dismissed H-1B Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 11258700 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN . 29, 2021 
The Petitioner, a software development firm, seeks to temporarily employ the Beneficiary under the H-1B 
nonimmigrant classification for specialty occupations.1 The H-1B 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 Vermont Service Center Director denied the petition, concluding that the Petitioner did not 
establish that the proffered position is a specialty occupation. In these proceedings, it is the Petitioner's 
burden to establish eligibility for the requested benefit by a preponderance of the evidence.2 We 
review the questions in this matter de nova. 3 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
2 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 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.4 
11. PROFFERED POSITION 
The Petitioner states the Beneficiary will be employed as a "director, enterprise accounts/partnerships 
(marketing manager)" and provides the following job duties for the position:5 
I Plan, direct, and coordinate marketing policies and programs, including setting 
sales strategy and defining target customers while conveying recommendations 
for feature improvements to top management as well as operations and sales 
teams. [35%] 
I Gather statistical and market data and analyze the findings for use as basis in 
design and implementation of business strategies and improvements to functional 
capabilities in the marketing space (including market analysis, branding and 
definition) through research and analysis of international sources of information. 
[25%] 
I Utilize sophisticated financial models to analyze and quantify data gathered to 
drive direct negotiations with accounts and work to provide specialized solutions 
and pricing strategies with the goal of maximizing the company's profits or share 
of the market while ensuring the firm's customers are satisfied. [20%] 
I Manage every aspect of the company's customer relationships, including 
assisting customers in setting goals for implementation of our systems; oversee 
4 See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific 
specialty" as "one that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). 
5 While we will not quote the entire description for the sake of brevity, we have reviewed and considered it. 
2 
onboarding of new customers, roll-out for new stores/locations, and lifecycle 
account interaction such as ROI meetings. [20%] 
According to the Petitioner, the position requires a bachelor's or equivalent degree in marketing or 
business administration.6 
Ill. 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 substantive detail; 
and (2) does not establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation. 
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 will consider the information contained 
in the 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. 7 
On the labor condition application (LCA) submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Marketing Managers" 
corresponding to the standard occupational classification (SOC) code 11-2021. 8 
We reviewed the information in the Handbook regarding this occupational category and conclude that 
the Handbook does not establish that a bachelor's degree in a specific specialty is required for 
"Marketing Managers." The subchapter of the Handbook entitled "How to Become a ... Marketing 
Manager" states that "most" need a bachelor's degree and adds, "[c]ourses in business law, 
management, economics, finance, computer science, mathematics, and statistics are advantageous. "9 
The Petitioner interprets the Handbook to require these varied and diverse courses for entry into the 
6 The Petitioner submitted documentation to support the H-lB 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. 
7 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. 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. 
8 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-lB 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)(l) of the Act; 20 C.F.R. § 655.731(a). 
9 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Advertising, Promotions, and 
Marketing Managers, https://www.bls.gov/ooh/managemenUadvertising-promotions-and-marketing-managers.htm (last 
visited Jan. 28, 2021). 
3 
profession and reasons that a field, such as business administration, which includes these courses, 
would satisfy the first criterion. While the Handbook acknowledges these courses as "advantageous," 
it does not state these courses are required for entry into the occupation. Furthermore, by not 
identifying any degrees, the Handbook strongly indicates that a bachelor's degree in a specific 
specialty is not a normal, minimum entry requirement for this occupation. Although, the Handbook's 
report is insufficient to establish that this occupation is categorically a specialty occupation, it does 
not preclude the Petitioner from establishing its particular position is a specialty occupation with other 
authoritative sources or under one of the other regulatory criteria. 
The record also contains articles regarding the occupational category posted by study.com and 
money.usnews.com. According to study.com, "[m]arketing managers typically have a bachelor's 
degree in marketing or business administration." According to money.usnews.com, the web address 
for U.S. News & World Report, "[m]ost marketing managers have at least a bachelor's degree in 
marketing, business, communications or another similar field." The record does not establish the 
extent to which study.com and money.usnews.com are recognized as providing authoritative 
information regarding requirements for entering occupations.10 Moreover, whether a given degree 
prepares or qualifies an individual to perform the duties of a proffered position is not the focus of the 
first criterion. The focus is whether a given degree is normally required, which neither article states. 
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 first prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2), contemplates common industry practice, while the alternative prong narrows 
its focus to the Petitioner's specific position.11 To satisfy this first prong, the Petitioner must establish 
that the "degree requirement" (i.e., a requirement of a bachelor's or higher degree in a specific 
specialty, or its equivalent) is common to the industry in parallel positions among similar 
organizations. 
We generally consider the following sources of evidence to determine if there is such a common degree 
requirement: whether an authoritative source 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."12 
As previously discussed, the Petitioner has not established that an authoritative source reports at least 
a bachelor's degree in a specific specialty, or its equivalent, is required for the proffered position, and 
we incorporate our previous discussion on this matter. The Petitioner also does not submit evidence 
10 The Petitioner asserts, "publications are generally recognized as authoritative" but provides no support for its conclusory 
assertion. 
11 As there are arguments and documents submitted in support of the second prong of the second criterion that overlap 
with criterion four, we will analyze these two criteria together. 
12 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)). 
4 
from an industry professional association indicating such a degree is a minimum requirement for entry 
into the position. 
The Petitioner submits copies of four job advertisements as evidence that its degree requirement is 
standard among its peer organizations for parallel positions to the proffered position. However, for 
the petitioner to establish that an advertising organization is similar, it must demonstrate that the 
petitioner and the organization share the same general characteristics. Without such evidence, postings 
submitted by a petitioner are generally outside the scope of consideration for this criterion, which 
encompasses only organizations similar to the petitioner. When determining whether the petitioner 
and the advertising 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). While the advertising companies do not substantively describe themselves in their 
advertisements, they do identify themselves as companies that provide alcohol and wine, professional 
scientific and technical services, cybersecurity, and staffing. The Petitioner does not provide an 
explanation for how these companies share the same general characteristics and are thereby within the 
scope of consideration. 
In addition, the advertisements are not written with sufficient detail to ascertain whether they would 
be for parallel positions. For example, what little detail is provided, i.e. the level of experience 
required, varies from 2 to 10 years, while the Petitioner does not identify an experience requirement. 
The degree requirements also vary within the job advertisements, allowing for numerous disparate 
fields, such as, business, business administration, marketing, communications, journalism or related 
fields to be acceptable for entry into the position.13 Therefore, the advertisements, which also expand 
upon the Petitioner's minimum degree requirements, undermine the Petitioner's assertion that at least 
a bachelor's degree in a specific specialty, or its equivalent, is common to the industry. Moreover, 
such a limited number of postings, which appear to have been consciously selected, have little 
probative value in establishing a common industry standard for parallel positions within similar 
companies.14 
13 For multiple criteria of 8 C.F.R. § 214.2(h)(4)(iii)(A), the Petitioner cites to Tapis lnt'I v. INS, 94 F. Supp. 2d 172 (D. 
Mass. 2000), Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012) and RELX, Inc. v. Baran, 397 F. 
Supp. 3d 41 (D.D.C. 2019) to support its claim that a specialty occupation position is not restricted to those that have a 
specifically tailored and titled degree program. For this reason, we incorporate this discussion to all four criteria. We 
agree with the proposition that "[t]he knowledge and not the title of the degree is what is important." Residential Finance 
Corp., 839 F. Supp. 2d at 997. 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 disparate fields 
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. See 
Section 214(i)(1)(B) of the Act (emphasis added). The Petitioner does not do so here or for the other criteria in which it 
cites these cases as pertinent. 
14 See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 1995). Given that there is no indication 
that the advertisements were randomly selected, the validity of any such inferences could not be accurately determined 
even if the sampling unit were sufficiently large. See id. at 195-96 (explaining that "[r]andom selection is the key to [the] 
5 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally 
requires a bachelor's degree in a specific specialty, or its equivalent, for the position. Evidence 
provided in support of this criterion may include, but is not limited to, documentation regarding the 
Petitioner's past recruitment and hiring practices, as well as information regarding employees who 
previously held the position. 
The Petitioner has not submitted evidence in support of this criterion and states it has not employed 
anyone in the proffered position previously. 
Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. Second Prong of Second Criterion and Fourth Criterion 
The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) 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. 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. 
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. Upon review of the totality of 
the record, the Petitioner has not sufficiently explained or documented why the proffered position is 
so "complex or unique" or "specialized and complex" that a bachelor's degree in a specific specialty 
is required. 
We first look to the duties of the position. A crucial aspect is whether the Petitioner has sufficiently 
described the duties of the proffered position such that we may discern the nature of the position. The 
Petitioner provides a table enumerating four main duties, including the percentage of time for each 
duty and the courses it believes are relevant to perform the duty. The duty requiring the most time has 
the Beneficiary planning, directing, and coordinating marketing policies and programs, setting sales 
strategy, and defining customers. The Petitioner describes the knowledge necessary as including, 
pricing strategy, game theory, probability modeling and statistics, but does not explain how these 
concepts substantively contribute to the performance of the duty. Further analysis of the duty is not 
provided, so information as minimal as to who or what the Beneficiary is directing and coordinating, 
is not provided. Turning to the record, we note that the organizational chart does not depict a 
marketing team. The Beneficiary's title is listed as "director of accounts" and his direct reports are in 
process [of probability sampling]" and that "random selection offers access to the body of probability theory, which 
provides the basis for estimates of population parameters and estimates of error"). 
6 
account operations, and customer support. Furthermore, the record raises additional inconsistencies 
with respect to the Beneficiary's role within the Petitioner's structure. For example, within the record, 
the Beneficiary's title is listed as e.g. board director, founder, CEO, head of accounts. A company 
document dated a month prior to the filing of the petition identifies the Beneficiary as treasurer and 
assistant secretary. Nowhere within the Petitioner's documents is the Beneficiary identified as a 
marketing manager. Without a more meaningful job description, especially in light of the 
discrepancies in the record, we are unable to ascertain the nature of the position, i.e. the actual work 
the Beneficiary would perform and thereby the level of education and knowledge necessary to perform 
the duties of the position. The other duties are written in a similar manner. As a result, we are unable 
to ascertain how the position is so "complex or unique" or "specialized and complex" to require highly 
specialized knowledge to perform these broadly described duties. 
For each duty, the table lists the "relevant coursework," which are courses taken by the Beneficiary in 
pursuit of his master's in business administration degree.15 However, an explanation of the relevant 
knowledge these courses would provide is not included.16 Titles of courses do not in and of themselves 
identify the specialized knowledge they would impart or how they relate to the duties. Of significance, 
the Petitioner asserts that at least a bachelor's or equivalent degree in marketing or business 
administration would be the minimum requirement for the proffered position. However, based on the 
titles of the courses, only one marketing course is listed. Therefore, if any relevant marketing 
knowledge is imparted by these courses, it is not explained in the record and is not self-evident.17 
Moreover, while a few related courses may be beneficial in performing certain duties of the position, 
the Petitioner has not demonstrated how an established curriculum of such courses leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the 
duties of the proffered position. 
15 To the extent the Petitioner requires a master's degree level of education, this requirement would conflict with its 
designation of the occupation as a Level I "Marketing Managers," SOC code 11-2021 on the LCA. The DOL's 
Occupational Information Network (O*NET) summary report indicates that this occupation has a Job Zone 4 rating, which 
groups it among occupations for which "most ... require a four-year bachelor's degree, but some do not." O*NET Online 
Summary Report for "11-2021.00 - Marketing Managers," https://www.onetonline.org/Archive_ONET­
SOC_2010_ Taxonomy_09_2020/link/summary/11-2021.00 (last visited Jan. 28, 2021). Thus, if the Petitioner requires a 
master's degree to perform the duties of this occupation, the wage level would increase by at least one level, to a wage 
Level 11, because of the master's degree requirement and the labor condition application (LCA) in the record would not 
correspond to the petition. See Prevailing Wage Determination Policy Guidance, available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised_ 11 _ 2009.pdf. 
16 To the extent the Petitioner is asserting here that the Beneficiary's experience and qualifications provide him with the 
background to perform these duties, it should be clarified that 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 qualifies as a specialty occupation. 
See Cf. Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988) ("The facts of a beneficiary's background 
only come at issue after it is found that the position in which the petitioner intends to employ him falls within [a specialty 
occupation].") 
17 The Petitioner does not provide details on the marketing knowledge required and does not explain whether any 
specialization within a business administration degree would be required. We note that a bachelor's degree in business 
administration, with no further specialization, will not justify the granting of a petition for an H-lB specialty occupation 
visa. See Royal Siam, 484 F.3d at 147; see also Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151 (D. Minn. 1999); 2233 Paradise 
Road, LLC v. Cissna, No. 17-cv-01018-APG-VCF, 2018 WL 3312967 (D. Nev., July 3, 2018); XiaoTong Liu v. Baran, 
No. 18-00376-JVS, 2018 WL 7348851 (C.D. Cal., Dec. 21, 2018); Parzenn Partners v. Baran, No. 19-cv-11515-ADB, 
2019 WL 6130678 (D. Mass., Nov. 19, 2019). 
7 
The Petitioner also submits the Beneficiary's work product, a set of slides, as evidence of the "complex 
or unique" or "specialized and complex" nature of the position. However, the record is unclear if this 
is the work product of a marketing manager, a treasurer, or head of accounts as the slides are undated. 
Setting this issue aside, the Petitioner provides little analysis with respect to the work product, merely 
stating it provides "extensive analysis of the customer-supplied raw data" and that it exemplifies the 
second and third duty of the proffered position. However, the data analysis, tables and charts contained 
on the slides are credited to someone named "Leslie" and the Petitioner's analytics' team. The slides 
also do not evidence the "sophisticated financial models" referenced in the third duty, rather it provides 
summary findings with no analysis of how the Beneficiary came to his conclusions. Without context 
for or an explanation on the relevance of these slides and topics within them, the slides themselves do 
not independently evidence the body of highly specialized knowledge attained through at least a 
baccalaureate degree in a specific discipline required for the proffered position. 
The Petitioner did not sufficiently develop relative specialization as an aspect of the duties of the 
position, and it did not identify tasks that are sufficiently complex or unique to satisfy the second 
alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) or specialized and complex to satisfy 8 C.F.R. 
§ 214.2(h )( 4)(i i i)(A)( 4). 
IV. EMPLOYER EMPLOYEE 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address other 
grounds of ineligibility we observe in the record of proceedings, namely whether the Petitioner 
qualifies as an H-1B employer. Nevertheless, we will briefly note and summarize the issue here with 
the hope and intention that, if the Petitioner seeks again to employ the Beneficiary as an H-1B 
employee in the proffered position, it will submit sufficient independent objective evidence to address 
and overcome this additional ground in any future filing. 
As detailed above, the record lacks sufficient documentation to establish that the proffered position 
qualifies as a specialty occupation. In addition, the Beneficiary is also designated as one of the 
Petitioner's founders. Although the Petitioner states it will have the right to control the Beneficiary 
and includes articles discussing other companies' founders lacking substantive control of their jobs, 
the Petitioner's "Amended and Restated Founders Agreement" states, as founder, the Beneficiary 
would have the authority to remove the chief executive officer, to whom the Beneficiary directly 
reports. At the time of filing, the Beneficiary also held thirty-one percent of the Petitioner's stock, 
while not a majority, raises concerns regarding the extent of the Beneficiary's control and decision­
making authority over the Petitioner. The Petitioner states it does not have investor rights documents 
or voting agreements, which could restrict the Beneficiary's controlling interest. Furthermore, the 
Petitioner and the Beneficiary have not entered into an employment agreement. In other words, the 
Petitioner has not established whether it has made a bona fide offer of employment to the Beneficiary 
and will have and maintain the requisite employer-employee relationship with the Beneficiary for the 
duration of the requested employment period. See 8 C.F.R. § 214.2(h)(4)(ii) (defining the term 
"United States employer" and requiring the Petitioner to engage the Beneficiary to work such that it 
will have and maintain an employer-employee relationship with respect to the sponsored H-1B 
nonimmigrant worker). 
8 
V. CONCLUSION 
Upon review of the totality of the evidence submitted, the Petitioner has not established that more 
likely than not, the proffered position is a specialty occupation under any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Moreover, the record does not establish that the Petitioner has satisfied the 
statutory and regulatory definitions of specialty occupation. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought.18 The Petitioner has not 
met that burden. 
ORDER: The appeal is dismissed. 
18 See Section 291 of the Act, 8 U.S.C. § 1361. 
9