dismissed H-1B Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 9734000 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 26, 2020 
The Petitioner, a health rehabilitation organization, seeks to employ the Beneficiary temporarily as a 
"marketing specialist" under the H-18 nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b) .The H-18 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. Section 291 of the Act; Matter of 
Chawathe, 25 l&N Dec. 369, 375 (AAO 2010).We review the questions in this matter de nova. See 
Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we will 
dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-18 nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "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." The 
regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(I) of the Act , but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 1 Lastly, 
1 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe the term "degree" to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... "(emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
II. ANALYSIS 
The Petitioner stressed the importance of a "strong background in marketing as well as data analysis" 
and stated that the position required a bachelor's degree in a marketing field or equivalent "plus 
marketing experience." The Petitioner initially provided the position's description with 10 bullet 
points. For the sake of brevity, we will not quote the most recent version; however, we note that we 
have closely reviewed and considered the duties. For the reasons discussed below, we have 
determined that the Petitioner has not demonstrated that the proffered position qualifies as a specialty 
occupation. 2 Specifically, we conclude that the record does not establish that the job duties require an 
educational background, or its equivalent, corresponding with a specialty occupation. 3 
We begin noting within its appeal, the Petitioner states that the position's duties, "when taken in the 
context of the petitioner's business, strategy and competition are highly specialized, complex and 
unique, that requiring a bachelor's degree as the minimum requirement is justified." We find this 
statement to lack any accompanying analysis that might illustrate the factors that elevate the 
petitioning organization's situation above that generally encountered within any similar type of small 
business that provides its services locally. Consequently, the context of the Petitioner's business does 
not appear to add any favorable aspects to the case or positively affect the organization's eligibility 
claims. 
A. First Criterion 
We now turn to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as a resource on the duties and educational 
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"). 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 The Petitioner submitted documentation to support the petition, including evidence regarding the position and its business 
operations. While we may not discuss every document submitted, we have reviewed and considered each one. 
2 
requirements of the wide variety of occupations that it addresses.4 The Petitioner submitted the 
required DOL ETA Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers 
(LCA) with this petition, where it classified the proffered position under the occupational title "Market 
Research Analysts and Marketing Specialists," corresponding to the standard occupational 
classificational code 13-1161.5 Under this criterion, the Petitioner addresses the Handbook entry for 
this occupation, the Occupational Information Network (O*NET) as well as district court decisions it 
sees as supporting its claims under this criterion. 
When viewed in its full presentation, the Handbook reports that individuals working in positions 
located within this occupational category have degrees and backgrounds in a wide variety of disparate 
fields. 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. The Petitioner quotes only this portion of the 
Handbook, as if this were the entire contents, while omitting the parts that are unfavorable to its 
eligibility claims that state: "Others have backgrounds in business administration, the social sciences, 
or communications." 
This passage of the Handbook elucidates that courses in communications and social sciences (such as 
economics, psychology, and sociology) are also important. Focusing on the portion that states "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 qualifies for 
classification as a specialty occupation. See Royal Siam Corp., 484 F.3d at 147. Therefore, the 
Handbook's recognition that a general, non-specialty "background" in business administration is 
sufficient for positions located within this occupational category strongly suggests that a bachelor's 
degree in a specific specialty is not normally the minimum entry requirement for this occupation. 
Consequently, we do not agree with the Petitioner's statement that this occupational category qualifies 
under this criterion; the statement that the range of educational requirements listed in the Handbook 
would encompass a bachelor's degree and higher degrees. Absent from that claim is any contention 
that such a degree must be in a specific specialty. 
Therefore, although the Handbook indicates that market research analysts typically need a degree, it 
also indicates that degrees and backgrounds in various fields are acceptable for jobs located within 
this occupational category-including computer science and the social sciences, as well as statistics 
and communications. 
4 We do not maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category 
designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered 
position, and we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. Nevertheless, to satisfy the first criterion, the burden of proof remains on the Petitioner to 
submit sufficient evidence to support a determination that its particular position would normally have a minimum, specialty 
degree requirement, or its equivalent, for entry at any level; be it at the entry level (Level 1), or at the fully competent level 
(Level IV). "[T]he choice of what reference materials to consult is quintessentially within an agency's discretion .... " 
Royal Siam Corp., 484 F.3d at 146. 
5 The Petitioner is required to submit a certified LCA to DOL to demonstrate that it will pay the Beneficiary the higher of 
either the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the 
employer to other employees with similar experience and qualifications who are performing the same services. Section 
212(n)(1) of the Act; 20 C.F.R. § 655.731(a). 
3 
Turning to the Petitioner's O*NET claims, it points to the information relating to the percentage of 
respondents within this occupational field that have a bachelor's or master's degree, or a 
post-baccalaureate certificate. The Petitioner posits that because 100 percent of those surveyed hold 
at least a bachelor's degree that this somehow satisfies the first criterion's requirements. First, 
pertaining to the surveyed respondents, the O*NET does not indicate any particular discipline or 
concentration for those individuals' degrees. In other words, the O*NET does not reflect those holding 
these degrees or certificates earned a degree in what would be considered a specific specialty under 
the H-lB program. 
Second, the O*NET website reflects that the graph depicting the percentage of respondents that 
possess a particular degree level was only "summary data" on the level of education required for this 
occupation.6 Third, the O*NET does not distinguish between the respondents' positions within the 
occupation by career level (e.g., entry-level, mid-level, senior-level). As positions designated at various 
career levels may demand distinct degree requirements, the absence of this element is important as the 
Petitioner wishes to rely on it directly. Based on these shortcomings, the Petitioner has not shown that 
the information within the O*NET sufficiently supports its eligibility claims under this criterion. 
Next, the Petitioner addresses the Director's concerns that its duties were overly broad and general 
and insufficient to demonstrate eligibility under this classification. In response, the Petitioner submits 
an expanded job description on appeal. Before the Director, the Petitioner initially offered the ten 
bulleted duties, and in response to the request for evidence (RFE) it only added a percentage of time 
each duty would comprise of the offered position. The Petitioner limited its job description to those 
bullets even after the Director specifically requested a more detailed account of what the Beneficiary 
would do in this position within the RFE, and it is unclear why the Petitioner did not offer the 
seven-page, single spaced job description of this position at that time. 
Multiple precedent decisions address whether newly submitted evidence on appeal will be considered. 
First, in Matter of Obaigbena, 19 l&N Dec. 533, 537 (BIA 1988), the Board of Immigration Appeals 
(Board) determined that where a petitioner fails to timely and substantively respond to agency 
correspondence, the appellate body wi 11 not consider any evidence first offered on appeal as its review 
is limited to the record of proceeding before the director. 
Further, in Matter of Soriano, 19 l&N Dec. 764, 766 (BIA 1988), the Board held that if a petitioner 
was put on notice of an evidentiary requirement (by statute, regulation, form instructions, RFE, NOID, 
etc.) and was given a reasonable opportunity to provide the evidence, then any new evidence submitted 
on appeal pertaining to that requirement would not be considered, and the appeal would be adjudicated 
based on the evidentiary record before the director. Conversely, if the Petitioner had not been put on 
notice of the deficiency or given a reasonable opportunity to address it before the denial, and on appeal 
it submits additional evidence addressing the deficiency, the record would generally be remanded to 
allow the Director to initially consider and address the newly submitted evidence. 7 
6 O*NET Online Help, O*NET Online (May 13, 2020), https://www.onetonline.org/help/online/summary. 
7 Id. A remand to a previous trier of fact for new claims or evidence occurs within other appellate venues, as well. See 
Jander v. Ret. Plans Comm. of IBM, 910 F.3d 620 (2d Cir. 2018), cert. granted, 139 S. Ct. 2667 (2019), and vacated and 
remanded, 140 S. Ct. 592 (2020); F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 175 (2004). 
4 
Moreover, the Board found that the record as it existed before the previous trier of fact is the record 
the appellate body will review. Matter of Haim, 19 l&N Dec. 641, 643 (BIA 1988). And finally, 
within Matter of C-, 20 l&N Dec. 529, 530 n.2 (BIA 1992), the Board concluded that it would not 
consider any new evidence submitted on appeal; only the record as it existed previously. The Board 
further indicated that the proper venue for new evidence was a motion to reopen. 
For these reasons, except in exigent circumstances and at U.S. Citizenship and Immigration Services 
(USCIS) discretion, we will not consider evidence submitted for the first time on appeal if: (1) the 
affected party was put on notice of an evidentiary requirement (by statute, regulation, form 
instructions, RFE, NOi D, notice of intent to revoke, etc.); (2) the affected party was given a reasonable 
opportunity to provide the evidence; and (3) the evidence was reasonably available to the affected 
party at the time it was supposed to have been submitted. Consequently, within this decision, we will 
not factor in the new and extensive position description the Petitioner presents within the appeal. 
However, on the issue of the generalized nature of the duties, we agree with the Director that the job 
functions the Petitioner presented were too vague to demonstrate eligibility under the H-lB program. 
Importantly, 30 percent of the position's responsibilities are copied from the O*NET Online Report 
for Market Research Analysts and Marketing Specialists. Offering such generic position duties copied 
from the O*NET or another Internet source is generally insufficient to demonstrate eligibility, and it's the 
duties themselves that provide the nature of the employment.8 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 will usually perform while working in 
the position. 9 
Likewise, the remaining duties are overly generalized and lack additional explanation of how each of 
those bullets would individually serve as a small piece that when considered collectively illustrates 
that a qualifying and specialized bachelor's degree is normally the minimum requirement for entry 
into this particular position. From the indeterminate nature of the position description, it is not 
self-evident that it is qualifying under the H-lB program. Without more, it would be difficult to conclude 
that such amorphous functions comprise a position that is so complex or unique, that one must attain a 
bachelor's degree in a specific specialty in order to perform them.10 The Petitioner has not explained how 
the provided duties it copied from the O*NET or other generalized descriptions constitute a position that 
is unique. 
8 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.) 
9 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 Adm in., 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. 
1° Cf. Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988) (indicating USCIS 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 USCIS from making such a determination. 
See also Sagarwala v. Cissna, 387 F. Supp. 3d 56, 68 (D.D.C. 2019). 
5 
It is always the Petitioner's responsibility to ensure the record demonstrates what functions make up a 
position, and how those tasks demonstrate eligibility. Section 291 of the Act, 8 U.S.C. § 1361. 
Additionally, the truth is to be determined not by the quantity of evidence alone but by its quality. Matter 
of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M-, 20 l&N Dec. 77, 80 (Comm'r 
1989)). The Petitioner should ensure the material duties sufficiently convey the Beneficiary's regular 
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. See Sagarwala, 387 F. Supp. 3d at 68-70. 
The Petitioner also cites to a district court decision Residential Finance Corp. v. USCIS, 839 F. Supp. 
2d 985 (S.D. Ohio 2012), claiming that court determined that the Handbook by itself was sufficient to 
satisfy the first criterion's requirements. First, the Handbook profile the court reviewed in the 
Residential Finance Corp. case no longer exists. That profile was for Market and Survey Researchers 
that DOL has since divided into separate profiles. Therefore, the analysis from that district court 
decision appears to be distinguished from the present scenario. Second, the issue that court analyzed 
was whether the service center was correctly interpreting the "specific specialty" provisions of the 
statute and the regulation for the proposition that "[t]he knowledge and not the title of the degree is 
what is important." 
While we agree with the aforementioned proposition, the district judge's decision in that case appears 
to have been based largely on the many factual errors made by the service center-to include 
discussing the incorrect Handbook profile-in the decision denying the petition. We further note that 
the service center's decision was not appealed to us. Based on the district court's conclusions 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 nova review of the matter. It is also important to note that in a subsequent case reviewed in 
the same jurisdiction, the court agreed with our analysis of Residential Finance. See Health Carousel, 
LLC v. USCIS, No. 1:13-CV-23, 2014 WL 29591 (S.D. Ohio 2014). 
Additionally, the Petitioner cites to Raj and Company v. USCIS, 85 F. Supp. 3d 1241 (W.D. Wash. 
2015), finding the Market Research Analysts occupation satisfies the H-lB requirements under the 
first criterion. In Raj and Company, the court concluded that the employer met the first criterion. We 
must note, however, that the court stated that "[t]he first regulatory criterion requires the agency to 
examine the generic position requirements of a market research analyst in order to determine whether 
a specific bachelor's degree or its equivalent is a minimum requirement for entry into the 
profession." Thus, the decision misstates the regulatory requirement. That is, the first criterion 
requires a petitioner to establish that a baccalaureate or higher degree (in a specific specialty) or its 
equivalent is normally the minimum requirement for entry into the particular position; not into the 
profession. 
Consequently, if the court meant to suggest that any position classified under the occupational category 
"Market Research Analysts" would, as it stated, "come within the first qualifying criteria," we must 
disagree.11 The occupational category designated by a petitioner is considered as an aspect in 
11 In Raj and Company, the court quoted a brief excerpt from the Handbook; however, the quotation is from the 2012-2013 
6 
establishing the general tasks and responsibilities of a proffered position, and we regularly review the 
Handbook on the duties and educational requirements of the wide variety of occupations that it 
addresses. 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. That is, to determine whether a 
particular job qualifies as a specialty occupation, we do not simply rely on a position's title or 
designated occupational category. The specific duties of the proffered position combined with other 
factors are to be considered. See generally See Defensor v. Meissner, 201 F.3d 384 (5th Cir. 
2000). We must examine the ultimate employment of the beneficiary and determine whether the 
position qualifies as a specialty occupation. 
Nevertheless, it is important to note that the court in Raj and Company determined that the evidence 
in the record demonstrated that the particular position proffered required a bachelor's degree in market 
research, or its equivalent, as a minimum for entry. Further, the court noted that "[t]he patently 
specialized nature of the position sets it apart from those that merely require a generic degree." The 
position in Raj and Company can, therefore, be distinguished from the instant position. Here, the 
Petitioner continually cites to the context of its specialized and complex business and claims that the 
duties of the proffered position are precise and complex; however, the duties and requirements of the 
position as described in the record of proceeding do not indicate that this particular position the 
Petitioner offers is one for which a baccalaureate or higher degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry. Again, the Petitioner provided duties 
copied from the O*NET comprising approximately one-third of the position. 
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, 719-20 (BIA 
1993). Although we will give a district judge's underlying reasoning due consideration when properly 
before us, we are not required to follow the analysis as a matter of law. Id. 
The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Therefore, it has not 
satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may show 
that its particular position is so complex or unique that it can be performed only by an individual with 
a degree .... " 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong contemplates 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 
edition rather than the current Internet version (which contains several revisions). Further, we observe that the court did 
not address the section of the Handbook indicating that there are no specific degree requirements to obtain the Professional 
Researcher Certification credential, and therefore to work as a market research analyst. 
7 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. We generally 
consider the following sources of evidence to determine if there is such a common degree requirement: 
whether the Handbook reports that the industry requires a degree; whether the industry's professional 
association has made a degree a minimum entry requirement; and whether letters or affidavits from 
firms or individuals in the industry establish that such firms "routinely employ and recruit only degreed 
individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting 
Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the Handbook does not indicate that a bachelor's degree in a specific 
specialty is a common requirement within the industry for parallel positions among similar 
organizations. Also, the Petitioner did not submit evidence from an industry professional association 
or from firms or individuals in the industry indicating such a degree is a minimum requirement for 
entry into the position. 
In support of this prong, the Petitioner discusses three job advertisements from other organizations. 
The Petitioner asserts that all the advertisements satisfy the three main elements that the degree 
requirement is common: (1) to the industry, (2) among similar organizations, and (3) in parallel 
positions. When determining whether the Petitioner and other organizations share the same general 
characteristics, such factors may include information regarding the nature or type of organization, and, 
when pertinent, the size, scope, or scale of operations, expenditures, as well as the level of revenue 
and staffing (to list just a few elements that may be considered). See lnnova Sols., Inc. v. Baran, 
338 F.Supp. 3d 1009, 1021 (N.D. Cal. 2018). 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. 
The first advertisement the Petitioner discusses is from Riverside Health Center. The Petitioner posits 
that from the position's limited description from this organization, it appears to be less complex than 
the job in the petition, which could be viewed to favor the Petitioner's eligibility claims. However, 
that appearance is a mirage as this position is one that is more senior than the Petitioner's job offering. 
A review of the Riverside position prerequisites reveals not only that they have similar minimum 
degree requirements as the Petitioner's position, but also that they have a preference for a master's 
degree and several types of experience to include at least three years of experience in marketing 
analysis. As a result, this advertisement does not aid the Petitioner in satisfying this criterion. 
Next the Petitioner identifies the job advertisement from All County Home Care, LLC and provides 
information relating to that company's operations. However, the Petitioner did not submit any job 
advertisements from a company by this name. It appears the Petitioner has confused the material it 
submits from All County Home Care, LLC with the advertisement it provided in the RFE response 
from Al I County Home Health and Hospice. The Petitioner has not demonstrated that these are the 
same entity. But even if it had, this position also appears more senior than the entry level position in 
the petition as the job advertisement from All County Home Health and Hospice not only required a 
8 
bachelor's degree, but it also mandated at least three years of experience in healthcare marketing 
management. 
Finally, the Petitioner presents the advertisement from Tower Health attempting to show they are an 
organization that is similar to the Petitioner, but the job advertisement is not sufficiently similar. First 
the advertisement lacked sufficient information for the bachelor's degree discipline, which the 
Director pointed out.12 But it also mandated at least five years of marketing management experience 
in a healthcare setting, which again appears to indicate the position is more advanced than the 
Petitioner's entry-level job. 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's degree 
in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar 
organizations. Consequently, the Petitioner has not satisfied the first prong of 8 C.F.R. 
§ 214.2(h)( 4)(i i i)(A)(2). 
2. Second Prong 
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 
described the job and its business operations. On appeal, the Petitioner provides a conclusory assertion 
that the evidence before the Director "provided background on the company and the competitive 
market in the area which, taken together with the job duties, raise this position to the level of 
complexity requiring" a qualifying degree. The Petitioner did not expound on its own background, or 
the market area, nor did it explain the effects relating to those factors that support its eligibility claims. 
We note that ipse dixit assertions will not carry the Petitioner's burden of demonstrating eligibility. 13 
In reference to the job duties the Petitioner references, we have already noted how those overly general 
functions adversely affect the its eligibility claims. 
Further, the Petitioner has designated the proffered position as a Level I position on the LCA.14 This 
designation, when read in combination with overly generalized duties, the Petitioner's statements, the 
12 The Petitioner claims that this advertisement implied it required a bachelor's degree in marketing or a related field. 
However, that assumption is not sufficient in these proceedings where the Petitioner must demonstrate eligibility by a 
preponderance of the evidence. The implication the Petitioner reads into this job advertisement does not meet that standard. 
13 See Matter of Hernandez-Casillas, 20 l&N Dec. 262, 289 n.10 (1990); In re Grand Jury Subpoena Dated July 6, 2005, 
510 F.3d 180, 184 (2d Cir. 2007). See also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (citing to Turpin v. Merrell 
Dow Pharmaceuticals, Inc., 959 F.2d 1349, 1360 (6th Cir.), cert. denied, 506 U.S. 826 (1992)). 
14 The issue here is that the Petitioner's designation of this position as a Level I position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same occupation. The 
Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). A Level I wage 
rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding 
of the occupation. This wage rate indicates: (1) that the Beneficiary will be expected to perform routine tasks that require 
limited, if any, exercise of judgment; (2) that he will be closely supervised and his work closely monitored and reviewed 
9 
evidence presented, and the Handbook's account of the requirements for this occupation, suggests that 
the particular position is not so complex or unique to establish the position as a specialty occupation. 
The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the 
position. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(i i i)(A)(2). 
C. Third Criterion 
The Petitioner does not specifically contest this portion of the Di rector's decision on appeal, and we agree 
with the Director that the evidence of record does not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
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 discussed above why the more detailed job description the Petitioner provided with the appeal will 
not factor into our decision. See Soriano, 19 l&N Dec. at 766. Again, within the Petitioner's appeal 
brief, it attempts to present the assertion relating to the nature of their business and the health care 
industry's unique marketing strategies without offering an explanation. Such unsupported and 
unexplained assertions are insufficient to meet the Petitioner's burden of proof. Matter of Soffici, 
22 l&N Dec. 158, 165 (Comm'r 1998). 
We reiterate that the Petitioner copied approximately one-third of the position's duties from the 
O*NET Report for Market Research Analysts and Marketing Specialists. And the remaining duties 
were expressed in broad and general terms. The Petitioner must substantiate that it has H-1B caliber 
work for the Beneficiary, and it must describe the manner in which the majority of the duties require 
a bachelor's degree in a specific specialty. However, it has not done so here. In a sense, the Petitioner 
broadly presented the position's responsibilities, but it did not explain how a candidate would go about 
performing those functions. 
We also incorporate our earlier discussion and analysis regarding the duties of the proffered position, 
and its designation on the LCA as a Level I position (of the lowest of four assignable wage-levels) 
relative to others within the occupational category.15 Without further evidence, the Petitioner has not 
for accuracy; and (3) that he will receive specific instructions on required tasks and expected results. 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. A prevailing 
wage determination starts with an entry level wage and progresses to a higher wage level after considering the experience, 
education, and skill requirements of the Petitioner's job opportunity. Id. 
15 Nevertheless, a low wage-designation does not preclude a proffered position from classification as a specialty 
occupation, just as a high wage-designation does not definitively establish such a classification. In certain occupations 
(e.g., physicians or lawyers), a Level II position would still require a minimum of an advanced 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 
10 
demonstrated that its proffered position is one with specialized and complex duties as such a position 
within this occupational category would likely be classified at a higher level, requiring a substantially 
higher prevailing wage.16 
On the topic of the duties that might require a higher wage, the Petitioner included two functions 
(comprising 40 percent of the position) that are atypical to the Market Research Analysts and 
Marketing Specialists standard occupational classificational (SOC) code, and instead fall under the 
11-2021 code relating to the more advanced Marketing Managers occupational title. Those duties 
relate to the development of a detailed marketing strategy for the Petitioner, and the execution of all 
corporate marketing campaigns. Although Market Research Analysts and Marketing Specialists 
perform research and gather information for others to create a marketing campaign, the SOC code the 
Petitioner selected, at the entry level, does not actually develop the marketing strategy nor do they 
formulate, direct, or coordinate marketing activities. Those activities would have required that the 
Petitioner either select a different and higher paying SOC code, or increased the prevailing wage rate 
on the LCA above the Level I (entry-level) rate it selected. 
Although the Petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Therefore, the Petitioner has submitted 
insufficient evidence to satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). Consequently, the 
Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
E. Definitional Requirement 
The process of demonstrating that a proffered position is sufficient to meet the requirements under the 
H-1B 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)(1) of the Act." 17 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.18 
Consequently, an H-1B 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 
degree in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but 
is not itself conclusive evidence that a proffered position meets the requirements of section 214(i)(1) of the Act. 
16 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" and requires a significantly higher wage. 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. 
17 8 C.F.R. § 214.2(h)(4)(i)(B)(2); see also 8 C.F.R. § 214.2(h)(l)(ii)(B)(1). 
18 See ltserve All., Inc. v. Cissna, 443 F. Supp. 3d 14, 39 (D.D.C. 2020) (recognizing that a specialty occupation would 
encompass a host of jobs, beginning at the trainee level and extending to an expert along with concomitant but differing 
personal job duties). 
11 
entry under criterion one. A petitioner must also establish that one cannot even enter the broader 
occupation if they do not possess a bachelor's degree in a specific specialty (or its equivalent). The 
caveat within the Handbook stating that "[o]thers have backgrounds in business administration, the 
social sciences, or communications" does not support the Petitioner's claims that this occupation 
satisfies the definition of a specialty occupation. 
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. 
See Defensor, 201 F.3d at 387; Sagarwala, 387 F. Supp. 3d at 64. 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). 
Accordingly, were a petitioner to submit sufficient evidence to satisfy one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), we would still have to evaluate whether it had also demonstrated that the broader 
occupation as a whole requires a bachelor's degree in a specific specialty (or an equivalent), even at 
the entry level. We conclude that in addition to not meeting any of the regulatory criteria, the Petitioner 
has not demonstrated the position in this petition qualifies as a specialty occupation under the statutory 
definition. 
F. Beneficiary Qualifications 
Although the Director did not address the Beneficiary's qualifications in the decision, we note that the 
Petitioner relies on the opinion letter from I I from the University! Ito 
demonstrate her work experience is equivalent to a U.S. baccalaureate or higher degree in a specific 
specialty. The regulations at 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) and (D) govern a Beneficiary's 
qualifications and the equivalence to completion of a qualifying degree, respectively. 
8 C.F.R. § 214.2(h)(4)(iii)(C)(4) provides that to qualify to perform services in a specialty occupation, 
the alien must "[h]ave education, specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree in the specialty 
occupation, and have recognition of expertise in the specialty through progressively responsible 
positions directly related to the specialty." (Emphasis added). 8 C.F.R. § 214.2(h)(4)(iii)(D)(l) 
provides that for the purposes of qualifying based in part on work experience: 
[E]quivalence to completion of a United States baccalaureate or higher degree shall 
mean achievement of a level of knowledge, competence, and practice in the specialty 
occupation that has been determined to be equal to that of an individual who has a 
baccalaureate or higher degree in the specialty and shall be determined by ... [a]n 
evaluation from an official who has authority to grant college-level credit for training 
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and/or experience in the specialty at an accredited college or university which has a 
program for granting such credit based on an individual's training and/or work 
experience .... 
I I discussed the Beneficiary's work experience and appears to have based his 
determination on a single letter. That March 2019 letter froml I 
stated the Beneficiary "currently holds the position of Hol pita I Stecialty Accounts Manager and has 
16 years of experience in Marketing and Sales field in (Emphasis in original.) The letter 
then listed her current duties, salary, and other benefits. Absent from this letter, and from the record, 
is (1) information or material speaking to any other positions the Beneficiary held during her tenure 
with I I (2) whether she occupied lesser positions initially that progressed to jobs with more 
responsibilities, or (3) whether the responsibilities as presented were the same duties she performed 
throughout her 16-year term with that company. These three elements relate to whether the 
Beneficiary has "recognition of expertise in the specialty through progressively responsible positions 
directly related to the specialty." 
As a result.I I opinion was based on inadequate evidence to satisfy the regulations at 
8 C.F.R. § 214.2(h)(4)(iii)(C)(4) and (D), it carries diminished evidentiary weight, and therefore does 
not demonstrate the Beneficiary's education, specialized training, and/or progressively responsible 
experience is equivalent to completion of a United States baccalaureate or higher degree in 
the specialty occupation. 
111. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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