dismissed H-1B Case: Market Research

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-P-
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 18,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an electronic publishing and database provider, seeks to temporarily employ the 
Beneficiary as a "market research analyst (user experience researcher)" under the H-1B 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the 
Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 110l(a)(15)(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 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, Vermont Service Center, denied the petition. The Director concluded that the 
proffered position is not a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
not giving proper weight to the prior evidence submitted. 
Upon de novo review, we will dismiss the appeal.1 
I. LAW 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 
375-76 (AAO 201 0). 
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The regulation at 8 C.P.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: 
(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)~ U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the 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 described the position in its support letter as follows: 
[S]he will conduct research, analyze user actions through qualitative and quantitative 
methods, and collaborate with User Interface Designers, Product Managers, 
Requirements Analysts, and Engineers to improve [the Petitioner's] interfaces and 
develop new ones. Her work process will focus on connecting users with the power 
of [the Petitioner's] products, and making that connection as solid and strong as 
possible. 
The Petitioner further indicated that it requires at least a bachelor's degree in information science or 
a related field, plus market/user research and analysis experience for the proffered position. 
In response to the request for additional evidence (RFE), the Petitioner listed and broke down the 
"key responsibilities" for the position as follows: 
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• Conducting research, analyzing user actions through qualitative and 
quantitative methods, and collaborating with User Interface Designers, 
Product11anagers, 30~ 
• Serving as the conduit between business project stakeholders and the 
company's representative users, ensuring that user needs are best represented 
in new designs and balanced with the overall [Petitioner's host] UI platform 
experience; 5~ 
• Evaluating all the features contributing to user experience, providing 
expertise, collaborating internally, and occasionally leading projects; 5~ 
• Leading and facilitating research activities that support the definition of new 
products and feature enhancements to the company's world-class [Petitioner's 
host] Web and 11obile interfaces; 20~ 
• Providing analytical research services and innovative consulting as needed on 
topics related to user experience concepts and research methods, as well as the 
associated details of conducting various types of research studies; 5~ 
• Designing and conducting different types of user research studies, including 
lab-based usability studies, field studies, surveys, and usability inspections 
(heuristic evaluations or cognitive walkthroughs); 1 0~ 
• Analyzing metrics for [the Petitioner's host] electronic database; 10~ 
• Collaborating with product management teams to define and prioritize user 
experience research questions; 5~ 
• Ensuring effective communication of research findings, including presenting 
them to a variety of audiences, and synthesizing them into workable design 
principles; 5~ 
• Evaluating and introducing new tools and methodology for research methods 
and user experience documentation to the department/company. 5~ 
On the labor condition application (LCA) submitted in support of the H-1 B petition, the Petitioner 
indicated that the proffered position corresponds to the occupational category "11arket Research 
Analyst and 11arketing Specialists" with SOC (ONET/OES) code 13-1161.2 
2 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 
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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.3 
Specifically, the record does not establish that the proffered position requires an educational 
background, or its equivalent, commensurate with a specialty occupation.4 
A. First Criterion 
We will first discuss the proffered position in relation to the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into the particular position. 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. 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: 
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. 
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: (1) 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://flcdatacenter.com/download/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. Jd 
3 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
4 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
5 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 USCIS regularly reviews the Handbook on the duties and 
educational requirements ofthe 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. 
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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. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
Market Research Analysts, available on the Internet at http://www.bls.gov/oohlbusiness-and­
financial/market-research-analysts.htm (last visited Apr. 12, 2016). 
The Handbook reports that positions located within the market research analyst 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 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 employees typically need an advanced 
degree, it also indicates that degrees and backgrounds in various fields are acceptable for jobs in this 
occupation - including computer science and the social sciences, as well as statistics and 
communications. 
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In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
. of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty (or its equivalent)" requirement of section 214(i)(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 (or its equivalent)," unless the Petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required body of 
highly specialized knowledge is essentially an amalgamation of these different specialties.6 Section 
214(i)(1)(B) of the Act (emphasis added). 
The Handbook also states that "others have a background in business administration." Although a 
general-purpose bachelor's degree, such as a degree in business administration, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a finding 
that a particular position qualifies for classification as a specialty occupation. See Royal Siam Corp. 
v. Chert off, 484 F .3d at 14 7. 
That is, USCIS interprets the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree 
in a specific specialty (or its equivalent) that is directly related to the proposed position. Since there 
must be a close correlation between the required specialized studies and the position, the 
requirement of a degree with a generalized title, such as business administration, without further 
specification, does not establish the position as a specialty occupation. Cf Matter of Michael Hertz 
Associates, 19 I&N Dec. 558, 560 (Comm'r 1988). Therefore, the Handbook's recognition that a 
general, non-specialty "background" in business administration is sufficient for entry into the 
occupation strongly suggests that a bachelor's degree in a specific specialty is not normally the 
minimum entry requirement for this occupation. 
The narrative of the Handbook further reports that some employees obtain professional certification 
to demonstrate a level of professional competency. It continues by outlining the requirements for 
market research analysts to achieve the Professional Researcher Certification (PRC), and states that 
candidates qualify based upon their experience and knowledge. According to the Handbook, the 
credential is granted by the .Marketing Research Association to those who pass an exam and have at 
least three years of experience working in opinion and market research. 7 
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 Marketing Research Association website states that the association was founded in 1957 and is the leading and 
largest association of opinion and marketing research professions. For additional information, see 
6 
(b)(6)
Matter of E-P- · 
We reviewed the Marketing Research 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). Specifically, the Market Research Association 
emphasizes that the credentialing program differentiates the individual who takes it and provides a 
"badge" of competence 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 does not indicate that the market research analyst positions have any particular academic 
requirements for entry, nor does it indicate that these positions require any particular level of 
education to be identified as qualified and possessing a level of expertise/competence. Instead, the 
Market Research Association highlights the importance of professional experience and industry­
related professional courses (through conferences, seminars, and webinars). 
Thus, the Handbook and the Market Research Association website 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. Even if it did (which it does not), to satisfy the first criterion, the Petitioner must provide 
evidence to support . a finding that the particular position proffered would normally have such a 
minimum, specialty degree requirement or its equivalent. 
On appeal, the Petitioner asserts that the Director "failed to properly apply the preponderance of the 
evidence standard in evaluating occupational information found in various DOL resources" such as 
Occupational Information Network (O*NET) Summary Report. However, O*NET is insufficient to 
establish that the proffered position qualifies as a specialty occupation normally requiring at least a 
bachelor's degree in a specific specialty, or its equivalent, because it does not state a requirement for 
a bachelor's degree for this occupation. Rather, it assigns this occupation a Job Zone "Four" rating, 
which groups it among occupations for which "most ... require a four-year bachelor's degree, but 
some do not."8 Further, O*NET does not indicate that four-year bachelor's degrees required by Job 
Zone Four occupations must be in a specific specialty directly related to the occupation. Therefore, 
the O*NET information is not probative of the proffered position being a specialty occupation. 
The Petitioner submitted a position evaluation prepared by , Associate Professor 
of Computer Applications and Information Systems at the School of Business, 
We carefully evaluated assertions in support of the instant petition but find 
that his opinions are of limited probative value for the following reasons. 
http://www.marketingresearch.or g/about (last visited Apr. 12, 2016). 
8 See O*NET Summary Report for " 13-1161.00 -Market Research Analysts and Marketing Specialists," http://www. 
onetonline.org/link/summary / 13-1161.00 (last visited Apr. 12, 2016); O*NET Help - Job Zones, 
http://www.onetonline .org/help/online/zones (lastvisited Apr. 12, 2016). 
(b)(6)
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For example, while provides a brief, general description of the Petitioner's business 
activities, he does not demonstrate in-depth knowledge of its operations or how the duties of the 
position would actually be performed in the context of its business enterprise, Moreover, 
opinion letter does not cite specific instances in which his past opinions have been accepted or 
recognized as authoritative on this particular issue. There is no indication that he has conducted any 
research or studies pertinent to the educational requirements for such positions (or parallel positions) 
in the Petitioner's industry for similar 
organizations, and no indication of recognition by professional 
organizations that he is an authority on those specific requirements. His curriculum vitae does not 
reflect that he has published any works on the academic/experience requirements for market research 
analysts (user experience researcher) or related issues. 
Even assuming was an expert on degree requirements for market research analysts, his letter 
does not substantiate his conclusions, such that we can conclude that the Petitioner has shouldered its 
burden of proof. First, does not reference, cite, or discuss any studies, surveys, industry 
publications, authoritative publications, or other sources of empirical information which he may 
have consulted to complete his evaluation. 
Second, requirements for the proffered position differ from the Petitioner's requirements. 
Specifically, stated that the proffered position requires the attainment of at least a 
bachelor's degree in "Human Computer Interaction, Information Systems, or a related area, or the 
equivalent." As discussed, the Petitioner requires at least a bachelor's degree in information science 
or a related field. We further note that provided an extensive list of courses required to 
complete a degree in Human Computer Interaction or Information Systems; however, it appears that 
the Beneficiary only took two courses mentioned in the list. Therefore, the Petitioner did not 
establish how the fields of · human computer interaction or information systems are sufficiently 
related to the field of information science. In other words, since indicates that the 
proffered position requires different fields of study, and the Petitioner has not established how each 
field is directly related to the proffered position, his letter does not establish that a bachelor's degree 
in a specific specialty or its equivalent is normally the minimum requirement for entry into the 
particular position. 
Third, the record does not indicate whether was aware that, as indicated by the Level I 
wage on the LCA, the Petitioner considered the proffered position to be an entry-level market 
research analyst position for a beginning employee who has only a basic. understanding of the 
occupation. In other words, the Petitioner has not demonstrated that possessed the 
requisite information to adequately assess the nature of the position and appropriately determine the 
requirements for the proffered position based upon the job duties and level of responsibilities. 
We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of 
Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in 
accord with other information or is in any way questionable, we are not required to accept or may 
give less weight to that evidence. !d. Therefore, we find letter unpersuasive. For 
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Matter of E-P-
efficiency's sake, we hereby incorporate the above discussion regarding the letter into our analysis 
of each criterion at 8 C.F .R. § 214.2(h)( 4)(iii)(A). 
In this case, the Petitioner has not established that the proffered position falls under an occupational 
category for which the Handbook, or other authoritative source, indicates that normally the 
minimum requirement for entry is at least a bachelor's degree in a specific specialty, or its 
equivalent. Thus, the Petitioner has not satisfied the criterion at 8 C.P.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.P.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. 
USC IS generally considers 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 a degree requirement is common within the 
industry for parallel positions among similar organizations. Also, the Petitioner did not submit 
evidence from an industry professional association or from firms or individuals in the industry 
indicating such a degree is a minimum requirement for entry into the position. 
In support of the assertion that the degree requirement is common to the Petitioner's industry in 
parallel positions among similar organizations, the Petitioner submitted copies of job advertisements. 
However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements is misplaced. 
As noted, the Petitioner stated that it is an electronic publishing and database provider. For the 
Petitioner to establish that other organizations are similar, it must demonstrate that they share the 
9 
(b)(6)
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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 dements 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 included positions with , and 
the However, the advertisements contain insufficient information about the 
companies to establish that they are similar to the Petitioner. Therefore, the Petitioner did not 
establish that it shares the same general characteristics with the advertising companies, as well as 
information regarding which aspects or traits (if any) it shares with the employers. 
Further, contrary to the purpose for which the advertisements were submitted, some postings do not 
establish that at least a bachelor's degree in a specific specialty, or its equivalent is required for the 
position. For example, the advertisement for a user experience researcher placed by Google required 
a bachelor's degree in computer science, human computer interaction, cognitive science, 
experimental psychology, anthropology, information science, or a related field, which indicates a 
wide variety of fields may be acceptable for this type of position, rather than a degree in a specific 
specialty. 
Moreover, the Petitioner has not sufficiently established that the advertised positions are parallel to 
the proffered position. For example, the position advertised at the is for a user 
experience research manager position and requires "at least 5 years of experience leading UX 
research efforts." Further, the responsibilities include "play[ing] a leadership role in driving a user­
centered design process." Similarly, the position advertised at is for a senior user 
experience researcher and requires "5+ years' experience in user research and usability testing of 
applications." As previously discussed, the Petitioner designated the proffered position on the LCA 
as a Level I (entry) position in comparison to others within the occupation. The advertised positions 
appear to be for more senior positions than the proffered position. 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. That is, not every deficit of every job posting has been addressed.9 For the reasons 
9 Although the size ofthe relevant study population is unknown, the Petitioner does not demonstrate what statistically 
valid inferences, if any, can be drawn from these advertisements with regard to determining the common educational 
requirements for entry into parallel positions in similar companies. 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 ofany 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 
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discussed above, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
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. 
Again, 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 proceeding 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. 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references her 
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 duties of the position, and it did not identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. 
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 also establish that a petitioner's imposition of a degree requirement is not merely a 
matter of preference for high-caliber candidates but is necessitated by performance requirements of 
the position. See Defensor v. Meissner, 201 F.3d at 387-88. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. To this end, we usually review a petitioner's 
past recruiting and hiring practices, as well as information regarding employees who previously held 
parameters and estimates of error.") 
As such, even if the job announcements supported the finding that the position of market research analyst for companies 
that are similar to the Petitioner requires a bachelor'.s or higher degree in a specific specialty, or its equivalent, it cannot 
be found that such a limited number ofpostings that appear to have been consciously selected could credibly refute the 
findings of the Handbook that such a position does not require at least a baccalaureate degree in a specific specialty, or 
its equivalent, for entry into the occupation in the United States. 
11 
(b)(6)
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the position, and any other documentation submitted by a petitioner in support of this criterion of the 
regulations. 
The Petitioner stated in the Form I-129, Petition for a Nonimmigrant Worker, that it has 1876 
employees and that it was established in (approximately 30 years prior to filing of this H-IB 
petition). In response to the RFE, the Petitioner stated that it currently has "another individual 
working in a similar position," "who serves as our Sr. User Experience Researcher." However, as 
discussed above, the proffered position is not a senior level position. The Petitioner designated the 
proffered position as an entry-level position within the occupational category (by selecting a Level I 
wage). Further, the duties for "Sr. User Experience Researcher" include "act as lead 
facilitator 
during research sessions" and "serve as primary driver representing the data needs," which does not 
appear to be entry-level duties. Moreover, the "Sr. User Experience Researcher" position requires a 
bachelor's degree in Information Science and "2-5 years with user experience research methods" and 
"5+ years of progressive experience in User Experience, Information Architecture, Requirements 
Analysis, or Product Management." The proffered position requires a bachelor's degree in 
information science or related field plus market/user research and analysis experience, but the 
Petitioner did not specify the number of years required. As a result, it is unclear whether the duties 
and requirement for this position were the same or similar to the proffered position. 
Moreover, the Petitioner did not submit probative documentation in support of its statements (e.g., 
copies of diplomas/transcripts, employment records). In addition, the Petitioner did not provide the 
total number of people it has employed to serve in the proffered position. Consequently, it cannot be 
determined how representative the Petitioner's claim regarding one individual over a 30 year period 
is of the Petitioner's normal recruiting and hiring practices for the proffered position. 
Therefore, the Petitioner has not satisfied the third criterion of 8 C.F .R. § 214.2(h)( 4 )(iii)( A). 
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. 
Upon review of the record of the proceeding, we find that the Petitioner has not provided sufficient 
evidence to satisfy this criterion of the regulations. On appeal, the Petitioner claims that the job 
duties are "clearly highly specialized and complex" and "the Director's analysis and consideration of 
evidence . . . on the issue of the complex and specialized nature of the sponsored position is 
seriously flawed." 10 However, we incorporate our earlier discussion and analysis regarding the 
10 On appeal, the Petitioner cites to Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985, 996 (S.D. Ohio 2012)to 
state that "[USCIS] continues to reject this record in favor of supporting a flawed denial." However, the Petitioner has 
furnished no evidence to establish that the facts of the instant petition are analogous to those in Residential Finance. 
12 
Matter of E-P-
designation of the proffered position in the LCA as a Level I position (the lowest of four assignable 
wage-levels) relative to others within the occupational category. 11 The Petitioner has not 
demonstrated in the record that its proffered position is one with duties sufficiently specialized and 
complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
Because the Petitioner has not satisfied one ofthe criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demopstrated that the proffered position qualifies as a specialty occupation. 
IV. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofE-P-, ID# 16125 (AAO Apr. 18, 2016) 
Further, 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 pe.tition. 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. 
We also note that, in .contrast to the broad precedential authority of the case law of a United States circuit court, we are 
not bound to follow the published decision of a United States district court in matters arising even within the same 
district. See Matter of K-S-, 20 I&N Dec. 715, 719-20 (BIA 1993). Although the reasoning underlying a districtjudge's 
decisio~ will be given due consideration when it is properly before us, the analysis does not have to be followed as a 
matter oflaw. !d. · 
11 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. 
13