dismissed H-1B Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 8758513 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 30, 2020 
The Petitioner, a website design and marketing company, seeks to temporarily employ the Beneficiary 
as a "marketing strategist" under the H-lB nonimmigrant classification for specialty occupations. 
Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C. § l 10l(a)(15)(H)(i)(b) . 
The H-lB program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty ( or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the proffered 
position does not qualify as a specialty occupation. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § l 184(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.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: 
( I) 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. 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"). 
II. PROFFERED POSITION 
The Petitioner describes the proffered position's duties, and the percentage of the Beneficiary's time 
required to perform them, as follows: 
Search Engine Marketing ( 60% of the total time) 
• 
• 
• 
• 
Collect and analyze Digital Marketing metrics, including but not limited to 
Impressions, Impression Share (IS), Clicks, Click through Rate (CTR), 
Sessions, Session Duration, Bounce Rate, Page Views per Session, Costs, Cost 
per Click (CPC), Conversions, Conversion Rates, and Cost per Acquisition 
(CPA); collect and analyze search volume data, patterns, and trends; identify 
appropriate Key Performance Indicators (KPis) for each client's digital 
marketing activities, and report key metrics from digital campaigns; 
Set up and optimize suitable analytics tools such as Google Analytics, Facebook 
Analytics, WordPress, hotjar, etc. to track visitor's [sic] behaviors for 
monitoring the visibility and engagement of a business; 
Coordinate with web development team for technical Search Engine 
Optimization audit and webpage loading speed optimization, which makes 
consumers more likely to farther interact with the website; advise on 
adding/adjusting contents and functions to website; 
Improve search-related activities through on-the-go analysis, experimentation, 
and optimization tests with multiple advanced analysis methods, including but 
not limited to one-sample t[-]tests, independent-sample t[-]tests, paired­
samples t[-]tests, two-way contingency tests such as Chi-square x2 tests, one­
way analysis of variance such as ANOVA, and multivariate analysis methods; 
2 
• Optimize website exposure by creating content strategies for digital media, 
namely, consumer perspective-oriented Google Ads keyword pool design and 
creative ad copywriting to better direct potential customers to clients' websites; 
and 
• Utilize multiple tools to quantify and assess hosts' quality, which is indicated 
by Domain/Page Authority; communicate and negotiate collaborations and 
compensations with merchants, webmasters, bloggers, or online editors to 
strategically place biogs/reviews and links. 
Market Research Analysis and Marketing Efforts (20% of the total time) 
• Google Search Volume sampling, analysis, and interpretation. 
o For example, create a 10-keyword-sample probing technique using 
keywords DESCRIPTION, VALUES, BRAND NAMES, PERIPHERALS, 
QUESTIONS to extract market intelligence; analyze search terms and 
deduce consumer's [sic] possible journey through sophisticated training in 
consumer behavior; 
o Adopt time-series examination techniques to analyze for any potential 
monthly/seasonal patterns or recurring data anomalies. 
• Establish profiles of consumer psychology based on data collected from Google 
Search Volume analysis; reverse-engineer communications/keywords into 
consumer psychology and find advertising triggers that could potentially yield 
high visibility and engagement for clients; 
• Proficiently utilize Chinese and U.S. databases and researches to find credible 
intelligence to guide marketing strategies and activities; track important 
marketing metrics in different languages such as English, Chinese Simplified, 
Chinese Traditional, and basic Spanish; and 
• Conduct primary intake with clients; participate in the development or 
implementation of online marketing strategy; devise creative marketing tactics; 
collaborate with other marketing staff to integrate and complement marketing 
strategies across multiple digital marketing platforms. 
Business Development (20% of the total time) 
• Draft Playbooks for clients which will suggest basic marketing strategy sets to 
maximize a client's visibility and engagement based on the client's available 
assets, including but not limited to budget, profitability, uniqueness of product, 
flexibility to upgrade offering and market niche size; provide potential clients 
with playbook-specific case studies for them to have an overview of services 
provided; 
• Consult with potential Chinese-speaking clients about marketing strategies and 
help them understand the difference of marketing strategies between China and 
United States; go through marketing contract details and nail the commitment; 
and 
• Track business data boosted by marketing strategies and draft analysis report 
periodically using data visualization software such as Microsoft Excel, Tableau, 
and Google Data Studio; report to client and explain the details of analysis 
thoroughly. 
3 
According to the Petitioner, the pos1t10n requires "a bachelor's degree m communication 
management" and "fluen[cy] in both Mandarin Chinese and English." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 1 
On appeal, the Petitioner asserts that the position qualifies under the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3) and (4); however, it does not assert that the position qualifies under 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(l) or (2). 2 Accordingly, we limit our analysis to the third and fourth criteria. 3 
A. 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. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 
See Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000). If we were limited solely to reviewing 
a petitioner's claimed self-imposed requirements, an organization could bring any individual with a 
bachelor's degree to the United States to perform any occupation as long as the petitioning entity 
created a token degree requirement. Id. 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. 
On appeal, the Petitioner asserts that "paystubs, diploma(s), [and] relevant information" 4 for two of 
its employees, hired in 2017 and 2019, respectively, with position titles of "marketing strategist" 
establish that the Petitioner normally requires a bachelor's degree in a specific specialty, or its 
equivalent, for the position. The employee hired in 2017 has a master's degree in advertising and the 
employee hired in 2019 has a master's degree in communication management. However, the extent 
of the documentary evidence in the record regarding the worker hired in 2017 are photocopies of 14 
paychecks dated between March 21 and October 6, 2017, and an ICE Form I-20, Certificate of 
Eligibility for Nonimmigrant Student Status, dated May 2017, requesting employment authorization 
from June 1 through September 30, 2017. The record does not establish the duties the Petitioner 
require(d) the worker to perform or whether the Petitioner requires a bachelor's or higher degree in a 
specific specialty, or its equivalent, to perform them. Therefore, the probative value of the information 
1 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 Although the criteria at 8 C.F.R. ~ 214.2(h)(4)(iii)(A)(2) and (4) are similar, they are distinct. 
3 We have reviewed the record in its entirety; however, it does not support the conclusion that the proffered position 
qualifies as a specialty occupation under the first or second criteria. 
4 That information includes an H-IB approval notice for the employee hired in 2019. 
4 
regarding the worker hired in 201 7 for determining whether the Petitioner normally requires a 
bachelor's or higher degree in a specific specialty, or its equivalent, for the proffered position is 
minimal. 
U.S. Citizenship and Immigration Services (USCIS) records indicate that the Petitioner submitted the 
petition for the employee hired in 2019 at the same time it filed the petition for the Beneficiary, and 
the requested employment periods for the two petitions are identical. Therefore, any requirements for 
another worker petitioned at the same time as the Beneficiary, for an identical employment period, do 
not establish that, as of the petition filing date, 5 the Petitioner normally requires a bachelor's or higher 
degree in a specific specialty, or its equivalent, 
We farther note that, although the job duties listed in the employment agreement for the other worker 
hired in 2019 overlap with the description of how the Beneficiary would spend 60% of his time, the 
remainder of the duty descriptions differ, limiting the extent to which the two positions are similar. 
The record also contains a job announcement posted by the Petitioner for a "digital marketing 
strategist" position dated August 5, 2019, after the petition filing date. We note that the six duties 
described in the job announcement differ from both the duty description for the proffered position and 
the duties listed in the employment agreement for the other worker hired in 2019. Additionally, the 
job announcement indicates that, although an "MS/MA in Marketing, Advertising, Media, [or] 
Communication is preferred," the Petitioner would accept a "BS/BA with equivalent work 
experience." The job announcement does not specify whether the BS or BA must be in a specific 
specialty, or the qualification to which the work experience must be equivalent. The job 
announcement later repeats "Education: Bachelor's (Required)," without indicating that the required 
degree, or its equivalent, must be in a specific specialty. The job announcement farther reports that 
the position entails "[u]sually 1-3 month[s] of internship and training period to start with," obscuring 
whether a bachelor's or higher degree in a specific specialty, or its equivalent, rather than the initial 
"1-3 month ... training period" ultimately prepares a worker for the performance requirements of the 
pos1t10n. Furthermore, even if the job announcement established that the Petitioner requires a 
bachelor's or higher degree in a specific specialty, or its equivalent, which it does not, a single job 
announcement dated after the petition filing date does not establish whether, as of the petition filing 
date, the Petitioner normally requires such a degree for the position. See 8 C.F.R. § 103.2(b )(1 ); see 
also Matter of Michelin Tire Corp., 17 I&N Dec. at 249. 
The Petitioner also asserts on appeal that, because "USCIS has previously approved two [ of the 
Petitioner's] H-lB petitions for the position of Marketing Strategist ... USCIS has agreed that the 
Marketing Strategist offered by [the] Petitioner is in fact a specialty occupation." However, we are 
not required to approve a petition where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See, e.g., Matter of Church Scientology Int 'I, 19 I&N Dec. 
593, 597 (Comm'r 1988); see also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 
1987). Furthermore, we are not be bound to follow a contradictory decision of a service center. La. 
Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. La. 2000). 
5 Petitioners must establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible 
for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date after a 
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Co1p., 17 l&N Dec. 248, 
249 (Reg'l Comm'r 1978). 
5 
In summation, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
B. 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. 
On appeal, the Petitioner asserts that two documents submitted in support of the appeal satisfy the 
fourth criterion: a letter from "the biggest client of [the] Petitioner" and an o inion letter fromD 
I I a professor of communications at the University of~-------~ 
6 
As a matter of discretion, we may use opinion statements submitted by a petitioner as advisory. Matter 
o_f Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we may give an opinion less 
weight if it is not in accord with other information in the record or if it is in any way questionable. 
Id. We are ultimately responsible for making the final determination regarding an individual's 
eligibility for the benefit sought; the submission of expert opinion letters is not presumptive evidence 
of eligibility. Id.; see also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion 
testimony, while undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but 
rather is admissible only if 'it will assist the trier of fact to understand the evidence or to determine a 
fact in issue."'). 
We first note that the signatory of the client letter identifies himself as the company's "marketing 
department," without indicating his specific position title, his role in the department, and whether he 
has the authority to speak on behalf of "a telecom giant in China [with] over $40 billion revenue" in 
this regard. To the extent that the signatory has sufficient authority to do so, the client letter addresses 
three aspects in order to opine, as the Petitioner emphasizes on appeal, that the Beneficiary has "superb 
theoretical and practical applications of specialized knowledge in business to customer (B2C) digital 
marketing." 
First, the client letter shares a six-word advertising slogan about international phone calls and asserts 
that "in order to come up with that ad copy, [the Beneficiary] had learned our selling proposition, the 
specific target audience's psychology, common consumer behaviors in the field of interest, the 
behavior's costs and benefits, and communication tactics, including nonverbal subliminal 
communications." However, we note that the Beneficiary was recently in the client's target 
demographic, a Chinese student in the United States, raising questions regarding the extent to which 
knowledge usually associated with the attainment of a bachelor's or higher degree in a specific 
specialty, or its equivalent, rather than the knowledge of being in the target demographic led to 
performing the position's specific duties in the example provided. 
6 The Petitioner submitted another letter fro ml I in response to the Director's request for evidence (RFE). In both 
letters! !emphasizes that he is also an associate director of the Master of Communication Management program 
and, in that capacity, he manages admissions, academic advisement, and career support. 
6 
Second, the client letter observes that "[the Beneficiary] has a data-driven mindset. He rarely makes 
any statement without adequate research." Although the client's observation of the Beneficiary's 
behavior is informative, it does not establish whether the nature of the position's specific duties is so 
specialized and complex that the knowledge required to perform them is usually associated with a 
qualifying degree. 
Third, the client letter informs that "[the Beneficiary] got us numbers to base each and every decision 
on," including using automated reports from Google Ads, Google Analytics, and Google Data Studio 
to monitor advertisement audience actions. Similar to concerns addressed above, the client informs 
that familiarity with free software tools created by Google to assist companies in advertising to 
audiences, rather than knowledge usually associated with a qualifying degree, suffices to perform the 
position's specific duties. The record does not establish that Google Ads, Google Analytics, Google 
Data Studio, or similar software is so specialized and complex that the knowledge required to use it is 
usually associated with the attainment of a qualifying degree. 
Nextl b opinion letter submitted on appeal primarily clarifies his RFE letter, based on the 
Director's analysis of it in the decision. I I asserts that he originally based his opinion on the 
Beneficiary's job derription
1 
"documents on [the Beneficiary's projects - evidence on duties he 
actually performed." also asserts that he "studied [the Petitioner's] Linkedin page as well as 
their [sic] websites" in order "to understand [the Petitioner's] nature of operation." In addition,D 
D concedes that, in his RFE letter, "I did not put much emphasis on drawing documents from other 
studies" and on appeal he supplements his opinion with citations to 11 new sources, including five 
studies published in peer-reviewed journals, one book, and five additional undated citations to job 
advertisements for "marketing strategists." In other words, on appeal the record establishes that, at 
the time of the Director's decision, I ts letter "[was] not supported by copies or citations of 
research material that may have been used" to form his opinion, as the Director observed. 7 
On appeal, identifies three work product documents on which he based his initial opinion. In 
the RFE opinion, ~--~ stated that "[ v] arious qualitative research methods, such as the content 
analysis observed in [the Beneficiary's] project for [client SJ are also taught in ... a course dedicated 
to market research." He also asserted: 
[the Beneficiary] had to calculate correlations from raw data to assess and project 
business performances [for client J], data mining and analyses [for client U], and 
industry/market research for every potential client, including market size, 
demographics distribution, budget calculation, etc., as they are presented raw [sic] data 
formats or in SPSS or STATA significance tests formats. 
The record does not contain the work product relating to client S. 8 Although the record contains a 
document referencing client J and "the Beneficiary," and a document referencing client U and "the 
Beneficiary," neither document specifically identifies the Beneficiary by name or establishes that a 
7 As noted above, a visa petition may not be approved at a future date after a petitioner or beneficiary becomes eligible 
under a new set of facts. See Matter of Michelin Tire Co1p., 17 l&N Dec. at 249. 
8 As noted above, an opinion letter "does not purport to be evidence as to 'fact' but rather is admissible only if 'it will 
assist the trier of fact to understand the evidence or to determine a fact in issue."' Matter of V-K-, 24 l&N Dec. at 502 n.2. 
7 
"marketing strategist" created them. Accordingly, the probative value of the documents to assist us in 
understanding the nature of the specific duties is limited. 
The document referencing client J is undated and consists of one page, half of which is a nearly 
illegible graph of monthly order volume trends, along with a narrative from an unidentified author, 
asserting that the graph demonstrates "that there is a correlation between cashmere product sales and 
weather [and] can tell you when, how, by how much, what to expect, and what to do." Even if the 
volume trend document established who created it, and when, it does not establish that the knowledge 
required to create it is usually associated with a bachelor's or higher degree in a specific specialty, or 
its equivalent. Instead, it indicates familiarity with using software such as Microsoft Excel to produce 
a graph of six series of data. Furthermore, because of the graph's near illegibility, it does not establish 
what the series of data display. 
In tum, the document referencing client U, dated May 2019, is a two-page "Google Ads Report" and 
a corresponding two-page narrative from an unidentified author regarding work performed by "the 
Beneficiary," without identifying him by name. The majority of the two-page report are charts and 
tables of data automatically generated by Google Ads based on audience activity. The remainder of 
the report is an analysis written by an unidentified author, summarizing the report's implications. 
Although the report depicts a degree of complexity, as noted above it does not establish whether 
familiarity with free tools created by Google to assist companies in advertising to audiences, rather 
than knowledge usually associated with a qualifying degree, suffices to perform the position's specific 
duties. 
Furthermore, the extent ofl Is opinion regarding the documents referencing client J and client 
U is that creating them "would require familiarity with multiple databases, and the ability to read 
research results." However, that familiarity and ability is common among various quantitative 
specialties rather than being knowledge usually associated with a bachelor's or higher degree in a 
specific specialty, or its equivalent. Accordingly,! ~ opinion regarding those work product 
documents does not satisfy the fourth criterion. 
,__ _ ____.I explains that he "used [the Petitioner's] websites to know more about the business," rather 
than personally interviewing the Petitioner's staff to learn about the nature of the position's duties 
because "the websites are publicly acceyible [a1d] untruthful statements would cause problems 
between [the Petitioner] and its clientele." hen asserts that the Petitioner's website "lead me 
to believe that ... marketing strategists attract visits [sic] to [the Petitioner's] clients' websites," 
created by the Petitioner's other workers. I I does not assert that the Petitioner's website 
establishes that "marketing strategists attract visits [sic]," beyond leading him to believe that; and 
moreover he does not assert that the Petitioner's website informs what "marketing strategists" do to 
attract those "visits," in order to determine whether the nature of those duties is so complex and 
specialized that the knowledge required to perform them is usually associated with a bachelor's or 
higher degree in a specific specialty, or its equivalent. I ldoes not elaborate on the materiality 
of the Petitioner's Linkedin page to his opinion regarding the extent of the complexity and 
specialization of the position's specific duties. 
Beyond the letters discussed above, the Petitioner does not otherwise assert on appeal how the duties, 
as described in the record, establish that the knowledge required to perform them is usually associated 
8 
with a qualifying degree. We note that, similar to the letters, several of the duties in the description 
inform that the Beneficiary would rely on free tools created by Google to assist companies in 
advertising to audiences, limiting the extent to which knowledge usually associated with a bachelor's 
or higher degree in a specific specialty, or its equivalent, is required to perform the specific duties, as 
discussed above. Additionally, the duty description consists of generalized language that does not 
establish specialization and complexity. For example, the record does not farther inform the tasks or 
knowledge required for the Beneficiary to "[ c ]ollect . . . [ d]igital [ m ]arketing metrics," the 
methodology he would use to "analyze" the metrics, or the process of"[ setting] up and optimiz[ing] 
suitable analytics tools such as Google Analytics." The record does not demonstrate how the 
Beneficiary would "[i]mprove search-related activities through on-the-go analysis, experimentation, 
and optimization tests," the methodology he would use to perform "Google Search Volume sampling, 
analysis, and interpretation," what the Beneficiary would do to "[ c ]onsult with potential Chinese­
speaking clients about marketing strategies and help them understand the difference of marketing 
strategies between China and United States," or perform other duties with similarly vague language. 
In summation, the Petitioner has not demonstrated in the record that its proffered position is one with 
duties sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
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. 
9