dismissed H-1B Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re : 8428871 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 28, 2020 
The Petitioner, a nicotine delivery product retailer, seeks to employ the Beneficiary temporarily under 
the H-lB nonimmigrant classification for specialty occupations .1 The H-lB program allows a U.S . 
employer to temporarily employ a qualified foreign worker in a position that requires both: (a) the 
theoretical and practical application of a body of highly specialized knowledge; and (b) the attainment 
of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a minimum prerequisite 
for entry into the position . 
The California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 2 
We review the questions in this matter de novo. 3 Upon de novo review, we will dismiss the appeal. 
I. ANALYSIS 
Upon review of the entire record , for the reasons set out below, we have determined that the Petitioner 
has not demonstrated that the proffered position qualifies as a specialty occupation. The Director 
concluded that the Petitioner did not establish that the offered position qualifies as a specialty 
occupation. In her decision, the Director thoroughly discussed the Petitioner's failure to meet any of 
the four regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). Upon consideration of the entire 
record, including the evidence submitted and arguments made on appeal, we adopt and affirm the 
Director's decision with the comments below .4 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
2 Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christa 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
4 See Matter of P. Singh, Attorney, 26 I&N Dec. 623 (BIA 2015) (citing Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 
1994)); see also Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996) ("[I]f a reviewing tribunal decides that the facts and evaluative 
judgments prescinding from them have been adequately confronted and correctly resolved by a trial judge or hearing 
officer, then the tribunal is free simply to adopt those findings" provided the tribunal 's order reflects individualized 
attention to the case). 
A. Petitioner's Duties 
In addition to the Director's analysis we note an issue with the position's duties. While the initially 
provided duties appeared to relate to the general functions of the Marketing Managers occupational 
category designated on the U.S. Department of Labor's (DOL) ETA Form 9035 & 9035E, Labor 
Condition Application for Nonimmigrant Workers (LCA), the Petitioner presented them in an overly 
vague and generalized manner. The Petitioner's discussion informed us of what the Beneficiary would 
do in her job; however, it did not inform us of how the Beneficiary would accomplish those functions 
and their account lacked sufficient detail of why their position's functions required a bachelor's degree 
in a specific specialty. 
Within its response to the Director's request for evidence (RFE), the Petitioner offered more 
information relating to each duty, but its revisions did not add any of the necessary details. Instead, 
the Petitioner offered a few bullets for each duty that were even less informative than the list of duties 
it offered when it filed the petition. It appears that the Petitioner summarized many of the initially 
offered duties within bullets and applied that summary within subordinate bullets for tacitly related 
functions. This was in response to the Director's RFE that questioned whether the Petitioner had 
offered sufficient detail pertaining to the duties and was seemingly an effort to make it appear they 
were offering a more detailed position when they were only providing an abridged version of previous 
content. For instance, for the initial duty to develop go-to-market strategies and support the 
management of key strategic plans in partnership with the leadership team, the Petitioner added the 
following: 
• Develop go-to market strategies that feed into company growth plans; 
• Brainstorm with executives to develop strategies to grow the company; and 
• Analyze industry competitors to assess market position. 
Although the Petitioner followed up this, and similar presentations, with a section addressing the 
requirements to perform those functions, it remains that its presentation of essentially the same overly 
vague duties stated in a different way still lacked sufficient detail to demonstrate this position requires 
a bachelor's degree in a specific specialty, or its equivalent. 5 Although such a description may be 
appropriate when defining the range of duties that are normally performed within an occupation, it does 
not adequately convey the substantive work that the Beneficiary would perform on a day-to-day basis. 6 
From the indeterminate nature of the duties, it is not self-evident that they are qualifying under the H-lB 
program. Without more, it would be difficult to conclude that such amorphous duties are so specialized 
and complex, or that the duties comprise a position that is so complex or unique, that one must attain a 
5 Cf Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990) (stating 
specifics are an important indication of the nature of a beneficiary's duties, otherwise meeting the requirements would 
simply be a matter of providing a job title or reiterating the regulations.) 
6 DOL guidance states that for a wage level determination, it is important that the job description include "sufficient 
information to determine the complexity of the job duties, the level of judgment, the amount and level of supervision, and 
the level of understanding required to perform the job duties." 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/pdt!NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
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bachelor's degree in a specific specialty in order to perform them. 7 It is always the Petitioner's 
responsibility to ensure the record demonstrates what functions make up a position, and how those tasks 
demonstrate eligibility. 8 Additionally, the truth is to be determined not by the quantity of evidence alone 
but by its quality. 9 The Petitioner should ensure the material duties sufficiently convey the Beneficiary's 
day-to-day activities, which allows a person without a great familiarity with the technical nature of these 
functions to be able to grasp what the position consists of: and why it and the duties are so unique, 
complex, or specialized. 10 The Petitioner has not made such a showing here. 
Although this account may span several pages as the Petitioner asserts on appeal, those pages are 
extended due to formatting methods and what is unchanged is that the revised duties offer too little in 
the area of supporting the contention that this particular position requires a bachelor's degree in a 
specific specialty, or an equivalent. Without additional evidence, the substantive nature of the 
Beneficiary's work has not been sufficiently established. We are therefore precluded from finding 
that the proffered position satisfies any of the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
B. Inconsistent Position Prerequisites 
Further undermining the Petitioner's eligibility are its inconsistent position prerequisites. Within the 
initial filing and the RFE response, the Petitioner stated it required at least a bachelor's degree or its 
equivalent in the specified disciplines. It did not convey that it required anything more than education. 
However, within the appeal the Petitioner submits an internal job description for the role bearing the 
same job title as the position in the petition. A review of that material reveals the Petitioner requires, 
"[a] minimum 3+ years of marketing experience, CPG [ consumer packaged goods] experience 
preferred ... Bachelor's Degree ... from leading business school required. MBA preferred." 
This is a significant departure from its previously stated position requirements to now include several 
years of experience, a degree from a top institution, and a preference for a master's degree. The 
evidence the Petitioner provided is in direct conflict with its statements, creating an obvious disharmony 
between its claims and the documentation within the record. The Petitioner must resolve this dissonance 
in the record with independent, objective evidence pointing to where the truth lies. 11 Based solely on 
this incongruent information, we conclude the petition cannot be approved. 
Additionally, a large focus of the H-lB program requirements are based on what a particular position 
requires. The Petitioner's differing position requirements call the veracity of its remaining statements 
into question, and we are unable to determine if its statements are simply inconsistent or whether they 
constitute a material change to its qualifications. We also note that if we accepted the Petitioner's 
position requirements as presented on appeal, the requirement of more than three years of experience 
7 Cf Matter of Michael Hertz Assocs., 19 T&N Dec. 558, 560 (Comm'r 1988) (indicating U.S. Citizenship and Immigration 
Services (USCTS) must evaluate the actual tasks, demands, and duties to determine whether a petitioner has established 
the position realistically requires the specialized knowledge-both theoretical and applied-which is almost exclusively 
obtained at the baccalaureate level). A broad and generalized presentation of a position's responsibilities prevents USCTS 
from making such a determination. See also Sagarwala v. Cissna, 387 F. Supp. 3d 56, 68 (D.D.C. 2019). 
8 Section 291 of the Act. 
9 Chawathe, 25 l&N Dec. at 376 (citing Matter of E-M-, 20 l&N Dec. 77, 80 (Comm'r 1989). 
10 See Sagarwala, 387 F. Supp. 3d at 68-70. 
11 Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
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and a preference for a master's degree could mandate an increase in the wage level above the Level I 
rate the Petitioner designated on the LCA. 
These aspects, considering the conflicting material it offered with the appeal, farther complicate our 
ability to determine not only the Petitioner's actual position requirements, but also whether it properly 
designated the wage level at the Level I wage rate on the LCA. 
C. Opinion Letter 
Regarding the Director's discussion of the opinion letter from~ ____ __. an associate professor 
of marketing at an American university, the Petitioner states the Director's treatment of the letter was 
arbitrary and capricious. The Director discussed this letter under the fourth criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)( 4). 
We observe thatl lonly quoted the set of duties the Petitioner initially provided, which we 
have discussed and determined that they lack sufficient detail to qualify under the H-1 B program. 
Consequently, it is unclear from where she obtained the information in which she offered the detailed 
I analys~s (elating to the job in the petition. Therefore, it appears that within a certain amount of D 
s letter, she discussed product marketing within today's general business environment, rather 
than within the Petitioner's operations. Within these statements, I I included conclusions 
that either surpass or are unrelated to the position in the petition before us. 12 The Petitioner's reliance 
on such assumptive material is insufficient to meet its burden of proof In evaluating the evidence, we 
will consider the quality of the material within the record. 13 This has an adverse effect on this opinion 
letter. While I ~I's letter is not without any evidentiary value, this shortcoming tends to reduce 
the evidentiary weight we ascribe to this opinion. 
Regarding her discussion that relates to the Petitioner's operations and the proffered position, she 
stated that the position appears properly classified under U.S. Department of Labor's Occupational 
Outlook Handbook (Handbook) as a Marketing Manager occupation. The professor subsequently 
quotes from duties within the Handbook within the profile entry for Advertising, Promotions, and 
Marketing Managers. A number of those duties are unrelated to the Marketing Managers occupational 
category, nevertheless she compared the offered position's duties to those unrelated functions within 
the Handbook and surmised that "it is apparent that the Director of Product Marketing's duties are 
typical of a Marketing Manager and clearly correspond to the duties listed under the category of 
Marketing Manager in the [Handbook]." 
The Handbook is a resource that broadly represents as many jobs as possible within a particular area. 
While we recognize the usefulness of the Handbook as a source of career information, DOL has also 
indicated that the Handbook is a "publication used by many to determine characteristics of 
12 Federal Courts have found that an opinion that based its conclusions on general hiring practices within a field is 
insufficient to satisfy the H-lB regulatory requirements. For instance, see Xiaotong Liu v. Baran, No. 
SACV1800376JVSKESX, 2018 WL 7348851, at *10 (C.D. Cal. Dec. 21, 2018) (finding USCIS acted properly when it 
determined that such generalizations do not explain how the author came to their conclusion, which is insufficient to meet 
the regulatory requirements.) 
13 Cf Chawathe, 25 I&N Dec. at 376 (AAO 2010). 
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occupations. It is often broad in its descriptions and may include many Standard Occupational 
Classificational (SOC) codes within one general category." 14 The Bureau of Labor Statistics publishes 
projections for 809 occupations that are included in the SOC system. DOL has consolidated the 568 
detailed occupations in the SOC system into 325 Handbook profiles. 15 That means the BLS took 
approximately 43 percent of the detailed occupations in the SOC system and combined them with 
other detailed occupations represented in the Handbook. Therefore, the professor's statement that the 
Handbook's information clearly corresponds with the proffered position's duties tends to further erode 
the value of the opinion letter. 
Lastly, although! I generally indicated certain duties "could only be performed competently 
by a candidate" with a bachelor's degree in business administration, marketing, or a related area, her 
use of "only," by its very nature rules out any other methods. However,I • liid not discuss why 
any other methods could not lead to a sufficiently similar knowledge-set. For instance, one could attain 
the requisite knowledge through several years of experience building the necessary skills and familiarity 
to perform in the position. Consequently, I I did not account for obvious alternative 
explanations. 16 A lack of sufficiently considering alternatives is a basis that can adversely affect the 
evidentiary weight of such an opinion. 17 
users may, in its discretion, use as advisory opinions submitted as expert testimony. 18 However, we are 
ultimately responsible for making the final determination regarding eligibility for the benefit sought. 19 
The submission of letters from experts supporting the petition is not presumptive evidence of eligibility; 
users may, as this decision has done above, evaluate the content of those letters as to whether they 
support the Petitioner's eligibility claims. 20 users may ascribe less weight to an opinion that is not 
corroborated, in accord with other information, or is in any way questionable. 21 Thus, the content of the 
authors' statements and how they became aware of the Petitioner's and the industry hiring standards are 
important considerations. Based on the professor's opinion that relied on the Petitioner's overly 
generalized position description, her apparent application of the general business environment to the 
Petitioner's operations, and the inapt duty comparison with the Handbook adversely affect this 
evidence to the extent that it does not support the Petitioner's eligibility claims. 
14 OFLC Frequently Asked Questions and Answers, Foreign Labor Certification (Apr. 28, 2020), 
https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm. 
15 OOH FAQs, Occupational Outlook Handbook (Apr. 28, 2020), https://www.bls.gov/ooh/about/ooh-faqs.htm. 
16 See Claar v. Burlington N.R.R., 29 F.3d 499, 502 (9th Cir. 1994). 
17 See Ambrosini v. Labarraque, 101 F.3d 129, 140 (D.C. Cir. 1996). 
18 See Matter of Caron International, 19 l&N Dec. 791, 795 (Comm'r 1988). 
19 Id. 
20 See id. at 795; see also Matter of V-K-, 24 l&N Dec. 500, n.2 (BIA 2008) (noting that expe1t opinion testimony does not 
purport to be evidence as to "fact"). We note that one element of the V-K- decision was ovenuled within Matter ofZ-Z-O-, 
26 l&N Dec. 586 (BIA 2015). The limit to the ovenuling nature of Z-Z-O- is illustrated within a footnote in which the 
BIA stated that other than the standard of review for predictive factual findings, it did not address and would not disturb 
other conclusions in the V-K- decision. Z-Z-O-, 26 T&N Dec. at 593 n.3. Consequently, the portion of the V-K- decision 
cited above remains effective. 
21 Caron International, 19 T&N Dec. at 795. 
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D. Definitional Requirement 
The process of demonstrating that a proffered position is sufficient to meet the requirements under the 
H-lB program includes more than satisfying one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). The 
regulation also requires a petitioner to demonstrate that a petition "involves a specialty occupation as 
defined in section 214(i)(l) of the Act." 22 This statutory definition states: "the term 'specialty 
occupation' means an occupation that requires ... [a] theoretical and practical application of a body 
of highly specialized knowledge, and ... 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." 
(Emphasis added). 
First, both the statutory and regulatory definitions mandate that the broader occupation as a whole 
requires a bachelor's degree in a specific specialty (or an equivalent), at the entry level. Consequently, 
an H-1 B approval demands more than simply demonstrating that the particular position a petitioner is 
offering normally requires a bachelor's degree or its equivalent as the minimum for entry under 
criterion one. A petitioner must also establish that one cannot even enter the broader occupation if 
they do not possess the qualifying degree (or its equivalent). 
Second, we reason that the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) should be read logically as being 
necessary-but not necessarily sufficient-to meet the statutory and regulatory definition of a 
specialty occupation. To otherwise interpret the regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 
as stating the necessary, but not necessarily sufficient conditions as being adequate to qualify would 
result in some positions meeting a condition under the criteria, but not under the statutory definition. 23 
To avoid this erroneous 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 
definition of a specialty occupation. This results in a multi-part analysis to determine whether a 
particular position qualifies as a specialty occupation. As a result, an H-lB petition cannot be 
approved unless a petitioner demonstrates that a proffered position satisfies this statutory definition; 
not even if it demonstrates it has satisfied one of the four regulatory criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
Evenl I's statements illustrate this occupation does not meet the statutory definition when 
she indicated that the Handbook and other Department of Labor resources "regarding the entry level 
education for a Marketing Manager appear to leave the possibility open for a minority of Marketing 
Manager positions to require less than a Bachelor's Degree .... " 
1. Business Administration Degree Requirement 
We observe a separate dispositive issue relating to the Petitioner's position prerequisites expressed 
within the initial filing and the RFE response in which it required at least a bachelor's degree or its 
equivalent in business administration, marketing, or a closely related field. To prove 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 
22 8 C.F.R. § 214.2(h)(4)(i)(B)(2); see also 8 C.F.R. § 214.2(h)(l)(ii)(B)(l). 
23 See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000); Sagarwala, 387 F. Supp. at 64. 
6 
bachelor's or higher degree in a specialized field of study or its equivalent. We interpret 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. The Petitioner's acceptance of a business administration degree to 
perform the duties of the proffered position strongly suggests that its particular position does not 
require a bachelor's degree in a specific specialty. 
An entry requirement of a bachelor's or higher degree in business administration with a concentration in 
a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience, in certain instances, might qualify the proffered position as a 
specialty occupation. In either case, the Petitioner must demonstrate that the entry requirement is 
equivalent to a bachelor's or higher degree in a specific specialty that is directly related to the proffered 
position. 24 
Within the initial filing and in its RFE response, the Petitioner did not expound upon the focus of the 
business administration degree, specifically as it directly relates to the duties of the proposed position. 
Accordingly, it appears the Petitioner accepts a general business administration degree as sufficient to 
enter the proposed position. 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 conclusion that a particular position qualifies for classification as a 
specialty occupation. 25 
Moreover, the Petitioner did not offer more detail on what it would construe as "a closely related field." 
Absent were any guidelines on how related a degree in another field must be, or what factors the 
organization would consider to make a determination of whether another degree field was sufficiently 
related or not. This further obscures the Petitioner's actual position prerequisites. 
As a result, it is unnecessary to address the regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-( 4). 
Even if the Petitioner were to demonstrate that it satisfied one of the listed criteria, this would not 
result in this petition's approval, as it still has not shown that the proffered position satisfies the 
statutory or regulatory definition of a "specialty occupation." 26 Therefore, not only do we agree with 
the Director that the Petitioner has not demonstrated it satisfied any of the regulatory criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A), but it also has not demonstrated the position in this petition qualifies as 
a specialty occupation under the statutory definition. 
II. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. The Petitioner has not met its burden here, and the petition will 
remain denied. 
ORDER: The appeal is dismissed. 
24 See Royal Siam COip., 484 F.3d at 147. 
2s Id. 
26 See section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
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