dismissed H-1B Case: Market Research

U.S. Citizenship 
and Immigration 
Services 
In Re: 4377281 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 16, 2020 
The Petitioner, a fashion retailer, seeks to employ the Beneficiary temporarily as a "market research 
analyst" under the H-lB nonimmigrant classification for specialty occupations. 1 The H-lB 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 of highly specialized knowledge; and 
(b) the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a 
minimum prerequisite for entry into the position . 
The Director of the Vermont Service Center denied the Form I-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. On appeal, the Petitioner asserts that the Director erred and did not consider pertinent 
evidence in the record. 
Upon de nova 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 offered position 
must meet one of the following criteria to qualify as a specialty occupation: 
1 See lmmigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § 110l(a)(l5)(H)(i)(b) . 
(]) 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. 2 
We construe 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. 3 
II. ANALYSIS 
The Petitioner initially provided the position's description and expanded on those duties in response 
to the Director's request for evidence (RFE). For the sake of brevity, we will not quote the most recent 
version; however, we note that we have closely reviewed and considered the duties. The Petitioner 
stated that the position requires at least a bachelor's degree with a major in marketing or a closely 
related degree. 
For the reasons discussed below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. 4 Specifically, we conclude that the record does 
not establish that the job duties require an educational background, or its equivalent, corresponding 
with a specialty occupation. 5 
A. Position's Duties 
We begin noting that a crucial aspect within this case is whether the Petitioner has sufficiently 
described the proffered position's duties such that we may discern the foll nature of the position. We 
observe a deficiency within the record in that passages of the proffered position's duties appear to be 
copied from Wikipedia or from a research project. 6 Moreover, the bulleted list of duties the Petitioner 
2 8 C.F.R. § 214.2(h)(4)(iii)(A). 
3 See Royal Siam COip. v. Chertof(, 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). Because the Petitioner questioned the Director's citation to the Defensor decision, we 
note neither our citation, nor the Director's, related to the portion of the Defensor decision relating to which entity was the 
Beneficiary's actual employer. 
4 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
5 The Petitioner submitted documentation to support the petition, including evidence regarding the position and its business 
operations. While we may not discuss every document submitted, we have reviewed and considered each one. 
6 For example, see Competitor analysis, Wikipedia (Nov. 13, 2019), https://en.wikipedia.org/wiki/Competitor _ analysis in 
2 
provided are taken directly from the U.S. Department of Labor's (DOL) Occupational Outlook 
Handbook (Handbook) entry for the "Market Research Analysts" occupation. 
Offering generic position duties from the Handbook is generally insufficient to demonstrate eligibility. 7 
The duties themselves provide the nature of the employment. 8 While the Petitioner may have interspersed 
some unique elements within the job description, the copied elements diminish the evidentiary value of 
the position's responsibilities. A general set of duties taken from the Handbook may be appropriate when 
defining the range of duties that may be performed within an occupational category, it does not adequately 
convey the substantive work that the Beneficiary will perform on a day-to-day basis within the 
Petitioner's business operations. 9 Here, the Petitioner has not demonstrated that its job descriptions 
sufficiently communicate: (1) the actual work that the Beneficiary would perform; (2) the complexity, 
uniqueness and/or specialization of the tasks; and/or (3) the correlation between that work and a need for 
a particular level of knowledge in a specific specialty. 
Although the copied functions adversely affect the Petitioner's claims, they are not to the extent that they 
completely undermine the organization's ability to establish some of the duties that the Beneficiary would 
perform within the proffered position. Therefore, we will evaluate whether the Petitioner has satisfied 
any of the regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), or the definition of a specialty occupation 
found at section 214(i)(l) of the Act. 
B. First Criterion 
Moving to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate or 
higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry 
into the particular position. To inform this inquiry, we recognize the Handbook as one authoritative 
source on the duties and educational requirements of the wide variety of occupations that it 
addresses. 10 The Petitioner submitted the required DOL ETA Form 9035 & 9035E, Labor Condition 
which the Petitioner utilized the same text as found on the website as follows: "Competitor analysis in marketing and 
strategic management is an assessment of the strengths and weaknesses of c111Tent and potential competitors. This analysis 
provides both an offensive and defensive strategic context to identify opportunities and threats. Profiling combines all of 
the relevant sources of competitor analysis into one framework in the support of efficient and effective strategy 
formulation, implementation, monitoring and adjustment." Or see, Graduation Research Project (Nov. 13, 2019), 
http:/ /14 .13 9 .111.26/xmlui/bi tstream/handle/ 1/ 65 9 /Tanvi %2 0Gupta. pdf? sequence= 1 in which the P eti ti oner again utilized 
the same text: "The purpose of a sales trend analysis is to gain a better understanding of past performance to answer 
specific questions, to solve business problems and/or to predict future performance." 
7 Cf Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990) (stating 
specifics are an important indication of the nature of a beneficiary's duties, otherwise meeting the requirements would 
simply be a matter of providing a job title or reiterating the regulations.) 
8 Id. 
9 DOL guidance states that for a wage level determination, it is important that the job description include "sufficient 
information to determine the complexity of the job duties, the level of judgment, the amount and level of supervision, and 
the level of understanding required to perform the job duties." DOL, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance. Nonagric. Immigration Programs (rev. Nov. 2009) (DOL guidance), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
10 We do not, however, maintain that the Handbook is the exclusive source of relevant information. To satisfy the first 
criterion, the Petitioner bears the burden to submit sufficient evidence to support a determination that its particular position 
will normally have at its minimum, a bachelor's degree requirement in a particular specialty, or its equivalent, for entry at 
any level - be it at the entry level (Level I), or at the fully competent level (Level TV). "[T]he choice of what reference 
3 
Application for Nonimmigrant Workers (LCA) with this petition, where it classified the proffered 
position under the occupational title Market Research Analysts, corresponding to the Standard 
Occupational Classification code 13-1161. 11 Under this criterion, the Petitioner addresses the 
Handbook entry for this occupation, as well as career resources and job postings it provided in its 
response to the Director's RFE. 
The Handbook reports that individuals working in positions located within this occupational category 
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, others 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, 
psychology, and sociology) are also important. Therefore, although the Handbook indicates that 
market research analysts typically need a degree, it also indicates that degrees and backgrounds in 
various fields are acceptable for jobs located within this occupational category-including computer 
science and the social sciences, as well as statistics and communications. 
On appeal, the Petitioner indicates that it believes the point of the Handbook here is to describe the 
closely related bachelor-level degrees that are acceptable to perform the requisite duties. The 
Petitioner also surmises that the Director narrowly interpreted the Handbook to mean the specialized 
study must be in a single academic discipline. The Petitioner subsequently generalizes USCIS' 
treatment of the H-1B program under the first criterion, and cites to Tap is Int'! v. INS, 94 F.Supp.2d 
172, 175-76 (D. Mass. 2000), and Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. 
Ohio 2012) in rebuttal to this generalized treatment. The Tapis and Residential Finance decisions 
indicated that the first regulatory criterion does not limit qualifying occupations to those for which 
there exists a single, specifically tailored degree program, and that the title of the degree ( e.g., 
"business") does not necessarily control. After reviewing the Director's decision, we conclude that 
she did not apply this criterion's requirements in such a manner. Instead, similar to our analysis under 
this criterion, the Director noted that the Handbook permits a wide variety of specialties to qualify to 
perform the duties for this occupation. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty ( or its equivalent)" requirement of section 214(i)(l )(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since there 
must be a close correlation between the required "body of highly specialized knowledge" and the 
position, however, a minimum entry requirement of a degree in disparate fields, such as philosophy 
and engineering, would not meet the statutory requirement that the degree be "in the specific specialty 
materials to consult is quintessentially within an agency's discretion .... " Royal Siam Co1p., 484 F.3d at 146. 
11 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services (USCIS) to 
demonstrate that it will pay the Beneficiary 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. Section 212(n)(l) of the Act; 20 C.F.R. § 655.731 (a). 
4 
( 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. 12 
The Handbook also states that "others have a background in business administration." As discussed, 
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. 13 Therefore, 
the Handbook's recognition that a general, non-specialty "background" in business administration is 
sufficient for positions located within this occupational category strongly suggests that a bachelor's 
degree in a spec[fic specialty is not normally the minimum entry requirement for this occupation. 
Relating to the career resources and job postings offered with the RFE response, the Director 
concluded that this evidence was insufficient to satisfy one of the regulatory criteria. 14 The Director 
concluded that while both types of evidence did indicate that a bachelor's degree was required, it did 
not reflect that the minimum requirement for entry into the position was a bachelor's degree in a 
specific specialty. On appeal, the Petitioner did not identify a specific error that the Director 
committed while analyzing this evidence. Instead, the Petitioner states that the career resources 
indicate that a degree in marketing, market research, or a closely related field is needed for the position. 
Furthermore, the Petitioner states that the job postings were for various companies who were hiring 
marketing research analysts and/or marketing analysts. The Petitioner also notes that the 
representative companies are not similar to the petitioning company, however the postings are for 
candidates who would perform duties that are very closely related to the position within this petition. 
A review of the career resources reveals that each piece of evidence contains much of the same 
information we described above found within the Handbook. For example, the information originating 
from the OwlGuru website states: 
Generally, employers are looking for Market Research Analysts who have a Bachelors 
[sic] degree. They also prefer someone who is good in Reading Comprehension and 
Active Listening .... We did a survey to ask other Marketing Research Analysts what 
did they major in college or university and here are the most popular majors that came 
up. 
Consumer Merchandising/Retailing Management . . . Applied Economics . . . 
Marketing/Marketing Management, General ... Marketing Research ... International 
Marketing .... 
12 Section 214(i)(l )(B) of the Act ( emphasis added). 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 rrom 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. 
13 See Royal Siam COip., 484 F.3d at 147. 
14 We note that the Director analyzed the job announcements under the second criterion but the Petitioner requests this 
material be considered under the first criterion, and we will do so here. 
5 
This website subsequently provided other information taken directly from the Handbook. In the same 
manner that the information within the Handbook describing a wide variety of acceptable fields was 
insufficient, so too is the similar information within the career resources. 
Turning to the job postings, many called for a wide variety of somewhat related or unrelated 
concentrations such as: (1) business or a similar discipline; (2) business; (3) business management; 
or (4) psychology, sociology, or business or liberal arts programs. Collectively, the postings indicate 
that the positions, if similar to the proffered position, do not have a degree requirement "in the specific 
specialty ( or its equivalent)," as required. 15 Moreover, some postings preferred a more advanced 
graduate degree or required experience that this petitioner did not; meaning those postings were more 
senior than the proffered position and did not relate to an entry-level position. 
Returning to the narrative of the Handbook, it further reports that some employees obtain the 
Professional Researcher Certification (PRC) 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 Marketing Research Association-now known as the Insights 
Association-to those who pass an exam and have at least three years of experience working in market 
research. 16 
We reviewed the Insights Association's 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." 17 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." 18 
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 
15 Section 214(i)(l)(B) of the Act (emphasis added). See also Royal Siam COip., 484 F.3d at 147 (a general-purpose 
bachelor's degree, such as a degree in business administration, without more, will not justify a conclusion that a particular 
position qualifies for classification as a specialty occupation); cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 
(Comm'r 1988). 
16 The Marketing Research Association merged with the Council of American Survey Research Organizations in 2017 to 
become the Insights Association (TA). About The Insights Association, Insights Association (Nov. 13, 2019), 
http://www.insightsassociation.org/about. The Insights Association is therefore the successor to the Marketing Research 
Association. The Insights Association website states that it "strives to effectively represent, advance, and grow the research 
profession and industry." About The Insights Association, Insights Association (Nov. 13, 2019), 
http://www.insightsassociation.org/about. 
17 Get Certified, Insights Association (Nov. 13, 2019), https://www.insightsassociation.org/advance-career/prc/get­
certified. 
18 I have been in the profession for many years. Why should I be certified?, Insights Association (Nov. 13, 2019), 
https://www.insightsassociation.org/faq/i-have-been-profession-many-years-why-should-i-be-certified. 
6 
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, the Insights Association 
highlights the importance of professional experience and industry-related professional courses 
(through conferences, seminars, and webinars). Thus, the Handbook and the Insights Association 
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 has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Therefore, it has not 
satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
C. 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 .... " 19 The first prong concentrates on the common industry practice, while the alternative 
prong narrows its focus to the Petitioner's specific position. 
1. First Prong 
The Petitioner insists it did not offer evidence or claims under this prong of the second criterion, and 
it does not purport to qualify under this provision. 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the Petitioner 
described the proffered position and its business operations, offered two opinion letters, and material 
within two appendices. The Petitioner initially indicated that at least a bachelor's degree with a major 
in marketing or a closely related field was necessary for the Beneficiary to perform in the position. 
We begin noting the compromising nature of the Petitioner's duties as much of the content appears to 
have originated from other Internet-based resources, to include the Handbook. This lack of originality 
for such a significant portion of the position's functions greatly reduces the effect of the Petitioner's 
job description. Nevertheless, we will evaluate the Petitioner's arguments within the appeal brief As 
each of the opinion letters relied primarily on the Petitioner's copied job description to form their 
19 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). 
7 
opinion of the degree level and discipline to sufficiently perform the offered position's duties, the 
evidentiary value of the opinion letters is similarly diminished. Also, relying on job functions copied 
directly from the Handbook and other resources again weighs against the Petitioner's claims about 
this position's relative complexity or uniqueness. 
The first opinion letter originated froml I a professor at I I University. D ~-~I used an incorrect job title of"Sr. Marketing Research Analyst" that the Petitioner did not utilize. 
The Petitioner did not resolve this incongruity in the record to explain I I error. 20 It is also 
unclear how such a senior-level position could be concurrently considered entry-level as designated 
on the LCA. I I provided two representative 'job offerings" that he claimed had a similar 
degree requirement as those of the proffered position. However, he only provided the Uniform 
Resource Locator (URL), and neither he nor the Petitioner supplied the website printouts to 
corroborate that claim. After attempting to replicate the URL containing over 200 characters, the 
website returned the response: "Unfortunately, this job is no longer available." Based on these 
insufficient results, we did not attempt to replicate the second URL, as the burden rests with the 
Petitioner to support these claims. As a result, the Petitioner did not offer probative evidence to 
corroborate! ~ claims relating to these job offerings. 
Even if they had provided the printouts, it is unclear how representative of two job postings are of the 
industry as a whole. Althoughl ! listed each of the proffered positions duties and describe the 
relevant coursework necessary to perform each of those duties, the functions he listed are those taken 
directly from the Handbook entry for the Market Research Analysts occupation. We observed that 
I !quoted directly from the Handbook within his opinion letter, but he did not recognize that 
the Petitioner copied the proffered positions duties directly from this DOL resource. 
The opinion letter from I I contains evidentiary anomalies. First, the university letterhead is 
not centered within the document and it appears discordant with much of the rest of the text on the 
first page. Specifically, the letterhead appears to be of a lesser quality resolution as if it has been 
photocopied several times. Additionally, the information within the footer of each page has a similar 
low-quality appearance. I Is signature also appears unusual, as portions of his signature 
below the line have been cut off, which would be consistent with documents that have been altered 
from their original state, or where information was pasted onto the P.age utilizing a word processor. 
At any rate, these anomalies adversely affect the evidentiary value ofl Is opinion letter. 
Setting those deficiencies aside) ~ indicated the skills required for the position are develo~ 
in the junior and senior years of an undergraduate program in marketing, or related fields. Whilel__J 
I ~roadly discussed several concepts that tacitly related to some of the position functions, his 
discussion lacked sufficient detail. Simply repeating the position description and opining that the 
duties require a bachelor's degree in one or more fields, does not include the necessary steps of 
detailing how and why he reached such a conclusion. 
To execute some functions of the proffered position, related courses may be helpful or necessary. 
However,! I has not established that a prepared educational program leading to a bachelor's 
20 Matter of Ho, 19 I&N Dec. 582. 591-92 (BIA 1988) (finding that a petitioner must rectify inconsistent information 
within the record with independent, objective evidence pointing to where the truth lies). 
8 
degree or higher in a specific specialty, or its equivalent, is required. Moreover, I Is 
conclusion is not supported with the results of formal surveys, research, statistics, or other objective 
quantifying information to substantiate the opinion. As a matter of discretion, we may use opinion 
statements submitted by the Petitioner as advisory. 21 However, we will reject an opinion or give it 
less weight if it is not in accord with other information in the record or if it is in any way questionable. 22 
We are ultimately responsible for making the final determination regarding an individual's eligibility 
for the benefit sought, and the submission of expert opinion letters is not presumptive evidence of 
eligibility. 23 
On appeal, the Petitioner states that the Director did not discuss Annexes E and F that it offered within 
the RFE response. Annex E consists of an expanded job description when compared to the initially 
provided material, as well as other material related to the position. Regarding the portion of Annex 
E containing the position's expanded job description, it contains much of the same information within 
the initial filing that either originated from the Handbook or other Internet sources. In addition to that 
repetitive information, the Petitioner included two descriptive columns. The first was labelled "Actual 
documentary examples," which the Petitioner informed USCIS that were actually illustrative and 
hypothetical examples. The Petitioner titled the second column as 'Typical college degree courses 
needed to perform this description." Under this column the Petitioner listed individual courses it 
claims are necessary to perform one of the job duties. This representation lacks sufficient detail for 
the Petitioner to establish the nexus between a detailed series or selection of courses students must 
complete while attaining a qualifying degree, and how the complex or unique nature of the position 
mandates courses in such disciplines. 
Also within Annex E, the Petitioner offered documentation it claims the Beneficiary created to better 
illustrate each job description. The Petitioner noted that the Beneficiary made this sample 
documentation "as illustrative samples ONLY and will not be used by our company." The Petitioner 
also indicated that while the statistics and data may relate to their products and services, they are purely 
hypothetical to demonstrate the type of documentation that the Beneficiary would create. Annex F 
consists of a marketing analysis report. The Petitioner indicated that this report also was for illustrative 
purposes only, and was purely hypothetical. As this material is only a representation of work the 
Beneficiary might produce, its value within the present proceedings is tenuous. The Petitioner did not 
offer an explanation of why it would submit an illustrative example of possible work, but not present 
actual work the Beneficiary has completed. As a result, it is unclear why the Director should have 
granted either Annex E or F with substantial evidentiary weight. 
Furthermore, the Petitioner designated the proffered position as a Level I position on the LCA. 24 When 
read in combination with the Petitioner's statements, the evidence presented, and the Handbook's 
21 See Matter of Caron International, 19 l&N Dec. 791, 795 (Comm'r 1988). 
22 Id. 
23 Id.; see also Matter of V-K-. 24 l&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while undoubtedly a 
form of evidence, does not purp011 to be evidence as to 'fact' but rather is admissible only if 'it will assist the trier of fact 
to understand the evidence or to determine a fact in issue."'). 
24 The issue here is that the Petitioner's designation of this position as a Level I position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same occupation. The 
Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). A Level I wage 
9 
account of the requirements for this occupation, this Level I designation suggests that the particular 
position is not so complex or unique to establish the position as a specialty occupation. 
The Petitioner claims that the Beneficiary is well qualified for the position, and references his 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently develop relative 
complexity or uniqueness as an aspect of the position. Accordingly, the Petitioner has not satisfied 
the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
D. Third Criterion 
The Petitioner insists it did not offer evidence or claims under this criterion, and it does not purport to 
qualify under this provision. 
E. 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. 
While the Petitioner provided a more detailed job description in response to the RFE, this information 
does not establish that the duties are more specialized and complex than similar positions that are not 
usually associated with at least a bachelor's degree in a specific specialty, or its equivalent. This is 
especially the case, as the Petitioner provided duties copied from the Handbook and from other 
resources. We also incorporate our previous discus,ion of the srortcomings within Annexes E and F, 
as well as the opinion letters from I I and~--~ The shortfalls associated with that 
evidence under the second criterion is equally as applicable under this criterion. Ultimately, this 
material does not carry the weight to demonstrate that the duties are so specialized or 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. 
Finally, we incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and its designation on the LCA as a Level I position (the lowest of four assignable 
wage-levels) relative to others within the occupational category. 25 Without further evidence, the 
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: ( 1) that the Beneficiary will be expected to perform routine tasks that require 
limited, if any, exercise of judgment; (2) that he will be closely supervised and his work closely monitored and reviewed 
for accuracy; and (3) that he will receive specific instructions on required tasks and expected results. DOL guidance, 
available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ 11 _ 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. Id. 
25 Nevertheless, a low wage-designation does not preclude a proffered position from classification as a specialty 
occupation, just as a high wage-designation does not definitively establish such a classification. In certain occupations 
(e.g., physicians or lawyers), a Level II position would still require a minimum of an advanced degree in a specific 
10 
Petitioner has not demonstrated that its proffered position is one with specialized and complex duties 
as such a position within this occupational category would likely be classified at a higher level, 
requiring a substantially higher prevailing wage. 26 
Although the Petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Therefore, the Petitioner has submitted 
insufficient evidence to satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
F. Definitional Requirement 
The process of demonstrating that a proffered position is sufficient to meet the requirements under the 
H-lB program includes more than satisfying one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). The 
regulation also requires a petitioner to demonstrate that a petition "involves a specialty occupation as 
defined in section 214(i)(l) of the Act." 27 This statutory definition states: "the term 'specialty 
occupation' means an occupation that requires ... [a] theoretical and practical application of a body 
of highly specialized knowledge, and ... 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." 
From this, we reason that the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) should be read logically as being 
necessary-but not necessarily sufficient-to meet the statutory and regulatory definition of a 
specialty occupation. To otherwise interpret the regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 
as stating the necessary, but not necessarily sufficient conditions as being adequate to qualify would 
result in some positions meeting a condition under the criteria, but not under the statutory definition. 28 
To avoid this erroneous 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 
definition of a specialty occupation. This results in a multi-part analysis to determine whether a 
particular position qualifies as a specialty occupation. As a result, an H-lB petition cannot be 
approved unless a petitioner demonstrates that a proffered position satisfies this statutory definition; 
not even if it demonstrates it has satisfied one of the four regulatory criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
Accordingly, were a petitioner to submit sufficient evidence to satisfy one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), we would then evaluate whether it had also satisfied the statutory definition. We 
conclude that in addition to not meeting any of the regulatory criteria, the Petitioner has not 
demonstrated the position in this petition qualifies as a specialty occupation under the statutory 
definition. 
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 2 l 4(i)( 1) of the Act. 
26 For example, a Level TV (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. For additional 
information regarding wage levels as defined by DOL, see DOL guidance, available at 
http://www.foreignlaborceit.doleta.gov/pdti'NPWHC _Guidance_ Revised_ 1 l _ 2009 .pdf 
27 8 C.F.R. § 214.2(h)(4)(i)(B)(2); see also 8 C.F.R. § 214.2(h)(l)(ii)(B)(l). 
28 See Defensor, 201 F.3d at 387; Sagarwala v. Cissna, No. CV 18-2860 (RC), 2019 WL 3084309, at *5 (D.D.C. July 15, 
2019). 
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III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
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