dismissed H-1B Case: Marketing

(b)(6)
JUL 2 8 2015 
DATE: 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Scc.udty 
U.S. Citiz enship and Immigr ation Services 
Administrative Appeals Office 
20 M assachusetts Ave ., N.W. , MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT#: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case , you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form T-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requir ements. Please do not mail any motions directly to the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
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Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURAL BACKGROUND 
In the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as an 
importer of natural products, with two employees, established in In order to employ the 
beneficiary in what it designates as a marketing manager position, the petitioner seeks to classify her 
as a nonimmigrant worker in a specialty occupation pursuant to section 101( a)(15)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The Director denied the petition, finding that the evidence of record did not establish that the 
proffered position qualifies as a specialty occupation. On appeal, the petitioner asserts that the 
Director's basis for denial was erroneous and contends that it satisfied all evidentiary requirements. 
The record of proceeding contains: (1) the Form 1-129 and supporting documentation; (2) the 
Director's request for additional evidence (RFE); (3) the petitioner's response to the RFE; (4) the 
Director's letter denying the petition; and (5) the Notice of Appeal or Motion (Form I-290B) and 
supporting documentation. We reviewed the record in its entirety before issuing our decision. 1 
For reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. SPECIALITY OCCUPATION 
The primary issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation. 
A. Legal Framework 
For an H-1B petition to be granted, the petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements of a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
1 
We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
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(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) states, in pertinent part, the following: 
Spe cialty occupation means an occupation which [(1)] requires theor etical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering , mathem atics, 
physical sciences, social sciences, medicine and health, education, business 
specialti es, accounting , law, theology, and the arts, and which [(2)] requir es the 
attainment of a bachelor' s degree or higher in a specific specialty, or its equival ent, as 
a minimum for entry into the occupation in the United States . 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation , a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent IS normally the m1mmum 
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 knowledg e 
required to perform the duties is usually associated with the attainment of a 
baccalaur eate or higher degree. 
As a thresh old issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. 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 statute as a whole is preferred); see also COlT 
Indep endenc e Joint Ventur e v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matt er ofW­
F-, 21 I&N Dec . 503 (BIA 1996). As such, the criteria stated in 8 C.F.R . § 214 .2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
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regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)( 4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)( 4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty, or its equivalent, directly related to the duties and responsibilities of 
the particular position; fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Petitioner and the Proffered Position 
In the letter submitted in support of the instant petition, the petitioner states that it is a "natural 
dietary supplement products (including, but not limited to · 
distributor. .. " With respect to the proffered position, the petitioner states that the position "requires 
a person who holds a baccalaureate degree from an accredited college or university in the specialty 
professional field." The petitioner also states that the beneficiary "will perform the following jobs 
and be supervised by the president directly:" 
• To research and analyze business developments and investigate and 
monitor market trends and use forecasting or strategic planning to estimate 
the sale and profitability of products and services 
• To develop and evaluate marketing strategy based on market situations 
and characteristics 
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• To plan and direct marketing policies and determine the expected demand 
for products and services of the company 
• To formulate and direct marketing activities and programs in order to 
promote products and services of the company 
• To prepare budgets, expenditures, return on investment estimates and 
profit projections on product development 
• To analyze and compile lists of product and service offerings of the 
company 
• To participate and coordinate promotional activities and consult with 
buyers to identify the products and services expected to be in demand 
• To coordinate the hiring, training and evaluating of the marketing and/or 
sales staff and direct their marketing and promotional activities 
The petitioner submitted a Labor Condition Application (LCA) in support of the instant H-lB. The 
petitioner indicates that the proffered position corresponds to the occupational category "Marketing 
Managers"-SOC (ONET/OES Code) 11-2021, at a Level I (entry level) wage. 
In response to the Director's RFE, the petitioner provided a more detailed job description of the 
proffered position, including the percentage of time devoted to each duty: 
MARKETING MANAGER 
(Supervised by President of the Company) 
Detailed Job Descriptions on Daily Basis 95% 
- To research and analyze business developments by 15% 
collection of marketing information and data. 
- To monitor market trends and use forecasting or 
strategic planning to estimate the sale and profitability of 
products and services 
- To develop and evaluate marketing strategy based on 15% 
market situations and characteristics 
- To plan and direct marketing policies and determine 15% 
the expected demand for products and services of the 
company 
- To generate effective and efficiency plan and policy in 
marketing strategies 
- To formulate and direct marketing activities and 10% 
programs in order to promote products and services of the 
company 
- To prepare budgets, expenditures, return on investment 10% 
estimates and profit projections on product 
development 
- To develop pricing strategies to maximize company's 
profits 
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NON-PRECEDENT DECISION 
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- To analyze and compile lists of product and services 10% 
offering of the company 
- To identif_y_potential markets for company's products 
- To participate in and coordinate promotional activities 10% 
and consult with buyers to identify the products and 
services expected to be in demand 
- To coordinate the training, evaluating and firing of the 10% 
marketing and/or sales staff 
- To direct and monitor marketing and/or sales staff in 
their marketing and _promotional activities 
Detailed Job Descriptions on Weekly or Monthly Basis 5% 
- To prepare report to President and Board of Directors 5% 
and recommend strategies and plans in marketing and 
product development 
The petitioner also amended its purported requirements for the position, asserting that the position 
requires a "Bachelor Degree or Higher in Business, Economics, or Related Field." 2 
On appeal, the petitioner emphasizes that the proffered position "requires the specialty professional 
worker to be in charge of special marketing personnel by directly leading, reviewing and supervising 
the working process of marketing specialist professional workers(s). "3 The petitioner also provides 
an extensive list of additional job duties for the proffered position, under the following headings: 
• To Analyze Marketing Research Result 
• To Prepare and Provide Results of Marketing Research Findings in the field of 
natural dietary supplement ingredient products and services for the management 
of the company 
• To Assign, Monitor, and Supervise Marketing Projects 
• To Review and Analyze Operations and Marketing Data through Supervision of 
the Company's Special Marketing Personnel 
• To Analyze and Forecast Regional and Global Marketing Trends 
2 users regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the 
time the petition is filed. See 8 C.F.R. 103.2(b )(1). A petitioner may not make material changes to a petition 
in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 
169, 176 (Assoc. Comm'r 1998). 
3 Given the petitioner's assertion that it employees two people, it does not appear that the petitioner has 
"marketing specialist professional worker(s)" for the beneficiary to supervise. 
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NON-PRECEDENT DECISION 
C. Analysis 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will now discuss the proffered position in relation to the criterion at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(J), 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. 
USCIS recognizes the U.S. Department of Labor Occupational Outlook Handbook (Handbook) as an 
authoritative source on the duties and educational requirements of the wide variety of occupations 
that it addresses.
4 
The petitioner asserts in the LCA that the proffered position falls under the 
occupational category "Marketing Managers." 
We reviewed the section of the Handbook covering "Advertising, Promotions, and Marketing 
Managers," including the section entitled "How to Become an Advertising, Promotions, or 
Marketing Manager," which states the following: 
A bachelor ' s degree is required for most advertising, promotions, and marketing 
management positions. These managers typically have work experience in 
advertising, marketing, promotions, or sales. 
Education 
A bachelor's degree is required for most advertising, promotions, and marketing 
management positions. For advertising management positions, some employers 
prefer a bachelor's degree in advertising or journalism. A relevant course of study 
might include classes in marketing, consumer behavior, market research , sales, 
communication methods and technology, visual arts, art history, and photography. 
Most marketing managers have a bachelor's degree . Courses in business law, 
management, economics, finance, computer science, mathematics, and statistics 
are advantageous. For example, courses in computer science are helpful in 
developing an approach to maximize traffic through online search results, which 
is critical for digital advertisements and promotions. In addition, completing an 
internship while in school is highly recommended. 
U.S. Dep't of Labor , Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Advertising, Promotions , and Marketing Managers, available on the Internet at 
4 
All references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/OCO/. The excerpts of the Handbook regarding the dutie s and requirements of the 
referenced occupational category are hereby incorporated into the record of proceeding . 
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Page 8 
http://www.bls.gov/ooh/management/advertising-promotions-and-marketing-managers.htm (last 
viewed July 27, 2015). 
The Handbook does not support the assertion that at least a bachelor's degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into this occupation. Rather, the 
Handbook states that some employers prefer, but not require , a bachelor's degree in advertising or 
journalism. Further, the Handbook indicates that there are a wide range of courses that may be for 
helpful for positions in this occupation. For example, the Handbook states that "[a] relevant course 
of study might include classes in marketing, consumer behavior, market research, sales, 
communication methods and technology, visual arts, art history, and photography." The Handbook 
also adds that "courses in business law, management, economics, finance, computer science, 
mathematics, and statistics are advantageous." However, to demonstrate that a job requires the 
theoretical and practical application of a body of highly specialized knowledge as required by 
section 214(i)(1) of the Act, a petitioner must establish that the position requires the attainment of a 
bachelor's or higher degree in a specific specialty, or its equivalent. USCIS interprets the degree 
requirement at 8 C.F.R. § 214.2(h)( 4)(iii)(A) to require a degree in a specific specialty that is directly 
related to the proposed position. Here, there is no evidence that these fields are closely related 
specialties. 
On appeal, the petitioner asserts that the proffered position is a specialty occupation according to the 
Occupational Information Network (O*NET). However, we note that O*NET does not state a 
requirement for a bachelor's degree in a specific specialty. Rather, it assigns this occupation a Job 
Zone "Four" rating, which groups it among occupations of which "most," but not all, "require a four­
year bachelor's degree." Further, it does not indicate that four-year bachelor's degrees required by 
most Job Zone Four occupations must be in a specific specialty directly related to the 
occupation. Therefore, O*NET information is not probative evidence to establish that the proffered 
position is a specialty occupation. 
Further, we note that the petitioner does not indicate that a bachelor's degree in a specific specialty is 
required for the proffered position. Assuming arguendo that we accept the petitioner's amended 
requirement s for the position , the petitioner's claim that a bachelor's degree in "Business" 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. Since there must be a close correlation between the required specialized 
studies and the position, the requirement of a degree with a generalized title, such as business, 
without further specification, does not establish the position as a specialty occupation. Cf Matter of 
Michael Hertz Associates, 19 I&N Dec. 558 (Comm'r 1988). 
To establish that a job requires the theoretical and practical application of a body of highly 
specialized knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the 
position requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed supra, USCIS interprets the degree requirement at 8 C.F.R. § 
214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proffered 
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posttiOn. Although a general-purpose bachelor's degree, such as a degree in business, may be a 
legitimate prerequisite for a particular position, requiring such a degree, without more, will not 
justify a finding that a particular position qualifies for classification as a specialty occupation. See 
Royal Siam Corp. v. Chertofj; 484 F.3d 139, 147 (1st Cir. 2007). 5 
Again, the petitioner in this matter claims that the duties of the proffered position can be performed 
by an individual with only a general-purpose bachelor's degree, i.e., a bachelor's degree in business. 
Without more, this assertion alone indicates that the proffered position is not in fact a specialty 
occupation. The director's decision must therefore be affirmed and the appeal dismissed on this 
basis alone. 
The petitioner also submitted an article entitled "Marketing Manager: Career Info & Requirements" 
from http://education-portal.com. However, the article does not support the petitioner's assertion 
that a bachelor's degree or its equivalent in a specific specialty is normally the minimum requirement 
for entry into the proffered position. Specifically, it states that "[m]arketing managers typically have 
a bachelor's degree in marketing or business administration." Again, USCIS has consistently stated 
that, although a general-purpose bachelor's degree, such as a degree in business administration, may 
be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not 
justify a finding that a particular position qualifies for classification as a specialty occupation. See 
Royal Siam Corp. v. Chertoff, 484 F.3d at 147. Moreover, the petitioner did not provide additional 
information regarding the article to establish that it is from an authoritative source. 
In the instant case, the petitioner has not established that the proffered position falls under an 
occupational category for which the Handbook, or other authoritative source, indicates that normally 
the minimum requirement for entry is at least a bachelor's degree in a specific specialty, or its 
equivalent. Thus, the petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
5 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that : 
/d. 
[t]he courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate prerequisite 
for a particular position, requiring such a degree, without more, will not justify the granting 
of a petition for an H-1B specialty occupation visa. See, e.g., Tapis Jnt'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. 
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Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions that 
are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered position, and also 
(3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only de greed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the petitioner has not established that its proffered position is one for which 
the Handbook (or other independent, authoritative source) reports a standard industry-wide 
requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. 
The petitioner submitted information from the American Marketing Association (AMA); however , 
the information provided does not indicate that the industry's professional association has made a 
degree in a specific specialty a minimum entry requirement. For example, AMA offers different 
types of membership; while it indicates that "Young Professional" membership is available for 3 
years immediately after completion of undergraduate degree, it does not state that a bachelor's 
degree is in a specific specialty is required for the membership. We further note that membership 
"Professional" is available to all individuals in the field of marketing, and does not indicate that a 
bachelor's degree in a specific specialty is required for its membership. 
The petitioner also submitted two advisory opinion letters. The first letter, from Ph.D., 
a R&D Director for Long Term Research at states that he would recommend the 
beneficiary for H-lB status; however, he does not discuss the educational requirements or indicate 
that a bachelor's degree in a specifically specialty, or its equivalent is required for the proffered 
position in the industry. The second letter, from Professor a Marketing Professor 
at the College of Business and Economics at the states that 
"the industry standard for a position such as Marketing Manager for [the petitioner] is to be filled 
through recruiting a college graduate with the minimum of a Bachelor's Degree in Marketing, 
Business Administration, or a related area, or the equivalent." 
However, as noted previously, the assertion that the proffered position can be filled by an individual 
with a bachelor's degree in "Business Administration" 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. Since there must be a close correlation between the required specialized studies 
and the position, the requirement of a degree with a generalized title, such as business 
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administration, without further specification, does not establish the position as a specialty 
occupation. Cf Matter ofMichael Hertz Associates, 19 I&N Dec. 558. 
We further note Professor does not reference or discuss any studies, surveys, industry 
publications, authoritative publications, or other sources of empirical information which he may 
have consulted in the course of whatever evaluative process he may have followed. Professor 
provides a brief, general description of the petitioner's business activities; however, he does not 
demonstrate or assert in-depth knowledge of the petitioner's specific business operations or how the 
duties of the position would actually be performed in the context of the petitioner's business 
enterprise. For instance, there no evidence that he has any in-depth knowledge of the petitioner's 
business operations gained through such means as visiting the petitioner's premises, observing the 
petitioner's employees, interviewing them about the nature of their work, or documenting the 
knowledge that they apply on the job. His opinion does not relate his conclusion to specific, 
concrete aspects of this petitioner's business operations to demonstrate a sound factual basis for the 
conclusion about the educational requirements for the particular position here at issue. Moreover, he 
did not support his conclusions by providing copies or citations of any research material used. · He 
has not provided sufficient facts that would support the assertion that the proffered position requires 
at least a bachelor's degree in a specific specialty (or its equivalent). 
We may, in our discretion, use advisory opinion statements submitted by the petitioner as expert 
testimony. Matter of Caron International, 19 I&N Dec. 791 (Comm'r 1988). However, where an 
opinion is not in accord with other information or is in any way questionable, we are not required to 
accept or may give less weight to that evidence. !d. 
The petitioner further submitted copies of job advertisements in support of the assertion that the 
degree requirement is common to its industry in parallel positions among similar organizations. 
However, upon review of the documents, we find that the petitioner's reliance on the job 
announcements is misplaced. 
In the Form I -129 petition, the petitioner states that it is a natural products importer, established in 
with two employees. The petitioner states that it has annual gross revenue of $897,485 and a 
net annual income of $5,630. The petitioner designated its business operations under the North 
American Industry Classification System (NAICS) code 424990, which corresponds to "Other 
Miscellaneous Nondurable Goods Merchant Wholesalers. "6 
For the petitioner to establish that an organization is similar, it must demonstrate that the petitioner 
and the organization share the same general characteristics. Without such evidence, documentation 
6 
According to the U.S. Census Bureau, the North American Industry Classification System (NAJCS) is used 
to classify business establishments according to type of economic activity and each establishment is classified 
to an industry according to the primary business activity taking place there. See 
http://www.census.gov/eos/www/naics/ (last visited July 27, 2015). 
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submitted by a petitioner is generally outside the scope of consideration for this criterion, which 
encompasses only organizations that are similar to the petitioner. 
We will briefly note that, without more, the job postings do not appear to be from organizations 
similar to the petitioner. 7 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). 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. 
More specifically, the advertisements include, among others, positions with the world ' s 
leader in the with over $3 billion in revenue; a manufacturer of engineered 
metal wear parts and components for industrial applications; and • the world leader in 
the habitat and construction markets with more than 5,700 employees. The petitioner did not 
supplement the record of proceeding with additional information or state which aspects or traits it 
shares with the advertising organizations. Without further information, the advertisements appear to 
be for organizations that are not similar to the petitioner. 
Further, the petitioner has not established that the advertisements are for parallel positions. For 
example, the position with requires "5+ years of product management 
and/or brand management experience in CPG or retail company." The posting from requues 
"at least 5 years' industrial marketing experience," while the posting from requires 
"minimum 10 years' experience selling building/construction materials." As previous) y discussed, 
the petitioner designated the proffered position on the LCA through the wage level as a Level I 
(entry level) position relative to others within the occupation. The advertised positions appear to be 
for more senior positions than the proffered position. More importantly, the petitioner has not 
sufficiently established that the primary duties and responsibilities of the advertised positions are 
parallel to the proffered position. 
In addition, some job postings do not indicate that a bachelor's degree in a directly related specific 
specialty is required. For example, and ' 
Executive Search require a bachelor's degree, but do not indicate a specific specialty. The job 
advertisement from states that a degree is preferred, but not required. As 
discussed, the degree requirement set by the statutory and regulatory framework of the H-lB 
program is not just a bachelor's or higher degree, but such a degree in a specific specialty that is 
directly related to the specialty occupation claimed in the petition. 
7 
Moreover, 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. 
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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, as the evidence does not establish that similar organizations in the same industry 
routinely require at least a bachelor's degree in a specific specialty, or its equivalent, for parallel 
positions, not every deficit of every job posting has been addressed. 
The petitioner has not established that a requirement of a bachelor's or higher degree in a specific 
specialty, or its equivalent, is common to the petitioner's industry in positions that are (1) in the 
petitioner's industry, (2) parallel to the proffered position, and also (3) located in organizations that 
are similar to the petitioner. For the reasons discussed above, the petitioner has not satisfied the first 
alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
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. 
In support of its assertion that the proffered position qualifies as a specialty occupation , the 
petitioner submitted various documents including evidence regarding its business operations such as 
incorporation documents, product brochures, lease agreements, sales receipts, and tax 
documents. We reviewed the record in its entirety and find that the petitioner has not provided 
sufficient documentation to support a claim that its particular position is so complex or unique that it 
can only be performed by an individual with a baccalaureate or higher degree in a specific specialty, 
or its equivalent. 
8 Even if all of the job postings indicated that a bachelor's degree in a specific specialty , or its equivalent, is 
common to the industry in parallel positions among similar organizations (which they do not), the petitioner 
does not demonstrate what inferences, if any , can be drawn from these advertisements with regard to 
determining the common educational requirements for entry into parallel positions in similar organizations. 
See generally Earl Babbie , The Practice of Social Research 186-228 (1995). 
As such, even if the job announcements supported the finding that the position required a bachelor's or higher 
degree in a specific specialty , or its equivalent (for organizations in the same industry that are similar to the 
petitioner), it cannot be found that such a limited number of postings that appear to have been consciously 
selected outweigh the findings of the Handbook published by the Bureau of Labor Statistics that such a 
position does not normally require at least a baccalaureate degree in a specific specialty, or its equivalent, for 
entry into the occupation in the United States. 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four assignable 
wage levels. 9 Without further evidence, the record of proceeding does not indicate that the proffered 
position is complex or unique as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a significantly higher prevailing wage. 10 For example, a Level IV (fully 
competent) position is designated by DOL for employees who "use advanced skills and diversified 
knowledge to solve unusual and complex problems." 11 The evidence of record does not establish 
The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage 
rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have 
only a basic understanding of the occupation. These employees perform routine tasks that 
require limited, if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. The employees may 
perform higher level work for training and developmental purposes. These employees work 
under close supervision and receive specific instructions on required tasks and results 
expected . Their work is closely monitored and reviewed for accuracy. Statements that the 
job offer is for a research fellow, a worker in training, or an internship are indicators that a 
Level I wage should be considered. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric . 
Immigration Programs (rev. Nov. 2009), available at 
http://www .foreignlaborcert.doleta.gov /pdf/NPWHC _Guidance_ Revised _11_ 2009. pdf. 
Thus, in accordance with the relevant DOL explanatory information on wage levels, this wage rate indicates 
that the beneficiary is only required to have a basic understanding of the occupation and carries expectations 
that the beneficiary perform routine tasks that require limited exercise of judgment. 
10 The issue here is that 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, it is important to note that a Level I wage-designation 
does not preclude a proffered position from classification as a specialty occupation. In certain occupations 
(doctors or lawyers, for example), an 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 consideration but is not a substitute for a determination of whether 
a proffered position meets the requirements of section 214(i)(1) of the Act. 
11 
For additional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & 
Training Admin. , Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. 
Nov. 2009), available at http://www .foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 
2009.pdf . 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
that this position is significantly different from other positions in the occupational category such that 
it refutes the Handbook's information that a bachelor's degree in a specific specialty or its equivalent 
is not required for the proffered position. 
Upon review, we find that the petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. For instance, the petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform the duties it may believe are so complex and unique. 
On appeal, the petitioner states that the "offered position involved expertise utilizing knowledge of 
organizational management in the global industry of advanced natural dietary supplement ingredient 
products to solve marketing issues on analysis, organization, operation, products and services 
improvement, as well as issues on manufacturing and distribution problems, so as to prepare 
marketing plans based on potential in-bound and out-bound businesses of the company in the global 
market." The petitioner also provided a list of qualities, such as analytical skills, communication 
skills, and organizational skills, that would be beneficial to the proffered position. While certain 
skills or knowledge may be beneficial, or even required, in performing specific duties of the 
position, the evidence does not demonstrate that these skills and knowledge can only be gained 
through an established curriculum leading to a baccalaureate or higher degree in a specific specialty, 
or its equivalent, nor has the petitioner demonstrated that such a degree is required to perform the 
duties of the proffered position. The description of the duties does not specifically identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. The 
record lacks sufficiently detailed information to distinguish the proffered position as more complex 
or unique from other positions that can be performed by persons without at least a bachelor's degree 
in a specific specialty, or its equivalent. 
The petitioner claims that the beneficiary is well qualified for the position. 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 establish that its particular position is so complex or unique 
that it can only be performed by an individual with at least a bachelor's degree in a specific specialty, 
or its equivalent. Therefore, the petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h )( 4 )(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
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. To 
this end, we review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could be 
brought to the United States to perform any occupation as long as the petitioner artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor v. Meissner, 
201 F.3d at 388. In other words, if a petitioner's stated degree requirement is only designed to 
artificially meet the standards for an H -1B visa and/or to underemploy an individual in a position for 
which he or she is overqualified and if the proffered position does not in fact require such a specialty 
degree or its equivalent, to perform its duties, the occupation would not meet the statutory or 
regulatory definition of a specialty occupation. See§ 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) 
(defining the term "specialty occupation"). 
To satisfy this criterion , the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. USCIS must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the 
specific specialty as the minimum for entry into the occupation as required by the Act. 
In response to the Director's RFE requesting hiring and recruiting documents from the petitioner, the 
petitioner submitted a copy of a job advertisement posted by the petitioner on an online job portal, 
for the position of Marketing Manager. The petitioner also submitted a copy of an internal company 
announcement detailing the requirements for the positions of Marketing Manager and Marketing 
Assistant. However , we note that both the online job posting and the internal announcement are 
dated after the initial filing was submitted and after the RFE was issued. There is no indication that 
such job postings or announcements existed prior to the filing of the instant petition. USCIS 
regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the 
time the petition is filed. See 8 C.F.R. 103.2(b )(1 ). 
Furthermore , the petitioner has not provided evidence, such as resumes and educational documents 
of its former employees, to support the assertion that the petitioner normally requires a bachelor's 
degree in a specific specialty, or its equivalent, for the position. 
Therefore, the petitioner has not established a prior history of recruiting and hiring for the proffered 
position only persons with at least a bachelor's degree in a specific specialty, or its equivalent, and 
has not satisfied the third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). 
(b)(6)
Page 17 
NON-PRECEDENT DECISION 
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 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. 
Upon review of the record of the proceeding, we note that the petitioner has not provided probative 
evidence to satisfy this criterion of the regulations. In the instant case, relative specialization and 
complexity have not been sufficiently developed by the petitioner as an aspect of the proffered 
position. That is, the proposed duties have not been described with sufficient specificity to establish 
that they are more specialized and complex than positions that are not usually associated with at least 
a bachelor's degree in a specific specialty, or its equivalent. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (the lowest of 
four assignable wage-levels) relative to others within the occupational category. Without more, the 
position is one not likely distinguishable by relatively specialized and complex duties. That is, 
without further evidence, the petitioner's has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position falling under this occupational category would 
likely be classified at a higher-level , such as a Level III (experienced) or Level IV (fully competent) 
position , requiring a substantially higher prevailing wage. 12 
The petitioner has submitted insufficient evidence to satisfy this criterion of the regulations. We, 
therefore, conclude that the petitioner did not satisfy the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. 
III. BENEFICIARY QUALIFICATIONS 
We do not need to examine the issue of the beneficiary's qualifications , because the petitioner has 
not provided sufficient evidence to demonstrate that the proffered position is a specialty 
12 
As previou sly discussed, a Level IV (fully competent) position is designated by DOL for employees who 
"use advanced skills and diversified knowledge to solve unusual and complex problems" and requne s a 
significantly higher wage . 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
occupation. In other words, the beneficiary's credentials to perform a particular job are relevant only 
when the job is found to be a specialty occupation. 
As discussed in this decision, the petitioner did not submit sufficient evidence regarding the 
proffered position to determine whether it will require a baccalaureate or higher degree in a specific 
specialty or its equivalent. Absent this determination that a baccalaureate or higher degree in a 
specific specialty or its equivalent is required to perform the duties of the proffered position, it also 
cannot be determined whether the beneficiary possesses that degree or its equivalent. 
IV. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende , 26 I&N Dec. 127, 128 
(BIA 2013). Here , that burden has not been metY 
ORDER: The appeal is dismissed. 
13 
Since the identified bases for denial are dispositive of the petitioner's appeal, we will not addr ess other 
grounds of ineligibility we observe in the record of proceeding.