dismissed H-1B Case: Market Research Technology

(b)(6)
DATE: NAY 2 6 2015 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: VERMONT SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service: 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.�. § 103.5. Do not file a motion directly with the AAO. 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The service center director ("the director") denied the nonimmigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. The petition will be denied. 
On the Petition for a Nonimmigrant Worker (Form I-129 ), the petitioner describes itself as a 
five-employee "Survey-based market research technology firm" established in In order to 
employ the beneficiary in a position in what it designates as a "Telecommunications Research 
Analyst" position, the petitioner seeks to classify her as a nonimmigrant worker in a specialty 
occupation pursuant to section 101 (a)(15)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U. S.C. § 1101 (a)(15)(H)(i)(b). 
The director denied the petition determining that the evidence of record did not establish that the 
duties of the proposed position comprise the duties of a specialty occupation. 
The record of proceeding before this office includes the following: (1) the Form I-129 and 
supporting documentation; (2) the director's request for evidence (RFE); (3) the petitioner's 
response to the RFE; ( 4) the notice of decision; and (5) the Notice of Appeal or Motion (Form 
I-290B), counsel's brief and additional documentation. We reviewed the record in its entirety 
before issuing our decision.1 
For the reasons that will be discussed below, we agree with the director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the appeal will be dismissed. 
I. FACTUAL AND PROCEDURAL HISTORY 
In this matter, the petitioner stated on the Form I-12 9 that it seeks the beneficiary's services as a 
telecommunication research analyst, on a full-time basis for an annual wage of $66,000. In a letter, 
dated March 12 , 2014, the petitioner claimed that through its Enterprise Technology Research 
(ETR) and Enterprise Technology Research and Development (ETR&D) divisions it is a leading 
survey-based market research technology firm. The petitioner indicated that it delivers 
technology-related data and insights necessary for its clients to make the best forward-looking 
decisions, as well as identifying and developing innovative new technologies for the enterprise. 
The petitioner stated that it needed to "employ a Research Analyst to conduct research and analysis 
in Telecommunications (TelCo) and Mobile Device Management (MDM)" and that "[s]pecific 
areas of focus will include strategy, architecture, best practices, technologies and vendors of 
telecommunications and mobile devices." The petitioner stated further that it expected the "Analyst 
to expand [its] research sample and perform the necessary research technology trends and voids that 
need to be served" and to "develop a network of potential end users/buyers of said technologies in 
the Latin American markets for [its] US-based investor clients who focus on Latin American 
technology companies." 
The petitioner listed the responsibilities of the position as including the following: 
1 We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
(b)(6)
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NON-PRECEDENT DECISION 
• Develop, cultivate, grow and manage survey research sample members (i.e. CIOs 
[Chief Information Officers]) in the Latin American region[.] 
• Create TelCo-focused surveys (bilingual) and interpret survey results[.] 
• Lead the TelCo and MDM research by identifying critical questions facing ETR 
clients and crafting appropriate research methods to address them. 
• Provide management with in-depth analysis of survey results and interpretations 
based on knowledge and prior experience in technology and industry associated 
with telecommunications and mobile devices including the market, vendors, 
products and user strategies. 
• Monitor industry statistics and follow trends within the industries including 
tracking overall telecommunications economics and forecast service provider 
revenue as well as outsourcing and managed services. 
• Help identify new market opportunities and product development, competitive 
analysis and service provider go-to-market strategy. 
• Research and analyze related data to provide insight, predictions and advice for 
clients in Telecommunications and Mobile strategies and technologies and its 
intersection with Cloud, Big Data, Information Security and Enterprise 
Information Management. 
• Forecast and track marketing and sales trends, analyzing collected data for ETR to 
quickly and accurately identify trends in the marketplace[.] 
• Assist the sales team in sales and retention and expand client base to include 
appropriate potential institutional investor clients, banks, endowments, pensions, 
hedge and mutual funds, venture capital and private equity firms. 
• Communicate research findings and analysis to clients to support the sales force 
in new sales and client retention in Latin America[.] 
• Drive client demand for ETR 's research on telecommunications and mobile 
device management[.] 
• Create and deliver high value presentations and other materials on market analysis 
of telecommunications and mobile device management products and services[.] 
• Prepare regular reporting of findings, illustrating data graphically and translating 
complex findings into written reports as well as quarterly and annual reports on 
research notes[.] 
• Travel to Latin American countries for marketing and client meetings to present 
research findings and to conduct additional research within the Latin American 
TelCo and MDM space. 
The petitioner stated that these "job duties require someone with advanced knowledge and 
experience, specifically in the field of Telecommunications that is normally associated with the 
attainment of a Bachelor of Science degree in Engineering or Computer Science." 
The petitioner noted that the beneficiary received a Bachelor of Science degree in Electrical 
Engineering from University in Venezuela and provided an academic evaluation 
showing the foreign degree had been evaluated as the equivalent of a bachelor's degree in electrical 
engineering from a regionally accredited educational institution in the United States. 
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NON-PRECEDENT DECISION 
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The initial record further included the required certified Labor Condition Application (LCA) in 
which the petitioner attested that the LCA designation for the proffered position corresponds to the 
occupational category "Market Research Analysts and Marketing Specialists" - SOC (ONET/OES 
Code) 13-1 161, at a Level II (qualified) wage for the New York City metropolitan area. 
Upon review of the initial record, the director requested additional evidence to establish that the 
proffered position qualifies for classification as a specialty occupation. The director outlined the 
specific evidence that could be submitted. 
In a letter, dated July 28, 2014, the petitioner provided further explanation regarding the 
beneficiary's proposed duties and the time she would spend performing those duties. The petitioner 
noted that the beneficiary would spend 30 percent of her time devising methods and procedures for 
obtaining data and conducting surveys, 40 percent of her time reviewing, analyzing and evaluating 
collected data and applying statistical analysis of relevant data, and 30 percent of her time preparing 
reports on research results and developing forecasts and recommendations based on findings for 
clients. 
The petitioner also submitted several job announcements in support of its assertion that a bachelor's 
degree in engineering for the same or similar employment is normal within the industry. 
Additionally, the petitioner identified its five employees by name, position, and qualification. The 
petitioner asserted that the beneficiary's degree in electrical engineering provides her the 
qualifications necessary to perform the duties of a market research analyst who is expected to gather 
and obtain technological data related to the telecommunications industry and to identify the critical 
questions facing clients and devise the research methods to obtain the needed data. 
' 
Upon review of the record, the director denied the petition, determining that the record did not 
include sufficient evidence to establish that the proffered position is a specialty occupation. 
On appeal, the petitioner asserts that it submitted documentation establishing its normal business 
requirement for a bachelor's degree, and based on the highly complex and specialized job duties to 
be performed as part of the proffered position, a degree in telecommunications engineering and/or 
electrical engineering is directly related to the job offered. The petitioner also reiterates its belief 
that such a degree requirement is common within the industry and references the job postings 
previously submitted in support of the petition. The petitioner asserts that the position of market 
research analyst requires at least a baccalaureate degree, that the only issue to be determined is 
whether the degree required and the degree earned by the beneficiary is in a specific specialty, and 
that in this matter the beneficiary's engineering degree is directly related to the proffered position. 
The petitioner cites two unpublished AAO decisions in support of this assertion. The petitioner 
concludes that the degree required and held by the beneficiary is common within the industry and 
that the duties are so complex and highly specialized that they can be performed only by someone 
with such a degree. The petitioner also submits letters from four firms expressing their preference 
for hiring research analyst positions covering the technology and telecommunications sectors who 
have engineering degrees. 
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Page 5 
II. THE ISSUE ON APPEAL 
NON-PRECEDENT DECISION 
As noted above, the director determined that the petitioner had not established that the position 
proffered here is a specialty occupation. According! y, the issue on appeal is whether the petitioner 
provided sufficient evidence to establish that it will employ the beneficiary in a specialty occupation 
position. To meet its burden of proof in this regard, the petitioner must establish that the 
employment it is offering to the beneficiary meets the applicable statutory and regulatory 
requirements. 
A. The Law 
Section 21 4(i)(l) of the Act, 8 U.S.C. § 11 84(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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1 )] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214 .2(h)(4)(ii i)(A), to qualify as a specialty occupation, a proposed position 
must also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions 
among similar organizations or, in the alternative, an employer may show 
that its particular position is so complex or unique that it can be performed 
only by an individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge ·required to perform the duties is usually associated with the 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
attainment of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.P.R. § 214. 2(h)(4)(iii)(A) must logically be read together 
with section 214( i)(l) of the Act and 8 C.P.R. § 214. 2(h)( 4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 28 1, 291 (1 988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 56 1 (19 89); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 19 96). As such, the criteria stated in 8 C.P.R. 
§ 214. 2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.P.R. 
§ 214. 2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 
201 P.3d 381, 387 (5th Cir. 2000). To avoid this result, 8 C.P.R. § 214. 2(h)(4)(iii)(A) must 
therefore be read as providing supplemental criteria that must be met in accordance with, and not as 
alternatives to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 21 4(i)(l) of the Act and the regulation at 8 C.P.R. 
§ 214. 2(h)( 4) (ii), the U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "d egree" 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 proffered position. See 
Royal Siam Corp. v. Chertojf, 484 P.3d 139 , 147 (1s t Cir. 2007) (describing "a degree requirement 
in a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 20 1 P.3 d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
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NON-PRECEDENT DECISION 
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B. Analysis 
We will first review the record of proceeding in relation to the criterion at 8 C.F.R. 
§ 214. 2(h)(4)(iii)(A)(l), which requires that a baccalaureate or higher degree in a specific specialty 
or its equivalent is normally the minimum requirement for entry into the particular position. 
We recognize the 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? 
We reviewed the chapter of the Handbook entitled "Market Research Analysts," including the 
sections regarding the typical duties and requirements for this occupational category? However, the 
Handbook does not indicate that "Market Research Analysts" comprise an occupational group for 
which at least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. 
The subchapter of the Handbook entitled "How to Become a Market Research Analyst" states the 
following about this occupational category: 
Most market research analysts need at least a bachelor's degree. Top research 
positions often require 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 econom ics, 
psychology, and sociology, are also important. 
Some market research analyst jobs require a master's degree. Several schools offer 
graduate programs in marketing research, but many analysts complete degrees in 
other fields, such as statistics and marketing, and/or earn a Master of Business 
Administration (MBA). A master's degree is often required for leadership positions 
or positions that perform more technical research. 
2 The Handbook, which is available in printed form, may also be accessed on the Internet, at http:// 
www.stats.bls.gov/oco/. Our references to the Handbook are to the 2014- 2015 edition available online. 
3 We hereby incorporate the chapter of the Handbook regarding "M arket Research Analysts" into the record 
of proceeding. 
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NON-PRECEDENT DECISION 
Page 8 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Market Research Analysts, on the Internet at http://www .bls.gov/ooh/business-and­
financial/market-research-analysts.htm#tab-4 (last visited May 20, 2015). 
The Handbook does not state that a baccalaureate or higher degree in a specific specialty, or its 
equivalent is normally the minimum requirement for entry into the occupation. This passage of the 
Handbook reports that market research analysts have degrees and backgrounds in a wide variety of 
disparate fields. The Handbook states that employees typically need a bachelor's degree in market 
research or a related field, but the Handbook continues by indicating that many market research 
analysts have degrees in fields such as statistics, math, or computer science. According to the 
Handbook, other market research analysts have a background in fields such as business 
administration, one of the social sciences, or communications. The Handbook notes that various 
courses are essential to this occupation, including statistics, research methods, and marketing, while 
also indicating that courses in communications and social sciences (such as economics, psychology, 
and sociology) are also important. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
requirement of a bachelor's of higher degree in more than one specialty is recognized as satisfying 
the "degree in the specific specialty (or its equivalent)" requirement of section 214(i)(1)(B) of the 
Act. In such a case, the required "body of highly specialized knowledge" would essentially be the 
same. Since there must be a close correlation between the required "body of highly specialized 
knowledge" and the position, however, a minimum entry requirement of a degree in disparate fields, 
such as philosophy and engineering, for example, would not meet the statutory requirement that the 
degree be "in the specific specialty (or its equivalent)," unless the petitioner establishes how each 
field is directly related to the duties and responsibilities of the particular position such that the 
required body of highly specialized knowledge is essentially an amalgamation of these different 
specialties. Section 214( i)(1 )(B) of the Act (emphasis added). Here, the petitioner has not 
established the specific "body of specialized knowledge" that is required to perform the duties of the 
market research analyst. 
Although the Handbook indicates that a bachelor's degree is typically needed for these positions, it 
also indicates that baccalaureate degrees in various fields are acceptable for entry into the 
occupation. In addition to recognizing degrees in disparate fields and backgrounds (i.e., social 
science4 and computer science) as acceptable for entry into this occupation, the Handbook also 
states that "others have a background in business administration." A general-purpose bachelor's 
degree, such as a degree in business administration, may be a legitimate prerequisite for a particular 
position, requiring such a degree, without more, will not justify a finding that a particular position 
qualifies for classification as a specialty occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d at 
147. 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. 
4 According to Webster's II New College Dictionary 1047 (Houghton Mifflin 2001), the "social sciences" 
include sociology, psychology, anthropology, economics, political science, and history. 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
Accordingly, as the Handbook indicates that working as a market research analyst does not 
normally require at least a bachelor's degree in a specific specialty, or its equivalent, for entry into 
the occupation, it does not support the proffered position as qualifying as a specialty occupation. 
On appeal, counsel references two unpublished AAO decisions. The first unpublished decision, 
dated June 24, 2008, pertains to a financial analyst position and the second unpublished decision, 
referred to in part in a printout from an internet website as a May 23, 2000 AAO decision, pertains 
to a software design engineer. Upon review of these references and the supporting information 
provided we do not find that either unpublished decision includes facts analogous to the instant 
petition. More significantly, while 8 C.F.R. § 10 3. 3(c) provides that AAO precedent decisions are 
binding on all USeiS employees in the administration of the Act, unpublished decisions are not 
similar! y binding. 
The petitioner also asserts on appeal that it has established that its particular position requires at 
least a baccalaureate degree and the beneficiary's degree is in a specific specialty that is directly 
related to the proffered position, implying that this establishes the proffered position as a specialty 
occupation. However, we cannot determine if a particular job is a specialty occupation based on the 
qualifications of the 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. users is required to follow 
long-standing legal standards and determine first, whether the proffered position qualifies as a 
specialty occupation, and second, whether an alien beneficiary was qualified for the position at the 
time the nonimmigrant visa petition was filed. Cf. Matter of Michael Hertz Assoc., 19 I&N Dec. 
558, 560 (eomm'r 19 88) ("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]. "). 
Additionally, in promulgating the H-1B 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." 56 Fed. Reg. 61111, 6111 2 (Dec. 2, 19 91 ). 
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." Id. 
In the instant case, the petitioner has not established that the proffered position falls under an 
occupational category for which the Handbook (or other objective, authoritative source) indicates 
that at least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry into the occupation. Furthermore, the duties and requirements of the 
proffered position as described in the record of proceeding by the petitioner do not indicate that the 
position 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 evidence of record does not satisfy the first 
criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(J). 
Next, we will review the record regarding the first of the two alternative prongs of 8 e.F.R. 
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NON-PRECEDENT DECISION 
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§ 214. 2(h)( 4)(i ii)(A)(2). This prong alternatively calls for a petitioner to establish that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for 
positions that are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 11 51, 11 65 (D.Minn. 
19 99) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 10 95, 11 02 (S.D.N.Y. 19 89)). 
As previously discussed, the petitioner has not established that its proffered position is one for which 
the Handbook (or other objective, authoritative source), reports a standard, industry-wide requirement 
for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. Further, the petitioner did not submit documentation 
from the industry's professional association indicating that it has made a degree a minimum entry 
requirement. 
In support of its assertion that the degree requirement is common to the petitioner's industry in 
parallel positions among similar organizations, the petitioner submitted copies of eight job 
advertisements. However, upon review of the evidence, we find that the petitioner's reliance on the 
job announcements is misplaced. 
For the petitioner to establish that an organization is similar, it must demonstrate that the petitioner 
and the organization share the same general characteristics. Without such evidence, documentation 
submitted by a 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 advertising 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). 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. 
On the Form I-129, the petitioner stated that it is a survey-based market research technology firm 
with five employees. The petitioner stated its gross annual income is exceeds $2,000,000 and its net 
income exceeds $950,000. 5 The petitioner designated its business operations under the North 
American Industry Classification System (NAICS) code 54 160 0. NAICS currently does not include 
the code 54 160 0 but indicates that 54 16 is the industry segment for management, scientific, and 
technical consulting services. In addition, 54 161 3 is the subheading for "Marketing, Consulting 
5 The record does not include the petitioner's federal tax returns or other documentation substantiating these 
figures. 
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NON-PRECEDENT DECISION 
Page 11 
Services." 6 The U.S. Department of Commerce, Census Bureau website describes this NAICS code 
as follows: 
This U.S. industry comprises establishments primarily engaged in providing 
operating advice and assistance to businesses and other organizations on marketing 
issues, such as developing marketing objectives and policies, sales forecasting, new 
product developing and pricing, licensing and franchise planning, and marketing 
planning and strategy. 
See U.S. Dep't of Commerce, U.S Census Bureau, 20 12 NAICS Definition, 54 1613 - Marketing 
Consulting Services on the Internet at http://www .census.gov/cgi-bin/sssd/naics/naicsrch (last 
visited May 20, 20 15 ). 
The petitioner in this matter appears to gather information on the telecommunications industry, a 
technical industry, in order to sell the information or otherwise use the data gathered to create 
products. Thus, the petitioner falls within the 54 16 industry segment for scientific and technical 
consulting services and moreover most likely under the subheading for "Marketing Consulting 
Services, Industry." 
Upon review of the advertisements submitted, we find that they do not establish that a requirement 
for a bachelor's degree in a specific specialty, or its equivalent, is common to the petitioner's 
industry in similar organizations for parallel positions to the proffered position. Moreover, 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. 
First, the petitioner has submitted advertisements for or ganizations that do not appear to be similar 
to the petitioner. More specifically, the advertisements include positions with 
(an automobile manufacturer), (sound and vibration measurement and analysis), 
(an engineering and electronics conglomerate), 
(semiconductor foundry), and (electrodesign automation). The petitioner did not 
state which aspects or traits (if any) it shares with these specific advertising organizations. Without 
further information, the advertisements from these companies appear to be for organizations that are 
not similar to the petitioner and the petitioner has not provided any probative evidence to suggest 
otherwise. The petitioner also provided advertisements from two research firms, and 
� Although these two firms appear to correspond more closely to the petitioner's 
survey-based market research technology industry, the petitioner has not established these firms' 
6 NAICS is used to classify business establishments according to type of economic activity, and each 
establishment is classified to an industry according to the primary business activity taking place there. See 
U.S. Dep't of Commerce, U.S. Census Bureau, NAICS, on the Internet at http://www.census.gov/ 
eos/www/naics/ (last visited May 20, 2015). 
7 The petitioner included two advertisements posted by 
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NON-PRECEDENT DECISION 
Page 12 
revenue or staffing is comparable to those of the petitioner. The record does not include sufficient 
probative evidence to establish that any of the advertising organizations are similar to the petitioner. 
Second, contrary to the purpose for which the advertisements were submitted, although all the job 
postings submitted specify that a bachelor's degree is required, the advertisers list a variety of 
degrees as acceptable to perform the duties of the different advertised positions. Four of the 
advertisers find a bachelor's degree in the general field of business or business administration as 
acceptable to perform the duties of their advertised position. As discussed, the degree requirement 
set by the statutory and regulatory framework of the H-1B program is not just a bachelor's or higher 
degree, but a degree in a specific specialty that is directly related to the specialty occupation 
claimed in the petition. Again, although a general-purpose degree (such as a "business" degree") 
may be a legitimate prerequisite for a particular position, requiring such a degree, without more, 
will not justify a finding that a particular position qualifies for classification as a specialty 
occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d at 147. Thus, advertisements that request a 
general-purpose degree are not probative to the issue of whether the petitioner's proffered position 
requires a degree in a specific specialty. 
· 
The petitioner on appeal notes that the advertisements submitted require degrees in a variety of 
fields, such as computer information systems, computer science, engineering (including electrical 
and telecom engineering), economics, finance, chemistry, physics, and material science as well as 
business and business administration. Thus, the advertisements submitted reinforce the Handbook's 
report that there are a variety of degrees and backgrounds available to enter into the occupation of a 
market research analyst. 
The petitioner contends, however, that these advertisements demonstrate that US employers in the 
technology industry can be very specific in the degrees that they require and that the variety of 
degrees related to job responsibilities and performance should not preclude a position from being a 
specialty occupation. In this matter, however, it is not whether other companies require different 
degrees to perform the duties of their advertised positions for a market research analyst position but 
whether a bachelor's degree in a specific discipline, or its equivalent, is common for positions that 
are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered position, and 
also (3) located in organizations that are similar to the petitioner. This, the petitioner has not 
established. 
Further, even if all of the job postings indicated that 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 fails to demonstrate 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. 8 
8 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"). 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
As the job postings do 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, as the evidence does not establish that similar organizations in the same industry routinely 
require at least a bachelor's degree in a specific specialty, or its equivalent, for parallel positions, not 
every deficit of every job posting has been addressed. 
We have also reviewed the four letters from research firms expressing a preference for hiring 
research analysts who cover the technology and telecommunications sectors to have engineerin� 
degrees. Each letter-writer uses the same or similar language when stating this preference. 
Notably, none of the letter-writers indicate that they require the successful candidate to have an 
engineering or other degree. Preference for a degree is not synonymous with a routine requirement 
for individuals to possess a bachelor's degree in a specific discipline. Thus, these letter-writers do 
not persuade that there is a routine educational requirement within the petitioner's industry for 
positions parallel to the petitioner's position. 
Thus, based upon a complete review of the record, the petitiOner has not established that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common to 
the petitioner's industry in positions that are common for positions that are identifiable as being 
(1) in the petitioner's industry, (2) parallel to the proffered position, and also (3) located in 
organizations that are similar to the petitioner. For the reasons discussed above, the petitioner has 
not satisfied the first alternative prong of 8 C.F.R. § 214.2(h )(4)(iii)(A)(2). 
We will next consider the second alternative prong of 8 C.F.R. § 214.2 (h)(4)(iii)(A)(2), which is 
satisfied if the petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
As such, even if the job announcements supported the finding that the position (for organizations similar to 
the petitioner) required a bachelor's or higher degree in a specific specialty or its equivalent, it cannot be 
found that such a limited number of postings that appear to have been consciously selected could credibly 
refute the findings of the Handbook published by the Bureau of Labor Statistics that such a position does not 
require at least a baccalaureate degree in a specific specialty for entry into the occupation in the United 
States. . 
9 The use of identical language and phrasing across the various letters suggest that the language in the letters 
is not the authors' own. Cf Surinder Singh v. BIA, 438 F.3d 145, 148 (2d Cir. 2006) (upholding an adverse 
credibility determination in asylum proceedings based in part on the similarity of the affidavits); Mei Chai Ye 
v. U.S. Dept. of Justice, 489 F.3d 517, 519 (2d Cir. 2007) (concluding that an immigration judge may 
reasonably infer that when an asylum applicant submits strikingly similar affidavits, the applicant is the 
common source). 
Because the letters appear to have been drafted by someone other than the purported authors, the letters 
possess little credibility or probative value. In evaluating the evidence, the truth is to be determined not by 
the quantity of evidence alone but by its quality. See Matter of Chawathe, 25 I&N Dec. 369, 376 
(AAO 2010). 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
In support of the petition, the petitioner provided information regarding the proffered position and 
evidence regarding its. business operations. However, upon review of the record, we find that the 
petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the 
proffered position of market research analyst. 
First, we observe that when attempting to understand the actual duties of the proffered position and 
the level of complexity they may require, we also look to the LCA submitted with the petition. 
When reviewing the duties of the proffered position and the corresponding LCA we note that the 
petitioner designated the proffered position under this occupational category at a Level II wage on 
the LCA.10 Such a designation indicates that although the individual in the Level II wage level 
position has a good understanding of the occupation, she will perform only moderately complex 
tasks that require limited judgment. That is the LCA designation does not connote a position that 
includes duties that are complex or unique as such a position would likely be classified at a higher­
level, such as a Level III (experienced) or Level IV (fully competent) position, requiring a 
significantly higher prevailing wage.11 
More importantly, the petitioner did not submit information relevant to a detailed course of study 
leading to a specialty degree and did not establish how such a curriculum is necessary to perform 
the duties that it claims are so complex or unique. While a few related courses may be beneficial, or 
even required, in performing certain duties of the position, the petitioner has not demonstrated how 
an established curriculum of such courses leading to a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is required to perform the market research duties of the proffered 
position. For example, the petitioner in this matter stated that the job duties it described required an 
engineering or computer science degree. However, the field of engineering is a broad category that 
covers numerous and various specialties, some of which are only related through the basic 
principles of science and mathematics, e.g., nuclear engineering and aerospace engineering. 
10 
The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level II 
wage rate is described as follows: 
Level II (qualified) wage rates are assigned to job offers for qualified employees who have 
attained, either through education or experience, a good understanding of the occupation. 
They perform moderately complex tasks that require limited judgment. An indicator that the 
job request warrants a wage determination at Level II would be a requirement for years of 
education and/or experience that are generally required as described in the O*NET Job 
Zones. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/ 
pdf/NPWHC _Guidance_ Revised _11_ 2009. pdf. 
11 Notably, the petitioner would have been required to offer a significantly higher wage to the beneficiary in 
order to employ her at a Level III (experienced), or a Level IV (fully competent) level. U.S. Dep't of Labor, 
Foreign Labor Certification Data Center, Online Wage Library, FLC Quick Search, "Market Research 
Analysts and Marketing Specialists," http://www.flcdatacenter.com/OesQuickResults.aspx?code=13-
116l&area=35644&year=14&source=l (last visited May 20, 2015). 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
Therefore, it is not readily apparent that a general degree in engineering is closely related to 
computer science or that engineering or any and all engineering specialties are directly related to the 
duties and responsibilities of the particular position proffered in this matter.12 
In summary, the description of the duties does not specifically identify any tasks that are so 
complex or unique that only a specifically degreed individual could perform them. The record lacks 
sufficiently detailed information to distinguish the proffered position as more complex or unique 
from other positions that can be performed by persons without at least a bachelor's degree in a 
specific specialty or its equivalent. The petitioner has not demonstrated that this position is so 
complex or unique that it can be performed only by an individual with at least a baccalaureate 
degree in a specific specialty, or its equivalent. 
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. We 
usually review the petitioner's past recruiting and hiring practices, as well as any other information 
provided by the petitioner in support of the petition when reviewing this criterion. 
To satisfy this criterion, the record must establish that a petitioner's imposition of a degree requirement 
is not merely a matter of preference for high-caliber candidates but is necessitated by performance 
requirements of the position. In the instant case, the record does not establish a prior history of 
recruiting and hiring for the proffered position only persons with at least a bachelor's degree in a 
specific specialty, or its equivalent. 
While a petitioner may assert that a proffered position requires a specific degree that opinion alone 
without corroborating evidence cannot establish the position qualifies as a specialty occupation. 
Were USCIS limited solely to reviewing a petitioner's claimed self-imposed requirements, then any 
individual with a bachelor's degree could be brought to the United States to perform any occupation 
as long as the petitioner artificially created a token degree requirement, whereby all individuals 
employed in a particular position possessed a baccalaureate or higher degree in the specific 
specialty or its equivalent. See Defensor v. Meissner, 20 1 F.3d at 388. In other words, if a 
petitioner's stated degree requirement is only designed to artificially meet the standards for an H-1B 
visa and/or to underemploy an individual in a position for which he or she is overqualif ied and if the 
proffered position does not in fact require such a specialty degree or its equivalent to perform its 
duties, the occupation would not meet the statutory or regulatory definition of a specialty 
occupation. See section 21 4(i )(1 ) of the Act; 8 C.F.R. § 214 .2(h)( 4) (ii) (defining the term "specialty 
occupation"). 
The petitioner stated on the Form I-12 9 that it employed five persons and in response to the 
director's RFE, listed their job titles and qualifications. The petitioner's employees include a 
12 
As discussed above, the petitiOner in this matter focuses on the beneficiary's degree in electrical 
engineering as the degree that is directly related to the proffered position; however, (1) the petitioner does 
not specify that only a degree in electrical engineering is required to perform the duties of the proffered 
position; and (2) the beneficiary's degree is not pertinent to establishing the proffered position as a specialty 
occupation. 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
director of operations, head of statistical data analysis, head of institutional sales and service, an 
executive vice president, and its founder and director of research. The petitioner does not appear to 
claim that it previously employed individuals in the proffered position or that the proffered position 
qualifies as a specialty occupation under this criterion of the regulations. Moreover, the record does 
not include evidence to establish that the petitioner normally requires at least a bachelor's degree in 
a specific specialty, or its equivalent, for the proffered position. Thus, the petitioner has not 
satisfied the third criterion of 8 C.P.R. § 214.2(h)(4)( iii)(A). 
The fourth criterion at 8 C.P.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. 
On appeal, the petitioner asserts that its proffered position "combines the job duties of a Market 
Research Analyst with the knowledge required of an Engineer because of the nature of the job 
responsibilities" and that based on the highly complex and specialized job duties to be performed in 
the proffered position, that a degree in telecommunications engineering and/or electrical 
engineering is directly related to the job offered. We recognize that the petitioner desires an 
employee with a specific TelCom engineering background who generally will "have knowledge of 
the industry in order to identify the critical questions facing clients and then devise the research 
methods to obtain the needed data." However, the petitioner does not substantiate that only a 
bachelor's degree in "Engineering or Computer Science" would provide the specialized knowledge, 
rather than a moderate amount of experience for example, to perform the general duties it ascribes 
to the proffered positionY Moreover, even if this were so, it is not clear why the petitioner 
designated the proffered position on the LCA as a Level II position (out of four assignable 
wage-levels) relative to others within the occupational category. That is, the petitioner has not 
accorded the proffered position a wage level that corresponds to a position distinguishable by 
relatively specialized and complex duties within the occupational category. Without further 
evidence, the petitioner has not established that the proffered position is one with specialized and 
complex duties as such a position would likely be classified at a higher-level, such as a Level III 
(experienced) or Level IV (fully competent) position, requiring a substantially higher prevailing 
wage. A Level IV (fully competent) position is designated by DOL for employees who "use 
advanced skills and diversified knowledge to solve unusual and complex problems" and requires a 
significantly higher wage. 
The petitioner has submitted inadequate probative evidence to satisfy this criterion of the 
regulations. Thus, the petitioner has not established that the nature of the specific duties of the 
position is so specialized and complex that the knowledge required to perform the duties is usually 
associated with the attainment of a baccalaureate or higher degree in a specific specialty, or its 
equivalent. We, therefore, conclude that the petitioner did not satisfy the criterion at 8 C.P.R. 
§ 214.2(h)(4)( iii)(A)(4). 
13 Again, we observe that a requirement of a general engineering degree is not a requirement of a degree in a 
specific specialty and that the beneficiary's background while of legitimate use to the petitioner, does not 
establish the proffered position of market research analyst and market specialist as a specialty occupation. 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
For the reasons related in the preceding discussion, the evidence of record does not establish that the 
petitioner has satisfied any of the criteria at 8 CF.R . § 214.2(h)(4)(i ii)(A) and, therefore, it cannot 
be found that the proffered position qualifies as a specialty occupation. The appeal will be 
dismissed 'and the petition denied for this reason. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reason. In visa petition 
proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 13 61; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.