dismissed H-1B Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 9450205 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 3, 2020 
The Petitioner, a multimedia and video production marketing firm, seeks to employ the Beneficiary 
temporarily as a "management analyst" under the H-18 nonimmigrant classification for specialty 
occupations.1 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 qualifies as a specialty 
occupation. 
The Petitioner bears the burden of proof to demonstrate el igibi I ity by a preponderance of the evidence. 2 
We review the questions in this matter de novo.3 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) ... " . 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." (Emphasis added). 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 also meet one of four criteria to qualify as a specialty occupation position.4 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b) . 
2 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
4 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 
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.5 In addition, a petitioner must establish 
eligibility at the time of filing the petition and must continue to be eligible through adjudication.6 
II. ANALYSIS 
A. Specialty Occupation 
At issue in this matter is the Petitioner's claim that a bachelor's degree in business or management is 
a sufficient minimum requirement for entry into the proffered position.7 A petitioner must 
demonstrate that the proffered position requires a precise and specific course of study that relates 
directly and closely to the position in question. Since there must be a close correlation between the 
required specialized studies and the position, the requirement of a degree with a generalized title, such 
as business, without further specification, does not establish the position as a specialty occupation. 
Cf. Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988); see also Matter of Caron 
lnt'I, Inc., 19 l&N Dec. 791 (Comm'r 1988) (vice president for manufacturing in a textile company 
was not a professional position because individual holding general degree in business, engineering or 
science could perform its duties). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(1) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its equivalent. 
We have consistently stated that although a general-purpose bachelor's degree, such as a degree in 
business, may be a legitimate prerequisite for a particular position, requiring such a degree, without 
more, will not justify a conclusion that a particular position qualifies for classification as a specialty 
occupation. See Royal Siam Corp., 484 F.3d at 1478; See also Irish Help at Home LLC v. Melville, 
13-cv-00943-MEJ, 2015 WL 848977 *6-8 (N.D. Cal. Feb. 24, 2015), aff'd, 679 F. App'x 634 (9th Cir. 
2017). 
Again, the Petitioner repeatedly states that the duties of the proffered position can be performed by an 
individual with only a general-purpose bachelor's degree, i.e., a bachelor's degree in business or 
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"). 
5 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
6 8 C.F.R. § 103.2(b)(1). 
7 The minimum education requirement is also supported by additional evidence in the record, including, the Petitioner's 
own job posting and an opinion letter from a professor at I I University. 
8 Specifically, the judge explained in Royal Siam that: 
The courts and the agency consistently have stated that, although a general-purpose bachelor's degree, 
such as a business administration degree, may be a legitimate prerequisite for a particular position, 
requiring such a degree, without more, will not justify the granting of a petition for an H-1B specialty 
occupation visa. See, e.g., Tapis lnt'I 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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management. Without more, this assertion alone indicates that the proffered position is not in fact a 
specialty occupation. Therefore, we cannot conclude that the proffered position meets the statutory 
and regulatory definition of a specialty occupation. As a result, the appeal must be dismissed on this 
basis alone. 
Therefore, we need not address whether the Petitioner has met any of the four criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Even if we were to conclude that the Petitioner met at least one of the criteria, 
the petition would still not be approvable for the reason above. 
B. Labor Condition Application (LCA) 
We would also note that information in the record raises questions as to whether the submitted LCA 
corresponds with the petition. While the Department of Labor (DOL) is the agency that certifies LCA 
applications before they are submitted to USCIS, DOL regulations note that the Department of 
Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS) is the department responsible 
for determining whether the content of an LCA filed for a particular Form 1-129 actually supports that 
petition. See 20 C.F.R. § 655.705(b), which states, in pertinent part (emphasis added): 
For H-1B visas ... DHS accepts the employer's petition (DHS Form 1-129) with 
the DOL-certified LCA attached. In doing so, the DHS determines whether the 
petition is supported by an LCA which corresponds with the petition, whether the 
occupation named in the [LCA] is a specialty occupation or whether the individual 
is a fashion model of distinguished merit and ability, and whether the qualifications 
of the nonimmigrant meet the statutory requirements for H-1B visa classification. 
The purpose of the LCA wage requirement is "to protect U.S. workers' wages and eliminate any 
economic incentive or advantage in hiring temporary foreign workers."9 It also serves to protect H-1B 
workers from wage abuses. A petitioner submits the LCA to DOL to demonstrate that it will pay an 
H-1B worker 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 duties, 
experience, and qualifications. Section 212(n)(1) of the Act; 20 C.F.R. § 655.731(a). 
We apply DOL guidance, which provides a five-step process for determining the appropriate wage 
level. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). The wage level begins at a Level I and 
may increase up to a Level IV based on a comparison of the duties and requirements for the employer's 
proffered position to the general duties and requirements for the most similar occupation as provided 
by the Occupational Information Network (O*NET). Generally, we must first identify whether the 
O*NET occupation selected by the petitioner is correct and then compare the experience, education, 
9 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56). 
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special skills and other requirements, and supervisory duties described in the O*NET entry to those 
required by the employer for the proffered position. 
The Petitioner indicated that the proffered position falls under the standard occupational classification 
(SOC) code of 13-1111 for "management analysts" at a Level I wage. O*NET summarizes the duties 
of management analysts as follows10: 
Conduct organizational studies and evaluations, design systems and procedures, conduct work 
simplification and measurement studies, and prepare operations and procedures manuals to 
assist management in operating more efficiently and effectively. Includes program analysts 
and management consultants. 
A review of the record indicates that the Beneficiary's duties appear to extend beyond those provided 
for in the O*NET entry for management analysts. For example, the Beneficiary will (verbatim): 
I Participate in the budget preparation, analysis, revenue forecasting, corrective action plans and 
monitoring. Include organization size, budget amount and specifics based on certain projects 
and departmentally by using Microsoft EXCEL (pivot table, regression, charts and 
graphs)/R/ST AT A 
I Using analytical skills to interpret and forecast revenues, budgets and other certain given by 
management group or clients. Making proposals through the findings driven by the report. 
I Prepare and monitor the department division budget, prepare revenue estimates and forecast, 
prepare and monitor operating and capital budgets, grants, contracts and other financial 
transacti ans. 
In addition, the Petitioner submitted two letters from "industry wofessionals." According to the chief 
executive officer ofl J and founder of I I the 
position would require "expertise in reviewing accounting and financial records" and "prior marketing 
industry and analytical experience, or a degree in a business specialty coupled with [al couple vearl 
of management analytics experience." According to the chief executive officer of .... I _____ _._ 
the "position would require an individual with a bachelor's degree in management analysis", as well 
as "prior marketing industry and analytical experience, or a degree in a business specialty coupled 
with 2-3 years of management analytics experience." The Petitioner must resolve these 
inconsistencies with independent, objective evidence pointing to where the truth lies. Matter of Ho, 
19 l&N Dec. 582, 591-92 (BIA 1988). 
For all of these reasons, the Petitioner has not established the actual minimum requirements of the 
position or that its indication of a Level I wage on the LCA was accurate. Therefore, we cannot 
conclude that the Petitioner has demonstrated that the LCA corresponds with the petition as required 
by 20 C.F.R. § 655.705(b). 
10 See https://www.onetonline.org/link/summary/13-1111.00 (last accessed on Sept. 1, 2020) for the list of 10 associated 
tasks. 
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111. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. The Petitioner has not 
met that burden here. 
ORDER: The appeal is dismissed. 
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