dismissed H-1B Case: Landscaping Services

(b)(6)
DATE: JUL 0 7 2015 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immi gration Services 
Adminis trative Appeals Offi ce 
20 Massachusetts Ave., N.W ., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101( a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER : 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notic e of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contain s the latest information on fee, filing 
location, and other requirement s. Please do not mail any motions directly to the AAO . 
www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the Vermont Service 
Center. In the supporting documents, the petitioner describes itself as a sprinkler, drainage and 
lighting company that was established in In order to employ the beneficiary in what it 
designates as a management analyst position, the petitioner seeks to classify him as a nonimmigrant 
worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The Director reviewed the record of proceeding and determined that the petitioner did not establish 
eligibility for the benefit sought. Specifically, the Director stated that the petitioner had not 
established (1) that the proffered position qualifies as a specialty occupation in accordance with the 
applicable statutory and regulatory provisions; and (2) that the beneficiary qualifies for a specialty 
occupation. The Director denied the petition. 
The record of proceeding contains: (1) the petitioner's Form I-129 and supporting documentation; 
(2) the Director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the 
Director's decision; and (5) the Notice of Appeal or Motion (Form I-290Bl and supporting 
documentation. We reviewed the record in its entirety before issuing our decision . 
For the reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. SPECIALTY OCCUPATION 
The primary issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. 
A. Legal Framework 
For an H-lB petition to be granted, the petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
1 
We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
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(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires 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, and the arts, and which [(2)] requires 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 , a proposed position 
must 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 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. 
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)(1) 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. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. andLoanlns. Corp., 489 U.S. 561 (1989); Matter ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.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 
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particular 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 387. To avoid this result, 8 C.F.R. 
§ 214.2(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)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and hnmigration Services (USCIS) 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. 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"). Applying this standard, USCrS regularly approves H-lB 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 -lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. 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. 
In ascertaining the intent of a petitioner, USCrS looks to the Form 1-129 and the documents filed in 
support of the petition. It is only in this manner that the agency can determine the exact position 
offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 C.F.R. 
§ 214.2(h)(9)(i), the Director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or she may independently require to assist his or her 
adjudication. Further, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-lB petition 
involving a specialty occupation shall be accompanied by [ d]ocumentation ... or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." 
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B. Proffered Position 
In the addendum to the Form I-129, the petitioner stated that the beneficiary will perform the 
following job duties in the proffered position: 2 
1. Gather and organize information on problems or procedures[;] 
2. Analyze data gathered and develop solutions or alternative methods of 
proceeding[;] 
3. Identify existing weakness in the company's financial and operations 
management practices and procedures; 
4. Interview personnel and conduct on-site observation to ascertain unit functions, 
work performed, and methods, equipment, and personnel used; 
5. Document findings of study and prepare recommendations for implementation of 
new systems, procedures, or organizational changes; 
6. Advise management on the implications of the current operating procedures and 
marketing and sales campaign; 
7. Advise management on the implications of the current shortfalls; 
8. Plan study of work problems and procedures, such as organizational change, 
communications, information flow, integrated production methods, inventory 
control, or cost analysis; 
9. Evaluate the different options available and design a plan with corresponding 
implementation steps required to strengthen the company in order to improve 
control and security of the company's assets; 
10. Streamline operations to improve efficiency; 
11. Assess the intensity of growth the company can withstand given its financial 
capacity, available human resources and goals; 
12. Show management how the improved operations will increase the company's 
2 The wording of the duties provided by the petitioner for the proffered position are taken almost verbatim 
from the Occupational Information Network (O*NET) OnLine's list of tasks associated with a management 
analyst position. 
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financial and operational capacity; 
13. Review forms and reports and confer with management and users about format, 
distribution , and purpose , and to identify problems and improvements[ ;] 
14. Make necessary modifications to fine-tune the plan[;) 
15. Advise management on how to implement the plan; 
16. Set up operational procedures and implement them; 
17. Develop and implement records management program for filing, protection, and 
retrieval of records, and assure compliance with program; 
18. Train personnel on the implemented procedures; 
19. Prepare manuals and train workers in use of new forms, reports, procedures or 
equipment, according to organizational policy; 
20. Confer with personnel concerned to ensure successful functioning of newly 
implemented systems or procedures; 
21. Assess and evaluate implemented procedures during a set test period, and make 
corresponding modification if needed[; and) 
22. Design, evaluate, recommend, and approve changes of forms and reports. 
In response to the RFE, the petitioner provided additional information regarding the duties of the 
proffered position, along with the approximate percentage of time for each duty the beneficiary will 
perform. In addition, the petitioner stated that " [a] Baccalaureate or higher degree, or its equivalent, 
is the minimum requirement for entry into the position of Management Analyst." The petitioner also 
submitted additional information on appeal. 
C. Analysis 
In the instant case, the petitioner states that a bachelor's degree is the minimum entry requirement for 
the proffered position. To establish that the proffered position is a specialty occupation, however, 
the petitioner must demonstr ate that the proffered position requires a precise and specific course of 
study that relates directly to the position in question. See Royal Siam Corp. v. Chertojf; 484 F.3d at 
147 (describing "a degree requirement in a specific specialty" as "one that relates directly to the 
duties and responsibilities of a particular position"). There must be a close correlation between the 
required specialized studies and the position; thus, the mere requirement of a degree, without further 
specification, does not establish the position as a specialty occupation. Cf Matter of Micha el Hertz 
Associates , 19 I&N Dec. 558 (Comm'r 1988) (stating that "[t]he mere requirement of a college 
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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"). Thus, while a general-purpose degree or a 
degree in any discipline 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. !d. Thus, the petitioner's claim that a general-purpose degree is acceptable is 
essentially an admission that the proffered position is not a specialty occupation. For this reason 
alone, the petition cannot be approved. 
A baccalaureate or higher degree in specific specialty, or its equivalent, is normally the 
minimum requirement for entry into the particular position 
Nevertheless, we will continue our evaluation and analysis of the evidence provided by the 
petitioner. To that end, we will first discuss the record of proceeding in relation 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. 
USCIS recognizes the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook 
(Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
of occupations that it addresses. 3 We reviewed the chapter of the Handbook entitled "Management 
Analysts," and note that the subchapter of the Handbook entitled "How to Become a Management 
Analyst" states , in part , the following about this occupation: 
Most management analysts have at least a bachelor's degree. The Certified 
Management Consultant (CMC) designation may improve job prospects. 
Education 
A bachelor's degree is the typical entry-level requirement for management analysts. 
However, some employers prefer to hire candidates who have a master's degree in 
business administration (MBA). 
Few colleges and universities offer formal programs in management consulting. 
However, many fields of study provide a suitable education because of the range of 
areas that management analysts address. Common fields of study include business, 
management, economics, political science and government, accounting, finance, 
marketing, psychology, computer and information science, and English. 
3 All references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/OCO/. Excerpts of the Handbook regarding the duties and requirements of the referenced 
occupational category are hereby incorporated into the record of proceeding. 
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Analysts also routinely attend conferences to stay up to date on current developments 
in their field. 
Licenses, Certifications, and Registrations 
The Institute of Management Consultants USA (IMC USA) offers the Certified 
Management Consultant (CMC) designation to those who meet minimum levels of 
education and experience, submit client reviews, and pass an interview and exam 
covering the IMC USA's Code of Ethics . Management consultants with a CMC 
designation must be rece.rtified every 3 years. Management analysts are not required 
to get certification, but it may give jobseekers a competitive advantage. 
Work Experience in a Related Occupation 
Many analysts enter the occupation with several years of work experience. 
Organiz ations that specialize in certain fields typically try to hire candidates who 
have experience in those areas. Typical work backgrounds include management, 
human resources, and information technology. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Management Analysts, available at http://www.bls.gov/ooh/business-and-financial/management­
analysts.htm#tab-4 (last visited June 24, 2015). 
The Handbook reports that management analysts are not required to get certification, but it may give 
jobseekers a competitive advantage. According to the Handbook, the Institute of Management 
Consultants USA (IMC USA) offers the Certified Management Consultant (CMC) designation to 
those who meet minimum levels of education and experience, submit client reviews, and pass an 
interview and exam covering the IMC USA's Code of Ethics. There is no indication that the 
petitioner requires the beneficiary to have obtained the CMC designation or any other professional 
designation to serve in the proffered position. 
The Handbook does not support the assertion that at least a bachelor ' s degree in a specific specialty, 
or its equivalent , is normally the minimum requirement for entry into this occupation. Rather , the 
Handbook states that many fields of study provide a suitable education for management analysts. 
The Handbook' s narrative indicates that common fields of study include business, management, 
economics, political science and government, accounting, finance, marketing, psychology, computer 
and information science , a nd English. According to the Handbook , a range of programs can help 
people prepare for jobs in this occupation. The Handbook states that many analysts enter the 
occupation with several y'ears of work experience, and that typical work backgrounds include 
management, human resources, and information technology. The Handbook does not conclude that 
normally the minimum requirement for entry into these positions is at least a bachelor's degree in a 
specific specialty, or its equivalent. 
In general, provided 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" requirement of section 214(i)(1)(B) of the Act. In such a case, the required 
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"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 business, management, 
economics, political science and government, accounting, finance , marketing, psychology , computer 
and information science, and English) would not meet the statutory requirement that the degree be 
"in the specific specialty," unless the petitioner establishes how each field is directly related to the 
duties and responsibilities of the particular position such that the required body of highly specialized 
knowledge is essentially an amalgamation of these different specialties. 5 Section 214(i)(l)(B) of the 
Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," we 
do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
occupations if they permit, as a minimum entry requirement , degrees in more than one closely 
related specialty. See section 214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
Here, the Handbook indicates baccalaureate degrees in various fields are acceptable for entry into 
the occupation. In addition to recognizing degrees in disparate fields (i.e., business, management, 
economics, political science and government, accounting, finance , marketing, psychology, computer 
and information science , and English), the Handbook states that a degree in business is acceptable. 
As previously discussed, although a general-purpose bachelor's degree, such as a degree in business, 
may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will 
not justify a finding that a particular position qualifies for classification as a specialty 
occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d at 147.4 Therefore, the Handbook's 
recognition that a general, non-specialty degree in business is sufficient for entry into the occupation 
strongly suggests that a bachelor's degree in a specific specialty is not normally the minimum 
requirement for entry into this occupation. Even if it did, the record lacks sufficient evidence to 
4 Specifically , the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
!d. 
[t]he courts and the agency consistently have stated that, although a g eneral-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate prerequisite 
for a particular position , requiring such a degree, without more, will not justify the granting 
of a petition for an H-1B specialty occupation visa. See, e.g., Tapis Int'l v. INS , 94 F.Supp.2d 
172, 175-76 (D.Mass. 2000); Shanti , 36 F. Supp.2d at 1164-66; cf Matter of Michael Hertz 
Assocs., 19 I & N Dec. 558, 560 ([Comm'r] 1988) (providing frequently cited analysis in 
connecti on with a conceptually simil ar provision) . This is as it should be: elsewise, an 
employer could ensur e the granting of a specialty occupation visa petition by the simple 
expedient of creating a generic (and essentially artificial) degree requirement. 
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support a finding that the particular position proffered here, an entry-level management analyst 
position (as indicated on the LCA), would normally have such a minimum, specialty degree 
requirement, or its equivalent. 
The petitioner also submitted a copy of the O*NET OnLine Summary Report for the occupational 
category "Management Analysts" to support the assertion that the proffered position qualifies as a 
specialty occupation. We reviewed the Summary Report in its entirety. However, upon review of 
the Summary Report , we find that it is insufficient to establish that the position qualifies as a 
specialty occupation normally requiring at least a bachelor's degree in a specific specialty, or its 
equivalent. The Summary Report for management analysts has a designation of Job Zone 4. This 
indicates that a position requires considerable preparation. It does not, however, demonstrate that a 
bachelor's degree in any specific specialty is required, and does not, therefore , demonstrate that a 
position so designated is in a specialty occupation as defined in section 214(i)(l) of the Act and 8 
C.F.R. § 214.2(h)(4)(ii). The O*NET OnLine Help Center provides a discussion of the Job Zone 4 
designation and explains that this zone signifies only that most, but not all of the occupations within 
it, require a bachelor's degree . See O*NET OnLine Help Center at 
http://www.onetonline.org/help/online/zones. Further, the Help Center discussion confirms that a 
designation of Job Zone 4 does not indicate any requirements for particular majors or academic 
concentrations. Therefore, despite the petitioner's assertion to the contrary, the O*NET Summary 
Report is not probative evidence that the proffered position qualifies as a specialty occupation . 
In addition, the petitioner indicated that the occupational category "Management Analysts" has a 
Specialized Vocational Preparation (SVP) Range of "7.0 to< 8.0." The assignment of SVP "7.0 to< 
8.0" is not indicative of a specialty occupation. This is obvious upon reading Section II of the 
Dictionary of Occupational Titles (DOT's) Appendix C, Components of the Definition Trailer, 
which addresses the SVP rating system. The 
section reads: 
II. SPECIFIC VOCATIONAL PREPARATION (SVP) 
Specific Vocational Preparation is defined as the amount of lapsed time required by a 
typical worker to learn the techniques, acquire the information , and develop the 
facility needed for average performance in a specific job-worker situation. 
This training may be acquired in a school, work, military, institutional, or vocational 
environment. It does not include the orientation time required of a fully qualified 
worker to become accustomed to the special conditions of any new job. Specific 
vocational training includes: vocational education, apprenticeship training, in-plant 
training, on-the-job training, and essential experience in other jobs. 
Specific vocational training includes training given in any of the following 
circumstances: 
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a. Vocational education (high school; commercial or shop training; technical school; 
art school; and that part of college training which is organized around a specific 
vocational objective); 
b. Apprenticeship training (for apprenticeable jobs only); 
c. In-plant training (organized classroom study provided by an employer); 
d. On-the-job training (serving as learner or trainee on the job under the instruction of 
a qualified worker); 
e. Essential experience in other jobs (serving in less responsible jobs which lead to 
the higher grade job or serving in other jobs which qualify). 
The following is an explanation of the various levels of specific vocational 
preparation: 
Level 
1 
2 
3 
4 
5 
6 
7 
8 
9 
Time 
Short demonstration only 
Anything beyond short demonstration up to and including 1 month 
Over 1 month up to and including 3 months 
Over 3 months up to and including 6 months 
Over 6 months up to and including 1 year 
Over 1 year up to and including 2 years 
Over 2 years up to and including 4 years 
Over 4 years up to and including 10 years 
Over 10 years 
Note: The levels of this scale are mutually exclusive and do not overlap. 
An SVP rating of "7.0 to< 8.0" indicates "[o]ver 2 years up to and including 4 years." This does not 
indicate that at least a four-year bachelor's degree is required for an occupational category that has 
been assigned such a rating or, more importantly, that such a degree must be in a specific specialty 
directly related to the occupation. Rather, the SVP rating simply indicates that the occupation 
requires over 2 years up to and including 4 years of training of the wide variety of forms of 
preparation described above, including experiential training. Accordingly, the DOT does not 
indicate that at least a bachelor's degree in a specific specialty (or its equivalent) is normally the 
minimum requirement for entry into these positions. Although the petitioner references the DOT, it 
does not establish its relevancy to establish the current educational requirements for entry into the 
occupation. Therefore, the DOT is not probative evidence to establish that the proffered position is a 
specialty occupation. 
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Furthermore, the Occupation Profile from America ' s Career lnfoNet, submitted by the petitioner 
with its initial petition, is also insufficient to establish that the proffered position qualifies as a 
specialty occupation . The report indicates the following: 
Education and Training 
Occupation : Management Analy st 
Typical education needed for entry: Bachelor's degree 
The America's Career InfoNet's reference to a "Bachelor's degree" - without specification of any 
particular academic concentration or major is not evidence that a bachelor's degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for entry into this occupation. 
Therefore , despite the petitioner's assertions to the contrary , the America's Career InfoNet 
information is also not probative of the proffered position qualifying as a specialty occupation . 
In the instant case, the duties and requirements of the position as described in the record of 
proceeding do not indicate that this particular position proffered by the petitioner is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
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 in specific specialty, or its equivalent 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.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 for positions that 
are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered position, and also 
(3) 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 suchfirms "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 standard industry-wide requirement for at least 
a bachelor's degree in a specific specialty , or its equivalent. Thus, we incorporate by reference the 
previous discussion on the matter. Also, there are no submissions from the industry's professional 
association indicating that it has made a degree a minimum entry requirement. Furthermore, the 
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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." Nor is 
there any other evidence relevant to this prong. Thus, based upon a complete review of the record of 
proceeding, we find that the petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
petitioner described the proffered position and its business operations. In addition, the petitioner 
submitted copies of its financial documents, Articles of Incorporation, and printouts from its website. 
Upon review, we find that the petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. For instance, the petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform the duties it may believe are so complex and unique. 
While a few related courses may be beneficial in performing certain duties of the position, the 
petitioner has not demonstrated how an established curriculum of such courses leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the 
duties of the proffered position. The description of the duties does not specifically identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. The 
record does not establish which of the duties, if any, of the proffered position would be so complex 
or unique as to be distinguishable from those of similar but non-degreed or non-specialty degreed 
employment. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level I (entry) wage. This designation is indicative of a 
comparatively low, entry-level position relative to others within the occupation. 5 That is, in 
5 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage 
rate is described 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
accordance with the relevant DOL explanatory information on wage levels, this wage rate indicates 
that the beneficiary is only required to have a basic understanding of the occupation and carries 
expectations that the beneficiary perform routine tasks that require limited, if any, exercise of 
judgment; that he would be closely supervised; that his work would be closely monitored and 
reviewed for accuracy; and that he would receive specific instructions on required tasks and 
expected results. DOL guidance indicates that a Level I designation should be considered for 
positions in which the employee will serve as a research fellow, worker in training, or an intern. 
Without further evidence, it is not credible that the petitioner's proffered position is complex or 
unique as such a position falling under this occupational category 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.6 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 The evidence of record does not establish that this position is 
significantly different from other positions in the occupational category such that it refutes the 
Handbook's information that a bachelor's degree in a specific specialty, or its equivalent, is not 
required for the proffered position. 
The petitioner claims that the beneficiary is well qualified for the position, and references his 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
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. 
6 The issue here is that the petitioner's designation of this position as a Level I, entry-level position 
undermines its claim that the position is particularly complex, specialized, or unique compared to other 
positions within the same occupation. Nevertheless, it is important to note that a Level I wage-designation 
does not preclude a proffered position from classification as a specialty occupation. In certain occupations 
(doctors or lawyers, for example), an entry-level position would still require a minimum of a b achelor's 
degree in a specific specialty, or its equivalent, for entry . Similarly, however, a Level IV wage-designation 
would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not 
have an entry requirement of at least a bachelor's degree in a specific specialty, or its equivalent. That is, a 
position's wage level designation may be a consideration but is not a substitute for a determination of whether 
a proffered position meets the requirements of section 214(i)(1) of the Act. 
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 Programs (rev. 
Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 
2009.pdf. 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
degree in a specific specialty, or its equivalent. The petitioner has not satisfied the second 
alternative prong of 8 e.F.R. § 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a degree in a specific specialty, or its 
equivalent, for the position 
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 . To 
this end, we review the petitioner's past recruiting and hiring practices , as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, 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 performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USeiS limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could be 
brought to the United States to perform any occupation as long as the petitioner artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor v. Meissner, 
201 F.3d at 388. In other words, if a petitioner's stated degree requirement is only designed to 
artificially meet the standards for an H-lB visa and/or to underemploy an individual in a position for 
which he or she is overqualified and if the proffered position does not in fact require such a specialty 
degree or its equivalent, to perform its duties, the occupation would not meet the statutory or 
regulatory definition of a specialty occupation . See section 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining the term "specialty occupation"). 
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. users must examine the actual employment requirements, and, on the basis 
of that examin ation, determine whether the position qualifies as a specialty occupation . See 
generally Defensor v. Meissner , 201 F. 3d 384. 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 perform ance 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 the 
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 proffered position - and without consideration of how a 
beneficiary is to be specifically 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
The petitioner stated in the Form I -129 petition that it has 17 employees and that it was established 
in (approximately 17 years prior to the filing of the H-1B petition). In response to the RFE, the 
petitioner stated that "[t]he Position of Management Analyst is a new position at our company." In 
addition, the petitioner asserted that the president and two office managers performed the duties of a 
management analyst. The petitioner also submitted invoices and electronic mail correspondence as 
evidence of its recruitment efforts. 
Upon review of the record, the petitioner did not provide sufficient documentary evidence to support 
the assertion that it normally requires at least a bachelor's degree in a specific specialty, or its 
equivalent, directly related to the duties of the position. The petitioner has not satisfied the third 
criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). 
The nature of the specific duties is so specialized and complex that knowledge 
required to perform the duties is usually associated withthe attainment of a 
baccalaureate or higher degree in a specific specialty, or its equivalent 
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. 
The petitioner claims that the nature of the specific duties of the posttlon in the context of its 
business operations 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 duties of the proffered position and 
its business operations. However, relative specialization and complexity have not been sufficiently 
developed by the petitioner as an aspect of the proffered position. That is, the proposed duties have 
not been described with sufficient specificity to establish that they are more specialized and complex 
than positions that are not usually associated with at least a bachelor's degree in a specific specialty, 
or its equivalent. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (of the lowest 
of four assignable wage-levels) relative to others within the occupational category. Without more, 
the position is one not likely distinguishable by relatively specialized and complex duties. That is, 
without further evidence~ the petitioner has not demonstrated that its 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 substantially higher 
prevailing wage. 8 
8 As previously discussed, 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" and requires a 
significantly higher wage. 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
Although the petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the petitioner has submitted inadequate 
probative evidence to satisfy the criterion of the regulations at 8 C.F.R. § 214.2(h)( 4 )(iii)( A)( 4). 
On appeal, the petitioner cites to Tapis lnt'l v. INS, 94 F. Supp. 2d 172 (D. Mass. 2000) and 
Residential Fin. Corp. v. U.S. Citizenship & Immigration Services, 839 F. Supp. 2d 985 (S.D. Ohio 
2012) in support of its assertion that the proffered position qualifies as a specialty occupation. The 
petitioner has furnished no evidence to establish that the facts of the instant petition are analogous to 
those in these decisions. We also note that, in contrast to the broad precedential authority of the case 
law of a United States circuit court, we are not bound to follow the published decision of a United 
States district court in matters arising even within the same district. See Matter of K-S-, 20 I&N 
Dec. 715 (BIA 1993). Although the reasoning underlying a district judge's decision will be given 
due consideration when it is properly before us, the analysis does not have to be followed as a matter 
of law. !d. at 719.9 
Moreover, the petitioner refers to unpublished decisions in support of its claim "that neither the 
statute nor the regulations require [a] baccalaureate level of education in one specific academic 
discipline in order to statisfy 'specialty occupation' standard." The petitioner has furnished no 
evidence to establish that the facts of the instant petition are analogous to those in the unpublished 
decisions. While 8 C.F.R. § 103.3(c) provides that our precedent decisions are binding on all USCIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
9 With regard to Residential Fin. Corp. v. U.S. Citizenship & Immigration Services, we note that it indicates 
the proposition that '"[t]he knowledge and not the title of the degree is what is important. Diplomas rarely 
come bearing occupation-specific majors. What is required is an occupation that requires highly specialized 
knowledge and a prospectiv e employee who has attained the credentialing indicating possession of that 
knowledge."' 
We agree with the aforementioned proposition that "[t]he knowledge and not the title of the degree is what is 
important." In general , provided 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)(l)(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 two disparate fields, such as philosophy and engineering, would 
not meet the statutory requirement that the degree be "in the specific specialty (or its equivalent)," unless the 
petitioner establishes how each field is directly related to the duties and responsibilities of the particular 
position such that the required body of highly specialized knowledge is essentially an amalgamation of these 
different specialties . Section 214(i)(l)(B) of the Act (emphasis added). For the aforementioned reasons, 
however, the petitioner has not met its burden to establish that the particular position offered in this matter 
requires a bachelor's or higher degree in a specific specialty, or its equivalent, directly related to its duties in 
order to perform those tasks. 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
For the reasons related in the preceding discussion, the petitioner has not established that it has 
satisfied any of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed and the 
petition denied. 
III. BENEFICIARY QUALIFICATION 
The Director also found that the beneficiary would not be qualified to perform the duties of the 
proffered position if the job had been determined to be a specialty occupation. However, a 
beneficiary's credentials to perform a particular job are relevant only when the job is found to be a 
specialty occupation. As discussed in this decision, the proffered position does not require a 
baccalaureate or higher degree in a specific specialty, or its equivalent. Therefore, we need not and 
will not address the beneficiary's qualifications further. 
IV. CONCLUSION AND ORDER 
In 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. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 10 
ORDER: The appeal is dismissed. 
10 As the identified ground for denial is dispositive of the petitioner's continued eligibility, we need not 
address any additional issues in the record of proceeding.