dismissed H-1B Case: Market Research

MATTER OF S-A-M-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 22, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a medical consulting company, seeks to temporarily employ the Beneficiary as a 
"market research analyst" under the H-1B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). 
The H-IB program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body ofhighly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish that the job offered qualifies as a specialty occupation. 
On appeal, the Petitioner submits a brief and additional evidence and asserts that the Director erred 
when she determined that the proffered position is not a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
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Matter of S-A-M-, Inc. 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.P.R.§ 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Chertoff; 484 F.3d 139, 147 (1st Cir. 2007) (describing 
"a degree requirement in a specific specialty" as "one that relates directly to the duties and 
responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
The Petitioner initially provided the following job duties for the position of market research analyst: 
• Collecting and analyzing information about 
with a particular focus on those associated with 
medical institutions, 
(i.e.: 
and etc.). 
o Communicating with each facilities international patient center to 
determine the most effective facilitation for international patient referral. 
o Analyzing and gathering data regarding patient wait times and procedural, 
administrative, and medical costs associate[ d) with each facility. 
o Collaborating and communicating with and 
Affiliates specifically catering to international tourists without 
health insurance as well as tourism and travel agency programs to 
successfully coordinate agreements to meet international tourist healthcare 
needs. 
• Designing and developing user-friendly interfaces for non-native English, bi- and 
multilingual clients to communicate directly with [the Petitioner] in effective and 
timely ways. 
o Designing, constructing, and updating [the Petitioner's] official website to 
allow client ease of access to information and direct contact to our offices. 
2 
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Matter of S-A-M-, Inc. 
o Building official platform for [the Petitioner] to allow client 
access to [the Petitioner's] customer service and to decrease response time 
between client inquiry and company response. 
• Coordinating 
research on market and industry competitors and synthesizing data 
for clear and concise reporting to management. 
o Analyzing competitor pricing systems and overall range of cost for 
services. 
o Detailing competitor's market positions, services offered, and clearly 
illustrating shortcomings in services provided, clients, or regions not 
served. 
o Compiling findings and research into a report to be used for quoting prices 
to incoming clients and capitalizing on underserved markets, services, or 
demographics. 
• Identifying and conducting surveys of current international patients to determine 
patient needs and expectations in order to customize [the Petitioner's] services to 
satisfy clients' unmet needs. 
The Petitioner further stated that the position requires an individual with at least a bachelor's degree 
"Business Administration, Business, Marketing, or 
a related field." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation.' 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation.2 
At the outset, we must note that if the Petitioner's degree requirement can be satisfied by a general 
bachelor's degree in business or business administration, without further specialization, then it is 
inadequate to establish that the proposed position qualifies as a specialty occupation. A petitioner 
must demonstrate that the proffered position requires a precise and specific course of study that 
relates directly and closely to the proffered position in question. There must be a close correlation 
between the required specialized studies and the position; thus, the mere requirement of a general 
business degree, without further specification, will not justify a finding that a particular position 
qualifies for classification as a specialty occupation. See Royal Siam, 484 F.3d at 147 (recognizing a 
business administration degree as a "general-purpose bachelor's degree''); cf Matter of Michael 
Hertz Assocs., 19 I&N Dec. 558,560 (Comm'r 1988) ("The mere requirement of a college degree 
1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
2 
While we may not discuss every document submitted, we have reviewed and considered each one under the applicable 
criterion. 
Matter of S-A-M-, Inc. 
for the sake of general education, or to obtain what an employer perceives to be a higher caliber 
employee, also does not establish eligibility."). 
On the basis of the position's educational requirement alone, we cannot find that the proffered 
position qualifies as a specialty occupation. Nevertheless, we will discuss the four criteria below. 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the 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.3 
On the labor condition application (LCA)4 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Market Research Analysts and 
Marketing Specialists," corresponding to the Standard Occupational Classification code 13-1161.5 
We reviewed the section of the Handbook covering "Market Research Analysts," including the 
section entitled "How to Become a Market Research Analyst," which states the following: 
3 
All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and U.S. Citizenship and Immigration Services regularly 
reviews the Handbook on the duties and educational requirements of the wide variety of occupations that it 
addresses. To satisfy the first criterion, however, 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. 
4 
The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either 
the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the 
employer to other employees with similar experience and qualifications who are performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. /d. 
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Matter of S-A-M-, Inc. 
Most market research analysts need at least a bachelor's degree. Top research 
positions may reqmre a master's degree. Strong math and analytical skills are 
essential. 
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. 
Courses in statistics, research methods, and marketing are essential for these workers. 
Courses in communications and social sciences, such as economics or consumer 
behavior, 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's degree in 
business administration (MBA). A master's degree is often required for leadership 
positions or positions that perform more technical research. 
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. Individuals must complete 20 hours of industry-related 
continuing education courses every 2 years to renew their certification. 
Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Market Research 
Analysts (20 16-17 ed. ). 
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 individuals in this 
occupational category 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 elucidates that courses in communications and social sciences (such as 
economics and consumer behavior) are also important. Therefore, although the Handbook indicates 
that market research analysts typically need a degree, it also indicates that degrees and backgrounds 
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Matter of S-A-M-, Inc. 
in various fields are acceptable for jobs in this occupation - including computer science and the 
social sciences, as well as statistics and communications. 
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, a minimum entry requirement of a degree in disparate fields 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 2l4(i)(l )(B) of the Act (emphasis added). 
Here, the Petitioner has not done so. 
The Handbook also states that "others have a background in business administration." Again as we 
noted, 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, 484 F.3d at 147. 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 spec?fic 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 PRC, and states that candidates qualify based upon their 
experience and knowledge. According to the Handbook, the credential is granted by the 
- now known as the 7 - to those who pass an exam and 
have at least three years of experience working in market research. 8 
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 more than 
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 
become the 
merged with the 
). See http:/, 
is therefore the successor to the 
in 2017 to 
about (last visited June 21, 20 17). The 
8 
The website states that it "strives to effectively represent, advance, and grow the research 
profession and industry." For additional information, see http:// about (last visited June 21, 
2017). 
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Matter ofS-A-M-, Inc. 
We reviewed the website, which confirms 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 two preceding years." It 
also emphasizes that the credentialing program differentiates the individual who takes it and 
provides a '"badge' of competence in the given areas and an assurance that the individual is current 
in knowledge and experience." 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 includes information regarding "How to 
Enter the Industry" which lists a variety of possible degrees, such as business administration, liberal 
arts, computer science and communications, and a variety of "helpful skills," including "attention to 
detail," and "basic computer skills." It does not indicate that a market research analyst position has 
any specific minimum academic requirement for entry, nor does it state that it requires any particular 
level of education to be identified as qualified and possessing a level of expertise or competence. 
Instead, highlights the importance of professional experience and industry-related professional 
courses (through conferences, seminars, and webinars). 
Thus, the Handbook and the website therefore 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. 
The Petitioner also points to the Occupational Information Network's (O*NET) description of 
market research analysts and contends that it establishes that a bachelor's degree is required for the 
position. However, as noted, in order to establish the proffered position as a specialty occupation, 
the Petitioner must demonstrate that not only a bachelor's degree is required for minimum entry into 
the position, but that the required degree is a degree in a specific specialty. Although the O*NET 
description of market research analysts and marketing specialists indicates that the vast majority of 
those employed in these positions have a bachelor's degrees, it does not indicate that these positions 
require a degree in a specific specialty for entry. O*NET OnLine Summary Report for "13-1161.00-
Market Research Analysts and Marketing Specialists," http://www.onetonline.org/link/summary/13-
11614.00 (last visited June 21, 2017). 
On appeal, the Petitioner cites to a district court case, Raj and Co. v. USCIS, 85 F. Supp. 3d 1241, 
2015 WL 196632 (W.D. Wash. 2015), and claims that it is relevant here. In the district court case, 
the employer designated the position as a "Marketing Analyst & Specialist" position.9 We reviewed 
the decision; however, there is no indication that aspects of the work such as the duties and 
responsibilities, level of judgment, complexity of the job duties, supervisory duties, independent 
judgment required or the amount of supervision received are analogous to the proffered position 
9 
It is important to note and distinguish within the court's decision that "Marketing Analyst & Specialist" refers to the 
employer's particular position, whereas "Market Research Analysts" refers to a general occupational category. 
Matter a,[ S-A-M-, Inc. 
here. 10 Accordingly, aside from the claimed occupational category, there is no indication that the 
positions are similar. 
Further, in Raj, the court stated that a specialty occupation requires the attainment of a bachelor's 
degree or higher in a specific specialty, or its equivalent. The court confirmed that this issue is 
well-settled in case law and our reasonable interpretation of the regulatory framework. In the 
decision, the court noted that "permitting an occupation to qualify simply by requiring a generalized 
bachelor degree would run contrary to congressional intent to provide a visa program for specialized, 
as opposed to merely educated, workers." The court stated that the regulatory provisions do not 
restrict qualifying occupations to those for which there exists a single, specifically tailored and titled 
degree program; but rather, the statute and regulations contain an equivalency provision. 11 
In Raj, the court concluded that the employer met the first criterion. We must note, however, that 
the court stated that "[t]he first regulatory criterion requires the agency to examine the generic 
position requirements of a market research analyst in order to determine whether a specific 
bachelor's degree or its equivalent is a minimum requirement for entry into the profession." Thus, 
the decision misstates the regulatory requirement. That is, the first criterion requires the petitioner to 
establish that a baccalaureate or higher degree (in a specific specialty) or its equivalent is normally 
the minimum requirement for entry into the particular position. 
Consequently, if the court meant to suggest that any position classified under the occupational 
category "Market Research Analysts" would, as it stated, "come within the first qualifying criteria" -
we must disagree. 12 The occupational category designated by a petitioner is considered as an aspect 
in establishing the general tasks and responsibilities of a proffered position, and we regularly review 
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. That is, to determine whether a 
particular job qualifies as a specialty occupation, we do not simply rely on a position's title or 
designated occupational category. The specific duties of the proffered position, combined with the 
nature of the petitioning entity's business operations, are factors to be considered. We must examine 
10 
We note that the service center director's decision was not appealed to our office. Based on the district court's findings 
and description of the record, if that matter had first been appealed through the available administrative process, we may 
very well have remanded the matter to the service center for a new decision in our de novo review of the matter. 
11 
We agree with the court that a specialty occupation is one that requires the attainment of a bachelor's or higher degree 
in a specific specialty or its equivalent. We further note that a petitioner must also demonstrate that the position requires 
the theoretical and practical application of a body of highly specialized knowledge in accordance with section 
214(i)(I)(B) of the Act and 8 C.F.R. § 214.2(h)(4)(ii), and satisfy one of the four criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A). 
12 In Raj, the court quoted a brief excerpt from the Handbook; however, the quotation is from the 2012-2013 edition 
rather than the current 2016-2017 edition (which contains several revisions). Further, we observe that the court did not 
address the section of the Handbook indicating that there are no specific degree requirements to obtain the Professional 
Researcher Certification credential ~ and therefore to work as a market research analyst. 
8 
Matter of S-A-M-, Inc. 
the ultimate employment of the beneficiary, and determine whether the position qualifies as a 
specialty occupation. See generally Defensor, 201 F.3d 384. 
Nevertheless, it is important to note that the court in Raj determined that the evidence in the record 
demonstrated that the particular position proffered required a bachelor's degree in market research or 
its equivalent as a minimum for entry. Further, the court noted that "[t]he patently specialized nature 
of the position sets it apart from those that merely require a generic degree." The position in Raj 
can, therefore, be distinguished from the instant position. Here, 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)(J). 
Next, the Petitioner cites to Residential Finance Corp. v. USCJS, 839 F. Supp. 2d 985 (S.D. Ohio 
2012). We agree with the proposition that "[t]he knowledge and not the title of the degree is what is 
important." However, for the aforementioned reasons, 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. 
In any event, the Petitioner has furnished no evidence to establish that the facts of the instant petition 
are analogous to those in Residential Finance. 13 It is important to note that in a subsequent case 
reviewed in the same jurisdiction, the court agreed with our analysis of Residential Finance. See 
Health Carousel, LLC v. USCIS, No. 1 :13-CV-23, 2014 WL 29591 (S.D. Ohio 2014). 
Finally, on appeal, the Petitioner cites to Tapis Int 'l v. Immigration and Naturalization Service, 
94 F. Supp. 2d 172 (D. Mass. 2000) to further support its position that the proffered position is a 
specialty occupation even if a specifically-tailored degree is unavailable. We find, however, that 
Tapis does not support the Petitioner's position. 
Specifically, we note that in Tapis, the U.S. district court found that while the former Immigration 
and Naturalization Service (INS) was reasonable in requiring a bachelor's degree in a specific field, 
it abused its discretion by ignoring the portion of the regulations that allows for the equivalent of a 
specialized baccalaureate degree. According to the U.S. district court, INS's interpretation was not 
reasonable because then H-1 B visas would only be available in fields where a specific degree was 
offered, ignoring the statutory definition allowing for "various combinations of academic and 
experience based training." Tapis, 94 F. Supp. 2d at 176. The court elaborated that "[i]n fields 
13 
It is noted that the district judge's decision in that case appears to have been based largely on the many factual errors 
made by the Director in the decision denying the petition. We further note that the Director's decision was not appealed 
to us. Based on the district court's findings and description of the record, if that matter had first been appealed through 
the available administrative process, we may very well have remanded the matter to the service center for a new decision 
for many of the same reasons articulated by the district court if these errors could not have been remedied by us in our de 
novo review of the matter. 
9 
Matter of S-A-M-, Inc. 
where no specifically tailored baccalaureate program exists, the only possible way to achieve 
something equivalent is by studying a related field (or fields) and then obtaining specialized 
experience." !d. at 177. 
We agree with the district court judge in Tapis, that in satisfying the specialty occupation 
requirements, both the Act and the regulations require a bachelor's degree in a specific specialty, or 
its equivalent, and that this language indicates that the degree does not have to be a degree in a single 
specific specialty. 
Moreover, we also agree that, if the requirements to perform the duties and job responsibilities of a 
proffered position are a combination of a general bachelor's degree and experience such that the 
standards at both section 214(i)(l)(A) and (B) of the Act have been satisfied, then the proffered 
position may qualify as a specialty occupation. We do not find, however, that the U.S. district court 
is stating that any position can qualify as a specialty occupation based solely on the claimed 
requirements of a petitioner. 
Instead, we 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, 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 a specific specialty as the 
minimum for entry into the occupation as required by the Act. 
In addition, the district court judge does not state in Tapis that, simply because there is no specialty 
degree requirement for entry into a particular position in a given occupational category, we must 
recognize such a position as a specialty occupation if the beneficiary has the equivalent of a 
bachelor's degree in that field. In other words, we do not find that Tapis stands for either (1) that a 
specialty occupation is determined by the qualifications of a beneficiary being petitioned to perform 
it; or (2) that a position may qualify as a specialty occupation even when there is no specialty degree 
requirement, or its equivalent, for entry into a particular position in a given occupational category. 
First, we cannot determine if a particular job is a specialty occupation based on the qualifications of 
a beneficiary. A beneficiary's credentials to perform a particular job are relevant only when the job 
is first found to qualify as a specialty occupation. We are required instead to follow long-standing 
legal standards and determine first, whether the proffered position qualities as a specialty 
occupation, and second, whether the beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. CJ Michael Hertz, 19 I&N Dec. at 560 ("The facts of a 
beneficiary's background only come at issue after it is found that the position in which the petitioner 
intends to employ him falls within [a specialty occupation]."). 
Second, in promulgating the H-1 B regulations, the former INS made clear that the definition of the 
term "specialty occupation" could not be expanded "to include those occupations which did not 
require a bachelor's degree in the specific specialty." Temporary Alien Workers Seeking 
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Matter of S-A-M-, Inc. 
Classification Under the Immigration and Nationality Act, 56 Fed. Reg. 61,111, 61,112 (Dec. 2, 
1991) (to be codified at 8 C.F.R. pt. 214). More specifically, in responding to comments that "the 
definition of specialty occupation was too severe and would exclude certain occupations from 
classification as specialty occupations," the former INS stated that "[t]he definition of specialty 
occupation contained in the statute contains this requirement [for a bachelor's degree in the specific 
specialty, or its equivalent]" and, therefore, "may not be amended in the final rule.'' !d. 
In any event, the Petitioner has furnished no evidence to establish that the facts of this petition are 
analogous to those in Tapis. We also note that, in contrast to the broad precedential authority ofthe 
case law of a United States circuit court, we are not bound to follow the published decisions 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 decisions 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. 
For the aforementioned reasons, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
contemplates common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
We generally consider the following sources of evidence to determine if there is such a common 
degree requirement: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry establish that such firms "routinely 
employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 
(D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989) 
(considering these "factors" to inform the commonality of a degree requirement)). 
Here, however, the Handbook does not indicate that such a degree requirement is common within 
the industry for parallel positions among similar organizations. In support of the assertion that the 
II 
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Matter of S-A-M-, Inc. 
degree requirement is common in the industry, the Petitioner submitted excerpts from the websites 
of various professional organizations, including the 
, the . ). We have reviewed these 
excerpts; however, each organization simply indicates either that a bachelor's degree "is a starting 
point" or that candidates with undergraduate backgrounds in variety of fields "are well prepared" for 
careers in market research. Neither organization states that a bachelor's degree in a specific 
specialty, or its equivalent, is required. 
The Petitioner also submits a large number of job vacancy announcements for positions it claims are 
parallel to the proffered position in similar organizations within the Petitioner's industry. For the 
Petitioner to establish that other organizations are similar, it must demonstrate that they share the 
same general characteristics. Without such evidence, documentation submitted by the Petitioner is 
generally outside the scope of consideration for this criterion, which encompasses only organizations 
that are similar to the Petitioner. When determining whether the Petitioner and the organization 
share the same general characteristics, such factors may include information regarding the nature or 
type of organization, and, when pertinent, the particular scope of operations, as well as the level of 
revenue and staffing (to list just a few elements that may be considered). Notably, it is not sufficient 
for the Petitioner to claim that an organization is similar and in the same industry without providing 
a legitimate basis for such an assertion. 
The advertisements provided, however, do not establish a bachelor's degree in a spec(fic .\pecialty, 
or its equivalent is common to the industry in parallel positions among similar organizations. For 
example, many ofthe postings simply state that a bachelor's degree, without further specification, is 
required. Additionally, the postings that do specify fields in which candidates should hold degrees 
still accept a broad array of degrees. Many, such as the 
, and . identify business administration as an acceptable prerequisite. 
Returning to our prior observations regarding generalized degrees in business or business 
administration, these postings do not establish a specific course of study as warranted in the industry. 
Moreover, various other positions accept degrees in economics, statistics, finance, science, 
communications, journalism, or healthcare related fields. Again, while these postings all require a 
minimum of a bachelor's degree, we interpret 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 position. 
In addition, even if all of the job postings had indicated that a bachelor's or higher degree in a 
specific specialty, or its equivalent, were required, which they did not, the Petitioner has not 
established that the posted job announcements are for parallel positions in similar organizations in 
the same industry. For example, the Petitioner specifically acknowledges that a large portion of the 
submitted vacancy announcements are for positions outside the medical service and medical tourism 
industry. While we acknowledge the Petitioner's assertion that these postings are intended to reflect 
that the degree requirements for market research analyst positions is high throughout all industries, 
12 
Matter of S-A-M-, Inc. 
they do not establish that a specialty-degree requirement is standard in its own industry, or across a 
"d f" d . 14 w1 e array o m ustnes. 
On appeal, the Petitioner asserts that market research analyst positiOns in the medical tourism 
industry are typically external, as opposed to internal, positions, thereby rendering it difficult to 
demonstrate that an industry standard among similar organizations in this area. The Petitioner 
submits numerous profile pages from marketing and market research firms it claims specialize in 
providing market research and consulting services to firms similar to the Petitioner. While we note 
the industry trend for outsourced market research analysts, the issue before us is whether the record 
demonstrates that a common degree requirement exists within the industry for parallel positions 
among similar organizations. Here, while we have reviewed the profile pages for the companies the 
Petitioner contends are representative of the employment of many individuals in parallel positions, 
these documents, like the job advertisements, do not establish a common degree requirement. While 
they indicate that many personnel hold, or they are seeking individuals who hold, advanced degrees 
in fields ranging from bachelor's and masters' degrees in business administration, medical 
management, social media and graphic design, the fact remains that no common degree requirement 
has been established as an industry standard. 
For the reasons discussed above, the Petitioner has not satisfied the first alternative prong of 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.P.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. 
14 
Even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty is common to 
the industry in parallel positions among similar organizations (which they do not), the Petitioner has not demonstrated 
what statistically valid inferences, if any, can be drawn from the advertisements with regard to determining the common 
educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The 
Practice of Social Research 186-228 (1995). Moreover, given that there is no indication that the advertisements were 
randomly selected, the validity of any such inferences could not be accurately determined even if the sampling unit were 
sufficiently large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] process [of probability 
sampling]" and that "random selection offers access to the body of probability theory, which provides the basis for 
estimates of population parameters and estimates of error"). 
The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
13 
Matter of S-A-M-, Inc. 
On appeal, the Petitioner discussed the complex and unique nature of the medical tourism industry, 
and the rapid growth that is taking place within its company and the industry in general. The 
Petitioner submits documentation demonstrating the planned expansion for the Petitioner's business 
along with an overview and documentary evidence of agreements the Petitioner has recently 
acquired with new clientele. The Petitioner asserts that this evidence of its expansive growth 
demonstrates that the Beneficiary will be working in a complex and unique environment, requiring 
the Beneficiary to focus on both internal and external expansion. 
The Petitioner asserts that the Beneficiary's duties will involve "creative advertising" and that 
"exploration, analysis and planning on unchartered areas" will be required. While we acknowledge 
the existence of its client agreements and its expanding business, we find that the Petitioner has not 
sufficiently articulated the correlation between the required marketing duties of the Beneficiary and 
the need for a particular level of education in a specific specialty. Notably, the Petitioner repeatedly 
asserts that a degree in a "relevant, specific field of study" is required, but does not indicate that the 
degree must be in a specific specialty. As a result, the record does not demonstrate that the proffered 
position requires a bachelor's degree in a specific specialty, or its equivalent. 
Further, as previously noted, the LCA submitted by the Petitioner in support of the instant petition 
indicates a wage level at a Level I (entry) wage, which is the lowest of four assignable wage levels. 
Without further evidence, the record of proceedings does not indicate that the 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. This designation, when read in combination with 
the Petitioner's job description and the Handbook's account of the requirements for this occupation, 
further suggests that this particular position is not so complex or unique relative to other market 
research analyst positions that the duties can only be performed by an individual with a bachelor's 
degree or higher in a specific specialty, or its equivalent. 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 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. 
Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent for the position. The 
record must establish that a petitioner's stated degree requirement is not a matter of preference for 
high-caliber candidates but is necessitated instead by performance requirements of the position. See 
Defensor, 201 F.3d at 387-88. If we were limited solely to reviewing the 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 created a token degree 
14 
Matter of S-A-M-. Inc. 
requirement. !d. Evidence provided in support of this criterion may include, but is not limited to, 
documentation regarding the Petitioner's past recruitment and hiring practices, as well as 
information regarding employees who previously held the position. 
The Petitioner claims on appeal that it routinely hires degreed individuals. The Petitioner identifies 
its employees by name and position title, noting that its president holds a master's degree in 
accounting, whereas its client relations specialist has a master's degree in administrative sciences 
with a concentration in multinational commerce. The Petitioner further asserts that its two client 
specialists hold doctorate degrees in biology/biochemistry and chemistry, respectively. 
As noted above, the Petitioner must establish that the specific performance requirements of the 
position proffered here, that of the market research analyst, generated the recruiting and hiring 
history claimed by the Petitioner. The Petitioner does not assert that it previously employed a 
market research analyst, so there is no hiring history for the proffered position for us to examine. 
While the Petitioner relies on the advanced degrees held by its other employees as evidence that it 
routinely hires degreed individuals, it must be noted that they hold different positions than the 
proffered position in this matter, and the Petitioner has not provided duties for these positons to 
establish that they are similar to the position proffered. 
The record does not establish that the Petitioner normally requires at least a bachelor's degree in a 
specific specialty, or its equivalent, directly related to the duties of the position. Therefore, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The Petitioner again relies on its assertions that the medical tourism industry is complex, unique, and 
rapidly expanding, noting that a second office in Massachusetts as well as internal locations in China 
have or will be established. The Petitioner asserts that it requires a "highly qualified professional" 
who possesses a "related/relevant baccalaureate college degree" to ensure the continued growth of 
the business and to ensure no disastrous mistake are made. 
Again, the Petitioner has not established that the nature of the proposed duties is more specialized 
and complex than market research analyst positions that are not usually associated with a degree in a 
specific specialty. In reviewing the record of proceedings under this criterion, we reiterate our 
earlier discussion regarding the Handbook's findings for positions located within the "Market 
Research Analysts" occupational category. Again, the Handbook does not indicate that a bachelor's 
degree in a specific specialty, or the equivalent, is a standard, minimum requirement to perform the 
duties of such positions (to the contrary, it indicates precisely the opposite), and the record does not 
15 
Matter of S-A-M-, Inc. 
include sufficient factors that would elevate the duties proposed for the Beneficiary above those 
discussed in the Handbook. 
With regard to the specific duties of the positiOn proffered here, we find that the record of 
proceedings lacks sufficient evidence establishing that they are so specialized and complex that the 
knowledge required to perform them is usually associated with the attainment of a bachelor's degree 
in a specific specialty, or the equivalent. The Petitioner focuses on the expansion of its business, but 
does not sufficiently discuss how the Beneficiary's role in that expansion requires the performance 
of specialized, complex duties. 
Furthermore, the Petitioner's claims about the specialized and complex nature of the duties of the 
proffered position are also undermined by its designation of the proffered position as a Level I 
position (of the lowest of four assignable wage-levels) relative to others within the same 
occupational category. 15 
For these reasons, the Petitioner has not demonstrated in the record that its proffered position is one 
with specialized and complex duties to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-A-M-, Inc., 10# 380812 (AAO June 22, 2017) 
15 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, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, 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 relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
16