dismissed H-1B Case: Marketing

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: FEB 2 6 2015 OFFICE: VERMONT SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101 (a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRU CTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion 
(Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing loca tion, and other requirements. 
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
Ro Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The director denied the nonimmigrant visa petition, and the matter is now before the 
Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 6-
employee "recreational sporting goods wholesale and retail" company established in In order to 
employ the beneficiary in a full-time position to which it assigned the job title "Marketing 
Specialist" at a salary of $52,000 per year, the petitioner seeks to classify him as a nonimmigrant 
worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
On July 22, 2014, the director denied the petition concluding that the petitioner failed to establish 
that the proffered position qualifies for classification as a specialty occupation in accordance with the 
applicable statutory and regulatory provisions.1 On appeal, the petitioner asserts that the director's 
basis for denial of the petition was erroneous and contends that it satisfied all evidentiary 
requirements. 
The record of proceeding before this office contains the following: (1) the Form I-129 and 
supporting documentation; (2) the director's request for additional evidence (RFE); (3) the 
petitioner's response to the RFE; (4) the director's letter denying the petition; and (5) a Notice of 
Appeal or Motion (Form I-290B), a brief, and supporting documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the director's ground for denying this petition? Accordingly, the appeal will be dismissed, and the 
petition will be denied. 
I. FACTUAL AND PROCEDURAL HISTORY 
As noted above, the petitioner stated on the Form I-129 that it has been doing business as a recreational 
sporting goods wholesale and retail company since that it currently employs 6 individuals, and 
that it has a gross annual income of $500,000. 
The Labor Condition Application (LCA) that the petitioner submitted in support of the petition was 
certified for use with a job prospect within the "Market Research Analysts and Marketing 
1 Further, the director found that the beneficiary failed to maintain nonimmigrant status in the United States. 
On appeal, the petitioner asserts that the director erred in finding that the beneficiary did not maintain his 
nonimmigrant status. However, we do not have jurisdiction over this matter, as issues surrounding the 
beneficiary's maintenance of nonimmigrant status are within the sole discretion of the director. Accordingly, 
we will not address this issue. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
Specialists" occupational classification, SOC (O*NET/OES) Code 13-1161, and at a Level I 
prevailing wage rate. The LCA also reflects that, as mentioned above, the petitioner assigned 
"Marketing Specialist" as the position's job title. 
The petitioner's April 1, 2014 letter of support, which was filed with the Form I-129, described the 
duties of the proffered position as follows: 
• Managing and coordinating new product development, and launching campaigns for 
new products with teams of employees; 
• Conducting marketing research, evaluating customer needs, and implementing new 
market strategy plan as needed; 
• Designing social media campaigns and developing internet marketing strategies in 
order to increase overall customer awareness, and build customer relationships; 
• Ensuring effective branded marketing communications through all avenues (e.g., 
website, print, advertising, etc.); 
• Researching and evaluating new product opportunities, demands for potential products, 
and customer needs and insights[.] 
In essence, our company's Marketing Specialist will oversee all marketing, advertising, 
and promotion activities. The Marketing Specialist will establish and maintain 
effective working team relationships within the company, and utilize excellent problem 
solving skills and the ability to complete multiple tasks at once. The Marketing 
Specialist will also be expected to continuously increase productivity and motivate our 
marketing team. 
The petitioner further states that in order to fill the position of Marketing Specialist, "an applicant must 
have attained at least a bachelor's degree in a specific field related to business administration or 
marketing, or a related field such as finance or economics." 
The director found the initial evidence insufficient to establish eligibility for the benefit sought, and 
issued an RFE on July 10, 2014. The petitioner was asked, in part, to submit probative evidence to 
establish that that the position required a bachelor's degree in a specific field of study in order to 
perform the duties of the position. Further, the petitioner was asked to submit additional 
information about the business. The director outlined some of the types of specific evidence that 
could be submitted. 
In response to the RFE, the petitioner presented further explanation of the duties as follows: 
Job Duty Specific Description % ofTime Degree 
Spent Requirement 
Market • Gather data relevant to 80% Bachelor's 
research and company's marketing and degree in 
implementation advertising and organize data market 
into reports to present to research or 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
management; related 
• Evaluate customer research, disciplines. 
market conditions, 
competitors' data, and 
implement new market 
strategy plans as needed; 
• Develop and maintain social 
media sites and develop 
internet marketing strategies 
in order to increase overall 
customer awareness, and build 
and maintain customer 
relationships; 
• Ensure effective brand 
marketing communication 
through all avenues such as 
website, print, advertisements, 
and etc.; 
• Research and evaluate new 
product opportunities, demand 
for potential products, and 
customer needs and insights in 
order to continuously expand 
company's consumer base; 
• Manage and coordinate new 
product development through 
market research; 
• Work with creative employees 
and provide them with 
direction and focus through 
market research; 
• Launch campaigns for new 
products. 
Analyze • Analyze the effectiveness of 20% Bachelor's 
effectiveness of all marketing efforts and make degree in 
marketing necessary changes and market 
efforts revisions needed in order to research or 
attain company goals. related 
disciplines 
The director reviewed the petitioner's RFE response, but found it insufficient to establish eligibility 
for the benefit sought and denied the petition on July 22, 2014. The petitioner thereafter filed a 
timely appeal, which is the matter now before us for a decision. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
II. SPECIALTY OCCUPATION 
We will now address the director's determination that the proffered position is not a specialty 
occupation. Applying the preponderance of the evidence standard and based upon a complete 
review of the record of proceeding, we agree with the director and find that the evidence of record 
fails to establish that the position as described constitutes a specialty occupation. 
A. Law 
To meet the petitioner's burden of proof with regard to the proffered position's classification as an 
H-lB specialty occupation, 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: 
(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) 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.P.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(b)(6)
Page 6 
NON-PRECEDENT DECISION 
(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 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 56 1 (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 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-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularl y 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 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 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
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 
We will first discuss the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which is satisfied by 
establishing that a baccalaureate or higher degree, or its equivalent, in a specific specialty is 
normally the minimum requirement for entry into the particular position that is the subject of the 
petition. 
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 it addresses. 3 As noted above, the petitioner submitted an LCA in support of this 
position certified for a job offer falling within the "Market Research Analysts and Marketing 
Specialists" occupational category. 
We reviewed the chapter of the Handbook titled "Market Research Analysts" including the sections 
regarding the typical duties and requirements for this occupational category. However, as will now 
be discussed, the Handbook does not indicate that at least a bachelor's degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into this occupational group. 
Accordingly, the proffered position's inclusion in this occupational group would not be in itself 
sufficient to satisfy the first criterion of 8 C.F.R. § 214 .2(h)(4)(iii)(A), that is, by establishing that 
the particular position that is the subject of this petition is one that requires for entry at least a 
bachelor's degree, or its equivalent, in a specific specialty. 
The Handbook states the following regarding the educational requirements for market research 
analysts: 
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 
3 The Handbook, which is available in printed form, may also be accessed online at 
http://www.bls.gov/ooh. The references to the Handbook are from the 2014-15 edition available online. 
(b)(6)
Page 8 
NON-PRECEDENT DECISION 
Administration (MBA). A master's degree is often required for leadership positions 
or positions that perform more technical research. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Market Research Analysts, at http://www .bls.gov /ooh/business-and-financial/market -research­
analysts.htm#tab-4 (last visited on Feb. 25, 2015). 
The Handbook does not state that a baccalaureate or higher degree in a specific specialty, or its 
equivalent is normally the minimum requirement for entry into the occupation. This passage of the 
Handbook reports that market research analysts have degrees and backgrounds in a wide-variety of 
disparate fields. While the Handbook states that employees typically need a bachelor's degree in 
market research or a related field, it 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, social 
sciences, or communications. 
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)(1)(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since 
there must be a close correlation between the required "body of highly specialized knowledge" and 
the position, however, a minimum entry requirement of a degree in two disparate fields, such as 
computer science and social sciences, would not meet the statutory requirement that the degree be 
"in the specific specialty (or its equivalent)," unless the petitioner establishes how each field is 
directly related to the duties and responsibilities of the particular position such that the required 
"body of highly specialized knowledge" is essentially an amalgamation of these different 
specialties. Section 214(i)(1 )(B) of the Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," 
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. See section 214(i)(1)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
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. Chertoff, 484 F.3d at 147. 
Therefore, the Handbook's recognition that a general, non-specialty "background" in business 
administration is sufficient for entry into the occupation strongly suggests that a bachelor's degree in 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
a specific specialty is not normally the 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 proffered position as qualifying as a specialty occupation. 
Moreover, the requirements as specified by the petitioner do not establish that the proffered position 
requires at least a bachelor's degree in a specific specialty. In this case, the petitioner claims that "to 
fill the position of Marketing Specialist within our company an applicant must have attained at least 
a bachelor's degree in a specific field related to business administration or marketing, or a related 
field such as finance or economics." As discussed, since there must be a close correlation between 
the required "body of highly specialized knowledge" and the position, a minimum entry requirement 
of a degree in disparate fields, such as philosophy and engineering, would not meet the statu�ory 
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. Here, while the petitioner indicates that a bachelor's degree in business administration, 
marketing or a related field such as finance or economics is required for the proffered position, the 
petitioner does not indicate how each field is directly related to the duties and responsibilities of the 
proffered position. Further, as mentioned, 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. 4 
In response to the RFE and also on appeal, the petitioner states that O*NET assigns the market 
research analysts and marketing specialists occupation a Job Zone Four rating. According to 
O*NET, "[m]ost of these occupations require a four-year bachelor's degree, but some do not" 
(emphasis added). Notably, the term "most" is not indicative that a particular position within the 
wide spectrum of marketing research analyst jobs normally requires at least a bachelor's degree. 5 
4 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
!d. 
[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-lB specialty occupation visa. See, e.g., Tapis lnt'l 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. at 560 (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. 
5 For instance, the first definition of "most" in Webster's New Collegiate College Dictionary 731 (Third 
Edition, Hough Mifflin Harcourt 2008) is "[g]reatest in number, quantity, size, or degree." As such, if 
merely 51% of the positions require at least a bachelor's degree in a specific specialty, it could be said that 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
Furthermore, O*NET OnLine is not particularly useful in determining whether a baccalaureate 
degree in a specific specialty, or its equivalent, is a requirement for a given position, as O*NET 
OnLine's Job Zone designations make no mention of the specific field of study from which a degree 
must come. As was noted previously, we interpret 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. Thus, a designation of Job Zone Four 
does not demonstrate that at least a bachelor's degree in a specific specialty is normally the 
minimum requirement for entry, and does not, therefore, demonstrate that a position so designated 
qualifies as a specialty occupation as defined in section 214(i)(l) of the Act and 8 C.F.R. 
§ 214.2(h)(4)(ii). 
Finally, the petitioner submitted an LCA certified for a job prospect with a wage-level I. This 
designation is indicative of a comparatively low, entry-level position relative to others within the 
occupation.6 That is, in accordance with the relevant DOL explanatory information on wage levels, 
this Level I wage rate is only appropriate for a position in which the beneficiary is required to have 
a basic understanding of the occupation and would be expected to perform routine tasks that require 
limited, if any, exercise of judgment. This wage rate also indicates that the beneficiary would be 
"most" of the positions require such a degree. It cannot be found, therefore, that a particular degree 
requirement for "most" positions in a given occupation equates to a normal minimum entry requirement for 
that occupation, much less for the particular position proffered by the petitioner (which as noted above is 
designated as a Level I entry position in the LCA). Instead, a normal minimum entry requirement is one that 
denotes a standard entry requirement but recognizes that certain, limited exceptions to that standard may 
exist. To interpret this provision otherwise would run directly contrary to the plain language of the Act, 
which requires in part "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." Section 214(i)(l) of the Act. 
6 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage 
rate is describes 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 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 11 
closely supervised; that his work would be closely monitored and reviewed for accuracy; and that 
he would receive specific instructions on required tasks and expected results. 
When, as here, the Handbook does not support the proposition that the proffered position satisfies 
this first criterion of 8 C.F.R. § 214. 2(h)(4)(iii)(A), it is incumbent upon the petitioner to provide 
persuasive evidence that the proffered position otherwise satisfies the criterion, notwithstanding the 
absence of the Handbook's support on the issue. In such case, it is the petitioner's responsibility to 
provide probative evidence (e.g., documentation from other authoritative sources) that supports a 
favorable finding with regard to this criterion. The regulation at 8 C. P.R. § 214 .2(h)(4)(iv) provides 
that 11 [a ]n H -1B petition involving a specialty occupation shall be accompanied by [ d]ocumentation 
... or any other required evidence sufficient to establish .. . that the services the beneficiary is to 
perform are in a specialty occupation. 11 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 ofTreasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm'r 1972)). 
In support of the assertion that the proffered position qualifies as a specialty occupation, the 
petitioner submitted a letter on appeal, dated August 5, 2014, from Assistant 
Professor of Marketing, stated, 11[i]t is my opinion that the position 
of Marketing Specialist is clearly a specialty position, and requires the services of someone with 
advanced training through a Bachelor's program in Marketing or a closely related field." We 
reviewed the letter in its entirety. However, as discussed below, the letter from is not 
persuasive in establishing that the proffered position qualifies as a specialty occupation position. 
provided a bullet point list of the job duties, which is virtually verbatim from the 
petitioner's description of job duties provided in response to the RFE. Upon review of the opinion 
letter, there is no indication that possesses any knowledge of the petitioner's proffered 
position and its business operations beyond the information provided by the petitioner. 
does not demonstrate or assert in-depth knowledge of the petitioner's 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. 
asserts a general industry educational standard for marketing specialist positions without 
referencing any supporting authority or any empirical basis for the pronouncement. Likewise, he 
does not provide a substantive, analytical basis for his opinion and ultimate conclusion. His opinion 
does not relate his conclusion to specific, concrete aspects of the petitioner's business operations to 
demonstrate a sound factual basis for the conclusion about the educational requirements for ·the 
particular position here at issue. Accordingly, the very fact that he attributes a degree requirement to 
such a generalized treatment of the proffered position undermines the credibility of his opinion. 
In the opinion letter, does not cite specific instances in which his past opinions have been 
accepted or recognized as authoritative on this particular issue. There is no indication that he has 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
published any work or conducted any research or studies pertinent to the educational requirements 
for such positions (or parallel positions) in the petitioner's industry for similar organizations, and no 
indication of recognition by professional organizations that he is an authority on those specific 
requirements. 
Furthermore, there is no indication that the petitioner advised that the petitioner 
characterized the proffered position as a low, entry-level marketing specialist, for a beginning 
employee who has only a basic understanding of the occupation (as indicated by the wage-level on 
the LCA). The wage-rate indicates that the beneficiary will be expected to perform routine tasks 
that require limited, if any, exercise of judgment; that he will be closely supervised and his work 
closely monitored and reviewed for accuracy; and that he will receive specific instructions on 
required tasks and expected results. It appears that would have found this information 
relevant for his opinion letter. 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 the educational requirements based upon the 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 probative evidence to establish the proffered position as a specialty 
occupation. The conclusion reached by lacks the requisite specificity and detail and is 
not supported by independent, objective evidence demonstrating the manner in which he reached 
such conclusion. There is an inadequate factual foundation established to support the opinion and 
the o inion is not in accord with other information in the record. Therefore, the letter from 
does not establish that the proffered position is a specialty occupation. 
We may, in our discretion, use as advisory opinion statements submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable, 
we are not required to accept or may give less weight to that evidence. Matter of Caron 
International, 19 I&N Dec. 791 (Comm'r 1988). As a reasonable exercise of our discretion we 
discount the advisory opinion letter as not probative of any criterion of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). For efficiency's sake, we hereby incorporate the above discussion and 
analysis regarding the opinion letter into each of the bases in this decision for dismissing the appeal. 
Upon review of the totality of the evidence in the entire record of proceeding, the petitioner has not 
established that the proffered position falls under an occupational category for which the Handbook, 
or other authoritative source, indicates that a requirement for at least a bachelor's degree in a 
specific specialty, or its equivalent, is normally required for entry into the occupation. Furthermore, 
the duties and requirements of the proffered 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 failed to satisfy the first criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
Next, the petitioner has not satisfied 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 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for 
positions sharing all three characteristics of being (1) within the petitioner's industry, (2) parallel to 
the proffered position, and also (3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the petitioner has not established that its proffered position is one for which 
the Handbook (or other objective, authoritative source), reports a standard, industry-wide 
requirement 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. 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." 
Further, we also find that the job-vacancy announcements submitted by the petitioner do not satisfy 
this alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). That is, neither the job-vacancy 
announcements themselves, nor any other evidence within the record of proceeding, establish that 
those advertisements pertain to positions that meet all of the criterion's elements of being in the 
petitioner's industry, in organizations similar to the petitioner, and also parallel to the proffered 
position, as required for evidence to merit consideration under this first alternative prong. In this 
regard, we make several specific findings. 
When determining whether the petitioner and the organization share the same general 
characteristics, such factors may include information regarding the nature or type of organization, 
and, when pertinent, the particular scope of operations, as well as the level of revenue and staffing 
(to list just a few elements that may be considered). It is not sufficient for the petitioner to claim 
that the organizations are similar and in the same industry without providing a legitimate basis for 
such an assertion. 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. at 
165 (citing Matter of Treasure Craft of California, 14 I&N Dec. at 190). 
In the Form I-129, the petitioner stated that it is a "recreational sporting goods wholesale and retail" 
business, with 6 employees, that was established in On the Form I-129, the petitioner 
designated its business operations under the North American Industry Classification System 
(NAICS) code 423910, which is described as "Sporting and Recreational Goods and Supplies 
Merchant Wholesalers." See U.S. Dep't of Commerce, U.S. Census Bureau, 2012 NAICS 
Definition, on the Internet at http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last visited 
February 25, 2015). 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
We reviewed the job advertisements submitted by the petitioner. Notably, the petitioner did not 
provide any independent evidence of how representative these job advertisements are of the 
particular advertising employer's recruiting history for the type of job advertised. Further, as they 
are only solicitations for hire, they are not evidence of what qualifications were ultimately required 
for the positions. Moreover, upon review of the documents, we find that they do not establish that a 
requirement for a bachelor's degree, in a specific specialty, is common to the petitioner's industry in 
similar organizations for parallel positions to the proffered position. 
For example, the advertisements include positions with 
company); (automotive, building and energy storage 
employees); (brand experience and marketing agency); 
(financial services 
industry with 170,000 
(agri-business specific application provider); and (wireless services). Without further 
information, the advertisements appear to be for organizations that are not similar to the petitioner, 
and the petitioner has not provided any probative evidence to suggest otherwise. Further, the 
petitioner provided an advertisement for . . which does not contain any information regarding 
the company's industry and business operations. Consequently, the record lacks sufficient 
information regarding the advertising employer to conduct a legitimate comparison of the 
organization to the petitioner. In the instant case, the petitioner failed to supplement the record of 
proceeding to establish that the employers are similar to it. That is, the petitioner has not provided 
any information regarding which aspects or traits (if any) it shares with the advertising 
organizations. 
Further, we note that it is not the position title but the nature of the duties comprising the advertised 
positions that would determine whether those positions are in fact parallel to the proffered position. 
However, we see that the duty descriptions of the advertised positions and their constituent duties 
are not substantially similar to the proffered position's duties as stated in the petitioner's letters. For 
example, the advertisement for states that the responsibilities for their proffered 
position include "day-to-day project management of multiple accounts including, but not limited to 
client handling, budget management, production logistics, supervision of creative process, client 
status meetings, and account billing." Also, although the petitioner has designated the proffered 
position as a Level I position, indicating that it is an entry-level position, it has provided several job 
announcements for positions requiring extensive experience. For example, several of the job 
announcements require 2 to 5 years of related experience 1. 
J· Further, requires "5+ years" of experience. 
Thus, the job-vacancy advertisements do not establish that the advertised positions are "parallel" to 
the proffered position. 
Additionally, contrary to the purpose for which the advertisements were submitted, some of the 
employers l 
indicate that a general-purpose 
degree, i.e., a degree in business is acceptable. As previously mentioned, although a general­
purpose bachelor's degree may be a legitimate prerequisite for a particular position, requiring such a 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
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. 
As the documentation does not establish that the petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. That is, as the evidence does not establish that similar organizations in the same industry 
routinely require at least a bachelor's degree in a specific specialty, or its equivalent, for parallel 
positions, not every deficit of every job posting has been addressed. 7 . 
Thus, the petitioner has not satisfied the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2), as 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 (1) to the petitioner's 
industry (2) for positions that are both: (a) parallel to the proffered position, and (b) located in 
organizations that are similar to the petitioner. 
Next, the evidence of record does not satisfy the second alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which provides that "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." 
Upon review of the proffered duties, the record of proceeding presents the duties comprising the 
proffered position in terms of relatively abstract and generalized functions. More specifically, they 
lack sufficient detail and concrete explanation to establish the substantive nature of the work and 
associated applications of specialized knowledge that their actual performance would require within 
the context of the petitioner's particular business operations. For example, the beneficiary will be 
responsible for "managing and coordinating new product development, and launching campaigns for 
new products with teams of employees"; "conducting market research, evaluating customer needs, and 
implementing new market strategy plan"; and "designing social media campaigns." The evidence of 
record contains neither substantive explanation nor documentation showing the substantive nature of 
the work and associated applications of specialized knowledge that would be involved in the 
referenced tasks. 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. That is, the 
petitioner failed to establish how the beneficiary's responsibilities and day-to-day duties are so 
7 It must be noted that even if all of the job postings indicated that a bachelor's degree in a specific specialty, 
or its equivalent, is common to the industry in parallel positions among similar organizations (which they do 
not), the petitioner fails to demonstrate what inferences, if any, can be drawn from these advertisements with 
regard to determining the common educational requirements for entry into parallel positions in similar 
organizations. See generally Earl Babbie, The Practice of Social Research 186-228 (1995). 
As such, even if the job announcements supported the finding that the position required a bachelor's or higher 
degree in a specific specialty, or its equivalent (for organizations in the same industry that are similar to the 
petitioner), it cannot be found that such a limited number of postings that appear to have been consciously 
selected outweigh the findings of the Handbook published by the Bureau of Labor Statistics that such a 
position does not normally require at least a baccalaureate degree in a specific specialty, or its equivalent, for 
entry into the occupation in the United States. 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
complex or unique that the position can be performed only by an individual with a bachelor's degree 
in a specific specialty, or its equivalent. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
petitioner submitted information regarding the proffered position and documents regarding its 
business operations, including corporate documents, business plan, brochure, advertisements, 
photographs and more. While the business documents provide some insights into the petitioner's 
business activities, the evidence does not establish that the proffered 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. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level I (entry level) wage, which is the lowest of four 
assignable wage levels. As previously mentioned, the wage-level of the proffered position indicates 
that (relative to other positions falling under this occupational category) the beneficiary is only 
required to have a basic understanding of the occupation; that he will be expected to perform 
routine tasks that require limited, if any, exercise of judgment; that he will be closely supervised 
and his work closely monitored and reviewed for accuracy; and that he will receive specific 
instructions on required tasks and expected results. 
On appeal, the petitioner refers to letter to state that the duties of the proffered position 
are so complex that its particular position requires at least a bachelor's degree or its equivalent in a 
specific specialty. However, as previously noted, letter is not probative evidence. The 
petitioner also provided a copy of the beneficiary's marketing report to demonstrate the 
complexities of the duties. However, the marketing report in the record of proceeding appears to 
have been written in 2012 for the beneficiary's previous employer, and does not 
establish that the petitioner's particular position is so complex or unique. 
The petitioner further claims that the beneficiary's academic credentials and work experience in 
marketing will assist him in carrying out the duties of the proffered position. However, as 
previously mentioned, the test to establish a position as a specialty occupation is not the skill set or 
education of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The petitioner does not explain or clarify which of 
the duties, if any, of the proffered position would be so complex or unique as to be distinguishable 
from those of similar but non-degreed or non-specialty degreed employment. Consequently, as the 
petitioner fails to demonstrate how the proffered position is so complex or unique relative to other 
marketing specialist positions that can be performed by a person without at least a baccalaureate 
degree in a specific specialty or its equivalent for entry into the occupation in the United States, the 
petitioner has not satisfied the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
We turn next to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)( 3), which entails an employer 
demonstrating that it normally requires a bachelor's degree in a specific specialty or its equivalent 
for the position. 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
To satisfy this criterion, the record must . contain documentary evidence demonstrating that the 
petitioner has a history of requiring the degree or degree equivalency, in a specific specialty, in its prior 
recruiting and hiring for the position. Additionally, 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 the performance requirements of the proffered position.8 
While a petitioner may assert that a proffered position requires a specific degree, that statement 
alone without corroborating evidence cannot establish the position as a specialty occupation. Were 
users 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 assertion of a particular degree requirement is not necessitated by the actual 
performance requirements of the proffered position, the position would not meet the statutory or 
regulatory definition of a specialty occupation. See § 214(i)(1) of the Act; 8 C.P.R. § 214.2(h)(4)(ii) 
(defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. users 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. To interpret 
the regulations any other way would lead to absurd results: if US CIS 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 a 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 . at 388. 
The petitioner stated in the Form I-129 petition that it has 6 employees and it was established in 
2013. On appeal, the petitioner asserts that marketing duties for the petitioner has been handled by 
its marketing director, The petitioner claims that has over twenty years of 
experience in marketing management. However, the petitioner did not submit documentation to 
establish that has a bachelor's degree or its equivalent in a specific specialty. Moreover, 
8 Any such assertion would be undermined in this particular case by the fact that the petitioner's submission 
of an LCA certified for a Level I prevailing-wage signifies assessment of the proffered position as a 
comparatively low, entry-level position relative to others within the same occupation. 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
the petitioner did not submit documentary evidence such as pay statements or Form W-2, Wage and 
Tax statements, to establish that is employed by the petitioner. We note that 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. 165 (citing Matter ofTreasure 
Craft of California, 14 I&N Dec. 190). 
While the petitioner repeatedly asserts that a bachelor's degree that a bachelor's degree in 
marketing or a related academic discipline is the minimum requirement for the proffered position, 
the petitioner has not established a prior history of recruiting and hiring for the proffered position 
only persons with at least a bachelor's degree in a specific specialty, or its equivalent. In fact, based 
on the petitioner's statements with regard to its own claimed educational requirement for the 
position, a bachelor's degree in business administration is also sufficient to perform the duties of the 
position. A petitioner must demonstrate that the proffered position requires a precise and specific 
course of study that relates directly to the position in question. Since there must be a close 
correlation between the required specialized studies and the position, the requirement of a degree, 
without further specification, does not establish the position as a specialty occupation. Cf Matter of 
Michael Hertz Associates, 19 I&N Dec. 558 (Comm'r 1988). 
Thus, the evidence does not support the assertion that the petitioner normally requires at least a 
bachelor's degree in a specific specialty directly related to the duties of the position (or its 
equivalent) for the position. The petitioner has not satisfied the third criterion of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
Next, the evidence of record does not satisfy the criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(4), which requires the petitioner to establish that the nature of the 
proffered position's 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 the specific specialty or 
its equivalent. 
For context, we again refer the petitioner to the Handbook and the pertinent sections that we have 
quoted from it. The Handbook's information does not indicate that the performance requirements of 
the duties of market research analysts occupational group are usually associated with attainment of 
at least a bachelor's degree in a specific specialty. 
As reflected in this decision's earlier comments and findings with regard to the proposed duties as 
presented in the record - which we here incorporate into the present analysis - the evidence of 
record does not establish the nature of the proposed duties as so specialized and complex that their 
performance would require knowledge usually associated with a particular level of education in a 
specific specialty. While the petition relates many and varied duties and functions that the 
beneficiary would have to perform, it does not show that even the aggregate of such duties is 
usually associated with a particular level of educational attainment in any specific specialty. Thus, 
the evidence in the record of proceeding fails to establish that the proposed duties meet the 
specialization and complexity threshold at 8 C.F.R. § 214. 2(h)(4)(iii)(A)(4). 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
Additionally, we find that both on its own terms and also in comparison with the three higher wage­
levels that can be designated in an LCA, by the submission of an LCA certified for a wage-level I, 
the petitioner effectively attests that the proposed duties are of relatively low complexity as 
compared to others within the same occupational category. This fact is materially inconsistent with 
the level of complexity required by this criterion. By virtue of this submission the petitioner 
effectively attested that the proffered position is a low-level, entry position relative to others within 
the occupation, and that, as clear by comparison with DOL's instructive comments about the 11ext 
higher level (Level II), the proffered position did not even involve "moderately complex tasks that 
require limited judgment" (the level of complexity noted for the next higher wage-level, Level II). 
For all of these reasons, the evidence in the record of proceeding fails to establish that the proposed 
duties meet the specialization and complexity threshold at 8 C.F.R. § 214.2(h)(4)(iii) (A)(4). 
III. CONCLUSION AND ORDER 
For the reasons discussed above, we conclude that the evidence of record does not establish that the 
proffered position qualifies for classification as a specialty occupation. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 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; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. The petition is denied.