dismissed H-1B Case: Marketing

(b)(6)
DATE: 
JUL 0 8 20\5 
Petitioner: INRE: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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. § 11 Ol(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision ofthe 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 I-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 requirements. Please do not mail any motions directly to the AAO. 
on Rosenberg 
hief, 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 (AAO) on appeal. The appeal will be 
dismissed, and the petition will be denied. 
I. PROCEDURAL HISTORY 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the California 
Service Center. In the Form I-129 petition, the petitioner describes itself as a wholesale distributor 
that was established in . In order to employ the beneficiary in what it designated as a marketing 
development manager position, the petitioner sought to classify him as a nonimmigrant worker in a 
specialty occupation 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). 
The Director denied the petition, finding that the evidence of record did not establish that the 
proffered position qualifies as a specialty occupation in accordance with the applicable statutory and 
regulatory provisions. On appeal, the petitioner asserts that the Director's ground for denying the 
petition was erroneous and contends that it satisfied all evidentiary requirements . 
The record of proceeding before us contains: (1) the Form I-129 and supporting documentation; 
(2) the Director's request for evidence (RFE); (3) the petitioner's responses to the Director's RFE; 
(4) the Director's decision; 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. 
For the 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, and the petition will be denied. 
II. SPECIALTY OCCUPATION 
The primary issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ 
the beneficiary in a specialty occupation position. 
A. Legal Framework 
For this 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. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
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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: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 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 minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) 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. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter 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 
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particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
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)(1) 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 -1 B 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. Proffered Position 
In the Form I -129, the petitioner stated that it wishes to employ the beneficiary as a marketing 
development manager on a full-time basis. The petitioner submitted a description of the proffered 
position. More specifically, the petitioner provided the following "primary responsibilities" for the 
proffered position: 
Primary Responsibilities (Medical Market Research Analyst) 
Research market conditions in local, regional, or national areas, or gather information 
to determine potential sales of a product or service, or create a marketing campaign. 
Will gather information on competitors, prices, sales, and methods of marketing and 
distribution. 
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Tasks 
• Prepare reports of fmdings, . illustrating data graphically and translating complex 
findings into written text. 
• Seek and provide information to help companies determine their position in the 
marketplace. 
• Gather data on competitors and analyze their prices, sales, and method of 
marketing and distribution . 
• Collect and analyze data on customer demographics, preferences, needs, and 
buying habits to identify potential markets and factors affecting product demand. 
• Devise and evaluate methods and procedures for collecting data, such as surveys, 
opinion polls, or questionnaires, or arrange to obtain existing data. 
• Monitor industry statistics and follow trends in trade literature. 
• Measure and assess customer and employee satisfaction. 
• Measure the effectiveness of marketing, advertising, and communications 
programs and strategies. 
• Forecast and track marketing and sales trends, analyzing collected data. 
• Attend staff conferences to provide management with information and proposals 
concerning the promotion, distribution, design, and pricing of company products 
or services. 
We observe that these "primary" duties as designated by the petitioner are copied virtually verbatim 
from the Occupational Information Network (O*NET) Code Connector for the occupational category 
"Market Research Analysts and Marketing Specialists- SOC code 13-1161."1 This type of description 
may be appropriate when defining the range of duties that may be performed within an occupational 
category, but it does not adequately convey the substantive work that the beneficiary will perform 
within the petitioner's business operations and, thus, generally cannot be relied upon by a petitioner 
when discussing the duties attached to specific employment. 
In establishing a position as a specialty occupation, a petitioner must describe the specific duties and 
responsibilities to be performed by a beneficiary in the context of the petitioner's business operations , as 
well as demonstrate a legitimate need for an employee exists, and substantiate that it has H-1B caliber 
work for the beneficiary for the period of employment requested in the petition. 
In response to the RFE, the petitioner provided the following description of the proffered position: 
Job Duties %of Ave. Hours/Week 
Time ( 40 Hours/Wk.) 
Spent 
Research and track market position of [the 10% 4 Hours 
For additional information, see O*NET Code Connector, available on the Internet at 
http://www.onetcodeconnector .org/ccreport/13-116l.OO?redir=l9-3021.00. 
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NON-PRECEDENT DECISION 
Page 6 
petitioner] versus competitors and use data to 
recommend ways & marketing programs to increase 
market share 
Devise and evaluate methods and procedures for 2% .8 Hour 
customer research such as surveys, opinion polls, or 
questionnaires 
Collect and analyze data on costumer 30% 12 Hours 
demographics, preferences, needs, and buying 
habits and what they use (TV stations, radio 
stations, types of print etc.) to recommend ways to 
increase market share using pharmaceutical product 
templates and protocols and recommend marketing 
strategies based on the research 
Document the umverse of Potential customers 10% 4 Hours 
broken down by group and recommend ways to 
communicate to each group separately - retail, 
wholesale hospitals, public health agencies, and 
medical clinics 
Identify [the petitioner's] customers (customer 20% 8 Hours 
profile) and what influences their purchase 
decisions and visit frequency 
Monitor industry statistics both on Guam and in the 2% .8 Hours 
US and follow trends in trade literature 
Measure and assess customer and employee 2% .8 Hours 
satisfaction 
Measure the effectiveness of marketing, advertising, 10% 4 Hours 
and communication programs and strategies 
Research acceptability of potential and new 5% 2 Hours 
products through focus group and other surveys 
Analyze USDA Infant Formula Market Research 7% 2.8 Hours 
Report and adapt and apply it's finding to 
Markets 
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Page 7 
The petitioner submitted the following as an "[e]xplanation why the work to be performed requires 
the services of a person who has a college degree": 
a. Complexity of [the petitioner's] research protocols and templates as they relate 
[to] pharmaceutical products in 2 
b. Has to have a deep understanding of the market management and research 
processes, which can only be obtained by having a baccalaureate degree with 
training and experience in research. 
On appeal, the petitioner states that the petition and supporting documents explained that the purpose 
of hiring the beneficiary was a "onetime market research event. "3 The petitioner states that the event 
is related to the U.S. Department of Agriculture (USDA) research report for the infant formula 
market in the United States.4 
B. 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.F.R. 
§ 214.2(h)(4)(iii)(A){l), which requires that a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into the particular position. 
We recognize the U.S. Department of Labor's Occupational Outlook Handbook (Handbook) as an 
authoritative source on the duties and educational requirements of the wide variety of occupations that it 
addresses.5 The petitioner asserted in the Labor Condition Application (LCA) that the proffered 
position falls under the occupational category "Market Research Analysts and Marketing 
Specialists. "6 
2 The record of proceeding does not establish the nature of these "research protocols and templates." 
3 The petitioner requested that the H-lB petition be granted for a three-year period. It did not previously state 
that the beneficiary would provide services for a "onetime market research event." 
4 
We observe that the USDA report provided by the petitioner was published in 2011, thus, three years before 
the H-1B petition was filed with users. 
5 All of our references are to the 2014-15 edition of the Handbook, which can be accessed on the Internet at 
http://www.bls.gov/oohl. The Handbook's pertinent chapter, "Market Research Analysts," may be accessed on 
the Internet at http://www.bls.gov/oohlbusiness-and-financial/market-research-analysts.htm. 
6 The occupational category designated by a petitioner is considered as an aspect in establishing the general 
tasks and responsibilities of a proffered position, and users regularly reviews the Handbook on the duties and 
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Page 8 
The subchapter of the Handbook entitled 
11
How to Become a Market Research Analyst
11 
states, in 
relevant part, the following about this occupational category: 
Education 
Market research analysts typically need a bachelor's degree in market research or a 
related field. Many have degrees in fields such as statistics, math, and computer 
science. Others have backgrounds in business administration, the social sciences, or 
communications. 
Courses in statistics, research methods, and marketing are essential for these workers. 
Courses in communications and social sciences, such as economics, psychology, and 
sociology, are also important. 
Some market research analyst jobs require a master's degree. Several schools offer 
graduate programs in marketing research, but many analysts complete degrees in 
other fields, such as statistics and marketing, and/or earn a Master of Business 
Administration (MBA). A master's degree is often required for leadership positions 
or positions that perform more technical research. 
Other Experience 
Most market research analysts can benefit from internships or work experience in 
business, marketing, or sales. Work experience in other positions that require 
analyzing data, writing reports, or surveying or collecting data can also be helpful in 
finding a market research position. 
Licenses, Certifications, and Registrations 
Certification is voluntary, but analysts may pursue certification to demonstrate a level 
of professional competency. The Marketing Research Association offers the 
Professional Researcher Certification (PRC) for market research analysts. Candidates 
qualify based on experience and knowledge; they must pass an exam, be a member of 
a professional organization, and have at least 3 years working in opinion and 
marketing research. 
educational requirements of the wide variety of occupations that it addresses. However, to satisfy the first 
criterion, the burden of proof remains on the petitioner to submit sufficient evidence to support a finding that its 
particular position would normally have a minimum, specialty degree requirement or its equivalent for entry. 
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Page 9 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Market Research Analysts, on the Internet at http://www.bls.gov/ooh/business-and-financial/market­
research-analysts.htm#tab-4 (last visited July 6, 2015). 
The Handbook reports that market research analysts have degrees and backgrounds in a wide-variety 
of disparate fields. 7 That is, while the Handbook states that employees typically need a bachelor's 
degree in market research or a related field, it continues by specifying that many market research 
analysts have degrees in fields such as statistics, math, or computer science. According to the 
Handbook, other market research analysts have backgrounds in fields such as business 
administration, the social sciences, or communications. This passage of the Handbook identifies 
various courses as essential to this occupation, including statistics, research methods, and marketing. 
It further states that courses in communications and social sciences (such as economics, psychology, 
and sociology) are also important. Therefore, although the Handbook indicates that market research 
analysts typically need an advanced degree, it also indicates that degrees and backgrounds in various 
fields are acceptable for jobs in this occupation- including computer science and the social sciences, 
as well as statistics and communications. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, 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 214(i)(l)(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since 
there must be a close correlation between the required "body of highly specialized knowledge" and 
the position, however, a minimum entry requirement of a degree in disparate fields, such as 
philosophy and engineering, would not meet the statutory requirement that the degree be "in the 
specific specialty (or its equivalent)," unless the petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required body of 
highly specialized knowledge is essentially an amalgamation of these different specialties.8 Section 
214(i)(1)(B) oftheAct (emphasis added). 
7 The petitioner submitted an Internet printout entitled "Best Business Jobs." The document states that a 
"range of majors" is acceptable for market research analyst positions. The printout does not support the 
petitioner's assertion that at least a bachelor's degree in a specific specialty, or its equivalent, is normally the 
minimum requirement for entry. 
8 Whether read with the statutory "the" or the regulatory "a," both readings denote a singular "specialty." 
Section 214(i)(l)(B) of the Act; 8 C.P.R. § 214.2(h)(4)(ii). Still, we do not so narrowly interpret these 
provisions to exclude positions from qualifying as specialty occupations if they permit, as a minimum entry 
requirement, degrees in more than one closely related specialty. This also includes even seemingly disparate 
specialties provided the evidence of record establishes how each acceptable, specific field of study is directly 
related to the duties and responsibilities of the particular position. 
The petitioner cites to Residential Fin. Corp. v. U.S. Citizenship & Immigration Services, 839 F. Supp. 2d 985 
(S.D. Ohio 2012) for the proposition that "'[t]he knowledge and not the title of the degree is what is 
important. Diplomas rarely come bearing occupation-specific majors. What is required is an occupation that 
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Page 10 
The Handbook also states that "others have a background in business administration." 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 ~ualifies for classification as a specialty occupation. See Royal Siam Corp. 
v. Chertoff, 484 F.3d 147. 
requires highly specialized knowledge and a prospective employee who has attained the credentialing 
indicating possession of that knowledge."' 
We agree with the court's proposition that, for H-lB specialty occupation determinations, "[t]he knowledge 
and not the title of the degree is what is important." We note, however, that in the instant case, the petitioner 
has not met its burden to establish that the particular position offered in this matter requires a bachelor's or 
higher degree in a specific specialty, or its equivalent, directly related to its duties in order to perform those 
tasks. 
Further, the petitioner has furnished no evidence to establish that the facts of the instant petition are analogous 
to those in Residential Fin. Corp. v. U.S Citizenship & Immigration Services. 1t is noted that the district 
judge's decision in that case appears to have been based largely on the many factual errors made by the 
service center in its decision denying the petition. We further note that the service center director's decision 
was not appealed to us. Based on the district court's findings and description of the record, if that matter had 
first been appealed through the available administrative process, we may very well have remanded the matter 
to the service center for a new decision for many of the same reasons articulated by the district court if these 
errors could not have been remedied by us in our de novo review of the matter. 
We also note that, in contrast to the broad precedential authority of the case law of a United States circuit 
court, we are not bound to follow the published decision of a United States district court in matters arising 
even within the same district. See Matter of K-S-, 20 l&N Dec. 715 (BIA 1993). Although the reasoning 
underlying a district judge's decision will be given due consideration when it is properly before us, the 
analysis does not have to be followed as a matter of law. I d. at 719. 
9 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
I 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 lnt'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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Page 11 
That is, USCIS interprets the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree 
in a specific specialty (or its equivalent) that is directly related to the proposed position. 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 administration, 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). Therefore, the Handboo/Cs recognition that a general, 
non-specialty "background" in business administration is sufficient for entry into the occupation 
strongly suggests that a bachelor's degree in a specific specialty is not normally the minimum entry 
requirement for this occupation. 
The narrative of the Handbook further reports that some employees obtain professional certification 
to demonstrate a level of professional competency. It continues by outlining the requirements for 
market research analysts to achieve the Professional Researcher Certification (PRC), and states that 
candidates qualify based upon their experience and knowledge. According to the Handbook , the 
credential is granted by the Marketing Research Association to those who pass an exam and have at 
least three years of experience working in opinion and market research.10 
We reviewed the Marketing Research Association's Internet site, which confirms the accuracy of the 
Handbook's statement regarding the requirements for professional certification (i.e., passage of an 
exam and three years of relevant industry experience), and further specifies that the "Education" 
necessary to apply for professional certification is "12 industry-related education hours within the 
two preceding years." The Market Research Association website provides the following information 
about the Professional Researcher Certification program: 
The Professional Researcher Certification program (PRC) is designed to recognize 
the qualifications and expertise of marketing and opinion research professionals. The 
goal of PRC is to encourage high standards within the survey profession to raise 
competency, establish an objective measure of an individual's knowledge and 
proficiency and to encourage professional development. Achieving and maintaining 
PRC validates the knowledge of the market research industry and puts researchers in 
a select group of like-minded professionals. 
* * * 
Because PRC indicates to the public your ability to conduct marketing research, the 
PRC Board requires [a candidate] to have experience in the survey and opinion 
process. Three years of relevant experience is required. . . . A total of 12 industry­
related education hours within the two preceding years are required at time of 
application. Conferences, seminars, webinars, etc., must be added to [the candidate's] 
10 The Marketing Research Association website states that the association was founded in 1957 and is the 
leading and largest association of opinion and marketing research professions. For additional information, see 
http://www.marketingresearch.org/information (last visited July 6, 2015). 
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record. 
* * * 
The benefits of a Certification program are both industry-wide and individual. For the 
individual, it is a means of differentiating oneself, a "badge" of competence in the 
given areas and an assurance that the individual is current in knowledge and 
experience. For the profession/industry as a whole, it provides a vehicle for 
developing a pool of well-trained, competent marketing researchers, thereby 
improving both perceived and substantive standards. 
Market Res. Ass'n, http://marketingresearch.org/prc-faq (last visited July 6, 2015). 
The Market Research Association emphasizes that the credentialing program recognizes the 
qualifications and expertise of marketing and opinion research professionals, encourages high 
standards within the profession, and establishes an objective measure of an individual's knowledge 
and proficiency . According to the association's website, the credential indicates to the public an 
individual's ability to conduct market research. The narrative continues by stating that the credential 
provides a vehicle for developing a pool of well-trained, competent marketing researchers, thereby 
improving both perceived and substantive standards. The website does not indicate that the market 
research analyst positions have any particular academic requirements for entry, nor does it indicate 
that these positions require any particular level of education to be identified as qualified and 
possessing a level of expertise/competence. Instead, the Market Research Association highlights the 
importance of professional experience and industry-related professional courses (through 
conferences, seminars, and webinars ). 
Thus, the Handbook and the Market Research Association website, as well as the documentation 
provided by the petitioner, do not support the claim that the occupational category "Market Research 
Analysts" is one for which normally the minimum requirement for entry is a baccalaureate degree 
(or higher) in a specific specialty, or its equivalent.11 Even if it did (which it does not), to satisfy the 
first criterion, the petitioner must provide evidence to support a finding that the particular position 
proffered would normally have such a minimum, specialty degree requirement or its equivalent. 
11 When the Handbook does not support the proposition that a proffered position is one that meets the 
statutory and regulatory provisions of a specialty occupation, it is incumbent upon the petitioner to provide 
persuasive evidence that the proffered position more likely than not satisfies this or one of the other three 
criteria, notwithstanding the absence of the Handbook's support on the issue. It is the petitioner's 
responsibility to provide probative evidence (e.g., documentation from other objection, authoritative sources) 
that supports a finding that the particular position in question qualifies as a specialty occupation. Whenever 
more than one authoritative source exists, an adjudicator will consider and weigh all of the evidence presented 
to determine whether the particular position qualifies as a specialty occupation. 
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Page 13 
In the instant case, the duties and requirements of the position as described in the record of 
proceeding do not indicate that this particular position proffered by the petitioner is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. 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 
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 at 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. Also, there are no submissions from 
the industry's professional association indicating that it has made a degree a minimum entry 
requirement. In addition, the petitioner has not submitted letters, affidavits or other materials 
establishing the industry requirements in organizations similar to the petitioners for parallel 
positions. 
The petitioner submitted copies of job advertisements in support of the assertion that the degree 
requirement is common to the petitioner's industry in parallel positions among similar organizations. 
However, as will be discussed, the petitioner's reliance on the job announcements is misplaced. 
The petitioner describes itself as a wholesale distributor with 86 employees. The petitioner 
designated its business operations under the North American Industry Classification System 
(NAICS) code 424400. 12 This NAICS code is designated for "Grocery and Related Product 
12 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) 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 
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Page 14 
Merchant Wholesalers." U.S. Dep't of Commerce, U.S. Census Bureau, 2012 NAICS Definition, 
4244 Grocery and Related Product Merchant Wholesalers, on the Internet at 
http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last viewed July 6, 2015). 
Upon review of the job advertisements, we will briefly note that some of the postings do not appear 
to be from organizations that are similar to the petitioner and in the same industry. More 
specifically, the advertisements include: 
• - global specialty pharmaceutical and medical imaging business 
with approximately 5,500 employees worldwide, a commercial presence in 65 
countries, with fiscal revenues of $2.2 billion. 
• - on behalf of a custom market research firm in the advertising 
and public relations services industry. 
• -global medical device leader. 
• -designated under the placement industry, with no information 
regarding the client. 
• _ - world's largest provider of biopharmaceutical development and 
commercial outsourcing services, with 29,000 employees, in 100 countries. 
• Confidential employer - leading biotechnology firm. 
• -on behalf of a client in the pharmaceutical industry. No 
further information regarding the client was provided. 
The petitioner did not state which aspects or traits (if any) it shares with the advertising 
organizations. 13 For the petitioner to establish that an organization is similar under this criterion of 
the regulations, it must demonstrate that the petitioner and the organization share the same general 
characteristics. Without such information, evidence submitted by a petitioner is generally outside 
the scope of consideration for this criterion, which encompasses only organizations that are similar 
to the petitioner. 
Moreover, some of the advertisements do not appear to be for parallel positions. For example, 
requires a degree and 8 to 12 years of experience for its market research manager 
http://www.census.gov/eos/www/naics/ (last viewed July 6, 2015). 
13 
When determining whether the petitioner and the organization share the same general characteristics, such 
factors may include information regarding the nature or type of organization, and, when pertinent, the 
particular scope of operations, as well as the level of revenue and staffing (to list just a few elements that may 
be considered). It is not sufficient for the petitioner to claim that an organization is similar and in the same 
industry without providing a legitimate basis for such an assertion. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 l&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm'r 1972)). 
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NON-PRECEDENT DECISION 
Page 15 
position. Similarly, requires a degree and 6 to 9 years of experience. More 
importantly, the petitioner has not sufficiently established that the primary duties and responsibilities 
of these advertised positions are parallel to the proffered position. 
Some postings do not indicate that a bachelor's degree in a directly related specific specialty (or its 
equivalent) is required. For instance , the following educational credentials are required: 
• -a bachelor's degree (no specific specialty); 
• - BA/BS (no specific specialty); 
• BA/BS and/or an advanced degree, preferably in life sciences, 
healthcare, applied research, or business. A "preference" does not indicate a 
requirement for the advertised position. 
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 one in a specific specialty that is directly related to the 
specialty occupation claimed in the petition. See 214(i)(l)(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
Further, requiring a general-purpose bachelor's 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. The job postings suggest, at best, that a bachelor's degree is sometimes 
required but not at least a bachelor's degree in a specific specialty (or its equivalent). 14 
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. 15 That is, 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 
14 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. 
15 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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Page 16 
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 of8 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. 
As a preliminary matter, we note that while necessary, showing a position's complexity or 
uniqueness is not sufficient to satisfy this alternative. For whatever complexity or uniqueness it has 
shown for the position, a petitioner must also show such a level of complexity or uniqueness as 
would require a person who has attained at least a bachelor's degree in a specific specialty or the 
equivalent. 
In support of its assertion that the proffered pos1t10n qualifies as a specialty occupation, the 
petitioner described the proffered position and its business operations. The petitioner submitted 
information regarding a 2011 report published by the U.S. Department of 
Agriculture, a slide presentation regarding malnutrition, documents regarding the petitioner's 
finances and organization, as well as documents attributed to the beneficiary. In addition, the 
petitioner submitted documentation regarding and . supply 
chain manager position. The petitioner did not explain the relevancy of these documents and they 
appear to be unrelated to the instant matter. 
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 claim are so complex and unique. 
While a few related courses may be beneficial in performing certain duties of the position, the 
petitioner has not demonstrated how an established curriculum of such courses leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, 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. 
Further, the record does not establish which of the duties, if any, of the proffered position would be 
so complex or unique as to be distinguishable from those of similar but non-degreed or non-specialty 
degreed employment. The evidence of record does not demonstrate 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. 
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Page 17 
The petitioner claims that the beneficiary is well qualified for the position, and references his 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The petitioner 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. 
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. To interpret 
the regulations any other way would lead to absurd results: ifUSCIS were constrained to recognize 
a specialty occupation merely 
because the petitioner has an established practice of demanding 
(b)(6)
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Page 18 
certain educational requirements for the proffered position - and without consideration of how a 
beneficiary is to be specifically employed - then any alien with a bachelor's degree in a specific 
specialty could be brought into the United States to perform non-specialty occupations, so long as 
the employer required all such employees to have baccalaureate or higher degrees. See id. at 388. 
The petitioner stated in the Form I-129 petition that it has 86 employees and that it was established 
in (approximately 40 years prior to the filing of the H -1 B petition). The petitioner did not 
provide the total number of people it has employed to serve in the proffered position. It appears that 
it may be a new position. 
The petitioner did not provide sufficient documentary evidence to support the assertion that it 
normally requires at least a bachelor's degree in a specific specialty, or its equivalent, directly related 
to the duties of the position. The petitioner has not satisfied the third criterion of 8C.F.R. 
§ 214.2(h)(4)(iii)(A). 
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. 
We reviewed the petitioner's statements regarding the proffered position and its business operations, 
as well as all of the evidence in the record of proceeding. However, 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. 
Although the petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the petitioner has submitted inadequate 
probative evidence to satisfy the criterion of the regulations at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
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. The appeal will be dismissed and the petition denied for this reason. 
III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
(b)(6)