dismissed H-1B Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEPT. 16, 2024 In Re: 32803092 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to employ the Beneficiary under the H-lB nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-IB 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 the record did not 
establish the Petitioner's proffered job qualified as a specialty occupation under section 
101(a)(15)(H)(i)(b) of the Act. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
The Act at Section 214(i)(l), 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: (A) the 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) is a minimum for entry into the occupation in the United States. 
The regulation at 8 C .F.R. § 214.2(h)(4)(ii) adds a non-exhaustive list of fields of endeavor to the 
statutory definition. And the regulation at 8 C.F.R. § 214.2(h)(4)(iii) requires that the proffered 
position must also 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 pos1t10ns 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. 
The statute and the regulations must be read together to make sure that the proffered position meets 
the definition of a specialty occupation. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) 
(holding that construction of language which takes into account the design of the statue as a whole is 
preferred); see also COIT Independence Joint Venture v. Fed. Sav. And Loan Ins. Corp., 489 U.S. 561 
(1989); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). Considering the statute and the regulations 
separately leads to scenarios where a Petitioner satisfies a regulatory factor but not the definition of 
specialty occupation contained in the statute. See Defensor v. Meissner, 201 F.3d 384, 387 5th Cir. 
2000). The regulatory criteria read together with the statute gives effect to the statutory intent. See 
Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 56 Fed. 
Reg. 61111, 61112 Dec. 2, 1991). 
So, we construe the term "degree" in 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 
supporting the statutory definition of specialty occupation. 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"). USCIS' application of this 
standard has resulted in the orderly approval ofH-lB petitions for engineers, accountants, information 
technology professionals and other occupations, commensurate with what Congress intended when it 
created the H-1 B category. 
And job title or broad occupational category alone does not determine whether a particular job is a 
specialty occupation under the regulations and statute. The nature of the Petitioner's business 
operations along with the specific duties of the proffered job are also considered. We must evaluate 
the employment of the individual and determine whether the position qualifies as a specialty 
occupation. See Defensor, 201 F.3d 384. So, a Petitioner's self-imposed requirements are not as 
critical as whether the position the Petitioner offers requires the application of a theoretical and 
practical body of knowledge gained after earning the required baccalaureate or higher degree in the 
specific specialty required to accomplish the duties of the job. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
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II. ANALYSIS 
A. General Degree Requirement 
The Petitioner is offering the Beneficiary the position of creative operations associate. The petition 
included a labor condition application (LCA) certified for a position located within the "Market 
Research Analysts and Marketing Specialists" occupational category corresponding to the Standard 
Occupational Classification code 13-1161. 1 
The Petitioner stated in its support letter that the creative operations associate position requires a 
bachelor's degree in design, business administration, or related field, and progressive experience. In 
its response to the Director's request for additional evidence (RFE), the Petitioner submitted a 
supplemental support letter with an expanded job description, reference information about the 
occupation, sample business administration curriculum from 
copy of case law precedent the Petitioner cited to in support of its contentions, an academic evaluation 
and transcripts supporting the Beneficiary's educational qualifications, and information about the 
Petitioner's position in the art and design industry to establish that the proffered position met all four 
of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 2 
The proffered position does not meet the statutory or regulatory definition of the term "specialty 
occupation." The Petitioner has not satisfied the requirement that the proffered position require the 
theoretical and practical application of a body of specialized knowledge and that the position requires 
attainment of a bachelor's degree in the specific specialty to perform the job duties. 
The record of proceedings contains the Petitioner's stated requirements for the proffered position. The 
Petitioner would accept a bachelor's degree in business administration, with no further specialization, 
as a minimum qualification for entry into the proffered position. If a position is a "specialty 
occupation" under the statute and regulations, it is one which involves a "body of highly specialized 
knowledge" attained after completing a bachelor's degree or higher in a "specific specialty." A general 
degree requirement like a bachelor's degree in business administration, standing alone without any 
further specialization, is not a specialty. And this excludes any proffered position accepting such a 
degree as a minimum requirement for entry into the position from consideration as a specialty 
1 The Petitioner asserted "USCIS failed to fulfill its legal obligation outlined in the class action final settlement agreement 
in MadKudu Inc., et al. v. U.S. Citizenship and Immigration Services, et al., No. 20-cv-2653 (N.D. Cal.)." We do not 
agree. The settlement agreement outlined guidance for adjudicating pending or future H-lB petitions for market research 
analysts. The Petitioner contends USCIS is bound by the settlement agreement to approve petitions filed for market 
research analysts. But, as mentioned in the Petitioner's brief, the guidance states a position whose employer "would 
consider someone as qualified for the position based on less than a bachelor's degree in a specialized field directly related 
to the position (e.g., an associate's degree, a bachelor's degree in a generalized field of study without a minor, major 
concentration, or specialization in market research, marketing, or research methods, or a bachelor's degree in a field 
of study unrelated to the position)" would not meet the statutory and regulatory definitions of specialty occupation at 8 
U.S.C. § l 184(i)(l) and 8 C.F.R. § 214.2(h)(4)(ii) (emphasis added). So, contrary to the Petitioner's assertion, USCTS 
fulfilled the settlement agreement when it denied the petition because the Petitioner's minimum qualifications for entry to 
their creative operations associate position contained a requirement for a general bachelor's degree in business 
administration without specialization. 
2 While we may not discuss every document submitted, we have reviewed and considered each one. 
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occupation. A bachelor's degree in business administration without further specialization is so broad 
that it could apply to a position in finance as well as general business operations and management in 
a variety of endeavors. So, it cannot provide an individual with the "body of highly specialized 
knowledge" required to perform the duties of a specialty occupation. 
In accordance with the statutory and regulatory requirements, the agency has consistently disfavored 
general purpose bachelor's degrees in business administration with no additional specialization. See 
Matter ofLing, 13 I&N Dec. 35 (Reg'l Comm'r 1968); Matter ofMichael Hertz Assocs., 19 I&N Dec. 
558 (Comm'r 1988); Matter of Caron Int'!, 19 I&N Dec. 791 (Comm'r 1988). Even after Congress 
revamped the H-lB program as part of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 
4978, the agency's concerns with a general-purpose bachelor's degree in business administration with 
no additional specialization continued. See e.g. 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); Xpress Group v. Cuccinelli, No. 3:20-CV-00568-DSC, 2022 WL 433482 (W.D.N.C. Feb. 
10, 2022). 
As the First Circuit Court of Appeals explained in Royal Siam, 484 F.3d at 147: 
The 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 granting of a petition for an H-lB specialty occupation visa. See e.g., Tapis Int'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. 558, 560 ([Comm'r] 1988) 
(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. 
A bachelor's degree in business administration with no further specialization is not a degree in a 
specific specialty. And the fact that the Petitioner would accept such a degree as a minimum 
qualification for entry to the proffered position does not satisfy the statutory and regulatory definitions 
of specialty occupation. 
B. Wide and Disparate Acceptable Degree Field Range 
Even if we were to leave to the side the dispositive issue of the Petitioner's acceptance of a business 
administration degree with no further specialization, we would still conclude that the Petitioner's 
acceptance of a bachelor's degree from the wide variety of fields it specifies would preclude the 
Petitioner from satisfying both the statutory and regulatory definition of specialty occupation. The 
record of proceedings reflects that along with a bachelor's degree in business administration with no 
further specialization, the Petitioner would also accept a bachelor's degrees in design for entry into 
the proffered job. 
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The Director correctly concluded the range covered by the design and business administration fields 
of study to be too wide and denied the petition. The Petitioner's grouping of business administration 
with no further specialization in combination with design is not adequately supported in the record 
with evidence highlighting its composition as collectively forming a singular specialty in a body of 
highly specialized knowledge. The Petitioner asserts the H-1B regulations require "only that a 
bachelor's degree is 'normally' the minimum requirement for entry" to the proffered job. This is not 
correct. The Petitioner's diverse grouping of the field of design and business administration together 
constitutes a broad range of knowledge that the record does not adequately establish as a specialty 
required to perform the duties of a "specialty occupation." When the theoretical and practical 
knowledge desired for a proffered job can be gained from a number of seemingly unrelated degrees, 
spanning from humanities such as "design" to "business administration" the only conclusion can be 
that these skills are fundamental and not specialized. In fact, unrelated specialties would fall within 
the Petitioner's minimum educational requirements of a bachelor's in design or business 
administration or related field. This leads to the scenario the Petitioner advances wherefrom the 
Petitioner could advance any proffered position as a specialty occupation so long as it required at 
minimum an individual with any bachelor's degree. But such a position cannot be considered 
specialized. See Caremax v. Holder, 40 F.Supp.3d 1182, 1187-88 (N.D. Cal. 2014) ("A position that 
requires applicants to have any bachelor's degree, or a bachelor's degree in a large subset of field, can 
hardly be considered specialized."). The record as it is presently composed does not establish how the 
range of degrees the Petitioner could accept as a minimum qualification for entry to the proffered job 
would form a body of highly specialized knowledge or a specific specialty. 
On appeal, the Petitioner contends that the Director applied an incorrect legal standard when they 
denied the petition. In its appeal, the Petitioner states that its wide range of degrees can constitute a 
specialty required to perform the duties of a specialty occupation. The Petitioner cites to caselaw in 
Caremax v. Holder, 40 F.Supp.3d 1182, 1187-88 (N.D. Cal. 2014), Tapis Int'l v. INS, 94 F. Supp.2d 
172, 175-76 (D. Mass. 2000), and Raj & Co. v. USCIS, 85 F. Supp. 3d 1241 (W.D. Wash. 2015) and 
states "there is nothing in the INA nor the specific code of regulations describing the H-1B program 
to require that a baccalaureate level of education be in one specific discipline to satisfy the "specialty 
occupation standard." The Petitioner's arguments are not persuasive. The issue here is not that the 
Petitioner would accept degrees in various fields. The issue today is that the Petitioner's stated 
spectrum of acceptable degrees is too broad to support a finding that the proffered position requires a 
bachelor's degree in a specific specialty, or the equivalent. We interpret the statutory "the" and the 
regulatory "a" to mean a singular specialty but we do not so narrowly interpret the statute and 
regulation such that multiple closely related fields of study would not constitute a specialty to perform 
the duties of a related specialty occupation. In general, 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 2 l 4(i)(l )(B) of the Act provided the specialties are closely related 
such that they constitute a common specialty required to perform the duties of the position. If they 
constitute a common specialty, then the required "body of highly specialized knowledge" would 
essentially be the same. If the required degree fields do not constitute a common specialty, 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)." A minimum entry requirement that did include 
disparate fields of study, such as philosophy and engineering for example, would require a petitioner 
to establish how each field is directly related to all the duties and responsibilities of the particular 
position. Section 214(i)(l )(B) of the Act ( emphasis added). 
5 
So, there is no requirement in the statute for the required education to consist of one specific degree 
or major but there must be a close relation between the required specialized studies to constitute a 
common "specialty" and that "specialty" must be related to the duties of the position as supported by 
the case law cited by the Petitioner in its appeal. When a petitioner would accept a bachelor's degree 
from a wide variety of seemingly unconnected fields, like the range of fields the Petitioner presents 
here, it cannot establish that the fields constitute a "specialty" if it does not establish how each accepted 
and specific field of study is directly related to each another and to the duties and responsibilities of 
the particular position. The record as it is currently constituted does not support a conclusion that the 
Petitioner's group of degree-fields is sufficiently narrow to conclude that it comprises a "specialty" 
required to perform the duties of the "specialty occupation." 
C. The Petitioner's Assertions on Appeal 
The Petitioner also asserts on appeal that the nature of its proffered position is "complex" and that the 
"Director failed to meet the agency's adjudicatory burden" when they denied the petition. The 
Petitioner further asserts it normally requires a bachelor's degree or higher in a specific specialty or 
its equivalent. The record contains the Department of Labor's Occupational Outlook Handbook 
(Handbook) to support the Petitioner's assertion that its proffered position requires a bachelor's degree 
in a specific field of study comprising a body of specialized knowledge or a specialty required to 
perform the duties of the position. The Petitioner also contends its representations in the supplemental 
letter it submitted in response to the Director's RFE satisfies its burden to demonstrate its proffered 
creative operations associate position is a specialty occupation. But, as we discuss below, the 
supplemental criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4) cannot be satisfied without the express 
requirement of a baccalaureate or higher degree providing the theoretical and practical application of 
a body of highly specialized knowledge. 
The Petitioner contends the proffered creative operations associate position is complex based on their 
status in their field of operations, the business initiatives they intend to undertake, and the 
Beneficiary's academic background. The Petitioner further states the "specialized and complex" 
nature of the proffered position is "evidenced by the description of the job duties" it provided in the 
supplemental letter in response to the Director's RFE. But the expanded duties are not so specialized 
and complex that they would require the application of a theoretical and practical body of highly 
specialized knowledge gained after earning a bachelor's degree in a specific specialty to perform them. 
The Petitioner discusses the duties of the proffered creative operations associate at length and 
summarily identifies the duties as specialized and complex. The Petitioner states that the duties of the 
proffered creative operations associate are specialized and complex because I I is a 
distinguished design service company" aiming to "become the leading expert in the tech, art, design, 
and marketing industry" by "expanding into the Non-Fungible Token Market ("NFT") by making 
tools for creators." But a meditative repetition of the terms "complex" or "specialized" does not 
convincingly establish that the performance of those duties requires the theoretical and practical 
application of a body of specialized knowledge attained after earning a bachelor's or higher degree in 
a specific specialty related to the job duties. And the Petitioner does not explain why the duties of a 
creative operations associate are specialized and complex when they are performed in furtherance of 
"expanding into the Non-Fungible Token Market ("NFT")." The evidence in the record does not 
sufficiently demonstrate how duties related to the "communication and management of the company's 
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brand and image" and "networking tools, public relations knowledge, office software, and 
management of social media platforms" in support of new business opportunities in the non-fungible 
token market are specialized and complex. And the Petitioner's self-identification as a "distinguished 
design service company" is not sufficient to elevate their proffered creative operations associate 
position to that of a specialty occupation. The Petitioner has not provided evidence demonstrating 
how their "distinguished" status establishes the specialized and complex nature of its creative 
operations associate's duties such that the duties can only be performed by a person with a bachelor's 
degree in a specific related specialty. 
Finally, the Petitioner asserts on appeal that its requirement of "a bachelor's degree in Design, 
Business Administration, or a related field" is "consistent with and matches" the educational and 
experiential requirement for market research analysts and marketing specialists contained in the 
Handbook. The Handbook is only one source that can be used to assist in demonstrating a particular 
occupation may be a specialty occupation. The Petitioner may present other sources to establish that 
a specific degree is normally the minimum requirement for entry into the position or may establish 
that its particular position requires a bachelor's level, or other, degree in a specific discipline or fields 
of disciplines constituting a specialty containing the theoretical or practical body of specialized 
knowledge required to perform the duties of the position. But the Petitioner here has not submitted 
sufficient evidence regarding its particular position to satisfy the requirements necessary to establish 
the position is a specialty occupation. 3 
Without the express requirement of a baccalaureate or higher degree providing the theoretical and 
practical application of a body of highly specialized knowledge, the supplemental regulatory criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4) cannot be satisfied. The supplemental regulatory criteria are 
read together within the related regulations and the statute as a whole. So, where the regulations refer 
to the term "degree," we interpret that term to mean a baccalaureate or higher degree in a specific 
specialty related to the proffered position. See Royal Siam, 484 F.3d at 147. The word "degree" is 
mentioned in each prong of the supplemental regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)­
( 4). And where, as here, a baccalaureate or higher degree in a specific specialty is not required as a 
minimum requirement of entry, it follows that each prong under 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-( 4) 
remains unsatisfied. So, we will not consider the Petitioner's arguments and the evidence it submits 
in support of its contention that it satisfies the supplemental regulatory criteria at 8 C.F.R. § 
214.2(h)( 4)(iii)(A)(l)-( 4). 
Whilst we held in Chawathe that the standard of proof in immigration proceedings is the 
preponderance of the evidence, the burden of proof is always on the petitioner. A petitioner's burden 
of proof comprises both the initial burden of production, as well as the ultimate burden of 
persuasion. Matter ofY-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998); see also the definition ofburden 
of proof from Black's Law Dictionary (11th ed. 2019) (reflecting the burden of proof includes both 
the burden of production and the burden of persuasion). A petitioner must satisfy the burden of 
production. As the term suggests, this burden requires a filing party to produce evidence in the form 
of documents, testimony, etc. that adheres the governing statutory, regulatory, and policy provisions 
3 Moreover, the Petitioner's inclusion of a bachelor's degree in business administration without specialization renders its 
proffered position statutorily ineligible for classification as a specialty occupation, mooting further analysis of the proffered 
position under the supplemental criteria contained at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
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sufficient to have the issue decided on the merits. When, as here, a petitioner has not met the burden 
of persuasion by a preponderance of the evidence because its evidence is not material, relevant, or 
probative it follows that it has not demonstrated eligibility for the benefit that they seek. 
We conclude that the proffered position here is not a specialty occupation. The record of proceedings 
does not establish that the proffered position requires both: ( 1) the theoretical and practical application 
of a body of highly specialized knowledge; and (2) the attainment of a bachelor's degree in the specific 
specialty. The Petitioner has satisfied neither the statutory definition of a "specialty occupation" at 
section 214(i)(l)(B) of the Act nor the regulatory definition of a specialty occupation at 8 C.F.R. § 
214.2(h)(4)(ii). As the Petitioner had not satisfied that threshold requirements, it cannot satisfy any 
of the supplemental specialty-occupation criteria enumerated at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(l)-( 4). 
The Petitioner has not established that the proffered position is a specialty occupation. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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