 
proffered position as a s pecialty occupation position.4 
3 Again, the issue is whether the petitioner's proffered position qual ifies as a nonimmigrant H I B specialty 
occupation and not whether it is a profession as that term is defined in section IOI(a)(32) of the Act, 8 
U.S.C. § 1 101(a)(32), and 8 C.F. R. § 204.5(k)(2). Thus, while a position may qual ify as a profession as 
that term is defined in section 101 (a)(32) of the Act, the occupation would not necessarily qualify as a 
specialty occupation unless it met the de fin it ion of that term at section 214(i)( 1) of the Act. 
4 Recognized authority means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. 8 C.F. R. § 
214.2(h)( 4)(ii). A recognized authority's opinion must state: (I) the writer's qual ifications as an expert; 
(2) the writer's experience giving such opinions, citing specific instances where past opinions have been 
accepted as authoritative and by whom; (3) how the conclusions were reached; and ( 4) the basis for the 
conclusions supported by copies or citations of any research material used. !d. 
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NON-PRECEDENT DECISION 
Page 10 
It is noted that Ms. provided a brief description of the petitioner's business and a job 
description for the proffered position. Upon review of Ms. opinion report, there is no 
indication that she possesses any knowledge of the petitioner's proffered position beyond this 
information. She does not discuss the duties of the proffered position in any substantive detail. 
To the contrary, she simply provides a list of duties which appears to be verbatim from the 
petitioner's job description, and claims that the appropriate knowledge required for these job 
duties would be a bachelor's degree in business administration or related area. She does not 
demonstrate or assert in-depth knowledge of the petitioner's specific business operations or how 
the duties of the position would actually be performed in the context of the petitioner's business 
enterprise. For instance, there is no evidence that Ms. has visited the petitioner's business, 
observed the petitioner's employees, interviewed them about the nature of their work, or 
documented the knowledge that they apply on the job. Ms. opinion does not relate her 
conclusion to specific, concrete aspects of this petitioner's business operations to demonstrate a 
sound factual basis for the conclusion about the educational requirements for the particular 
position here at issue. 
Ms. provides a summary of her qualifications, including her educational credentials and 
professional experience. Based upon a complete review of Ms. report, however, she has 
failed to provide sufficient information regarding the basis of her expertise on this particular 
issue. Ms. has a bachelor's of arts degree in International Studies and Spanish/Latin 
American Studies, and a Master's of Business Administration. Nothing in the record supports a 
finding that the author has any specialized knowl edge in the field of horticulture or landscaping. 
There is no indication that she has published any work or conducted any research or studies 
pertinent to the educational requirements for such positions (or parallel positions) in the 
petitioner's industry for similar organizations, and no indication of recognition by professional 
organizations that she is an authority on those specific requirements. We further note that neither 
Ms. nor _ is a landscape industry spokesperson or organization. 
Thus, Ms. opinion that the proffered position requires a bachelor's degree in horticulture 
is not the type of evidence that is entitled to substantial weight. 
As a matter of discretion, USCIS may accept expert opinion testimony. However, USCIS wil l 
reject an expert opinion or give it less weight if it is not in accord with other information in the 
record or if it is in any way questionable. Matter ofCaron International, Inc., 19 I&N Dec. 791, 
795 (Comm'r 1988 ). US CIS is ultimately responsible for making the final determination 
regarding an alien's eligibility for the benefit sought; the submission of expert opinion letters is 
not presumptive evidence of eligibility. !d.; see also Malter of V-K-, 24 I&N Dec. 500, n.2 (BIA 
2008) (" [E]xpert opinion testimony, whi le undoubtedly a form of evidence, does not purport to 
be evidence as to 'fact' but rather is admissible only if 'it wi ll assist the trier of fact to understand 
the evidence or to determine a fact in issue."'). 
As the evidence in the record of proceeding does not establish that at least a baccalaureate 
degree, or its equivalent, in a specific specialty is normally the minimum requirement for entry 
into the particular position that is the subj ect of this petition, the petitioner has not satisfied the 
criterion at 8 C.P.R. § 214.2(h)( 4)(i ii)(A)(l). 
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Page II 
Next, we find that the petitioner has not satisfied the first of the two alternative prongs of 
8 C.P.R.§ 214. 2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a 
requirement of a bachelor' s or higher degree in a specific specialty, or its equivalent, is common 
to the petitioner's industry in positions that are both: (1) parallel to the proffered position; and 
(2) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and 
whether letters or affidavits from firms or individuals in the industry attest that such firms 
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 
at 1165 (D.Minn. 1999) (quoting Hird!Blaker Corp. v. Sava, 712 F. Supp. I 095, 11 02 (S.D.N. Y. 
1989)). 
As already discussed, the petitioner has not established that its proffered position is one for 
which the Handbook or any other authoritative resource, reports an industry-wide requirement of 
at least a bachelor's degree in a specific specialty or its equivalent. The record does contain 
letters from various companies in the landscape industry. The first letter, from 
, states that it "is very important to hire a qualified 
and experienced Horticulturist." The letter further states that the petitioner needs people who 
have knowledge about "plant identification and soil nutrients suited to each specific landscape, " 
"different types of plants, including annuals, perennials, shrubs, trees," and "ability to accurately 
diagnose the numerous diseases of different plant material." The letter does not state that a 
bachelor' s degree in a specific specialty is the industry requirement for entry into this field. 
The next letter comes from · This letter states they only 
recommend landscape contractors to their clients if they have a horticulturist on staff. 
Continuing on, the letter states that they only recommend the petitioner because they have a 
horticulturist on staff and "they have the [h]orticultural knowledge and expertise to make any 
project thrive and succeed." However, the letter does not state that a bachelor's degree in a 
specific specialty is the industry standard for entry into this field. 
The third letter comes from This letter states that a horticultural 
professional with experience caring for trees and plants is necessary for a high end landscaping 
business. The letter does not state what the minimum educational requirement for a horticulturist 
woul d be. Thus, here again there is no consensus industry standard that the minimum 
requirement for entry into the field is a bachelor's degree in a specific specialty. 
The fourth, and the final letter is from '· is in "the same field 
of work as [the petitioner]." The letter states that horticulturist's knowledge is important in the 
industry and that "he has training in science and biology." The letter does not indicate that 
"training" is equivalent to a bachelor's degree and is required for the horticulturist position. 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
The record also contains copies of the job advertisement. However, upon review of the 
evidence, we find that the petitioner's reliance on the job announcement is misplaced. 
In the Form 1-129 and supporting documentation, the petitioner states that it is a landscape 
business established in with 25 employees. The petitioner reported its gross annual 
income as approximately $3 million, but did not provide its net annual income. The petitioner 
designated its business operations under the North American Industry Classification System 
(NAICS) code 1151 12- "Soil Preparation, Planting, and Cultivating. "5 The U.S. Department of 
Commerce, Census Bureau website describes this NAICS code as follows: 
This U.S. industry comprises establishments primarily engaged in performing a 
soil preparation activity or crop production service, such as plowing, fertilizing, 
seed bed preparation, planting, cultivating, and crop protecting services. 
See U.S. Dep't of Commerce, U.S Census Bureau, 2012 NAICS Definition, 1151 12 - Soil 
Preparation, Planting, and Cultivating on the Internet at http://www.census.gov/cgi­
bin/sssd/naics/naicsrch (last visited March 17, 20 15). 
We note that the jo b and company descriptions are scant, making it hard to tell which, if any, are 
parallel jobs in organizations similar to the petitioner. For example, the advertisements from 
and . do not 
provide sufficient information about the employ ers. The record also contains job advertisement 
from the which is a research and teaching 
facility, and which is "nationally recognized provider of superior arboricultural 
services" in more than 25 locations. The petitioner did not supplement the record with further 
information and we are unable to determine if the advertising employers are similar to the 
petitioner. 
Further, some advertisements do not appear to be for parallel positions based upon the job duties 
and the requirements. For example, an advertisement for an experienced general manager at a 
private residence states that the duties include "[e] stablishing standardized operating manuals, 
procedures, and inventories, " and "overseeing all building operations, maintenance, safety and 
security systems, as wel l as the management of third party vendors, contractors, architects, 
designers, engineers, and consultants." Moreover, the position for 
requires working with "IB 112 students in Horticultural Methods class" and 
"participat[ing] in volunteer training and interpretation of assigned areas for volunteers with both 
tours and/or written materials." Further, some positions appear to be for more senior positions 
than the proffered position. For example, the position for a private residence requires "5+ years 
of experience in rural estate property managem ent. " Similarly, another unnamed employer in 
River area also seeks "5+ years of operations supervisory experience." As previously 
5 NAICS is used to classify business establishments according to type of economic activity, and each 
establishment is classified to an industry according to the primary business activity taking place there. 
See U.S. Dep't of Commerce, U.S. Census Bureau, NAICS, on the Internet at 
http://www.census.gov/eos/www/naics/ (last visited March 17, 20 15). 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
discussed, the petitioner designated the proffered position on the LCA as a Level I (entry level) 
position. 
Additionally, contrary to the purpose for which the advertisements were submitted, the postings 
do not establish that at least a bachelor's degree in a specific specialty, or its equivalent, is 
required for the positions. Notably, some employers such as and 
require less than a bachelor's degree such as an associate's degree. Some 
employers such as and prefer a degree, but the 
advertisements do not indicate if the degree preferred is a bachelor's degree and that a bachelor's 
degree in a specific specialty is required. Some employers such as 
and require a bachelor's degree in Horticulture, but as 
discussed earlier, the petitioner did not establish that the advertised positions are parallel and that 
the advetiising employers are similar to the petitioner. 
The job advertisements do not establish that similar organizations to the petitioner routinely 
employ individuals with degrees in a specific specialty, in parallel positions in the petitioner's 
industry. Further, it must be noted that even if all of the job postings indicated that 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 fails to demonstrate 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.6 
Therefore, the petitioner has not satisfied the first of the two alternative prongs described at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2), as the evidence of record does not establish a requirement fo r 
at least a bachelor's degree in a specific specialty as common to the petitioner's industry in 
positions that are both ( 1) parallel to the proffered position and (2) located in organizations that 
are similar to the petitioner. 
Next, we find that the petitiOner did not satisfy the second alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which provides that "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." 
In this particular case, the petitioner has failed to credibly demonstrate that the duties the 
beneficiary will 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, or the equivalent, in a 
specific specialty. Specifically, the petition and supporting documents undercut the assertion 
6 The petitioner fails to demonstrate what statistically valid inferences, if any, can be drawn from the job 
postings with regard to 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 accu rately 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 ba sis for 
estimates of population parameters and estimates of error"). 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
that this position is so complex that it can only be performed by a person holding a bachelor' s 
degree in horticulture. As mentioned, the petitioner identified this position as a Wage Level I 
position. Positions at this level are characterized as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level 
employees who have only a basic understanding of the occupation. These 
employees perform routine tasks that require limited, if any, exercise of judgment. 
The tasks provide experience and familiarization with the employer's methods, 
practices, and programs. The employees may perform higher level work for 
training and developmental purposes. These employees work under close 
supervision and receive specific instructions on required tasks and results 
expected. Their work is closely monitored and reviewed for accuracy. 
Statements that the job offer is for a research fellow, a worker in training, or an 
internship are indicators that a Level I wage should be considered [emphasis in 
original]. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www .foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_ 11_2009.pdf. 
Based upon the Level I wage rate, the beneficiary is only required to have a basic understanding 
of the occupation. Further, the wage rate indicates that the beneficiary will perform routine tasks 
that require limited, if any, exercise of independent judgment; his work will be closely 
supervised and monitored; he will receive specific instructions on required tasks and expected 
results; and his work will be reviewed for accuracy. 
Without further evidence, it is not credible that the petitioner's proffered position is complex or 
unique as such a position would likely be classified at a higher-level, such as a Level III 
(exp erienced) or Level IV (fully competent) position, requiring a significantly higher prevailing 
wage. For example, a Level IV (fully competent) position is designated by DOL for employees 
who "use advanced skills and diversified knowledge to solve unusual and complex problems." 7 
Moreover, although Ms. provided a list of courses in the advisory opinion report that she 
claimed are relevant, it must be noted that she did not establish how such a curriculum is 
necessary to perform the duties of the proffered position. While a few related courses may be 
beneficial in performing certain duties of the position, the petitioner has failed to demonstrate 
how an established curriculum of such courses leading to a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is required to perform the duties of the proffered position 
7 For additional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & 
Training Admin., Prevailing Wage Determination Policy Guidance; Nonagric. Immigration 
(rev. Nov. 2009), ava ilable 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Gu idance_ Revised _II_ 2009.pdf 
Programs 
at 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
We note that the petitioner has indicated that the beneficiary "is amply qualified the position." 
However, the test to establish a position as a specialty occupation is not the skill set or education 
of a proposed beneficiary, but whether the position itself qualifies as a specialty occupation. 
Consequently, as it has not been shown that the particular position for which this petition was 
filed is so complex or unique that it can only be performed by a person with at least a bachelor' s 
degree, or the equivalent, in a specific specialty, the petitioner has not satisfied the second 
alternative prong of 8 C.F.R. § 214.2(h) (4)(iii) (A)(2). 
We turn next to the criterion at 8 C.F.R. § 214.2(h)(4) (iii)(A)(3 ), which entails an employer 
demonstrating that it normally requires a bachelor' s degree, or the equivalent, in a specific 
specialty for the position. 
Our review of the record of proceeding under this criterion necessarily includes whatever 
evidence the petitioner has submitted with regard to its past recruiting and hiring practices and 
employees who previously held the position in question. To satisfy this criterion, the record must 
contain documentary evidence demonstrating that the petitioner has a history of requiring the degree 
or degree equivalency, in a specific specialty, in its prior recruiting and hiring for the position. The 
record must establish that a petitioner's imposition of a degree requirement is not merely a matter of 
preference for high-caliber candidates but is necessitated by the performance requirements of the 
proffered position. In the instant case, the record does not establish a prior history of recruiting 
and hiring for the proposed position only persons with at least a bachelor' s degree, or the 
equivalent, in a specific specialty. 
In its appeal brief the petitioner states that it would have provided responsive information if the 
director had requested it in an RFE. Title 8 C.F.R. § 103.2(b)(8) permits the director to deny a 
petition for failure to establish eligibility without having to request evidence regarding the 
ground or grounds of ineligibility identified by the director. Here, the petitioner did not provide 
substantiating evidence necessary to carry its burden that it in fact has a history of only hiring 
individuals with a bachelor' s degree in a specific specialty for the proffered job. 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner' s 
perfunctory declaration of a particular educational requirement will not mask the fact that the 
position is not a specialty occupation. US CIS must examine the actual employment 
requirements, and, on the basis of that examination, determine whether the position qualifies as a 
specialty occupation. See generally Defensor v. Meissner, 201 F. 3d at 38 7. In this pursuit, the 
critical element is not the title of the position, or the fact that an employer has routinely insisted 
on certain educational standards, but whether performance of the position actually requires the 
theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in a specific specialty as the minimum for entry 
into the occupation as required by the Act. To interpret the regulations any other way would lead 
to absurd results: if users were constrained to recognize a specialty occupation merely because 
the petitioner has an established practice of demanding certain educational requirements for the 
proposed position - and without consideration of how a beneficiary is to be specifically 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
employed - then any alien with a bachelor's degree in a specific specialty could be brought into 
the United States to perform non-specialty occupations, so long as the employer required all such 
employees to have baccalaureate or higher degrees. See id. at 388. 
As the record of proceeding does not present a history of recruiting and hiring only individuals 
with a bachelor' s degree, or the equivalent, in a specific specialty for the proffered position, it 
does not satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(i ii)(A)(J). 
Next, we find that the petitiOner has not satisfied the criterion at 
8 C.F.R. § 214. 2(h)(4) (iii)(A)(4), which requires the petitioner to establish that the nature of the 
proffered position's duties is so specialized and complex that the knowledge required to perfom1 
them is usually associated with the attainment of a baccalaureate or higher degree in the specialty. 
The petitioner claims that the nature of the specific duties of the position in the context of its 
business operations is so specialized and complex that the knowle dge required to perform them 
is usually associated with the attainment of a baccalaureate or higher degree in a specific 
specialty, or its equivalen t. We reviewed the petitioner's statements regarding its business 
operations. However, upon review of the entire record of proceeding we find that the submitted 
documentation fails to support the assertion that the proffered position satisfies this criterion of 
the regulations. More specifically, in the instant case, relative specialization and complexity 
have not been sufficiently developed by the petitioner as an aspect of the proffered position. 
Furthermore, we reiterate 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). 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. As noted earlier, DOL indicates 
that a Level I designation is appropriate for "beginning level employees who have only a basic 
understanding of the occupation." Without further evidence, it is not credible that the petitioner's 
proffered position is one with specialized and complex duties as such a position would likely be 
classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a significantly higher prevailing wage. For instance, a Level IV (fully 
competent) position is designated by DOL for employees who "use advanced skills and 
diversified knowled ge to solve unusual and complex problems." The petitioner has submitted 
inadequate probative evidence to satisfy the criterion of the regulations at 8 C. F.R. 
§ 214.2(h)( 4)(i ii)(A)(4). 
For these reasons, the evidence in the record of proceeding fails to establish that the proposed 
duties meet the specialization and complexity threshold at 8 C.F.R. § 214.2(h)(4) (iii)(A) (4) . 
As the petitioner has not satisfied at least one of the criteria at 8 C.F.R. § 214.2(h)( 4 )(iii)( A), it 
cannot be found that the proffered position is a specialty occupation. 
III. BENEFICIARY QUALIFICATIONS 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
In addition, the director noted that the beneficiary did not qualify to perform services in a 
specialty occupation. However, we do not need to examine the issue of the beneficiary's 
qualific ations, because the petitioner has not provided sufficient evidence to demonstrate that the 
pro ffered position is a specialty occupation. In other words, the beneficiary's credentials to 
pe rform a particular job are relevant only when the job is found to be a specialty occupation. 
As discussed in this decision, the petitioner did not submit sufficient evidence regarding the 
pro ffered position to determine whether it wil l require a baccalaureate or higher degree in a 
specific specialty or its equivalent. Absent this determination that a baccalaureate or higher 
deg ree in a specific specialty, or its equivalent, is required to perform the duties of the proffered 
position, it also cannot be determined whether the beneficiary possesses that degree, or its 
equivalent. Therefore, we need not and will not address the beneficiary's qualifications further, 
exce pt to note that the petitioner submitted a combined evaluation of the beneficiary's education 
and work experience from Ms. from . However, as the claimed 
equivale ncy was based in part on experience, there is no evidence that the evaluator has authority 
to grant college-level credit for training and/or experience in the specialty at an accredited 
college or university which has a program for granting such credit based on an individual's 
training and/or work experience and that the beneficiary also has recognition of expertise in the 
specialty through progressively responsible positions directly related to the specialty. See 8 
C.P.R . § 214. 2(h)(4)(iii)(C)(4) and (D)( l). As such, since evidence \Vas not presented that the 
benef iciary has at least a U.S. bachelor's degree in any specific specialty, or its equivalent, the 
petition could not be approved even if eligibility for the benefit sought had been otherwise 
established. 
IV. CONCLUSION 
The director's decision will be affirmed and the petition will be denied for the above stated 
reasons, with each considered as an independent and alternative basis for the denial. fn visa 
petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C . § 13 61 ; �Matter ofOtiende, 26 l&N Dec. 12 7, 
128 (BIA 2013 ). Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied.