dismissed H-1B Case: Market Analysis

(b)(6)
DATE: JUL 0 8 2015 
INRE : Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service ~ 
Administrative Appeals Office 
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 Notice 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) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
n Rosenberg 
ief, Administrative 
Appeals Office 
REV 3/2015 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 on appeal. The appeal will be dismissed. 
I. PROCEDURAL BACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
parking company, with six employees, that was established in In order to employ the 
beneficiary in what it designates as a "market analyst, parking" position, the petitioner seeks to 
classify him as a nonimmigrant worker m 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)(l5)(H)(i)(b). 
The Director denied 
the petition, concluding that the petitioner did not establish that the proffered 
position qualifies as a specialty occupation in accordance with the applicable statutory and 
regulatory provisions. 
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-290B) and supporting 
documentation. We reviewed the record in its entirety before issuing our decision. 1 
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. 
II. SPECIALTY OCCUPATION 
To meet its burden of proof in establishing the proffered position qualifies as a specialty occupation, 
the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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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)(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. 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. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-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 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 384, 387 (5th Cir. 2000). 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. 
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§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration 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, USCIS 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. USCIS 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, US CIS looks to the Form I -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-IB 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." 
B. Proffered Position 
The 
petitioner states that the beneficiary will be employed as a part-time market analyst to revise its 
marketing strategy for parking lots. In the support letter, the petitioner provided a description of the 
proffered position and stated that typically the knowledge needed for the position would be "best 
acquired through studies leading to a Bachelor's degree or its equivalent in Marketing, Business 
Administration or similar field." 
In response to the RFE, the petitioner provided a revised job description with the approximate 
percentage of time that the beneficiary would spend on each job duty. The petitioner stated that the 
beneficiary would perform the following job duties: 
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1. Perform market research to explore viable options to mcrease revenue, reduce 
expenses and increase profitability. 
10% 
2. Review [the petitioner's] budget, expected revenue and parking revenue statistics, 
and analyze how these numbers compare to alternative pricing structures for parking. 
Determine which parking pricing system will maximize our profits and ensure the 
best services to our patrons. Recommend appropriate modifications to our pricing 
structures and plans, as necessary. 
15% 
3. Study advertising and promotional materials of our competitors in the parking lot & 
vehicle storage markets and analyze parking data, pricing structures, annual reports 
and marketing programs of competitor parking lot chains. 
15% 
4. Analyze parking customers' patterns to determine which marketing schemes, such as 
discount incentive programs etc., would attract most customers, be cost effective and 
increase our profits. 
15% 
5. Use established market research techniques to forecast trends in the parking industry. 
10% 
6. Develop a comprehensive marketing plan based on their research and projects, with a 
view towards increasing our customer base. Periodically gather and review the 
actual data throughout the year, to see if results are in line with expectations. Advise 
management of any variances, and recommend modifications to the plan, as 
necessary to maximize customer base and profitability. 
20% 
7. Review costs of possible additional parking lot locations and determine whether 
acquiring those lots would increase our marketability and be in line with our new 
sophisticated branding. 
5% 
8. Recommend specific means to improve our business development and marketing 
strategies. Present ideas and reports to President and other professionals at the firm 
and answer questions about the marketing plan. 
10% 
According to the petitioner, the position requires at least a bachelor's degree in marketing, business 
administration or similar field, or its equivalent. The petitioner further reported in the RFE 
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response that the beneficiary will provide services for its own parking lots, as well as for other 
parking lots for other companies that are owned by its president.2 
C. Analysis 
To demonstrate that a job requires the theoretical and practical application of a body of highly 
specialized knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that 
the position requires the attainment of a bachelor's or higher degree in a specialized field of study, 
or its equivalent. As discussed above, USCIS interprets the degree requirement at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
position. Thus, as a preliminary matter, we note that the petitioner's claim that a bachelor's degree 
in "business administration" is a sufficient minimum requirement for entry into the proffered 
position is inadequate to establish that the proposed position qualifies as a specialty occupation. 
Although a general-purpose bachelor's degree, such as a degree in business administration, may be a 
legitimate prerequisite for a particular position, requiring such a degree, without more, will not 
justify a finding that a particular position qualifies for classification as a specialty occupation. See 
Royal Siam Corp. v. Chertoff, 484 F.3d at 147.3 
A petitioner must demonstrate that the proffered position requires a precise and specific course of 
study that relates directly and closely to the position in question. Since there must be a close 
correlation between the required specialized studies and the position, the requirement of a degree 
with a generalized title, such as business administration, without further specification, does not 
2 When a beneficiary is scheduled to perform work for multiple employers, each employer must submit a 
separate Form I-129 petition for the portion of the beneficiary's time to be spent performing duties for that 
employer. A United States employer seeking to classify a beneficiary an H-lB nonimmigrant worker must 
file a petition on Form 1-129, as provided in the form instructions. 8 C.F.R. § 214.2(h)(2)(i)(A). If the 
beneficiary will perform services for more than one employer, each employer must file a separate petition 
with USCIS as provided in the form instructions. 8 C.F.R. § 214.2(h)(2)(i)(C). 
3 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 general-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., 191 & N Dec. 558, 560 ([Comm'r] 1988) (providing frequently cited 
analysis in connection with a conceptually similar provision). This is as it should be: 
elsewise, an employer could ensure 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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establish the position as a specialty occupation. Cf Matter of Michael Hertz Associates, 19 I&N 
Dec. 558 (Comm'r 1988). 
Nevertheless, for the purpose of performing a comprehensive analysis of whether the proffered 
position qualifies as a specialty occupation, we now turn to the criteria at 8 C.F .R. 
§ 214.2(h)(4)(iii)(A). 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
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) Occupational Outlook Handbook 
(Handbook) as an authoritative source on the duties and educational requirements of the wide 
variety of occupations that it addresses. The petitioner stated in the Labor Condition Application 
(LCA) that the proffered position falls under the occupational category "Marketing Research 
Analysts and Marketing Specialists. "4 
We reviewed the chapter of the Handbook entitled "Market Research Analysts," including the 
sections regarding the typical duties and requirements for this occupational category. 5 The 
subchapter of the Handbook entitled "How to Become a Market Research Analyst" states the 
following about this occupational category: 
Education 
Market research analysts typically need a bachelor's degree in market research or a 
related field. Many have degrees in fields such as statistics, math, and computer 
science. Others have backgrounds in business administration, the social sciences, or 
communications. 
4 
On the LCA, the petitioner reports as the employer rather than 
5 
The Handbook, which is available in printed form, may also be accessed on the Internet, at http:// 
www.stats.bls.gov/oco/. Our references to the Handbook are to the 2014 - 2015 edition available online. 
We hereby incorporate into the record of proceeding the chapter of the Handbook regarding "Market 
Research Analysts." 
The occupational category designated by a petitioner is considered as an aspect in establishing the general 
tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook on the duties 
and educational requirements of the wide variety of occupations that it addresses. However, to satisfy the first 
criterion, the burden of proof remains on the petitioner to submit sufficient evidence to support a finding that its 
particular position would normally have a minimum, specialty degree requirement or its equivalent for entry. 
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Courses in statistics, research methods, and marketing are essential for these 
workers. Courses in communications and social sciences, such as economics, 
psychology, and sociology, are also important. 
Some market research analyst jobs require a master's degree. Several schools offer 
graduate programs in marketing research, but many analysts complete degrees in 
other fields, such as statistics and marketing, and/or earn a Master of Business 
Administration (MBA). A master's degree is often required for leadership positions 
or positions that perform more technical research. 
Other Experience 
Most market research analysts can benefit from internships or work experience in 
business, marketing, or sales. Work experience in other positions that require 
analyzing data, writing reports, or surveying or collecting data can also be helpful in 
finding a market research position. 
Licenses, Certifications, and Registrations 
Certification is voluntary, but analysts may pursue certification to demonstrate a 
level of professional competency. The Marketing Research Association offers the 
Professional Researcher Certification (PRC) for market research analysts. 
Candidates qualify based on experience and knowledge; they must pass an exam, be 
a member of a professional organization, and have at least 3 years working in 
opinion and marketing research. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Market Research Analysts, on the Internet at http://www.bls.gov/oohlbusiness-and­
financial/market-research-analysts.htm#tab-4 (last visited July 7, 20 15). 
The Handbook reports that market research analysts have degrees and backgrounds in a wide­
variety of disparate fields. That is, while the Handbook states that employees typically need a 
bachelor's degree in market research or a related field, it continues by specifying that many market 
research analysts have degrees in fields such as statistics, math, or computer science. According to 
the Handbook, other market research analysts have backgrounds in fields such as business 
administration, the social sciences, or communications. This passage of the Handbook identifies 
various courses as essential to this occupation, including statistics, research methods, and 
marketing. It further states that courses in communications and social sciences (such as economics, 
psychology, and sociology) are also important. Therefore, although the Handbook reports that 
market research analysts typically need an advanced degree, it also indicates that degrees and 
backgrounds in various fields are acceptable for jobs in this occupation - including computer 
science and the social sciences, as well as statistics and communications. 
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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)(1)(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since 
there must be a close correlation between the required "body of highly specialized knowledge" and 
the position, however, a minimum entry requirement of a degree in disparate fields, such as 
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. 6 Section 
214(i)(1)(B) ofthe Act (emphasis added). 
The Handbook also states that "others have a background in business administration." Without 
more, this statement does not support the assertion that a bachelor's degree or higher in a specific 
specialty (or its equivalent) is normally the minimum requirement for entry. See Royal Siam Corp. 
v
. Chertoff, 484 F.3d 147. As discussed, the requirement of a degree with a generalized title, such 
as business administration, without further specification, does not establish the position as a 
specialty occupation. Cf Matter of Michael Hertz Associates, 19 I&N Dec. 558. Therefore, the 
Handbook's recognition that a general, non-specialty "background" in business administration is 
sufficient for entry into the occupation strongly suggests that a bachelor's degree in a specific 
specialty is not normally the minimum entry requirement for this occupation. 
The narrative of the Handbook further reports that some employees obtain professional certification 
to demonstrate a level of professional competency. It continues by outlining the requirements for 
market research analysts to achieve the Professional Researcher Certification (PRC), and states that 
candidates qualify based upon their experience and knowledge. According to the Handbook, the 
credential is granted by the Marketing Research Association to those who pass an exam and have at 
least three years of experience working in opinion and market research. 7 
We reviewed the Marketing Research Association's Internet site, which confirms the accuracy of 
the Handbook's statement regarding the requirements for professional certification (i.e., passage of 
an exam and three years of relevant industry experience), and further specifies that the "Education" 
necessary to apply for professional certification is "12 industry-related education hours within the 
6 Whether read with the statutory "the" or the regulatory "a," both readings denote a singular "specialty." 
Section 214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). Still, 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 morethan one closely related specialty. This also includes even seemingly disparate 
specialties provided the evidence of record establishes how each acceptable, specific field of study is directly 
related to the duties and responsibilities of the particular position. 
7 The Marketing Research Association website states that the association was founded in 1957 and is the 
leading and largest association of opinion and marketing research professions. For additional information, 
see http://www.marketingresearch.org/information (last visited July 7, 2015). 
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two preceding years." The Market Research Association website provides the following 
information about the Professional Researcher Certification program: 
The Professional Researcher Certification program (PRC) is designed to recognize 
the qualifications and expertise of marketing and opinion research professionals. The 
goal of PRC is to encourage high standards within the survey profession to raise 
competency, establish an objective measure of an individual's knowledge and 
proficiency and to encourage professional development. Achieving and maintaining 
PRC validates the knowledge of the market research industry and puts researchers in 
a select group of like-minded professionals. 
* * * 
Because PRC indicates to the public your ability to conduct marketing research, the 
PRC Board requires [a candidate] to have experience in the survey and opinion 
process. Three years of relevant experience is required. . . . A total of 12 industry­
related education hours within the two preceding years are required at time of 
application. Conferences, seminars, webinars, etc., must be added to (the candidate's] 
record. 
* * * 
The benefits of a Certification program are both industry-wide and individual. For 
the individual, it is a means of differentiating oneself, a "badge" of competence in the 
given areas and an assurance that the individual is current in knowledge and 
experience. For the profession/industry as a whole, it provides a vehicle for 
developing a pool of well-trained, competent marketing researchers, thereby 
improving both perceived and substantive standards. 
Market Res. Ass'n, http://marketingresearch.org/prc-faq (last visited July 7, 2015). 
The Market Research Association emphasizes that the credentialing program recognizes the 
qualifications and expertise of marketing and opinion research professionals, encourages high 
standards within the profession, and establishes an objective measure of an individual's knowledge 
and proficiency. According to the association's website, the credential indicates to the public an 
individual's ability to conduct market research. The narrative continues by stating that the 
credential provides a vehicle for developing a pool of well-trained, competent marketing 
researchers, thereby improving both perceived and substantive standards. The website does not 
indicate that the market research analyst positions have any particular academic requirements for 
entry, nor does it indicate that these positions require any particular level of education to be 
identified as qualified and possessing a level of expertise/competence. Instead, the Market 
Research Association highlights the importance of professional experience and industry-related 
professional courses (through conferences, seminars, and webinars). 
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On appeal, the petitioner references the O*NET OnLine Summary Report for the occupational 
category "Market Research Analysts and Marketing Specialists." We reviewed the Summary 
Report in its entirety. However, upon review, 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 market research analysts and 
marketing specialists 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)(1) 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. 
The petitioner also states that the occupational category "Market Research Analysts and Marketing 
Specialists" has a Specializ~d Vocational Preparation (SVP) Range of "7.0 to < 8.0." The 
assignment of SVP "7.0 to < 8.0" is also not indicative of a specialty occupation. Section II of the 
Dictionary of Occupational Titles (DOT's) Appendix C, Components of the Definition Trailer, 
addresses the SVP rating system and reads: 
II. SPECIFIC VOCATIONAL PREPARATION (SVP) 
Specific Vocational Preparation is defined as the amount oflapsed 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: 
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); 
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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 1 0 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 oftraining 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 also not probative evidence to establish that the proffered 
position is a specialty occupation . 
Thus, the Handbook and the Market Research Association website, as well as the documentation 
referenced by the petitioner (O*NET OnLine Summary Report and SVP), do not support the claim 
that the occupational category "Market Research Analysts" is one for which normally the minimum 
requirement for entry is a baccalaureate degree (or higher) in a specific specialty, or its equivalent. 8 
8 When the Handbook does not support the proposition that a proffered position is one that meets the 
statutory and regulatory provisions of a specialty occupation, it is incumbent upon the petitioner to provide 
persuasive evidence that the proffered position more likely than not satisfies this or one of the other three 
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Even if it did (which it does not), to satisfy the first criterion, the petitioner must provide evidence 
to support a finding that the particular position proffered would normally have such a minimum, 
specialty degree requirement or its equivalent.9 
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 requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
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. 
criteria, notwithstanding the absence of the Handbook's support on the issue. It is the petitioner's 
responsibility to provide probative evidence (e.g., documentation from other objection, authoritative sources) 
that supports a finding that the particular position in question qualifies as a specialty occupation . Whenever 
more than one authoritative source exists, an adjudicator will consider and weigh all of the evidence 
presented to determine whether the particular position qualifies as a specialty occupation. 
9 With regard to the duties, the petitioner designated the proffered position on the LCA under the 
occupational category "Market Research Analysts and Marketing Specialists" as a Level I (entry) position. 
The "Prevailing Wage Determination Policy Guidance" issued by DOL) provides a description of the wage 
levels. A Level I wage rate is described by DOL 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. 
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)
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Page 14 
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 1151, 1165 (D. 
Minn. 1999}(quotingHird/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 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). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
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 provided documentation regarding the proffered position and its business operations, 
including printouts from its website, a letter from its accountant, photographs, a one-page Internet 
Google search printout, computer screen shots, and tax returns for other business entities. 
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 assert 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 
(b)(6)
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Page 15 
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. 
As previously mentioned, the LCA indicates a wage level at a Level I (entry) wage, which is the 
lowest of four assignable wage levels. The wage-level of the proffered position indicates that 
(relative to other positions falling under this occupational category) the beneficiary is only required 
to have a basic understanding of the occupation; that he will be expected to perform routine tasks 
that require limited, if any, exercise of judgment; that he will be closely supervised and his work 
closely monitored and reviewed for accuracy; and that he will receive specific instructions on 
required tasks and expected results. DOL guidance indicates that a Level I designation is 
appropriate for a research fellow, a worker in training, or an internship. This designation suggests 
that the beneficiary will serve in a low-level position relative to others within the occupational 
category. 
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. 1° 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. "11 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 
10 The issue here is that the petitioner's designation of this position as a Level I, entry-level position 
undennines 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 Levell wage-designation 
does not preclude a proffered position from classification as a specialty occupation. In certain occupations 
(doctors or lawyers, for example), an entry-level position would still require a minimum of a bachelor's 
degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation 
would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not 
have an entry requirement of at least a bachelor's degree in a specific specialty, or its equivalent. That is, a 
position's wage level designation may be a consideration but is not a substitute for a determination of 
whether a proffered position meets the requirements of section 214(i)( 1) of the Act. 
11 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-PRECEDENTDEC~JON 
Page 16 
bachelor's degree in a specific specialty, or its equivalent. The petitioner has not satisfied the 
second alternative prong of 8 C.F .R. § 214.2(h)( 4 )(iii)(A)(2). 
The employer normally requires a baccalaureate or higher 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 USCIS limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the 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. USCIS 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 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 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 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 US CIS 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)
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Page 17 
In response to the RFE, the petitioner states that it has not advertised for the proffered position and 
that it is a new position. Upon review of the record of proceeding, the petitioner has not established 
a prior history of recruiting and hiring for the proffered position persons with at least a bachelor's 
degree in a specific specialty, or its equivalent. 
The petitioner has not provided probative evidence to establish that it normally requires at least a 
bachelor's degree in a specific specialty, or its equivalent, for the proffered position. Thus, 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 with the 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 position 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 and documentation regarding 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 petitioner 
has not established that the job duties 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 (out of four 
assignable wage-levels) relative to others within the occupational category. Hence, 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 (ex~erienced) or Level IV (fully competent) position, requiring a substantially higher 
prevailing wage.1 
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 ofthe regulations at 8 C.F.R. § 214.2(h)( 4)(iii)(A)( 4). 
12 As previously discussed, a LevellY (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 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.F.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. BEYOND THE DECISION OF THE DIRECTOR 
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 ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.