dismissed H-1B Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 11794249 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 01, 2020 
The Petitioner, a marketing consulting services company, seeks to temporarily employ the Beneficiary 
as a part-time "marketing specialist" under the H-18 nonimmigrant classification for specialty 
occupations. Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-18 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 Vermont Service Center denied the petition, concluding that the record did not 
establish that the proffered position is a specialty occupation. On appeal, the Petitioner submits a brief 
and asserts that the Director erred by denying the petition. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence.1 We review the questions in this matter de nova. 2 Upon de nova 
review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-18 nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) . . . "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
1 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christa 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
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 proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). 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 
11. PROFFERED POSITION 
The Petitioner seeks to employ the Beneficiary as a part-time "marketing specialist." In the March 
2019 support letter, 4 the Petitioner provided the job duties of the proffered position as follows: 
1. Collect data and analyze our current business operations, in order to develop 
effective marketing strategy to expand business volume. Data collection includes 
sales reports, employee feedback and direct observation etc. (about 4 [hour/week]). 
2. Collect data and analyze the business trend in marketing consultation industry and 
international trade in China and the United States as they are directly relating to our 
firm's business, particularly through media advertisement and marketing (about 3 
[hour/week]). 
3. Research and identify customer needs and expand/develop new customers to 
increase our firm's revenue. This is done through surveys, questionnaires and 
discussion with colleagues, friends, utilizing statistics and Marketing Research. 
(about 4 [hour/week]). 
4. Advise management on how to make our firm more profitable through effective 
efficient marketing campaigns. (about 3 [hour/week]). 
5. Provide research and analysis support on the marketing consultation industry. 
Collect and analyze data from past and current marketing campaign. Analyze 
3 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"). 
4 In response to the Director's request for evidence, the Petitioner provided additional details to the initially described 
duties. For the sake of brevity, we have not recited the supplemental duties, however, we have reviewed them in full. 
2 
quantities insights based on data and offer commendation to the future marketing 
campaign based on the analysis (about 2 [hour/week]). 
6. Track the efficiency of marketing campaign by traffic data, click through rate, 
conversion rate, redemption rate. (about 2 [hour/week]). 
7. Others. (2 [hour/week]) 
The March 2019 Petitioner support letter states that the position's required education is a bachelor's 
degree in a "marketing related filed (sic)." 
II. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 5 
At the outset, we observe discrepancies in the record that undermine the overall credibility of this 
petition. For example, though the Petitioner generally claims that the proffered position requires a 
bachelor's degree, it also claims that the position requires an "advanced degree," which we generally 
understand to be at least a master's degree. The Petitioner also seems to confuse title of the proffered 
position, and at one point refers to the proffered position as a "financial analyst." Finally, one of the 
Petitioner's experts mistakenly refers to the Petitioner as "Spring Glory International." These 
inconsistencies raise questions regarding the position's actual nature and its actual minimum 
requirements. And the fact that the Petitioner's "expert" does not appear familiar with the Petitioner's 
business raises questions regarding the reliability of the expert testimony submitted on the Petitioner's 
behalf. The Petitioner must resolve inconsistencies with independent, objective evidence pointing to 
where the truth lies. 6 Unresolved material inconsistencies may lead us to reevaluate the reliability and 
sufficiency of other evidence submitted in support of the requested immigration benefit. 7 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1), 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 consider the information contained in the 
5 The Petitioner submitted documentation to support the H-1B 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. 
6 Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
7 Id. 
3 
U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the duties 
and educational requirements of the wide variety of occupations it addresses. 8 
On the labor condition application (LCA)9 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 (SOC) code 13-1161 
from the Occupational Information Network (O*NET). The Handbook's subchapter entitled "How to 
Become a Market Research Analyst"10 does not indicate that a bachelor's degree in a specific 
specialty, or the equivalent, is normally required for entry into market research analysts' positions. In 
the initial summary of this subchapter the Handbook recognizes that "[m]ost market research analysts 
need at least a bachelor's degree" while also reporting that "[s]ome research positions may require a 
master's degree" and that "[s]trong math and analytical skills are essential. "11 Thus, generally these 
positions may require a bachelor's degree and some skills, but not a bachelor's degree in a specific 
specialty, or its equivalent. Although the Handbook also reports that "[m]arket research analysts 
typically need a bachelor's degree in market research or a related field," it then adds that "[m]any have 
degrees in fields such as statistics, math, and computer science. Others have backgrounds in business 
administration, the social sciences, or communications."12 
The Handbook's observation that disparate fields of study, including statistics, computer science, and 
"the social sciences," may qualify a worker to enter positions located within the "Market Research 
Analysts" occupational category indicates that a bachelor's or higher degree in a specific specialty, or 
8 We do not 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 we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. Nevertheless, to satisfy the first criterion, 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. 
9 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-1B 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 duties, experience, and qualifications. Section 212(n)(1) of the Act; 20 C.F.R. § 655.731(a). 
10 The Handbook labels this occupation "Market Research Analysts;" while O*NET identifies SOC code 13-1161 as a 
"Market Research Analysts and Marketing Specialists" occupation. 
11 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Market Research Analysts, at 
https://www.bls.gov/ooh/business-and-financial/market-research-analysts.htm (last visited Nov. 30, 2020). 
12 Id. 
4 
its equivalent, is not normally the minimum requirement for entry.13 That is, the Handbook does not 
describe the normal minimum educational requirement for the occupation in a categorical manner, 
other than recognizing that these occupations generally require a bachelor's degree. As noted, in 
addition to recognizing degrees in disparate fields, the Handbook also states that "[o]thers have 
backgrounds 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 conclusion that a particular position qualifies for 
classification as a specialty occupation.14 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 a standard, minimum entry 
requirement for this occupation. Accordingly, as the Handbook indicates that working as a market 
research analyst does not normally require at least a bachelor's degree in a specific specialty or its 
equivalent for entry into the occupation, it does not support the particular position proffered here as 
being a specialty occupation. 
On appeal, the Petitioner seems to conflate the ability of a particular employer to set its own 
educational requirements with its obligation to satisfy the requirements of the H-1B program. An 
employer is certainly able to set its own educational requirements for a given position. However, 
those employer-specific requirements may not satisfy the requirements of the H-1B program. To 
satisfy the first specialty-occupation criterion, a petitioner must demonstrate a bachelor's degree in a 
specific specialty is normally the minimum requirement for entry into the market research analyst 
occupation. As discussed, the Handbook does not indicate a degree in a specific specialty is normally 
the minimum requirement necessary to enter the market research analyst occupation, because a wide 
range of studies qualifies an individual for entry into the occupation. 
Moreover, the narrative of the Handbook further reports that some employees obtain professional 
certification to demonstrate a level of professional competency. It continues by outlining the 
requirements for market research analysts to achieve the Professional Researcher Certification (PRC), 
and states that candidates qualify based upon their experience and knowledge. According to the 
Handbook, the PRC is granted by the Marketing Research Association, now known as the Insights 
13 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 two 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. 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. 
14 Royal Siam Corp., 484 F.3d at 147. See also Vision Builders, LLC v. USCIS, No. 19-3159, 20 WL 5891546, at *4 
(D.D.C. Oct. 5, 2020). 
5 
Association, 15 to those who have at least three years of experience working in opinion and market 
research, pass an exam, and complete only 12 hours of industry-related education courses.16 As noted, 
the PRC has been expanded and rebranded as the Insights Professional Certification (IPC), which has 
three senior tiers: IPC Fellow, IPC Master, and IPC Principal.17 The IRC Principal certification 
replaces the PRC.18 
We reviewed the Insights Association's website, which confirms the Handbook's statement regarding 
the requirements for the PRC, now the IRC Principal (i.e., three years of relevant industry experience 
and passage of an exam). The website includes information regarding "How to Enter the Industry" 
and lists a variety of possible degrees, such as business administration, liberal arts, computer science, 
social science, and communications, and a variety of "helpful skills," including "attention to detail," 
"presentation skills," and "basic computer skills." 19 It does not indicate that a market research analyst 
position has any specific minimum academic requirement for entry, nor does it identify any particular 
level of education as a basis to qualify for a market research analyst position. Instead, the Insights 
Association's website highlights the importance of professional experience and industry-related 
professional courses (through conferences, seminars, and webinars). Consequently, neither the 
Handbook nor the industry's association website support the claim that positions located within the 
"Market Research Analysts" occupational category normally require at least a bachelor's degree in a 
specific specialty, or the equivalent. 
With the request for evidence (RFE) response, the Petitioner submitted three August 21, 2019 printouts 
from BusinessStudent.com, 20 Indeed, and Snagajob. The Petitioner asserts these documents provide 
evidence that a bachelor's degree in a marketing field is required. 21 However, a review of these 
documents do not indicate any of entities are authoritative career resources nor do these documents 
demonstrate that the entities have gathered the necessary evidence to establish an industry standard. 
Indeed and Snagajob are online staffing platforms, and BusinessStudent.com is a business education 
website. 22 Even if these documents were authoritative career sources, they would not demonstrate 
that market research analysts require at least a bachelor's degree in a specific specialty to enter the 
occupation. BusinessStudent.com mirrors the Handbook's language by stating a bachelor's is 
15 The Marketing Research Association merged with the Council of American Survey Research Organizations in 2017 to 
become the Insights Association. See http://www.insightsassociation.org/about (last visited Nov. 30, 2020). The Insights 
Association is therefore the successor to the Marketing Research Association. 
16 The Insights Association website states that it "strives to effectively represent, advance, and grow the research profession 
and industry." For additional information, see http://www.insightsassociation.org/about (last visited Nov. 30, 2020). 
17 See https://www.insightsassociation.org/article/new-insights-professional-certification-ipc-announced-2020 (last 
visited Nov. 30, 2020). 
18 According to the Insights Association, the IPC Principal certification "replaces the PRC within the insights community." 
Id. 
19 See https://www.insightsassociation.org/career-guide (last visited Nov. 30, 2020). 
20 The printout was from BusinessStudent.com; however, the Petitioner refers to this document as "Online Business 
Degree." 
21 In response to the Director's RFE, Counsel provided a letter and referred to the proffered position as a "financial analyst" 
instead of a "marketing specialist" position. This appears to be a typographical error. 
22 On its "About Us" page, BusinessStudent.com describes itself as being "dedicated to informing students and 
professionals on careers, courses, degrees, and jobs available in the competitive field of business, technology and 
healthcare." See https://www.businessstudent.com/about-us/ (last visited Nov. 30, 2020). Unlike the industry-wide, 
publicly-available data produced by DOL and published in the Handbook, we are unable to ascertain what type of research 
went into reaching this resource's conclusions. 
6 
"typically" the minimum requirement, and it does not claim that a bachelor's degree is necessary to 
enter the occupation. 23 It also states that work experience is necessary. As work experience does not 
appear to be one of the Petitioner's requirements, we question whether this resource is actually 
describing the type of job proffered here, which in turns leads us to question its relevance to this 
proceeding. Also, Snagajob discusses the educational level preferred by hiring companies, and Indeed 
states a bachelor's degree is the "common" requirement; however, neither actually state the minimum 
requirement for entry into the occupation. Preferences are not necessarily synonymous with minimum 
hiring requirements. 
As the foregoing demonstrates, the Petitioner has not provided sufficient documentation from a 
probative source to substantiate a claim that a bachelor's degree in a specific specialty is normally the 
minimum requirement for entry into this particular position. Thus, the Petitioner has not satisfied the 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1). 
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 contemplates 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
At the outset we observe that the Petitioner stated in its August 2019 letter that it was only claiming 
eligibility under two criteria. The first prong of this criterion was not one of them. However, because 
some of the Petitioner's evidence does seem somewhat relevant here, we will discuss it briefly in order 
to provide the Petitioner with a complete adjudication. 
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."24 
23 The BusinessStudent.com document also discusses the educational requirements, and states that marketing specialists 
complete courses "in areas such as statistics, mathematics, computer science, finance, economics, management, and 
business law." As discussed previously with the Handbook, these disparate fields of study do not indicate a degree in a 
specific specialty is necessary. 
24 See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 
1095, 1102 (S.D.N.Y. 1989) (considering these "factors" to inform the commonality of a degree requirement)). 
7 
The Petitioner has not established that its proffered position is one for which the Handbook (or other 
independent, authoritative sources) 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. 
We again reviewed the documents from BusinessStudent.com, Indeed, and Snagajob. These entities 
do not appear to be industry professional association as they are employment and business education 
websites. Even if they are industry professional association, as previously discussed, none of the 
documents demonstrate a minimum degree entry requirement into the occupation. Nor do these 
documents include sufficient evidence to refute the Handbook's report regarding the educational 
requirements for a market research analysts' occupation or the industry's professional association's 
lack of a requirement of a degree in a specific specialty to enter into the occupation. 
The Petitioner has not provided sufficient probative 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. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
Upon review of the totality of the record, we conclude that the Petitioner has not sufficiently explained 
or documented why the proffered position is so complex or unique that a bachelor's degree in a specific 
specialty is required. When determining whether a position is a specialty occupation, we look at 
whether the position actually requires the theoretical and practical application of a body of highly 
specialized knowledge attained through at least a baccalaureate degree in a specific discipline. Though 
the Petitioner provided multiple I ists and descriptions of the duties, the Petitioner fai Is to sufficiently 
establish how these duties require specialized knowledge. 
Many of the described duties seem generic and routine. For instance, the Petitioner includes the 
following duties: 
I Collect data and analyze our current business operations, in order to develop effective 
marketing strategy to expand business volume. Data collection includes sales reports, 
employee feedback and direct observation etc. 
I Research and identify customer needs and expand/develop new customers to increase 
[the Petitioner's] revenue; and 
I Provide research and analysis support on the marketing consultation industry. 
These tasks are the routine duties of the "Market Research Analysts and Marketing Specialists" 
occupation as set out in the O*NET. The Petitioner has not explained how these duties are more 
complex or unique than other market research analysts and marketing specialists (which, as discussed 
8 
above, do not normally require a bachelor's degree in a specific specialty). Without further 
explanation, we cannot ascertain why these duties would require specialized knowledge such that a 
bachelor's degree in a specific specialty is required to perform them. 
Additionally, some of the duties are described in vague and general terms, and do not allow us to 
understand what the Beneficiary will actually do when carrying out the undefined tasks. For example, 
the Petitioner includes the duty of "other," which constitutes fully ten percent of the Beneficiary's 
duties. 25 The Petitioner does not provide any explanation or indication of what this task consists of. 
Without further explanation, we cannot conclude that these tasks require the theoretical and practical 
application of a body of highly specialized knowledge. 
Next, we will review the letters froml I Chief Operating Officer (COO) and Chief Financial 
Officer (CFO) ofl ~ and I I a real estate investment specialist. Both I I andD 
0(1) describe their credentials and experience; (2) repeat some of the position's duties and claim 
that the proffered position requires at least a bachelor's degree in marketing, business management 
related fields; and (3) describe why the Beneficiary is qualified for the position. Their letters are not 
persuasive. 
Neither individual appears to be working in the Petitioner's industry: I I works with a high-tech 
company, and I Is background is in real estate and education. Neither goes into in-depth 
discussion about the Petition's industry, business, or the proffered duties. For example, 
I I mentions her "understanding" for "this particular industry," but does not provide any further 
discussion. She makes no reference to the Petitioner, and mistakenly refers to the proffered position as a 
"financial specialist," which leads us to question whether she and the Petitioner share the same 
understanding of the position. That I I refers to the Petitioner by an incorrect name raises 
similar concerns, and we therefore also question his knowledge of the proffered position and how it fits 
into the Petitioner's business operation. In any event, the letters do not establish! lorl I 
as substantive experts, and we question their analysis of why the Petitioner's position is complex or unique 
and would require specialized knowledge. 
Also, neither I lor I ~iscuss the principles and methods they used to reach their 
conclusions. The opinion letters provide several sentences describing the job duties involved in the 
position, but do not explain why the position is complex or unique. Rather, both conclude that "only a 
professional" with a bachelor's degree or higher in marketing, business management, or related will be 
able to perform these duties. However.I I and I I do not provide a persuasive analysis 
explaining why the Petitioner's duties require one of these degrees. While they may have anecdotal 
information based on their general professional but unrelated experience, they do not indicate they have 
published, conducted research, run surveys, or engaged in any enterprise or employment regarding the 
minimum education requirements for positions such as the position proffered here. 
For the reasons stated, the aforementioned opinion letters do not provide a sufficient basis to establish 
that the actual position described requires a bachelor's degree in a specific specialty, or its equivalent, 
and thus do not assist in establishing the position as a specialty occupation. As a matter of discretion, 
25 The record indicates the Beneficiary will be working twenty hours per week and performing the "other" duty for two 
hours per week. 
9 
we may use opinion statements submitted by the Petitioner as advisory.26 However, we may reject an 
opinion or give it less weight if it is not in accord with other information in the record or if it is in any 
way questionable. 27 As neither opinion discusses obvious alternative educational requirements and 
do not distinguish their conclusions from those of the Handbook, other independent sources, or 
professional associations, their analyses are questionable. 
With their RFE response, the Petitioner also provided their business plan. Although this document 
provides an overview of the Petitioner's business, it does not demonstrate or provide information to 
that the proffered position is so complex or unique that it can be performed only by an individual with 
a bachelor's degree in a specific field. 
Finally, the Petitioner designated the proffered position as requiring only a wage level 11 on the 
certified LCA. However, in this case, that level 11 designation when read in combination with the 
evidence presented indicates that this particular position is likely not so complex or unique that the 
duties could only be performed by an individual with a bachelor's degree or higher in a specific 
specialty, or its equivalent. Again, as noted above the Handbook indicates that typical positions 
located within this occupational category do not require a bachelor's degree in a specific specialty, or 
the equivalent. The wage level 11 suggests that the position wi II be doing the basic functions of market 
research analysts and marketing specialists. The designated wage level does not demonstrate that the 
duties of the proffered position are "complex or unique" as compared to other market research analysts 
and marketing specialists.28 The record lacks sufficiently detailed and unambiguous information to 
distinguish the proffered position as unique from or complex than other closely-related positions that 
can be performed by persons without at least a bachelor's degree in a specific specialty, or its 
equivalent. 29 
The Petitioner claims that the Beneficiary is well qualified for the position and references her 
credentials repeatedly. However, the test to establish a position as a specialty occupation is not the 
education or experience of a proposed beneficiary, but whether the position itself requires at least a 
26 Matter of Caron lnt'I, Inc., 19 l&N Dec. 791, 795 (Comm'r 1988). In accordance with Caron lnt'I, we hereby decline 
to assign these letters any significant evidentiary weight. 
21 Id. 
28A wage level 11 position is for an employee who has a good understanding of the occupation but who will only perform 
moderately complex tasks that require limited judgment. 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. Therefore, it does not appear 
that, relative to other positions located within the occupational category, this is one with specialized and complex, or unique 
duties, as such a higher-level position would be classified as a Level 111 or Level IV position, requiring a significantly 
higher prevailing wage. While not dispositive, a salary that is beneath the median wage for the occupational category in 
the area of intended employment (which is the case with a Level 11 wage) suggests that the position is not particularly 
specialized, complex, or unique relative to other positions within the occupational category. 
29 We also question whether the LCA corresponds to and supports the H-1B petition as required. As noted, at certain 
points in this proceeding the Petitioner has suggested that an "advanced" degree may be required, and that work experience 
may also be required. If true, then we would require additional information and evidence in order to ascertain whether 
each of those factors each necessitated a one-level increase in the wage level, thereby raising the requisite wage to Level 
111. 
As the proffered position is not a specialty occupation and the petition is therefore not approvable we will not explore the 
matter further, other than to advise the Petitioner that it should be prepared to address the matter in any future H-1B filings. 
10 
bachelor's degree in a specific specialty, or its equivalent. For all the aforementioned reasons, 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. Thus, it cannot be concluded that the Petitioner has satisfied 
the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion at 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. Evidence 
provided in this criterion may include, but is not limited to, an organizational chart showing the 
Petitioner's hierarchy and staffing levels with corresponding and experience requirements for this 
position, as well as documentary evidence of past employment practices for the position. The 
Petitioner does not challenge this portion of the Director's decision or provide any evidence for our 
consideration under this criterion. The record does not establish that the Petitioner normally requires 
at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered position. 
Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii){A)(3). 
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. The Petitioner does not challenge the Director's decision on this criterion and the record 
does not include evidence to establish this criterion. 
For the reasons similar to those discussed under the second prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), we conclude that the Petitioner has not established 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). We 
incorporate our earlier discussion and analysis on this matter. 
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. Moreover, the record 
does not establish that the Petitioner satisfied the statutory and regulatory definitions of specialty 
occupation. 
IV. CONCLUSION 
As set forth above, we conclude that the evidence of record does not establish, more likely than not, 
that the proffered position qualifies for classification as a specialty occupation. Accordingly, the 
appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the petitioner's 
burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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