dismissed H-1B Case: Marketing

MATTER OF W- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 23, 2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an entertainment company, seeks to temporarily employ the Beneficiary as a 
"communications and marketing specialist" under the H-1B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 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, California Service Center, denied the petition, concluding that the Petitioner did not 
establish that the position offered to the Beneficiary qualified as a specialty occupation. The 
Petitioner subsequently filed an appeal, which we summarily dismissed. The matter is now before 
us on a combined motion to reopen and a motion to reconsider. 
Upon de novo review, we will grant the motion in part for the purpose of withdrawing our decision 
to summarily dismiss the appeal. However, as the Petitioner has not overcome the Director's 
findings, we will deny the remainder of the motion and dismiss the appeal on its merits. 
I. MOTION REQUIREMENTS 
A. Overarching Requirement for Motions by a Petitioner 
The provision at 8 C.P.R. § 103.5(a)(1)(i) includes the following statement limiting a U.S. 
Citizenship and Immigration Services (USCIS) officer's authority to reopen the proceeding or 
reconsider the decision to instances where "proper cause" has been shown for such action: "[T]he 
official having jurisdiction may, for proper cause shown, reopen the proceeding or reconsider the 
prior decision." . 
Thus, to merit reopening or reconsideration, the submission must not only meet the formal 
requirements for filing (such as, for instance, submission of a Form I-290B, Notice of Motion or 
Appeal, that is properly co-mpleted and signed, and accompanied by the correct fee), but the 
Petitioner must also show proper cause for granting the motion. As stated in the provision at 
Matter of W- LLC 
8 C.F.R. § 103.5(a)(4), "Processing motions in proceedings before the Service," "[a] motion that 
does not meet applicable requirements shall be dismissed." 
B. Requirements for Motions to Reopen 
The regulation at 8 C.F.R. § 103.5(a)(2), "Requirements for motion to reopen," states: 
A motion to reopen must [(1)] state the new facts to be provided in the reopened 
proceeding and [(2)] be supported by affidavits or other documentary evidence. 
This provision is supplemented by the related instruction at Part 4 of the Form I-290B, which states: 
Motion to Reopen: The motion must state new facts and must be supported by 
affidavits and/or documentary evidence demonstrating eligibility at the time the 
underlying petition ... was filed. 1 
Further, the new facts must-possess such significance that, "if proceedings ... were reopened, with 
all the attendant delays, the new evidence offered would likely change the result in the case." Matter 
of Coelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 
1239-40 (lOth Cir. 2013). 
C. Requirements for Motions to Reconsider 
The regulation at 8 C.F.R. § 103.5(a)(3), "Requirements for motion to reconsider," states: 
A motion to reconsider must [(1)] state the reasons for reconsideration and [(2)] be 
supported by any pertinent precedent decisions to establish that the decision was 
based on an incorrect application of law or Service policy. A motion to reconsider a 
decision on an application or petition must [(3)], [(a)] when filed, also [(b)] establish 
that the decision was incorrect based on the evidence of record at the time of the 
initial decision. 
These provisions are augmented by the related instruction at Part 4 of the Form I-290B, which states: 
Motion to Reconsider: The motion must be supported by citations to appropriate 
statutes, regulations, or precedent decisions and must establish that the decision was 
based on an incorrect application of law or policy, and that the decision was incorrect 
based on the evidence of record at the time of decision. 
1 The regulation at 8 C.F.R. § 103.2(a)(l) states in pertinent part: "Every benefit request or other document submitted to 
DHS must be executed and filed in accordance with the form instructions, notwithstanding any provision of 8 CFR 
chapter 1 to the contrary, and such instructions are incorporated into the regulations requiring its submission." 
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Matter of W- LLC 
I 
A motion to reconsider contests the correctness of the prior decision based on the previous factual 
record, as opposed to a motion to reopen which seeks a new hearing based on new facts. Compare 
8 C.P.R.§ 103.5(a)(3) and 8 C.P.R.§ 103.5(a)(2). 
A motion to reconsider should not be used to raise a legal argument that could have been raised 
earlier in the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 219 (BIA 1990, 1991) 
("Arguments for consideration on appeal should all be submitted at one time, rather than in 
piecemeal fashion."). Rather, any "arguments" that are raised in a motion to reconsider should flow 
from new law or a de novo legal determination that could not have been addressed by the affected 
party. Matter ofO-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (examining motions to reconsider under a 
similar scheme provided at 8 C.P.R. § 1003.2(b)); see also Martinez-Lopez v. Holder, 704 F.3d 169, 
171-72 (1st Cir. 2013). Further, the reiteration of previous arguments or general allegations of error 
in the prior decision will not suffice. Instead, the affected party must state the specific factual and 
legal issues raised on/appeal that were decided in error or overlooked in the initial decision. See 
Matter ofO-S-G-, 24 I&N Dec. at 60. 
Here, the Petitioner provides facts that could be considered "new" in support of its motion to reopen. 
We will grant the motion in part to withdraw our decision. However, as the Petitioner has not 
established that the proffered position is a specialty occupation, we will deny the remainder of the 
motion and dismiss the appeal. 
II. SPECIALTY OCCUPATION 
A. The Law 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.P.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
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Matter of W- LLC 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific . duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). .. 
B. Proffered Position 
In the H-1B petition, the Petitioner stated that the Beneficiary will serve as a "communications and 
marketing specialist." The Petitioner provided the following overview of the duties the Beneficiary 
would perform in this position: 
40% - Market Research (12 hours per week) 
Percentage of time/Hours per week of work: 
Approximately 40% or 12 hours of work time per week, [the Beneficiary] will research 
market conditions in the local, regional and national areas to determine and evaluate 
potential business opportunities, generate leads, provide valuable feedback from 
customers, assist petitioner with evaluating consumer satisfaction with the 
products/services and create a more effective marketing plan for the future. 
Specific job duties: 
• Identify and develop methods for measuring the performance of petitioner's 
marketing initiatives. 
• Work closely with management to formulate and describe petitioner's short­
term and long-term goals and actions. 
• Utilize database application knowledge to design processes for data collection, 
data analysis, and data application. 
• Convert collected marketing data into information.Jor perfecting petitioner's 
customers, referrals, and competitor's databases. 
• Integrate and analyze information from qualitative and quantitative sources to 
perform analysis on customer's needs, main problems and business trends. 
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Matter of W- LLC 
• Responsible for analyzing and interpreting data usmg appropriate and 
established research and statistical methodologies. 
• Derive meaningful conclusions and implications from the data and organize and 
present findings to management. 
20%- Planning Initiatives (6 hours per week) 
Percentage of time/Hours per week of work: 
Approximately 20% or 6 hours of work time per week, [the Beneficiary] will be 
planning initiatives. This area consists of defining and shaping petitioner's business in 
a large and competitive entertainment business forwarding market by developing 
strategies to promote and enhance service acceptance within the company's targeted 
markets. 
0 
Specific Job Duties: 
• Develop, implement, and evaluate both internal and external public relations 
strategies. 
• Analyze problems and opportunities, define goals and determine audience to be 
reached by marketing plans. 
• Recommend and plan marketing activities. 
• Write and edit press releases, product information and employee publications. 
20%- Quantitative Research and Analysis (6 hours per week) 
Percentage of time/Hours per week of work: 
Approximately 20% or 6 hours of work time per week, [the Beneficiary] will use 
research tools to collect and analyze data and recommend his findings to the 
management. 
Specific job duties: 
• Use quantitative market analysis, forecasting and business development skills to 
develop market models [that] reflect petitioner's competition in the 
marketplace. 
• Evaluate business opportunities to grow petitioner's business in new and 
creative ways. 
• Target return on investment data and communicate the competitive analysis 
information to petitioner. 
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Matter of W- LLC 
• Make recommendations related to treatment strategy, evaluation of survey 
results and campaign effectiveness. 
• Develop and propose marketing materials and publications designed to reach 
targeted communities. 
20% -Public Goodwill (6 hours per week) 
Percentage of time/Hours per week of work: 
Approximately 10% or 3 hours of work time per week, [the Beneficiary] will also 
arrange for public relations efforts in order to meet the needs, objectives, and policies 
of individual and special interest groups. He will utilize his knowledge of 
communications to write new services releases based on information collected from 
marketing either through existing documentation or personal interviews. 
[The Beneficiary] will represent petitioner during community projects and at public, 
social and business gatherings. 
Specific job duties: 
• Create and implement public relations programs designed to create and maintain 
favorable public image for petitioner and its services. 
• Analyze marketing problems and opportunities then make appropriate 
rebommendations. 
• Organize for public relations efforts to meet the needs and objectives of 
petitioner. 
• Author press releases and calendar listings and arrange for interviews, feature 
stories and reviews in all manners of media. 
• Perform grammar and readability editing on all collateral materials to facilitate 
effective public relations programs. 
• Develop and maintain strong relationships with local and regional media groups 
and implement public relations programs to support commercial activities. 
I 
In a letter submitted in response to a request for evidence (RFE), the Petitioner stated that the 
proffered position "cannot be performed by someone without at least a bachelor's degree in 
communications, marketing, management, or a closely related field. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation? 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
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Matter of W- LLC 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 3 
A. First Criterion 
We tum first to the criterion at 8C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.4 
On the labor condition application (LCA)5 submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Market Research Analysts and 
Marketing Specialists" corresponding to the Standard Occupational Classification code 13-1161.6 In 
pertinent part, the Handbook states that "[m]arket 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." U.S. Department of Labor, Bureau of Labor Statistics, Occupational Outlook 
Handbook, 20 16-1 7 ed., http://www. bls. gov I ooh/business-and- financial/print/market -research­
analysts.htm (last visited Nov. 22, 20 16). 
3 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
4 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent; for entry. 
5 The Petitioner is required to submit a certified LCA to USC IS to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage 
paid by the employer to other employees with similar experience and qualifications who are performing the same 
services. See Matter ofSimeio Solutions. LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
6 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to h~ve 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. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
Matter of W- LLC 
The Handbook reports that market research analysts have degrees and backgrounds in a wide-variety 
.of disparate fields. That is, while the Handbook states that employees typically need a bachelor's 
degree in market research or a related field, it continues by specifying that many market research 
analysts have degrees in fields such as statistics, math, or computer science. According to the 
Handbook, other market research analysts have backgrounds in fields such as business 
administration, the social sciences, or communications. This passage of the Handbook identifies 
various courses as essential to this occupation, including statistics, research methods, and marketing. 
It further elucidates that courses in communications and social sciences (such as economics, 
psychology, and sociology) are also important. Therefore, although the Handbook indicates that 
market research analysts typically need an advanced degree, it also indicates that degrees and 
backgrounds in various fields are acceptable for jobs in this occupation- including computer science 
and the social sciences, as well as statistics and communications. 7 
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.8 Section 
214(i)(l)(B) ofthe Act (emphasis added). 
The Handbook also states that "others have a background in business administration." Although a 
general-purpose bachelor's degree, such as a degree in business administration, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a finding 
that a particular position qualifies for classification as a specialty occupation. See Royal Siam Corp. 
v. Chertoff, 484 F.3d at 147.9 
7 Based upon the Petitioner's designation of the proffered position as a Level I position (relative to others with the 
occupation) it does not appear that the Beneficiary will serve in a senior or leadership role or in a position that performs 
more technical research. 
8 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. 
9 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
[t]he courts and the agency consistently have stated that, although a general-purpose bachelor's degree, 
such as a business administration degree, may be a legitimate prerequisite for a particular position, 
requiring such a degree, without more, will not justify the granting of a petition for an H-1 B specialty 
8 
(b)(6)
Matter of W- LLC 
That is, USCIS interprets the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree 
in a specific specialty (or its equivalent) that is directly related to the proposed position. Since there 
must be a close correlation between the required specialized studies and the position, the 
requirement ·of a degree with a generalized title, such as business administration, without further 
specification, does not establish the position as a specialty occupation. C.f Matter of Michael Hertz 
Associates, 19 I&N Dec. 558 (Comm'r 1988). Therefore, the Handbook's recognition that a general, 
non-specialty "background" in busine~s administration is sufficient for entry into the occupation 
strongly suggests that a bachelor's degree in a specific specialty is not normally the minimum entry 
requirement for this occupation. 
The Petitioner cited to the Occupational Information Network (O*NET) information on the "Market 
Research Analysts and Marketing Specialists." The summary report provides general information 
regarding the occupation; however, it does not support the Petitioner's assertion regarding the 
educational requirements for the occupation. For example, 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. Further, 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 - and it does not 
specify the particular type of degree, if any, that a position would require.10 
Further, the summary report provides the educational requirements of "respondents," but does not 
account for 1 00% of the "respondents." The respondents' positions within the occupation are not 
distinguished 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. 
The Petitioner also relied heavily on the advisory opinion letter from a 
Professor of Marketing and Associate Dean for Graduate Programs in the 
We reviewed the opinion letter in its entirety. However, as 
discussed below, the letter is not persuasive in establishing the proffered position as a specialty 
occupation position. 
relies on a description of the duties of the proffered position provided by the Petitioner, and 
refers to the Handbook and the O*NET in evaluating the position. also refers to a job 
!d. 
occupation visa. See, e.g., Tapis lnt 'I v. INS, 94 F.Supp.2d 172, 175-76 (D.Mass.2000); Shanti, 36 F. 
Supp.2d at 1164-66; cf Matter of Michael Hertz Assocs., 19 I & N Dec. 558, 560 ([Comm'r] 1988) 
(providing frequently cited analysis in connection with a conceptually similar provision). This is as it 
should be: elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
1° For additional information, see the O*NET Online Help webpage available at 
http://www.onetonline.org/help/online/svp. 
9 
(b)(6)
Matter of W- LLC 
advertisement for a "marketing communications specialist" with which it deems 
representative of a parallel position within the Petitioner's industry. concludes that the duties 
of the proffered position can only be performed by a person with at least a bachelor's degree in 
communications, marketing, management, or a closely related field. 
However, there is no indication that possesses any knowledge of the Petitioner's proffered 
position beyond the brief duty description furnished by the Petitioner. For example, he does not discuss 
the duties of the proffered position in any substantive detail. Further, while he provided a brief 
description of the Petitioner's business ("hospitality (food and beverage), entertainment and event venue 
company"), he does not demonstrate or assert in-depth knowledge of the specific business operations or 
how the duties of the position would actually be performed in the context of the Petitioner's business 
enterprise. For instance, there is no evidence that has visited the Petitioner's business, 
observed the Petitioner's employees, interviewed them about the nature of their work, or documented 
the knowledge that they apply on the job. Finally, while he deems the job posting by to 
be representative of the industry's hiring standard, we note that this job posting requires a degree in 
business, marketing, or journalism, disparate fields from each other and from the fields he claims are 
essential to perform the duties of the proffered position. 
Furthermore, there is no indication that the Petitioner advised that it characterizes the 
proffered position as a low, entry-level market research analyst position, for a beginning employee who 
has only a basic understanding of the occupation (as indicated by the wage-level on the LCA) relative to 
other positions within the occupational category. We consider this a significant omission, as it appears 
that would have found this infotffiation relevant for his opinion letter. Moreover, without 
this information, the Petitioner has not demonstrated that possessed the requisite information 
necessary to adequately assess the nature of the Petitioner's position and appropriately determine 
parallel positions based upon job duties and responsibilities. 
In summary, and for each and all of the reasons discussed above, we conclude that the opinion letter 
rendered by is not sufficient to establish the proffered position qualifies as a specialty 
occupation. The conclusions reached by lack the requisite specificity and detail and are not 
supported by independent, objective evidence demonstrating the manner in which he reached such 
conclusions. There is an inadequate factual foundation established to support the opinion and we find 
that the opinion is not in accord with other information in the record. As such, neither 
findings nor his ultimate conclusions are persuasive, and his opinion letter does not satisfy any criterion 
of the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
The Petitioner refers to unpublished decisions in which we determined that "an occupation is a 
'specialty occupation' when it is defined as such by both the immigration law and the [Handbook]." 
Here and as previously stated, the Handbook does not support the proposition that the position of 
market research analyst is one that meets the statutory and regulatory provisions of a specialty 
occupation. Moreover, the Petitioner has furnished no evidence to establish that the facts of the 
instant petition are analogous to those in the unpublished decisions. While 8 C.F.R. § 103.3(c) 
provides that our precedent decisions are binding on all USCIS employees 'in the administration of 
the Act, unpublished decisions are not similarly binding. 
10 
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Matter of W- LLC 
The Petitioner has not provided sufficient documentation from a probative source to substantiate its 
assertion regarding the minimum requirement for entry into this parti2ular position. Thus, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon 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. 
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 1151, 1165 (D. Minn. 
1999)(quotingHird/BlakerCorp. v. Sava. 712F. Supp.1095, 1102(S.D.N.Y.1989)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative source) reports an 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. Also, there are no submissions from 
the industry's professional association indicating that it has made a degree a minimum entry 
requirement. Furthermore, the Petitioner did not submit any letters or affidavits from similar firms 
or individuals in the Petitioner's industry attesting that such firms "routinely employ and recruit only 
de greed individuals." 
The Petitioner submitted several job advertisements for positions it claims are parallel to the 
proffered position within the Petitioner's industry. Upon review, we find the job advertisements 
unpersuasive. First, all of the advertisements appear to be from companies iry unrelated industries. 
For example, the postings are submitted by an electronics, components, and semiconductor 
manufacturing company, a background check provider, a financial services company, and a 
developer of optical design and analysis tools. Given that the Petitioner is an entertainment 
company, it is clear that the advertisements do not represent parallel positions within the Petitioner's 
industry. 
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Matter of W- LLC 
Moreover, all of the positions require varying levels of experience in addition to their stated 
academic requirements, including one to three years of experience in marketing, three to five years 
of experience in communications, and three to five years of experience in relevant marketing 
communications preferably in a high tech software environment. These requirements suggest that 
the positions advertised are more senior than that of the proffered position, which, as previously 
noted, is a Level 1, entry-level position. 
Finally, most of the posting will accept degrees in disparate fields which, as discussed above, will 
not justify a finding that a particular position qualifies for classification as a specialty occupation. 
One posting will accept degrees in English or journalism, while another will accept a general 
business degree. 
Thus, the evidence of record does not establish that a requirement of a bachelor's or higher degree in 
a specific specialty, or its equivalent, is common to parallel positions with organizations that are in 
the Petitioner's industry and otherwise similar to the Petitioner. The Petitioner has not, therefore, 
satisfied the criterion ofthe first alternative prong of8 C.P.R.§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.P.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
A review of the record of proceedings finds that the Petitioner has not credibly demonstrated that the 
duties the Beneficiary will be responsible for or perform on a day-to-day basis constitute a position 
so complex or unique that it can only be performed by a person with at least a bachelor's degree in a 
specific specialty, or its equivalent. Even when considering the Petitioner's general descriptions of 
the proffered position's duties, the evidence of record does not establish why a few related courses 
or industry experience alone is sufficient preparation for the proffered position. 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 
duties of the proffered position. 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 l;l specific specialty, or its equivalent. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant 
petition. As noted above, the Petitioner attested on the submitted LCA that the wage level for the 
proffered position is a Level I (entry-level) wage. While the Petitioner's assertions regarding the 
complexity of the position are noted, such a wage level is for a position which only requires a basic 
understanding of the occupation; the performance of routine tasks that require limited, if any, 
12 
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Matter of W- LLC 
exercise of judgment; close supervision and work closely monitored and reviewed for accuracy; and 
the receipt of specific instructions on required tasks and expected results, is contrary to a position 
that requires the performance of complex duties. 11 It is, instead, a position for an employee who has 
only basic understanding of the occupation. In order to attempt to show that parallel positions 
require a minimum of a bachelor's degree in a specific specialty, or its equivalent, the Petitioner 
would be obliged to demonstrate that other wage Level I market research analyst positions, 
entry-level positions requiring only a basic understanding of market research analysis, require a 
minimum of a bachelor's degree in a specific specialty or its equivalent, the proposition of which is 
not supported by the Handbook. 
The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the 
duties of the position, and it did not identify any tasks that are so complex or unique that only a 
specifically degreed individual could perform them. Accordingly, the Petitioner has not satisfied the 
second alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
Here, the Petitioner submits documentation pertaining to one other individual it claims is employed 
as a senior marketing/entertainment director for the Petitioner. The Petitioner submits a copy of his 
resume and its quarterly wage report for the third quarter of 2015, evidencing the payment of wages 
to this individual during that time period. 
Without additional evidence regarding this individual's job duties and position, it is not possible to 
discern if this individual performs the same or similar duties with similar levels of responsibilities as 
the proffered position. By virtue of his title alone, it appears that this individual occupies a different 
and possibly more senior position than that of the proffered position in this matter, which is 
identified as that of a communications and marketing specialist. There is insufficient evidence to 
establish that this individual is employed in the same capacity as the proffered position, which is the 
relevant inquiry under the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). The record does not include 
sufficient evidence of any specific duties or responsibilities this individual was given, and does not 
include corroborating evidence of this individual's claimed educational credentials. 
11 
The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) ofthe Act. 
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Matter of W- LLC 
Here, the record of proceedings is insufficient to establish that the Petitioner normally requires a 
bachelor's or higher degree in the specific specialty, or its equivalent, for the proffered position. The 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 12 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. · ' 
In the instant case, relative specialization and complexity have not been sufficiently developed by 
the Petitioner as an aspect of the proffered position. We again refer to our earlier comments and 
findings with regard to the implication of the Petitioner's designation of the proffered position in the 
LCA as a Level I (the lowest of four assignable levels) wage. That is, the Level I wage designation 
is indicative of a low, entry-level position relative to others within the occupational category, and 
hence one not likely distinguishable by relatively specialized and complex duties. Upon review of 
the totality of the record, the Petitioner has not established that the nature of the specific duties 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. The 
Petitioner has not demonstrated in the record that its proffered position is one with duties sufficiently 
specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. The burden is on the 
Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
12 While a petitioner may believe or otherwise assert that a proffered position requires a degree in a specific specialty, 
that opinion alone without corroborating evidence cannot establish the position 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 employer 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, 201 F. 3d at 387. In other words, if a 
petitioner's degree requirement is only symbolic and 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 214(i)(J) of the Act; 8 C.F.R. § 214.2(h)( 4)(ii) (defining the term "specialty 
occupation"). 
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Matter of W- LLC 
ORDER: The motion to reopen is denied in part and granted in part 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofW- LLC, ID# 89200 (AAO Nov. 23, 2016) 
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