dismissed H-1B Case: Market Research

U.S. Citizenship 
and Immigration 
Services 
In Re: 6015282 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 15, 2020 
The Petitioner, a project management firm, seeks to employ the Beneficiary temporarily as a "market 
research analyst" under the H-lB nonimmigrant classification for specialty occupations.1 The H-lB 
program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that 
requires both : (a) the theoretical and practical application of a body of highly specialized knowledge; 
and (b) the attainment of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a 
minimum prerequisite for entry into the position . 
The Director of the California Service Center denied the Form I-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish that the proffered position qualified as a specialty 
occupation . On appeal, the Petitioner submits additional evidence and asserts that the Director erred 
by denying the petition. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l) , defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the offered position 
must meet one of the following criteria to qualify as a specialty occupation : 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b) . 
(]) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 2 
We construe the term "degree" to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. 3 
II. ANALYSIS 
The Petitioner initially provided the position's description with several bullet points, and expanded on 
those duties in response to the Director's request for evidence (RFE). For the sake of brevity, we will 
not quote the most recent version; however, we note that we have closely reviewed and considered the 
duties. For the reasons discussed below, we have determined that the Petitioner has not demonstrated 
that the proffered position qualifies as a specialty occupation. 4 Specifically, we conclude that the 
record does not establish that the job duties require an educational background, or its equivalent, 
corresponding with a specialty occupation. 5 
A. Petitioner Provided Duties Copied from the Occupational Information Network 
Upon review of the Petitioner's description of the proffered position and information regarding its 
business operations, we observe that the duties of the position are identical to several tasks in U.S. 
Department of Labor's (DOL) Occupational Information Network (O*NET) OnLine Summary Report 
for the occupational category "Market Research Analysts and Marketing Specialists." 6 The copied duties 
comprise 70 percent of the proffered position's responsibilities. 
2 8 C.F.R. § 214.2(h)(4)(iii)(A). 
3 See Royal Siam COip. v. Chertof(, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific 
specialty" as "one that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). 
4 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
5 The Petitioner submitted documentation to support the petition, including evidence regarding the position and its business 
operations. While we may not discuss every document submitted, we have reviewed and considered each one. 
6 Summary Report for: 13-1161.00 - Market Research Ana~vsts and Marketing Specialists, O*NET OnLine (Jan. 15, 
2020), https://www.onetonline.org/link/summary/13-1161.00. 
2 
Providing generic job duties for a proffered position from O*NET or another Internet source is generally 
insufficient to establish eligibility. 7 The duties themselves provide the nature of the employment. 8 While 
this type of description may be appropriate when defining the range of duties that may be performed 
within an occupational category, it does not adequately convey the substantive work that the Beneficiary 
will perform on a day-to-day basis within the Petitioner's business operations. 9 
Here, the Petitioner's job description does not sufficiently communicate: (1) the actual work that the 
Beneficiary would perform; (2) the complexity, uniqueness and/or specialization of the tasks; and/or 
(3) the correlation between that work and a need for a particular level of knowledge in a specific 
specialty. The foregoing raises questions regarding the petition's overall reliability in establishing the 
nature of the proffered position and in what capacity the Beneficiary would be employed. This adversely 
weighs against the Petitioner's eligibility in this petition. 
B. Petitioner's Wage Level Designation on the Labor Condition Application 
Additionally, the Petitioner included duties that appear to be atypical for the Market Research Analysts 
and Marketing Specialists occupational category. For example, the Petitioner stated the Beneficiary 
would "organize events (webinars, breakfast presentations, etc.) to spread the awareness about [the 
Petitioner] and help position [the Petitioner] within new targeted markets in the US and Canada." The 
Petitioner indicated the goal of these events is to generate leads and increase their brand awareness. 
This activity included functions that may either exceed those skill sets, or that are atypical, for the 
occupational category the Petitioner listed on the DOL ETA Form 9035 & 9035E, Labor Condition 
Application for Nonimmigrant Workers (LCA). Instead, this duty appears to fall under the O*NET 
entry for either the Sales Representatives, Wholesale and Manufacturing, Technical and Scientific 
Products category, or under the entry for the Advertising Sales Agents occupation. 
In either case, the Office of Foreign Labor Certification's Frequently Asked Questions and Answers 
provide guidance associated with skills that are atypical to an occupation stating: "Any required skills 
in addition to those listed in O*NET are considered atypical for the occupation and ... will raise the 
wage level by one level either because it contains a combination of occupations or because it contains 
job requirements not normal to the occupation." 10 Such a job requirement would require an increase 
in the wage level on the LCA. 
Additionally, the Petitioner stated the Beneficiary would "reach out to consulting companies to discuss 
how [the Petitioner's] product can be used by their customers," and he would "maintain[] relationships 
7 Cf Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff"d, 905 F.2d 41 (2d. Cir. 1990) (stating 
specifics are an important indication of the nature of a beneficiary's duties, otherwise meeting the requirements would 
simply be a matter of providing a job title or reiterating the regulations.) 
8 Id. 
9 DOL guidance states that for a wage level determination, it is important that the job description include "sufficient 
information to determine the complexity of the job duties, the level of judgment, the amount and level of supervision, and 
the level of understanding required to perform the job duties." U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009) (DOL guidance), available at 
http://www.foreignlaborcert.doleta.gov/pdt1/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
10 Office of Foreign Labor Certification Frequently Asked Questions and Answers, Foreign Labor Certification (Jan. 15, 
2020), https://www.foreignlaborcert.doleta.gov/faq sanswers. cfm. 
3 
with partners, including training and ensuring they have the necessary certifications for compliance 
with [the Petitioner's] products." These responsibilities appear to fall under the O*NET entry for the 
Public Relations Specialists occupational category, and would require an additional increase to the 
wage level on the LCA. 
Furthermore, the Petitioner initially stated that the job requirements for the proffered position was a 
master's degree and experience in market research analysis and marketing. 11 DOL guidance 
concentrates on comparing the Petitioner's minimum education requirements to that contained in 
Appendix D of the DOL guidance, which reflects a master's degree requirement. 12 The Handbook 
reflects the education requirements for Market Research Analysts is mostly at the baccalaureate level, 
while some positions may require a master's degree. These DOL resources are often broad in their 
descriptions and may include many SOC codes within one general category. When a conflict exists 
between DOL resources, we look to the O*NET Job Zone for an indication of what most of these 
occupations require. For Market Research Analysts and Marketing Specialists, the O*NET reflects 
that most of these occupations require a four-year bachelor's degree, but some do not. Even the 
Petitioner acknowledged within its RFE response that Market Research Analyst positions in general 
require at least a bachelor's degree. Therefore, the Petitioner's requirement of a master's degree would 
appear to require an increase in the wage level by one increment. 
In total, it appears the position should be at the Level III wage rate, meaning the Petitioner's Level II 
designation on the LCA was incorrect. The result is a pay disparity of $17,638 in the Beneficiary's 
compensation. 13 The purpose of the LCA wage requirement is "to protect U.S. workers' wages and 
eliminate any economic incentive or advantage in hiring temporary foreign workers." 14 The Petitioner 
does not appear to have complied with that statutory intent when it failed to compensate the worker 
with the higher of either the prevailing wage for the occupational classification in the area of 
employment or the actual wage paid by the employer to other employees with similar duties, 
experience, and qualifications. 15 
C. Appellate Evidence 
On appeal, the Petitioner provides a revised set of duties and an abundance of new evidence. We note 
that the Director requested this type of material within the RFE, but the Petitioner did not submit it at 
11 We note that the Petitioner did not explain the amount of experience it required in market research analysis and 
marketing. We consider this as an adverse omission as the correct wage level can be affected by the amount of experience 
an employer includes in its requirements. 
12 Appendix D of the DOL guidance provides a list of professional occupations with their corresponding usual education 
level. 
13 See the Online Wage Librmy - FLC Wage Search Wizard, Foreilsl! Labor Certification Data Center (Jan. 15, 2020), 
https://flcdatacenter.com/OesQuickResults.aspx?code= 13-1161 &area~year= l 8&source= 1. 
14 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1 B Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Pennanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that 
the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage 
in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] 
with [DOL]."). 
15 Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a); Venkatraman v. REI Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 
2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal Vojtisek-Lom &Adm 'r Wage &Hour Div. v. Clean 
Air Tech. Int'!, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
4 
that time. Multiple precedent decisions address whether newly submitted evidence on appeal will be 
considered. First, in Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988), the Board of 
Immigration Appeals (BIA) determined that where a petitioner fails to timely and substantively 
respond to agency correspondence, the appellate body will not consider any evidence first offered on 
appeal as its review is limited to the record of proceeding before the district director. 
Further, in Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988), the BIA held that if a petitioner was 
put on notice of an evidentiary requirement (by statute, regulation, form instructions, an RFE, notice 
of intent to deny, etc.) and was given a reasonable opportunity to provide the evidence, then any new 
evidence submitted on appeal pertaining to that requirement would not be considered, and the appeal 
would be adjudicated based on the evidentiary record before the director. Also see Matter of Jimenez, 
21 I&N Dec. 567, 570 n.2 (BIA 1996), which found that claims of eligibility presented for the first 
time on appeal are not properly before the appellate authority, and that the appellate body would not 
issue a determination on the new eligibility claims. Conversely, if the petitioner had not been put on 
notice of the deficiency or given a reasonable opportunity to address it before the denial, and on appeal 
the petitioner submits additional evidence addressing the deficiency, the record would generally be 
remanded to allow the director to initially consider and address the newly submitted evidence. 16 
For these reasons, except in exigent circumstances and at U.S. Citizenship and Immigration Services 
(USCIS) discretion, we will not consider evidence submitted for the first time on appeal if: (1) the 
affected party was put on notice of an evidentiary requirement; (2) the affected party was given a 
reasonable opportunity to provide the evidence; and (3) the evidence was reasonably available to the 
affected party at the time it was supposed to have been submitted. 
The reason for filing an appeal is to provide an affected party with the means to remedy what it perceives 
as an erroneous conclusion of law or statement of fact within a decision in a previous proceeding. 17 An 
appeal is a request to a higher authority to review a decision and is an opportunity to illustrate how the 
Director's determinations were incorrect. The Petitioner should not make such a significant change to an 
element that serves as the underlying basis for eligibility at this stage of the process. A petitioner must 
establish eligibility at the time it files the nonimmigrant visa petition. 18 USCIS may not approve a visa 
petition at a future date after a petitioner or a beneficiary becomes eligible under a new set of facts. 19 
Accordingly, a petitioner may not make material changes to a petition, to its claims, or to the evidence in 
an effort to make an apparently deficient petition conform to USCIS requirements. 2° Consequently, we 
will only consider the claims and evidence the Petitioner presented before the Director. If the Petitioner 
wished to address these newly offered issues and evidence, it should not start at the appellate stage, but 
before the initial reviewing authority. Therefore, to address this issue, the Petitioner should have either 
filed a motion to reopen before the Director, or presented the new material within a new petition filing.21 
16 Soriano, 19 l&N Dec. at 766. 
17 See 8 C.F.R. § 103.3(a)(l)(v). 
IS 8 C.F.R. § 103.2(b)(l), (12). 
19 Matter of Michelin Tire COip., 17 l&N Dec. 248, 249 (Reg'l Comm'r 1978). 
20 See Matter of lzummi, 22 I&N Dec. 169. 175 (Assoc. Comm'r 1998). 
21 See Soriano, 19 T&N Dec. at 766; Obaigbena, 19 T&N Dec. at 537. Futther, matters that are raised for the first time on 
appeal will not normally be considered within the appellate proceedings. McKenzie v. USCIS, 761 F.3d 1149, 1154-55 
5 
D. First Criterion 
Moving to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate or 
higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry 
into the particular position. To inform this inquiry, we recognize the Handbook as an authoritative 
source on the duties and educational requirements of the wide variety of occupations that it 
addresses. 22 The Petitioner submitted the required LCA with this petition, where it classified the 
proffered position under the occupational title Market Research Analysts and Marketing Specialists, 
corresponding to the Standard Occupational Classification code 13-1161. 23 Under this criterion, the 
Petitioner addresses the Handbook entry for this occupation, as well as career resources and job 
postings it provided in its response to the Director's RFE. 
The Handbook reports that individuals working in positions located within this occupational category 
have degrees and backgrounds in a wide variety of disparate fields. That is, while the Handbook states 
that employees typically need a bachelor's degree in market research or a related field, it continues by 
specifying that many market research analysts have degrees in fields such as statistics, math, or 
computer science. According to the Handbook, others have backgrounds in fields such as business 
administration, the social sciences, or communications. This passage of the Handbook identifies 
various courses as essential to this occupation, including statistics, research methods, and marketing. 
It further elucidates that courses in communications and social sciences (such as economics, 
psychology, and sociology) are also important. 
In particular, we note that the Handbook states that "others have a background in business 
administration." As discussed, although a general-purpose bachelor's degree, such as a degree in 
business administration, may be a legitimate prerequisite for a particular position, requiring such a 
degree, without more, will not justify a finding that a particular position qualifies for classification as 
a specialty occupation. 24 Therefore, the Handbook's recognition that a general, non-specialty 
"background" in business administration is sufficient for positions located within this occupational 
category strongly suggests that a bachelor's degree in a spec[fic specialty is not normally the minimum 
entry requirement for this occupation. 
(10th Cir. 2014) cert. denied, 135 S.Ct. 970 (2015). Such late-asserted claims, or evidence, are not contemporaneous and 
appear to be a direct response to an adverse aspect of the Director's decision. Without adequately presenting this issue 
before the Director, the Petitioner deprived the Director of the ability to sufficiently review the relevant factors. This is 
not a proper basis to raise these matters ( or evidence) within the appeal. 
22 We do not, however, maintain that the Handbook is the exclusive source of relevant information. To satisfy the first 
criterion, the Petitioner bears the burden to submit sufficient evidence to support a determination that its particular position 
will normally have at its minimum. a bachelor's degree requirement in a particular specialty, or its equivalent, for entry at 
any level - be it at the entry level (Level I), or at the folly competent level (Level TV). "[T]he choice of what reference 
materials to consult is quintessentially within an agency's discretion .... " Royal Siam Corp., 484 F.3d at 146. 
23 The Petitioner is required to submit a certified LCA to USCTS to demonstrate that it will pay the Beneficiary the higher 
of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by 
the employer to other employees with similar experience and qualifications who are performing the same services. Section 
212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). 
24 See Royal Siam COip .• 484 F.3d at 147. 
6 
Therefore, although the Handbook indicates that Market Research Analysts typically need a degree, it 
also indicates that degrees and backgrounds in various fields are acceptable for jobs located within 
this occupational category; including computer science and the social sciences, as well as statistics 
and communications. 
The Petitioner also surmises that the Director narrowly interpreted the Handbook to mean the 
specialized study must be in a single academic discipline. The Petitioner subsequently generalizes 
USCIS' treatment of the H-1 B program under the first criterion, and cites to Tap is Int 'l v. INS, 94 
F.Supp.2d 172, 175-76 (D. Mass. 2000), and Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 
985 (S.D. Ohio 2012) in rebuttal to this generalized treatment. The Tapis and Residential Finance 
decisions indicated that the first regulatory criterion does not limit qualifying occupations to those for 
which there exists a single, specifically tailored degree program, and that the title of the degree does 
not necessarily control. After reviewing the Director's decision, we conclude that she did not apply 
this criterion's requirements in such a manner. Instead, similar to our analysis under this criterion, the 
Director noted that the Handbook permits a wide variety of specialties to qualify to perform the duties 
for this occupation. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty ( or its equivalent)" requirement of section 214(i)(l )(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since there 
must be a close correlation between the required "body of highly specialized knowledge" and the 
position, however, a minimum entry requirement of a degree in disparate fields, such as philosophy 
and engineering, would not meet the statutory requirement that the degree be "in the specific specialty 
( 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. 25 For the aforementioned reasons, 
however, the Petitioner has not met its burden to establish that the particular position offered in this 
matter requires a bachelor's or higher degree in a specific specialty, or its equivalent, directly related 
to its duties in order to perform those tasks. 
In any event, the Petitioner has famished no evidence to establish that the facts of the instant petition 
are analogous to those in Residential Finance or Tapis. 26 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 
25 Section 214(i)(l )(B) of the Act ( emphasis added). Whether read with the statutory "the" or the regulatory "a," both 
readings denote a singular "specialty." Section 214(i)(l )(B) of the Act; 8 C.F.R. § 214.2(h)( 4)(ii). Still, we do not so 
narrowly interpret these provisions to exclude positions 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. 
26 The district judge's decision appears to have been based largely on the many factual errors made by the Director in the 
decision denying the petition. We further note that the Director's decision was not appealed to us. Based on the district 
court's findings and description of the record, if that matter had first been appealed through the available administrative 
process, we may very well have remanded the matter to the service center for a new decision for many of the same reasons 
articulated by the district court if these errors could not have been remedied by us in our de novo review of the matter. 
7 
decision of a United States district court in matters arising even within the same district. 27 Although 
the reasoning underlying a district judge's decision will be given due consideration when it is properly 
before us, the analysis does not have to be followed as a matter oflaw. Id. It is also important to note 
that in a subsequent case reviewed in the same jurisdiction, the court agreed with our analysis of 
Residential Finance. 28 
In response to the RFE, the Petitioner cited to a district court case, Raj and Company v. USCIS, 85 F. 
Supp. 3d 1241 (W.D. Wash. 2015), and claims that it is relevant here. In this district court case, the 
employer designated the position as a "Marketing Analyst & Specialist" position. 29 We reviewed the 
decision; however, there is no indication that aspects of the work such as the duties and responsibilities, 
level of judgment, complexity of the job duties, supervisory duties, independent judgment required, 
or the amount of supervision received, are analogous to the proffered position here. 30 Accordingly, 
there is no indication that the positions are similar. 
Further, in Raj, the court stated that a specialty occupation requires the attainment of a bachelor's 
degree or higher in a specific specialty, or its equivalent. The court confirmed that this issue is 
well-settled in case law and with our reasonable interpretation of the regulatory framework. In the 
decision, the court noted that "permitting an occupation to qualify simply by requiring a generalized 
bachelor degree would run contrary to congressional intent to provide a visa program for specialized, 
as opposed to merely educated, workers." The court stated that the regulatory provisions do not restrict 
qualifying occupations to those for which there exists a single, specifically tailored and titled degree 
program; but rather, the statute and regulations contain an equivalency provision. 31 
In Raj, the court concluded that the employer met the first criterion. We must note, however, that the 
court stated that "[t]he first regulatory criterion requires the agency to examine the generic position 
requirements of a market research analyst in order to determine whether a specific bachelor's degree 
or its equivalent is a minimum requirement for entry into the profession." Thus, the decision misstates 
the regulatory requirement. That is, the first criterion requires a petitioner to establish that a 
baccalaureate or higher degree (in a specific specialty) or its equivalent is normally the minimum 
requirement for entry into the particular position. 
Consequently, if the court meant to suggest that any position classified under the occupational category 
"Market Research Analysts" would, as it stated, "come within the first qualifying criteria," we must 
27 See MatterofK-S-, 20 I&N Dec. 715, 719-20 (BIA 1993). 
28 See Health Carousel. LLC v. USCIS, No. 1: 13-CV-23, 2014 WL 29591 (S.D. Ohio 2014). 
29 It is important to note and distinguish within the court's decision that "Marketing Analyst & Specialist" refers to the 
employer's particular position, whereas "Market Research Analysts" refers to a general occupational category. 
30 We note that the service center director's decision in the Raj case was not appealed to our office. Based on the district 
comt' s findings and description of the record, if that matter had first been appealed through the available administrative 
process, we may very well have remanded the matter to the service center for a new decision in our de nova review of the 
matter. 
31 We agree with the comt that a specialty occupation is one that requires the attainment of a bachelor's or higher degree 
in a specific specialty, or its equivalent. We further note that a petitioner must also demonstrate that the position requires 
the theoretical and practical application of a body of highly specialized knowledge in accordance with section 2 l 4(i)( I )(B) 
of the Act and 8 C.F.R. § 2 l 4.2(h)(4)(ii), and satisty one of the four criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
8 
disagree. 32 The occupational category designated by a pet1t10ner is considered as an aspect in 
establishing the general tasks and responsibilities of a proffered position, and we regularly review the 
Handbook on the duties and educational requirements of the wide variety of occupations that it 
addresses. 
However, to satisfy the first criterion, the burden of proofremains on the Petitioner to submit sufficient 
evidence to support a finding that its particular position would normally have a minimum, specialty 
degree requirement or its equivalent for entry. That is, to determine whether a particular job qualifies 
as a specialty occupation, we do not simply rely on a position's title or designated occupational 
category. The specific duties of the proffered position, combined with the nature of the petitioning 
entity's business operations, are factors to be considered. 33 We must examine the ultimate 
employment of the beneficiary, and determine whether the position qualifies as a specialty 
occupation. 
Next, the Petitioner claims that the Director misinterpreted the Job Zone Overview referenced in the 
O*NET Summary Report for the occupational category. The Petitioner misconstrued the Director's 
inclusion of examples the O*NET provides, with somehow being associated with the position 
proffered in this petition. However, a review of the Director's denial reveals that she was merely 
expressing that "any given subject area within the professions contains nonprofessional work." We 
do not consider this statement as adverse nor advantageous to the Petitioner's eligibility. 
Turning to the Petitioner's remaining arguments relating to the O*NET Summary Report, the 
information it submits does not establish the proffered position as a specialty occupation, either. First, 
O*NET assigns these positions a "Job Zone Four" rating, which groups it among occupations for 
which "most ... require a four-year bachelor's degree, but some do not." It is therefore not clear that 
a bachelor's degree is even required. Further, as indicated above a requirement for a bachelor's degree 
alone is not sufficient. Instead, we have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. 34 O*NET does not indicate that when a four-year bachelor's degree is required, 
that it must be in a specific specialty directly related to the occupation, or the equivalent. 
Additionally, the Specialized Vocational Preparation (SVP) rating cited within O*NET's Job Zone 
designates this occupation as 7 < 8. An SVP rating of 7 to less than ("<") 8 indicates that the 
occupation requires "over 2 years up to and including 4 years" of training. While the SVP rating 
indicates the total number of years of vocational preparation required for a particular position, it is 
important to note that it does not describe how those years are to be divided among training, formal 
education, and experience. Further, it does not specify the particular type of degree, if any, that a 
position would require. 35 
32 In Raj, the comt quoted a brief excerpt from the Handbook; however, the quotation is from the 2012-2013 edition rather 
than the current Internet version (which contains several revisions). Further, we observe that the comt did not address the 
section of the Handbook indicating that there are no specific degree requirements to obtain the Professional Researcher 
Certification credential - and therefore to work within the Market Research Analyst occupational category. 
33 See generally Defensor, 201 F.3d at 384. 
34 See id.; Royal Siam COip., 484 F.3d at 147. 
35 For additional information, see the O*NET Online Help webpage available at 
http: //v..v.w. onetonline. org/help/ online/ svp. 
9 
Further, the summary report provides the educational requirements of "respondents," but does not 
account for 100% of the "respondents." The O*NET does not distinguish the respondents' positions 
within the occupation by career level ( e.g., entry-level, mid-level, senior-level). Additionally, the graph 
in the Summary Report does not indicate that the "education level" for the respondents must be in a 
specific specialty. To the Petitioner's point that the O*NET Education section "virtually never refers 
specifically to the specialty required," we agree with this position and it illustrates why the O*NET is 
generally not a sufficiently authoritative resource for specialized degrees as they relate to the H-lB 
program. 
The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Therefore, it has not 
satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
E. 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 .... " 36 The first prong concentrates on the common industry practice, while the alternative 
prong narrows its focus to the Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. We generally 
consider the following sources of evidence to determine if there is such a common degree requirement: 
whether the Handbook reports that the industry requires a degree; whether the industry's professional 
association has made a degree a minimum entry requirement; and whether letters or affidavits from 
firms or individuals in the industry establish that such firms "routinely employ and recruit only degreed 
individuals." 37 
As previously discussed, the Petitioner has not established that an authoritative source reports at least 
a bachelor's degree in a specific specialty, or its equivalent is required for the proffered position, and 
we incorporate our previous discussion on this matter. In addition, there are no submissions from the 
industry's professional association indicating that it has made a degree a minimum entry requirement. 
In support of this prong in the proceedings before the Director, the Petitioner submitted seven job 
advertisements from other organizations. The Petitioner asserts that all the advertisements satisfy the 
three main elements that the degree requirement is common: (1) to the industry, (2) among similar 
organizations, and (3) in parallel positions. When determining whether the Petitioner and other 
36 8 C.F.R. § 2 l 4.2(h)( 4 )(iii)(A)(2) ( emphasis added). 
37 See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Co1p. v. Sava, 712 F. Supp. 
1095, 1102 (S.D.N.Y. 1989)). 
10 
organizations share the same general characteristics, such factors may include information regarding 
the nature or type of organization, and, when pertinent, the size, scope, or scale of operations, 
expenditures, 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. 
The Director listed the other employers' job advertisements, then discussed whether the Petitioner 
satisfied this criterion's requirements. First, the Director determined that the Petitioner did not provide 
sufficient evidence for it to determine whether those job advertisements were from employers who are 
similar to the petitioning organization. On appeal, the Petitioner notes that it provided the Director 
with material relating to the organizations in the job advertisements, but that the Director did not offer 
any reasoning to support the inconclusive nature of the determination. A review of the record reveals 
that the Petitioner did offer material relating to the organizations, and as a result we will set that portion 
of the Director's determination aside. 
However, the Petitioner must also demonstrate that the positions in the advertisements are parallel to 
the one in the petition, and that each has a requirement of a bachelor's or higher degree in a specific 
specialty ( or its equivalent). The Director addressed these requirements discussing six of the seven 
advertisements represented in a chart included in the decision. The Director either indicated that those 
six advertisements either only required a bachelor's degree without identifying any discipline (i.e., an 
undergraduate degree or a U.S. college degree), or required a bachelor's degree in a wide range of 
fields with no specific concentration. 
The Petitioner failed to explain how the Director erred in her determination relating to this aspect. 
Instead, the Petitioner only states that the Director discounted those positions, and she declined, in 
part, to consider the evidence. We disagree with the Petitioner's statement. The Director presented 
this criterion's requirements, and provided her reasoning of why the other organization's degree 
requirements fell short of satisfying the regulation. And we agree with the Director's assessment 
relating to the education requirements being insufficient. 
The Petitioner also discusses the content of a March 10, 2019, opinion letter from a professor,! I 
I I from the University of1 11 I concluded the industry standard for a 
position such as the one in the petition is to be filled through recruiting a recent college graduate with 
the minimum of a bachelor's degree in business, marketing, management, or a related area or the 
equivalent. I I supported this statement with insufficient analysis. He merely presented 
conclusory statements such as "it is standard for a company [to]," or "[i]t is typical for growth focused 
[companies to]," or the success of companies "is largely dependent on," individuals with the skills 
similar to those who have recently attained a bachelor's degree in business, marketing, management, 
or a related area or the equivalent. We may ascribe diminished evidentiary value to-or even reject­
extrapolations within opinion letters that are merely the ipse dixit of the author. In this circumstance, 
there tends to be too great a gap between the author's conclusions and the hiring practices for entry 
into the occupation. 38 We note that we discussl ~ letter in greater detail under a different 
regulatory criterion. 
38 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) ( citing to Twpin v. Merrell Dow Pharmaceuticals, Inc., 959 F.2d 
1349, 1360 (6th Cir.), cert. denied, 506 U.S. 826 (1992)). 
11 
Finally, the Petitioner discusses job advertisements! !presented with his letter. We 
conclude these advertisements do not sufficiently support the Petitioner's eligibility claims under this 
criterion either. First, each included a bachelor's degree requirement in business or business 
administration with no further specialization, which we noted above is essentially a general bachelor's 
degree that is not in a specific specialty. Second, two of the three advertisements appear to be for 
positions that are more senior than the proffered position as they required between four and seven 
years of work experience. As a result, those are not for parallel positions as mandated by the 
regulation. 
Next, the Petitioner correctly notes that the Director did not offer any analysis relating to a letter from 
an individual within the industry,~~-----~ Consequently, we will discuss that letter here. 
We begin noting this letter carries significantly diminished evidentiary value as the duties D 
I I quotes are those the Petitioner copied from the O*NET Summary Report for this 
occupational classification that comprised 70 percent of the position's duties. Nevertheless, D 
I I essentially indicated that his company relies on the same position requirements of a 
bachelor's degree in business, marketing, or a related field. Again, a bachelor's degree requirement 
in business without additional specialization generally will not justify a finding that a particular 
position qualifies for classification as a specialty occupation. 39 
Moreover, neither the Petitioner nor~-----~offered documentary evidence to support his 
assertion that his organization mandates position requirements similar to the Petitioner's for positions 
that are akin to the market research analyst. 40 In other words, the record lacks sufficient probative 
evidence ofi I's recruitment and hiring practices. Nor did I I identify which 
positions, or their associated duties, within his organization that are similar to the Petitioner's position. 
Relating to I ~' s company, there is no information regarding the complexity of the job 
duties, supervisory duties (if any), independent judgment required, or the amount of supervision 
received. Accordingly, there is insufficient information regarding the duties and responsibilities of 
the positions I I discussed to determine whether the positions are the same or parallel to 
the proffered position. 
A review of the website associated with I ~s organization reveals a position with duties 
that appear to align with the proffered position; workfront technical consultant. 41 However, the 
position prerequisites greatly differ from the position in this petition. I I's organization 
requires candidates to possess a bachelor's degree without any specified discipline. This does not 
align withl I's statement that his organization requires candidates to possess a bachelor's 
degree in business, marketing, or a related field. This incongruence causes us to call the veracity of 
his statements into question. Furthermore, I I's company mandates a several years of 
experience for the position, which he also did not mention in his letter. 
39 See Royal Siam COip., 484 F.3d at 147. 
40 Letters from other employers in the industry should be supp01ied by documentation to verify that the respective company 
routinely requires its candidates to possess a bachelor's degree in a specific specialty to perform similar duties to the ones 
in the etition. Sa arwala v. Cissna, 387 F. Su . 3d 56 67-68 D.D.C. 2019 . 
41 
12 
Even setting aside the content from ~--------- we reiterate that the Petitioner did not 
offer evidence to corroborate his claims, and such unsupported statements are of limited probative 
value and are insufficient to satisfy the Petitioner's burden of proof 42 As a result, the Petitioner has 
not shown, througH~-----~~ correspondence, that firms within the industry "routinely employ 
and recruit only sufficiently degreed individuals." 43 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's degree 
in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar 
organizations. Consequently, the Petitioner has not satisfied the first 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. 
Within the appeal brief, the Petitioner posits that the Director overlooked several pages pertaining to 
its revised duties it offered in the RFE response. We reiterate that the Petitioner has not explained 
how it should be able to demonstrate eligibility when 70 percent of the duties it offered were copied 
directly from the O*NET. Nevertheless, we will discuss the duties the Petitioner presented within the 
RFE response. 44 
The Petitioner listed methodologies the Beneficiary would use to complete the broader listed tasks, 
the knowledge one would need in order to complete those tasks, and the type and level of education 
needed to perform them. However, the Petitioner did not, for example, explain how using software to 
develop reports or how gathering secondary market research from an existing global research 
organization required a bachelor's degree in a specific specialty. While the Petitioner generally 
associated the Beneficiary's coursework and experience to concepts he may encounter performing the 
proffered position, it has not sufficiently developed relative complexity or uniqueness as a broad aspect 
of the proffered position. More importantly, 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. 
In this matter, the Petitioner did not submit sufficient information relevant to a detailed course of study 
leading to a specialty degree to establish how such a curriculum would be necessary to address the 
position's complex or unique nature. A few related courses may be beneficial, or even required, in 
performing certain elements of the position. Nevertheless, we conclude that the Petitioner has not 
42 Matter of Soffici. 22 l&N Dec. 158. 165 (Comm'r 1998). 
43 See Shanti, Inc., 36 F. Supp. 2d at 1165. 
44 We reiterate that any revised duties the Petitioner offers on appeal will not factor into our analysis for this petition, as 
those were not before the Director and appear to be in response to the Director's adverse determination. 
13 
demonstrated how an established program of such courses leading to a baccalaureate or higher degree 
in a specific specialty, or its equivalent, is required to successfully engage in the proffered position. 45 
On appeal, the Petitioner further takes issue with the Director's statement that the organization did not 
demonstrate the position was more complex or unique than similar positions. The Director specifically 
stated that the Petitioner's breakdown of the offered position's duties was not "sufficient to establish 
that the proffered position is more unique or complex than other similar positions within the same 
industry. Without additional evidence showing the unique or complex nature of the position, or how 
this position differs from other similar positions within the same industry, you have not met this 
criterion." 
From a review of the matter, it appears the Petitioner misunderstood the Director's analysis. The 
context of this statement from the Director was that the Petitioner did not demonstrate that its particular 
position required a qualifying bachelor's degree in a specific specialty, meaning it only demonstrated 
this position requires a general bachelor's degree in a wide range of fields. And as those types of 
positions do not require a qualifying degree, based on the regulatory text under the second criterion, 
the Petitioner should be able to set its position apart from those lesser positions. A petitioner would 
accomplish this by demonstrating its particular position is so complex or unique that only an individual 
who has attained a bachelor's degree in a specific specialty (or its equivalent) can perform in it. 
Consequently, we see no error on the Director's part within this analysis. 
The Petitioner further takes issue with the Director's analysis surrounding the opinion letter fromD 
I I I I quoted the duties the Petitioner offered in its RFE response and 
subsequently opined why such duties require a candidate to attain a bachelor's in business, marketing, 
management, or a related field. I I stated that after "examining the responsibilities of this 
Market Research Analyst position in detail, it becomes apparent that a minimum of a Bachelor's 
Degree in Business, Marketing, Management, or a related area or the equivalent provides the student 
with the core competencies and skills needed for a Market Research Analyst position with the 
responsibilities listed above."I lstated in several ways that an individual will generally 
gain the knowledge and skills he or she may apply to work scenarios similar to those described by the 
Petitioner. 
However, he did not demonstrate that to serve successfully in the offered position, one must attain at 
least a bachelor's degree in a specific specialty.I I provided insufficient analysis relating 
to a detailed course of study, describing how the position's complexities or uniqueness mandates 
courses in such disciplines. For example, he stated that "duties such as collecting and analyzing data 
on customer demographics, preferences, needs, and buying habits to identify potential markets and 
factors affecting product demand, could only be competently performed by a candidate with at least a 
Bachelor's Degree in Business, Marketing, Management, or a related area." While I I 
generally tied attaining a degree to concepts one might employ while engaged in the proffered position, 
his account lacks a sufficient analysis of the specific curriculum necessary to perform in the position 
that is allegedly so complex and unique. 
45 Xiaotong Liu v. Baran, No. SACV1800376JVSKESX, 2018 WL 7348851, at *12 (C.D. Cal. Dec. 21, 2018) (finding 
that although some coursework may be helpful preparation for a job, that does not necessarily lead to the conclusion that 
those courses are required for the position). 
14 
ContinuingJ I stated, "the necessary background knowledge in using Google Analytics, 
Salesforce and Pardot to run reports to track where leads, opportunities and customers are coming 
from is gained by the Business or Marketing student through his/her completion of a Business 
Analytics course."I I compared the proffered position to those of an administrative nature 
and farther stated, "the Market Research Analyst coordinates training and certification of partners, and 
entertains a global network of distributors. The superior background of a Bachelor's Degree in 
Business, Marketing, Management, or a related area, or the equivalent qualifies the Market Research 
Analyst to serve in this highly skilled leadership role as opposed to the non-specialty occupation 
workers .... " Again,I I did not describe a sufficient nexus between a detailed course of 
study leading to a specialty degree, and he did not establish how such a curriculum is necessary to 
perform the duties he claims are so complex and unique. While a few related courses may be beneficial 
in performing certain duties of the position, the Petitioner has not demonstrated how an established 
curriculum of such courses leading to a baccalaureate or higher degree in a specific specialty, or its 
equivalent, is required to perform in the position. 
Moreover, it does not appear that I I possessed a complete understanding of the nature of 
the proffered position. The Petitioner attested to DOL that the proffered position is a Level II, or 
"qualified" position. 46 HoweverJ I statements that the position consists of a "highly 
skilled leadership role" and "a great level of responsibility within the company" appear inconsistent 
with the Petitioner's designation of the position on the LCA that a candidate must only possess "a 
good understanding of the occupation." 47 It is unclear if the Petitioner informed! I of its 
attestation on the LCA. The omission of any discussion of the qualified, or second level, wage 
designation, ann I I incongruent characterization tends to farther diminish the evidentiary 
value of this opinion. I I also discussed this occupational classification within the 
Handbook and O*NET. However, as we addressed the shortcomings relating to these resources above, 
and he did not add to the Petitioner's arguments, we will not repeat that analysis here. 
Then, I I discussed this occupation within the state labor market concluding that 
"state-level information verifies that Bachelor's-level preparation is required at a minimum to fulfill 
the typical job duties and responsibilities of this occupation. Lacking from his analysis is the statutory 
and regulatory requirement that the occupation require more than a simple bachelor's degree, but a 
bachelor's degree in a specific specialty that directly relates to the position's duties. 48 Although a 
46 A prevailing wage determination starts with an entry-level wage (Level I) and progresses to a higher wage level (up to 
Level TV) after considering the experience, education, and skill requirements of the Petitioner's job opportunity. See DOL 
guidance. Such a wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have 
a basic understanding of the occupation. This wage rate indicates: (I) that the Beneficiary will be expected to perform 
routine tasks that require limited, if any, exercise of judgment; (2) that he will be closely supervised and his work closely 
monitored and reviewed for accuracy; and (3) that he will receive specific instructions on required tasks and expected 
results. Id. 
47 DOL guidance. 
48 See section 214(i)(l)(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). See also PayJoy, Inc. v. Cuccinelli, No. l 9-cv-03977, 
2019 WL 3207839, at *3 (N.D. Cal. July 16, 2019) (agreeing with USCIS' interpretation of degree requirement as meaning 
"one in a specific specialty that is directly related to the proffered position"); Stellar IT Sols., Inc. v. USCIS, No. l 8-cv-
2015, 2018 WL 6047413, at *8 (D.D.C. Nov. 19, 2018) (observing that the H-IB "regulations must be read in the context 
of the statutory definition" and noting with approval that USCTS "consistently interprets the term degree in the regulations 
15 
general-purpose bachelor's 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. 49 
Finally, the Petitioner argues that the nature of the organization's work-project portfolio 
management-is more complex and unique than traditional project management. We will not offer 
analysis surrounding this comparison as that contrast is much less important in deciding whether a 
position qualifies under the H-lB program than is our analysis pertaining to the actual position. While 
we consider the nature of the Petitioner's business as one aspect, the shortcomings associated with this 
position, and the evidence in support of it that we discuss within this decision, heavily outweigh any 
favorable consideration the industry complexities might lend to the Petitioner's claims. 
The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the 
position. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
F. 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. As the Petitioner 
admits that the Beneficiary would be the first person it would hire in this position, it has not provided 
sufficient evidence to establish that it normally requires at least a bachelor's degree in a specific 
specialty, or its equivalent, for the proffered position. Therefore, it has not satisfied the third criterion 
at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
G. 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. 
Under this criterion, the Petitioner relies on,__ ____ ___. letter, that we have demonstrated is 
associated with several evidentiary shortcomings and is not sufficient. Further, while the Petitioner 
provided a more detailed job description in response to the RFE, that description does not establish that 
the duties are so specialized and complex that they require a degree in a specific specialty. The 
Petitioner's description only reiterated the claimed degree requirement, without demonstrating a sufficient 
nexus between an established series or selection of courses students must complete leading to a specialty 
degree, and without establishing how such a curriculum is necessary to perform the duties it claims are 
so specialized and complex. To execute some functions of the proffered position, associated courses may 
to mean not just any bachelor's or higher degree, but one in a specific specialty that is directly related to the proffered 
position" (internal citations omitted)); Royal Siam COip., 484 F.3d at 147 (finding that "a degree requirement in a 
specific specialty" means "one that relates directly to the duties and responsibilities of a particular position."). 
49 Royal Siam, 484 F.3d at 147. See also Irish Help at Home LLC v. Melville, 13-cv-00943-MEJ, 2015 WL 848977 *6-8 
(N.D. Cal. Feb. 24, 2015), aff'd, 679 F. App'x 634 (9th Cir. 2017). 
16 
be helpful or necessary. 50 However, the Petitioner has not shown that a prepared educational program 
leading to a bachelor's degree or higher in a specific specialty, or its equivalent, is required. 
We reiterate that the Petitioner's bachelor's degree requirement in business administration, without a 
sufficient specialization is particularly detrimental to its eligibility claims. Although the Petitioner 
asserts that the nature of the specific duties is specialized and complex, the record lacks sufficient 
evidence to support this claim. Therefore, the Petitioner has submitted insufficient evidence to satisfy 
the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
H. Definitional Requirement 
The process of demonstrating that a proffered position is sufficient to meet the requirements under the 
H-lB program includes more than satisfying one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). The 
regulation also requires a petitioner to demonstrate that a petition "involves a specialty occupation as 
defined in section 214(i)(l) of the Act." 51 This statutory definition states: "the term 'specialty 
occupation' means an occupation that requires ... [a] theoretical and practical application of a body 
of highly specialized knowledge, and ... attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum for entry into the occupation in the United States." 
From this, we reason that the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) should be read logically as being 
necessary-but not necessarily sufficient-to meet the statutory and regulatory definition of a 
specialty occupation. To otherwise interpret the regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 
as stating the necessary, but not necessarily sufficient conditions as being adequate to qualify would 
result in some positions meeting a condition under the criteria, but not under the statutory definition. 52 
To avoid this erroneous result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing 
supplemental criteria that must be met in accordance with, and not as alternatives to, the statutory 
definition of a specialty occupation. This results in a multi-part analysis to determine whether a 
particular position qualifies as a specialty occupation. As a result, an H-1 B petition cannot be 
approved unless a petitioner demonstrates that a proffered position satisfies this statutory definition; 
not even if it demonstrates it has satisfied one of the four regulatory criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A). 
Accordingly, were a petitioner to submit sufficient evidence to satisfy one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), we would then evaluate whether it had also satisfied the statutory definition. We 
conclude that in addition to not meeting any of the regulatory criteria, the Petitioner has not 
demonstrated the position in this petition qualifies as a specialty occupation under the statutory 
definition. 
50 Xiaotong Liu, No. SACVl 800376JVSKESX, 2018 WL 7348851, at *12 (finding that although some coursework may 
be helpful preparation for a job, that does not necessarily lead to the conclusion that those courses are required for the 
position). 
51 8 C.F.R. § 214.2(h)(4)(i)(B)(2); see also 8 C.F.R. § 214.2(h)(l)(ii)(B)(l). 
52 See Defensor, 201 F.3d at 387; Sagarwala v. Cissna, 387 F. Supp. 3d at 64. 
17 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
18