dismissed H-1B Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-H-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 21,2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a hospitality management firm, seeks to employ the Beneficiary as a marketing 
director and to classify her as a nonimmigrant worker in a specialty occupation. See Immigration 
and Nationality Act (the Act)§ 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, 
Vermont Service Center, denied the petition. The matter is now before us on appeal. The appeal 
will be dismissed. 
I. PROCEDURALBACKGROUND 
The Director denied the petition determining that the record of evidence did not establish that the 
proffered position qualifies for classification as a specialty occupation. On appeal, the Petitioner 
asserts that the Director's basis for denial of the petition was erroneous and contends that it has 
satisfied all evidentiary requirements. 
The record of proceeding includes: (1) the Petitioner's Form I-129 and supporting documentation; 
(2) the service center's request for evidence (RFE); (3) the Petitioner's response to the RFE; (4) the 
notice of decision; and (5) the Notice of Appeal or Motion (Form I-290B), a brief, and additional 
documentation. We reviewed the record in its entirety before issuing our decision. 1 
For the reasons that will be discussed below, we agree with the Director's decision that the Petitioner 
has not established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
Also, in light of the Petitioner's references to the requirement that U.S. Citizenship and Immigration Services (USC IS) 
apply the "preponderance of the evidence" standard, we affirm that, in the exercise of our appellate review in this matter, 
as in all matters that come within our purview, we follow the preponderance of the evidence standard as specified in the 
controlling precedent decision, Matter ofChawathe, 25 I&N Dec. 369, 375-376 (AAO 20 l 0). 
(b)(6)
Matt er of F-H-, Inc. 
II. THE PROFFERED POSITION 
The Petitioner identified the proffered position as a "Marketing Director" on the Form 1-129, and 
attested on the required Labor Condition Application (LCA) that the occupational classification for 
the position is "Market Research Analysts and Marketing Specialists," SOC (ONET/OES) Code 
13-1161, at a Level I wage. 
In the Petitioner 's letter submitted in support of the petition, dated March 24, 2014, the Petitioner 
stated that it "is a hospitality management group, which manages full service Greek restaurants in 
and " The Petitioner identified the job duties of the position as 
follows: 
• Evaluate economic and business trends to advise management and draft reports 
concerning potential marketing strategies[;] 
• Formulate budgets connected with all new marketing and promotional initiatives[;] 
• Review our financial statements in connection with each locations' marketing campaigns 
to eliminate wasteful spending and advise [sic] on more profitable strategies[;] 
• Maintain the monthly marketing budgets, including offsite events and charitable 
donations[;] 
• Develop and manage relationships with vendors, clients, and industry contacts[; and] 
• Measure the financial effectiveness and feasibility of our marketing programs and 
strategies. 
[Bullet points added. f 
The Petitioner also stated: "[ o ]ur minimum prerequisite for the position of Marketing Director is a 
Bachelor's degree in Finance, Business , or a related field." 
III. SPECIALTY OCCUPATION 
A. Legal Framework 
To meet its burden of proof, the Petitioner must establish that the employment it is offering to the 
Beneficiary meets the following statutory and regulatory requirements . 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
2 In response to the RFE, the Petitioner provided the initially described dut ies in a bulle t point list and added the 
coursework it believed necessary to perform the initially described duties. 
2 
Matter of F-H-, Inc. 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the m1mmurn 
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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of 
W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
3 
Matter of F-H-, Inc. 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
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 and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)( 4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 proffered 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"). Applying this standard, USCIS regularly approves H -1 B petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty or its equivalent directly related to the duties and responsibilities of the 
particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. Analysis 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will first address the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). This criterion requires that a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry into the particular position. We recognize the Department of Labor's (DOL) 
Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses.3 The Petitioner asserts on the Form 
3 All of the references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/OCO/. The excerpts of the Handbook regarding the duties and requirements of the referenced 
4 
Matter ofF- H-, Inc. 
I -129 that the proffered position is a marketing director and attests on the LCA that the proffered 
position corresponds to SOC code and title 13-1161, Market Research Analysts and Marketing 
Specialists. 
We reviewed the section of the Handbook regarding the occupational category "Market Research 
Analysts," including the section entitled "How to Become a Market Research Analyst," which 
describes the following preparation for the occupation, in pertinent part: 
Most market research analysts need at least a bachelor's degree. Top research positions often 
require a master's degree. Strong math and analytical skills are essential. 
Education 
Market research analysts typically need a bachelor's degree in market research or a related 
field. Many have degrees in fields such as statistics, math, and computer science. Others 
have backgrounds in business administration, the social sciences, or communications. 
Courses in statistics, research methods, and marketing are essential for these workers. 
Courses in communications and social sciences, such as economics, psychology, and 
sociology, are also important. 
Some market research analyst jobs require a master's degree. Several schools offer graduate 
programs in marketing research, but many analysts complete degrees in other fields, such as 
statistics and marketing, and/or earn a Master of Business Administration (MBA). A 
master's degree is often required for leadership positions or positions that perform more 
technical research. 
Other Experience 
Most market research analysts can benefit from internships or work experience in business, 
marketing, or sales. Work experience in other positions that require analyzing data, writing 
reports, or surveying or collecting data can also be helpful in finding a market research 
position. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Market Research Analysts," http://www. bls. gov I oohlbusiness-and- financial/market- research­
analysts.htm#tab-4 (last visited August 31, 20 15). 
The Handbook does not state that a baccalaureate or higher degree in a specific specialty, or its 
equivalent is normally the minimum requirement for entry into the occupation. This passage of the 
Handbook reports that market research analysts have degrees and backgrounds in a wide-variety of 
occupational category are hereby incorporated into the record of proceeding. 
5 
Matter of F-H-, Inc. 
disparate fields. The Handbook states that employees typically need a bachelor's degree in market 
research or a related field, but the Handbook continues by indicating that many market research 
analysts have degrees in fields such as statistics, math, or computer science. According to the 
Handbook, other market research analysts have a background in fields such as business 
administration, one of the social sciences, or communications. The Handbook notes that various 
courses are essential to this occupation, including statistics, research methods, and marketing. The 
Handbook also notes that courses in communications and social sciences (such as economics, 
psychology, and sociology) are also important. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
requirement of a bachelor's of higher degree in more than one specialty is recognized as satisfying 
the "degree in the specific specialty (or its equivalent)" requirement of section 214(i)(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, for example, would not meet the statutory requirement that the 
degree be "in the specific specialty (or its equivalent)," unless the Petitioner establishes how each 
field is directly related to the duties and responsibilities of the particular position such that the 
required body of highly specialized knowledge is essentially an amalgamation of these different 
specialties. Section 214(i)(l)(B) ofthe Act (emphasis added). 
Here, although the Handbook indicates that an advanced degree is typically needed for these 
positions, it also indicates that baccalaureate degrees in various fields are acceptable for entry into 
the occupation. In addition to recognizing degrees in disparate fields and backgrounds (i.e., social 
science and computer science) as acceptable for entry into this occupation, 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. Cherto.ff, 484 F.3d at 
14 7. Therefore, the Handbook's recognition that a general, non-specialty "background" in business 
administration is sufficient for entry into the occupation strongly suggests that a bachelor's degree in 
a specific specialty is not normally the minimum entry requirement for this occupation. 
The Petitioner contends on appeal that USCIS did not consider its job description and did not 
consider that the Beneficiary successfully completed coursework described in the Handbook as 
essential for Market Research Analysts. First, the description of the duties for the proffered position 
provided initially and in response to the RFE, offers a broad overview of the Beneficiary's duties. 
Although the descriptions correspond generally to the duties of a Market Research Analyst, the 
record does not include evidence of the actual day-to-day tasks the Beneficiary will be expected to 
perform in relation to the Petitioner's business operations. Accordingly, the record does not include 
substantive evidence demonstrating that the proposed duties actually require the theoretical and 
practical application of a body of highly specialized knowledge, and the attainment of a 
Matter of F-H-, Inc. 
baccalaureate or higher degree in the spec!fic specialty as the minimum for entry into the occupation, 
as required by the Act. 
Second, a Beneficiary's credentials to perform a particular job are relevant only when the job is first 
found to qualify as a specialty occupation. USCIS is required to follow long-standing legal 
standards and determine first, whether the proffered position qualifies as a specialty occupation, and 
second, whether an alien Beneficiary was qualified for the position at the time the nonimmigrant visa 
petition was filed. C.f Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) 
("The facts of a beneficiary's background only come at issue after it is found that the position in 
which the petitioner intends to employ him falls within [a specialty occupation]."). In this matter, it 
appears that the Petitioner relies on the Beneficiary's credentials to establish that the proffered 
position is a specialty occupation. While the Beneficiary may be qualified to perform the duties of 
the proffered position, the record does not establish that the duties as generally described comprise 
duties that actually require the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty as the 
minimum for entry into the occupation, as required by the Act. 
Upon review of the totality of the record, the Petitioner here has not met its burden and established 
that the particular position offered in this matter requires a bachelor's or higher degree in a specific 
specialty, or its equivalent. We recognize that the Petitioner desires an employee with a finance or 
business background. However, the Petitioner does not substantiate that only a bachelor's degree in 
a specific specialty would provide the specialized knowledge to perform the duties it ascribes to the 
proffered position. Rather, as the Handbook reports, the specialized knowledge required to perform 
the general duties of a Market Research Analyst may be attained with a bachelor's degree in a 
number of fields of study. Accordingly, as the Handbook indicates that working as a market 
research analyst, the category the Petitioner identifies as most closely corresponding to the proffered 
position, does not normally require at least a bachelor's degree in a specific specialty, or its 
equivalent, for entry into the occupation, it does not support the proffered position as qualifying as a 
specialty occupation. 
Further, when reviewing the Handbook, it also must be noted that the Petitioner designated the 
proffered position as a Level I (entry level) position on the LCA. The wage levels are defined in 
DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage rate is described as 
follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees 
who have only a basic understanding of the occupation. These employees perform routine 
tasks that require limited, if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. The employees may 
perform higher level work for training and developmental purposes. These employees work 
under close supervision and receive specific instructions on required tasks and results 
expected. Their work is closely monitored and reviewed for accuracy. Statements that the job 
Matter of F-H-, Inc. 
offer is for a research fellow, a worker in training, or an internship are indicators that a Level 
I wage should be considered. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http:/ /www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance _Revised _11_ 2009 .pdf. 
Thus, in designating the proffered position at a Level I wage, the Petitioner has indicated that the 
proffered position is a comparatively low, entry-level position relative to others within the 
occupation of "Market Research Analyst." That is, in accordance with the relevant DOL 
explanatory information on wage levels, this wage rate indicates that the Beneficiary is only required 
to have a basic understanding of the occupation and carries expectations that the Beneficiary perform 
routine tasks that require limited, if any, exercise of judgment; that she would be closely supervised; 
that her work would be closely monitored and reviewed for accuracy; and that she would receive 
specific instructions on required tasks and expected results. As noted above, according to DOL 
guidance, a statement that the job offer is for a research fellow, worker in training or an internship is 
indicative that a Level I wage should be considered. 
The Handbook does not support the claim that the occupational category of market research analysts 
is one for which normally the minimum requirement for entry is a baccalaureate degree (or higher) 
in a specific specialty, or its equivalent. Even if it did, the record lacks sufficient evidence to 
support a finding that the particular position proffered here, an entry-level market research analyst 
position (as indicated on the LCA), would normally have such a minimum, specialty degree 
requirement or its equivalent. The duties and requirements of the position as described in the record 
of proceeding do not indicate that this particular position proffered by the Petitioner is one for which 
a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record of proceeding regarding the first of the two alternative prongs of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a Petitioner to establish that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for 
positions that are identifiable as being (1) in the Petitioner industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the Petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
Matter of F-H-, Inc. 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d at 1165 
(D.Minn. 1999) (quotingHird/Blaker Corp. v. Sava, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
Here and as already discussed, the record does not establish that the proffered position is one for 
which the Handbook, or other authoritative source, reports a standard, industry-wide requirement of 
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. 
Upon a complete review of the record of proceeding, the record does not establish that a requirement 
for at least a bachelor's degree in a specific specialty, or its equivalent, is (1) common to the 
Petitioner's industry (2) in parallel positions (3) among organizations similar to the Petitioner. Thus, 
for the reasons discussed above, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
spec?fic specialty, or its equivalent 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered pos1t10n qualifies as a specialty occupation, the 
Petitioner submitted copies of its webpages depicting the several restaurants it manages. 4 However, 
upon review of the record of proceeding, the evidence of record does not credibly demonstrate 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. 
Specifically, the evidence does not demonstrate how the duties that collectively constitute the 
proffered position require the theoretical and practical application of a body of highly specialized 
knowledge such that a bachelor's or higher degree in a specific specialty, or its equivalent, is 
required to perform them. Although the Petitioner, in response to the RFE, identified particular 
coursework useful to carrying out the generally described duties, the Petitioner did not demonstrate 
4 Although the Petitioner reports that it earns $10,000,000 in gross annual income, on the Form 1-129 and in its letters in 
support of the petition, the record does not include independent evidence supporting this claim. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter ofSoffici, 22 I&N Dec. I 58, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg'! Comm'r 1972)). 
9 
Matter of F-H-, Inc. 
how such courses are necessary to perform the duties of the proffered position. That is, the record 
includes the Petitioner's conclusory statements indicating that certain courses would be valuable in 
carrying out particular duties, but does not include the requisite analysis of how or why 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 particular position here.5 The 
Petitioner does not detail what particular aspects of its company's marketing activity, corroborated 
by independent evidence, elevate the proffered position to one that is complex or unique. Rather, the 
duties of the proffered position, as generally described, could be performed by an individual with 
any number of umelated degrees, including degrees of general application, such as a bachelor's 
degree in business. 
Further, as was also noted above, the LCA submitted in support of the visa petition is approved for a 
wage Level I employee, an indication that the proffered position is an entry-level position for an 
employee who has only a basic understanding of the occupation. 6 This does not support the 
proposition that the proffered position is so complex or unique relative to other positions in the same 
occupation that it can only be performed by a person with a specific bachelor's degree, especially as 
the Handbook indicates that market research analyst positions do not require a degree in a specific 
. l 7 spec1a ty. 
Upon review of the totality of the record, the evidence does not establish that this position is 
significantly different from other positions in the occupation such that it refutes the Handbook's 
information to the effect that there is a spectrum of degrees acceptable for such positions, including 
degrees not in a specific specialty. In other words, the record lacks sufficiently detailed information 
to distinguish the proffered position as unique from or more complex than positions that can be 
performed by persons without at least a bachelor's degree in a specific specialty, or its 
equivalent. As the evidence of record does not demonstrate how the proffered position is so 
complex or unique relative to other positions within the same occupational category that do not 
5 Of note, the courses referenced by the Petitioner in its response to the RFE, are tailored to correspond directly to 
courses completed by the Beneficiary in obtaining her degree. Again, a Beneficiary's credentials do not establish that a 
particular position is a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) 
("The facts of a beneficiary's background only come at issue after it is found that the position in which the petitioner 
intends to employ him falls within [a specialty occupation]."). 
6 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www. foreignlaborcert.doleta.gov/pdf/ 
NPWHC_ Guidance_ Revised_! 1_2009.pdf. 
7 The issue here is that 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, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an 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 consideration but is not a substitute for 
a determination of whether a proffered position meets the requirements of section 214(i)(l) of the Act. 
10 
Matter of F-H-, Inc. 
require at least a baccalaureate degree in a specific specialty or its equivalent for entry into the 
occupation in the United States, it cannot be concluded that the Beneficiary has satisfied the second 
alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
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. To 
this end, USCIS reviews the Petitioner's past recruiting and hiring practices, information regarding 
employees who previously held the position, as well as any other documentation submitted by a 
Petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a Petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. A Petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. Again, USCIS must examine the actual employment requirements, and, on the 
basis of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the 
specific specialty as the minimum for entry into the occupation as required by the Act. According to 
the Court in Defensor, "To interpret the regulations any other way would lead to an absurd result." 
!d. at 388. If USCIS were constrained to recognize a specialty occupation merely because the 
Petitioner has an established practice of demanding certain educational requirements for the 
proffered position - and without consideration of how a Beneficiary is to be specifically employed -
then any alien with a bachelor's degree in specific specialty could be brought into the United States 
to perform non-specialty occupations, so long as the employer required all such employees to have 
baccalaureate or higher degrees. See id. 
The Petitioner in this matter did not submit evidence demonstrating that it had previously employed 
a marketing director. Accordingly, there are no records for USCIS to examine to establish this 
criterion. 
Upon review of the record, the Petitioner has not provided probative evidence to establish that it 
normally requires at least a bachelor's degree in a specific specialty, or its equivalent, for the 
proffered position. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter a.[ Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
II 
Matter of F-H-, Inc. 
As the record of proceeding does not demonstrate that the Petitioner normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the proffered position, it does not 
satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
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 in a specific specialty, or its equivalent 
Finally, the Petitioner has not satisfied the fourth criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A), which is 
reserved for positions with specific duties so specialized and complex that their performance 
requires knowledge that is usually associated with the attainment of a baccalaureate or higher degree 
in a specific specialty or its equivalent. Again, relative specialization and complexity have not been 
sufficiently developed by the Petitioner as an aspect of the proffered position. In other words, the 
proposed duties have not been described with sufficient specificity to show that they are more 
specialized and complex than market research analyst positions that are not usually associated with 
at least a bachelor's degree in a specific specialty or its equivalent. We have considered the 
Petitioner's information on its management of several restaurants but do not find that the Petitioner 
has demonstrated that the proffered position requires a precise and specific course of study that 
relates directly and closely to the position in question. The Petitioner has not submitted evidence or 
analysis of why the marketing director for several restaurants requires a bachelor's degree in a 
specific specialty. Rather, the Petitioner appears to acknowledge that the proffered position may be 
performed by an individual with a general business degree. As observed above, 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 a general business degree, without further specification, does 
not establish the position as a specialty occupation. C.f Matter of Michael Hertz Assocs., 19 I&N 
Dec. 558 (Comm'r 1988). 
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.8 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. 
8 We also find that this designation materially conflicts with counsel's assertions, in response to the RFE and on appeal, 
that "[t]he person filling the position of Marketing Director will exercise considerable discretion, autonomy, and decision 
making in a manner that will directly affect Petitioner's business." It is incumbent upon the Petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the Petitioner submits competent objective evidence pointing to where the truth 
lies. Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
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Matter of F-H-, Inc. 
For the reasons discussed above, the evidence of record does not satisfy the fourth criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
The evidence of record does not satisfy any of the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A) and, 
therefore, it cannot be found that the proffered position qualifies for classification as a specialty 
occupation. The appeal will be dismissed and the petition denied for this reason. 
IV. CONCLUSION 
As set forth above, we find that the evidence of record does not sufficiently establish that the 
proffered position qualifies for classification as a specialty occupation. Accordingly, the appeal will 
be dismissed and the petition denied. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of F-H-, Inc., ID# 13734 (AAO Sept. 21, 2015) 
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