dismissed H-1B Case: Marketing

MATTER OF A-C-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 13,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a commercial real estate lender, seeks to temporarily employ the Beneficiary as a 
"marketing manager" under the H-1 B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(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 ofhighly 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 Petitioner did 
not establish that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner asserts that the Director erred in her findings. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) ofthe Act, 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; 
Matter of A-C-, LLC 
(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)(ii1)(A). We have consistently interpreted 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"); Defensor v. Meissner, 201 F .3d 3 84, 3 87 (5th Cir. 2000). 
II. ANALYSIS 
For the reasons set out below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occup.ation.1 Specifically, as a result of inconsistencies in 
the record, we are unable to conclude that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 
First, the record contains inconsistencies regarding the requirements for the position, and, as a result, 
we are unable to determine the minimum requirements to qualify for the position. The Petitioner 
stated in its initial support letter that the proffered position "requires an individual with at least a 
Master in Business Administration with 10 years of Marketing experience." However, in response 
to the request for evidence (RFE), the Petitioner changed its requirements without explanation, and 
indicated that the position "requires "a Bachelor's degree in Communications, Marketing, or a 
related field." The Petitioner also submitted an internal posting, which stated that "a Bachelor's 
degree in Communication, Marketing or a related field is preferred. MBA preferred or equivalent 
experience" (emphasis added). 
If a bachelor's degree in communications, marketing, or a related field, is only preferred but not 
required, then the proffered position would not qualify as a specialty occupation. Conversely, if the 
position requires at least a master's degree in business administration and l 0 years of marketing 
experience, then the position would be a more senior position which would not correspond with a 
Level I wage2 designation on the labor condition application (LCA).3 Either way, the petition would 
1 
Although we may not discuss every document submitted, we have reviewed and considered each one. 
2 
The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). A wage 
determination starts with an entry level wage and progresses to a higher wage level after considering the experience, 
2 
Matter of A-C-, LLC 
not be approvable. In addition, these inconsistencies undermine the Petitioner's claims regarding the 
proffered position, and hinder us from discerning the nature of the proffered position to make a 
specialty occupation determination. 
There are other discrepancies in the record that raise additional questions regarding the proffered 
position. For example, the Petitioner indicated on the Form 1-129, Petition for a Nonimmigrant 
Worker, that it has five employees in the United States. However, the record contains an 
organization chart that lists 24 employees. Further, although the Petitioner stated in its response to 
the RFE that the Beneficiary will "oversee all marketing, advertising and promotional activities:' the 
organization chart does not include any direct subordinates or list the individuals who will be 
performing these activities. Finally, not only does the organization chart list more than five 
individuals, but the provided tax returns do not show any salaries or wages paid. It is reasonable to 
assume that the size of an employer's business has or could have an impact on the claimed duties of 
a particular position. See EG Enters., Inc. v. Dep't (~fHomeland Sec., 467 F. Supp. 2d 728 (E.D. 
Mich. 2006). The size of a petitioner may be considered as a component of the nature of the 
petitioner's business, as the size impacts upon the actual duties of a particular position. 
The Petitioner must resolve the above inconsistencies in the record with independent, objective 
evidence pointing to where the truth lies. Matter ~f Ho, 19 I&N Dec. 582, 591-92 (BIA 1998). 
For all of these reasons, we find that the Petitioner has not consistently described the position's 
duties and educational requirement. Without additional probative evidence, we cannot determine the 
substantive nature of the proffered position, and consequently, whether it requires an educational 
background, or its equivalent, commensurate with a specialty occupation. 
Therefore, we are precluded from finding that the proffered position satisfies any criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the 
normal minimum educational requirement for entry into the particular position, which is the focus of 
criterion 1; (2) industry positions which are parallel to the proffered position and thus appropriate for 
review for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong of 
criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, 
when that is an issue under criterion 3; and (5) the degree of specialization and complexity of the 
specific duties, which is the focus of criterion 4. 
education, and skill requirements of the Petitioner's job opportunity. !d. DOL, 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 
3 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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 experience and qualifications who are performing the same services. See 
Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 I 5). 
Matter of A-C-, LLC 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. 
Nevertheless, we will briefly analyze the evidence of record. 4 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), 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 recognize the U.S. Department of 
Labor (DOL)'s Occupational Outlook Handbook (Handbook) as an authoritative source on the 
duties and educational requirements of the wide variety of occupations that it addresses. 5 
We reviewed the subchapter of the Handbook entitled "How to Become an Advertising, Promotions 
or Marketing Manager." 6 The Handbook reports that a variety of courses may be advantageous for 
this occupation, but it does not specify that such positions require a bachelor's degree in a specific 
specialty. 
The Petitioner asserts that "the [Handbook] does clearly provide that a minimum of a bachelor's 
degree is required for Marketing Managers." However, the Petitioner's claim that a bachelor's 
degree is a sufficient minimum requirement for entry into the proffered position is inadequate to 
establish that the proposed position qualifies as a specialty occupation. A petitioner must 
demonstrate that the proffered position requires a precise and specific course of study that relates 
directly and closely to the position in question. There must be a close correlation between the 
required specialized studies and the position; thus, the mere requirement of a degree, without further 
specification, does not establish the position as a specialty occupation. Cl Matter o.lMichael Hertz 
Assocs., 19 I&N Dec. 558, 560 (Comm 'r 1988) ("The mere requirement of a college degree for the 
sake of general education, or to obtain what an employer perceives to be a higher caliber employee, 
also does not establish eligibility."). Thus, while a general-purpose bachelor's degree 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. Royal 
Siam Corp., 484 F .3d at 14 7. Therefore, the Handbook does not establish that a baccalaureate 
degree in a specific discipline is normally the minimum requirement for entry into positions located 
within this occupational category. 
4 
Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
5 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and we regularly review the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, 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. 
6 
Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Advertising, Promotions or 
Marketing Managers (20 16-17 ed. ). 
4 
Matter of A-C-, LLC 
The Petitioner has not provided sufficient documentation from a probative source to substantiate its 
assertion regarding the minimum requirement for entry into this particular position. Thus, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 
The second criterion presents two alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or. in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
contemplates the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
We generally consider the following sources of evidence to determine if there is such a common 
degree requirement: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry 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) (considering 
these "factors" to inform the commonality of a degree requirement)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent. We incorporate by reference the previous discussion on the 
matter. 
In support of this criterion, the Petitioner submitted several job announcements placed by other 
employers. However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements is misplaced. First, the Petitioner did not supplement the record of proceedings to 
establish that these advertising organizations are similar. 
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 
an organization is similar and in the same industry without providing a legitimate basis for such an 
assertion. 
Furthermore, as noted, the Petitioner did not provide sufficient and consistent information regarding 
the proffered position. Therefore, we are also unable to determine if the advertised positions are for 
parallel positions. In addition, some of the postings do not indicate that at least a bachelor's degree 
Matter of A-C-, LLC 
in a directly related specific specialty (or its equivalent) is required. The postings listed a range of 
acceptable degrees. The job postings suggest, at best, that although a bachelor's degree is sometimes 
required for these positions, a bachelor's degree in a .speqfic .specialty (or its equivalent) is not.7 
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.8 That is, not every deficit of every job posting has been addressed. 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's 
degree in a specific specialty, or its equivalent, is common to the industry in parallel positions 
among similar organizations. The Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
As noted, the Petitioner designated the proffered position as an entry-level position within the 
occupational category by selecting a Level I wage. 
9 
This designation, when read in combination 
with the evidence presented and the Handbook's account of the requirements for this occupation, 
7 It must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a specific 
specialty is common to the industry in parallel positions among similar organizations (which they do not), the Petitioner 
has not demonstrated what statistically valid inferences, if any, can be drawn from the 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). Moreover, 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 195-196 (explaining that ''[r]andom selection is the key to [the] 
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 en·or"). 
8 The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. Moreover, not all of the postings are for 
parallel positions. 
9 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214( i)( I) of the Act. 
6 
Matter of A-C-. LLC 
suggests that the particular position is not so complex or unique that the duties can only be 
performed an individual with a bachelor's degree or higher in a specific specialty, or its equivalent. 10 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references her 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently develop relative 
complexity or uniqueness as an aspect of the duties of the position, and it did not identify tasks that 
are so complex or unique that only a specifically degreed individual could perform them. 
Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
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 
Petitioner did not provide any information of other individuals employed in this position. As 
discussed, the Petitioner submitted an internal posting which states that a bachelor's degree is 
preferred, but not required. Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3). 
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. 
We acknowledge the Petitioner's assertions regarding the specialization and complexity of the 
position's duties. However, as above, those claims are undermined by the Petitioner's Level I wage 
designation. Again, in classifying the proffered position at a Level I (entry-level) wage, 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). 11 
III. LCA 
The Petitioner also has not established that the LCA supports and corresponds to the petition. While 
DOL is the agency that certifies LCA applications before they are submitted to U.S. Citizenship and 
Immigration Services (USCIS), DOL regulations note that the Department of Homeland Security 
(DHS) (i.e., its immigration benefits branch, USCIS) is the department responsible for determining 
whether the content of an LCA filed for a particular Form I-129 actually supports that petition. See 
10 The evidence of record does not establish that this position is significantly different from other positions within the 
occupational category such that it refutes the Handbook's information to the effect that some courses are advantageous to 
obtaining such a position, but not specifying that the degree must be in a specific specialty. 
11 Again, the Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same occupation. 
.
Matter of A-C-. LLC 
20 C.F.R. § 655.705(b), which states, in pertinent part (emphasis added): 
For H-lB visas ... DHS accepts the employer's petition (DHS Form I-129) with the 
DOL-certified LCA attached. In doing so. the DHS determines whether the petition 
is supported by an LCA which correspond'\ with the petition , whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1 B visa classification. 
As noted, the Petitioner initially indicated that the proffered position "requires an individual with at 
least a Master in Business Administration with I 0 years of Marketing experience." The Petitioner 
designated the proffered position under the occupational category "Marketing Managers" 
corresponding to the Standard Occupational Classification code 11-2021 at a Level I wage. 
According to the DOL guidance, wage levels should be determined only after selecting the most 
relevant occupational code classification. 12 Then , a prevailing wage determination is made by 
selecting one of four wage levels for an occupation based on a comparison of the employer 's job 
requirements to the occupational requirements provided by the Occupational Information Network 
(O*NET), including tasks, knowledge, skills, and the specific vocational preparation (SVP) 
(education, training and experience) generally required for acceptable performance in that 
occupation. It is through the wage level that the Petitioner reflects the job requirements, experience, 
education, special skills/other requirements and supervisory duties. 
O*NET indicates that marketing managers fall under Job Zone Four, which groups it among 
occupations for which "most ... require a four-year bachelor's degree , but some do not:' Further , 
this occupational category has an SVP range of 7 to < 8. An SVP rating of 7 to less than ("<") 8 
indicates that the occupation requires "over 2 years up to and including 4 years" of training. 
DOL guidance provides that for a Job Zone Four position, "if the employer's experience requirement 
is [g]reater than the experience and SVP range," as it may be in this case, the wage level, which 
starts at Level I, is increased by three levels. In addition, the Petitioner's education requirement of a 
master's degree is higher than the bachelor's degree listed in O*NET , and therefore, also requires a 
one-level increase. 13 Therefore, if the proffered position requires a master's degree and 10 years of 
experience in marketing , the wage level should be at least Level IV. The Level IV prevailing wage 
for the proffered position is $151,320 , which is significantly higher than the offered wage of $84,000 
and the Level I wage of $59,030 that the Petitioner provided on the certified LCA.14 
12 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev . Nov. 2009), http://www.foreignlaborcert.doleta.gov /pdf/NPWHC _Guidance _ Revised __ 
11 _2009.pdf. 
n Because the experience and education requirements alone require a Level IV wage, we will not address any other 
additional potential increases. 
14 
http://tlcdatacenter.com /OesQuickResults.aspx ?area= &code= 11-2021 &year= 17&source= I (last visited 
December 13, 20 17). 
8 
Matter of A-C-, LLC 
Further, throughout the record, the Petitioner emphasizes the complexity and uniqueness of the 
proffered position. On appeal, the Petitioner asserts that the position requires "high proficiency in 
complex marketing concepts, advanced ability to conduct quantitative and qualitative analysis, and 
at the same time understand the complexity of a risk management business." The Petitioner asserts 
that the Beneficiary would be "accountable for the success of four (4) senior sales personnel in the 
company including the Chief Sales officer, SVP of Franchise Platforms, SVP of Renewable Energy 
and Business Development Officer." However, the Petitioner's claims regarding the complex and 
specialized nature of the proffered position are also not sufficiently demonstrated in the wage level 
designation. 
Therefore, the Petitioner has not established that it submitted a certified LCA that corresponds to the 
petition. 
IV. CONCLUSION 
The Petitioner has not 1) demonstrated that the proffered position qualifies as a specialty occupation, 
and 2) submitted an LCA which supports the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-C-, LLC, ID# 709392 (AAO Dec. 13, 2017) 
9