dismissed H-1B Case: Marketing

(b)(6)
DATE: JUL \ 6 1015 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administr at ive 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 lOl(a)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110l(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER : 
NO REPRESENTATIVE OF RECORD 
Enclosed 
is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.P.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. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office on appeal (AAO). The appeal will be dismissed. 
I. PROCEDURAL BACKGROUND 
In the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as 
a 
trading company , with one employee, that was established in In order to employ the 
beneficiary in what it designates as a marketing specialist position, the petitioner seeks to 
classify her as a nonimmigrant worker in a specialty occupation pursuant to section 
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b ). 
The Director denied the petition , finding that the petitioner did not establish that the proffered 
position qualifies as a specialty occupation .
1 
The record of proceeding contains: (1) the petitioner's Form I-129 and supporting 
documentation ; (2) the Director's request for evidence (RFE); (3) the petitioner's respons e to the 
RFE; (4) the Director's decision; and (5) the Notice of Appeal or Motion (Form I-290B) and 
supporting documentation .2 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. 
II. SPECIALTY OCCUPATION 
The primary issue is whether the evidence of the record of proceeding has demonstrated by a 
preponderance of the evidence that the petitioner will employ the beneficiary in a specialty 
. . . 4 
occupatwn pos1t10n. 
1 The director also found that the evidence of record did not indicate that the benefici ary had maintained 
valid nonimmigr ant status. As we do not exercise jurisdiction over maintenance of status issues , this 
portion of the director's decision will not be discussed. 
2 The record contain s document s prepared in the Chinese language that were not accompanied by certified 
English translati ons. However, foreign-l anguage documents submitted without certified English 
translations cannot be consider ed. See 8 C.F.R. § 103.2(b)(3) . 
3 We conduct appellate review on a de novo basis . See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) . 
4 The "preponder ance of the evidence" standard requires that the evidence demonstrate that the applic ant's 
claim is "probably true," wher e the determination of "truth" is made based on the factu al circumstances of 
each individual case. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M-, 
20 I&N Dec. 77, 79-80 (Comm'r 1989)). 
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A. Legal Framework 
For an H-lB 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 evidence of the record of proceeding must establish that the employment the 
petitioner 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: 
(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 a 
baccalaureate or higher degree. 
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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 of language which takes into account the design of the statute as a whole is 
preferred); see also COlT Independenc e Joint Venture v. Federal Sav. and Loan Ins. Corp., 
489 U.S. 561 (1989); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated 
in 8 C.F.R. § 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily 
sufficient to meet the statutory and regulatory definition of specialty occupation . To otherwise 
interpret this section as stating the necessary and sufficient conditions for meeting the definition 
of specialty occupation would result in particular positions meeting a condition under 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 
201 F.3d 387. To avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as 
providing suppl emental criteria that must be met in accordance with, and not as alternative s to, 
the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R . 
§ 214.2(h)(4)(ii) , U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate 
or higher degree, but one in a specific specialty that is directly related to the proffered position. 
See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities 
of a particular position"). Applying this standard, USCIS regularly approves H-lB petitions for 
qualified aliens who are to be employed as engineers, computer scientists , certified public 
accountants, college profes sors, and other such occupations. These professions, for which 
petitioners have regularly been able to establish a minimum entry requirement in the United 
States of a baccalaureate or higher degree in a specific specialty or its equivalent directly related 
to the duties and responsibilities of the particular position, fairly represent the types of specialty 
occupations that Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature 
of the petitioning entity's business operations, are factors to be considered. USCIS must examine 
the ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation . See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the 
title of the position nor an employer's self-imposed standards, but whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge, and 
the attainment of a baccalaureate or higher degree in the specific specialty as the minimum for 
entry into the occupation , as required by the Act. 
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B. Proffered Position 
In the Form I-129, the petitioner stated that it wishes to employ the beneficiary as a marketing 
specialist on a full-time basis. 5 In the support letter, the petitioner provided the following 
information regarding the duties of the proffered position: 
The detailed duties and the percentage of each job duty will be: 
1. 40% on conducting market research on the US electronic industry raw 
materials market and electronic products market 
• Devise and evaluate methods and procedures for collecting data, such as 
surveys , opinions [sic] polls, or questionnaires, or arrange to obtain 
existing data 
• Collect data on global demands and supplies of electronic products using 
statistics methods such as SPSS 
• Conduct market research on raw materials market in electronic industry in 
the United States 
• Seek suppliers for Chinese manufacturers, inspect and evaluate the quality 
of raw materials, parts and components 
• Conduct market research on electronic products manufacturers in China 
and select high-qualified manufacturers 
• Conduct market research on electronic products market in the United 
States 
• Seek and provide information to help buyers determine their position in 
the marketplace 
• Design questionnaires to know the purchase preference in electronic 
products of individual buyers from different regions 
2. 40% on analyzing data and information from research, [conducting] market 
analysis, and generating reports 
• Analyze global demands for and supplies of electronic products, especially 
data from American market 
• Gain knowledge on various raw materials, parts, and components through 
studying, and have a better understanding of electronic industry 
• Help management target the right customers, such as high-qualified raw 
materials suppliers, electronic products U.S. importers and buyers through 
in-depth analysis 
5 In its support letter, dated March 26, 2014, the petitioner stated that the beneficiary would work 32 
hours per week at a rate of $21.55 per hour. 
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NON-PRECEDENT DECISION 
• Study the characteristics of American electronic products suppliers , 
impdrters and buyers, develop reports on the U.S. electronic industry with 
the utilize [sic] of market analytical models and methods 
• Have a deep understand [sic] of buyers preference thorough (sic] studying 
questionnaire, especially regions where buyers have high demand for 
some particular products 
• Make advertising strategy based on the results of clients preference and 
market research 
• Focus on sales shortage analysis and make needed changes on existing 
selling strategy 
• Generate market analysis reports for raw material suppliers, Chinese 
manufactures [sic], American importers and buyers 
• Coordinate with colleagues to generate target market analysis reports 
monthly, quarterly, and annually 
3. 20% on reporting to department manager and president of the company, and 
making presentation to clients 
• Report directly to department manager 
• Discuss with manager on core business, such as market report, data on 
weekly sales and feedback of advertising, and make corresponding 
adjustments 
• Attend staff conference to provide management with information and 
proposals concerning target customers, company services, market analysis, 
etc. 
• Make presentation for suppliers, importers, and buyers, show them data 
and analysis [the petitioner] collect[s] and conduct[s], let them understand 
the trends of electronic industry 
• Develop and maintain steady partnership with clients in a long run 
C. Analysis 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will now discuss the proffered position in relation to the criterion at 8 C.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. 
USCIS recognizes the U.S. Department of Labor's (DOL) Occupational Outlook Handbook 
(Handbook) as an authoritative source on the duties and educational requirements of the wide 
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variety of occupations that it addresses. 6 The petitioner asserted in the LCA that the proffered 
position falls under the occupational category "Market Research Analysts and Marketing 
Specialists ." We reviewed the section of the Handbook regarding this occupational category, 
including the section entitled "How to Become a Market Research Analyst," which states the 
following: 
Most market research analysts need at least a bachelor's degree. Top research 
positions often require a master's degree. Strong math and analytical skills are 
essential. 
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. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Market Research Analysts, available at http://www.bls.gov/ooh/business-and-financial/market­
research-analysts.htm#tab-4 (last viewed July 8, 2015). 
The Handbook does not report that a baccalaureate or higher degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into positions within this occupational 
category. This passage of the Handbook reports that market research analysts have degrees and 
backgrounds in a wide-variety of disparate fields. Although the Handbook states that employees 
typically need a bachelor's degree in market research or a related field, it continues by indicating 
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 
6 All of our references are to the 2014-2015 edition of the Handbook, which may be accessed at the 
Internet site http://www.bls.gov/OCO/. The excerpts of the Handbook regarding the duties and 
requirements of the referenced occupational category are hereby incorporated into the record of 
proceeding. 
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such as business administration, one of the social sciences, or communications. The Handbook 
notes that various courses are essential to this occupation, including statistics, research methods, and 
marketing. The Handbook also states that courses in communications and social sciences (such as 
economics, psychology, and sociology) are also important. 
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 two disparate fields, such as 
math and communications, 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."7 
Section 214(i)(l)(B) ofthe Act (emphasis added). 
Here, although the Handbook indicates that a bachelor's or higher degree is "typically" required, it 
also indicates that baccalaureate degrees in various fields are acceptable for entry into the 
occupation. In addition to recognizing degrees in disparate fields, i.e., social science and computer 
science as acceptable for entry into this field, 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 qualifies 
for classification as a specialty occupation. See Royal Siam Corp. v. Cherto.fj; 484 F.3d at 147. 
Therefore, the Handbooks 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 a standard, minimum entry requirement for this occupation. Accordingly, 
as the Handbook indicates that working as a market research analyst does not normally require at 
least a bachelor's degree in a specific specialty or its equivalent for entry into the occupation, the 
Handbook does not support the proffered position as being a specialty occupation. 
Our conclusion that a bachelor's degree in a specific specialty, or the equivalent, is not required is 
further underscored by the petitioner's assertion that the proffered position requires "at least a 
bachelor's degree in 
business or equivalent field." The requirement of a bachelor's degree in 
business is inadequate to establish that a position qualifies as a specialty occupation. A 
petitioner must demonstrate that the proffered position requires a precise and specific course of 
study that relates directly to the position in question. Since there must be a close correlation 
7 
Whether read with the statutory "the" or the regulatory "a," both readings denote a singular "specialty." 
Section§ 214(i)(l)(B) ofthe Act ; 8 C.F.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. 
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between the required specialized studies and the position, the requirement of a degree with a 
generalized title, such as business, without further specification, does not establish the position as 
a specialty occupation. Cf Matter of Michael Hertz Associates , 19 I&N Dec. 558 (Comm'r 
1988). 
Upon review of the totality of the evidence in the entire record of proceeding , we conclude that the 
petitioner has not established that the proffered position falls within an occupational category for 
which the Handbook, or other authoritative source, indicates that a requirement for at least a 
bachelor's degree in a specific specialty, or its equivalent, is nom1ally required for entry into the 
occupation. Therefore, the criterion described at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) has not been 
satisfied. 
The requirement ofa 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 altemative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong altematively 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 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 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. 
On appeal, the petitioner submitted copies of seven 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, the petitioner's reliance on the job announcements is misplaced. 
In the Form I-129, the petitioner stated that it is a trading company with one employee 
established in The petitioner did not report its gross annual income and net annual income. 
The petitioner designated its business operations under the North American Industry 
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Classification System (NAICS) code 5416,8 which is designated for "Management, Scientific, 
and Technical Consulting Services." 
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 
within the industry that are also similar to the petitioner. 
We will briefly note that, without more, the job announcements do not appear to be from 
organizations similar to the petitioner. 9 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 I&N Dec. 165 (citing Matter of Treasure Craft 
ofCalifornia , 14 I&N Dec. 190). 
In addition, some of the advertisements do not appear to involve parallel positions . For example, 
the position with requires four or more years of marketing research experience; the position 
with requires five years of experience; the position with requires four years of 
experience ; the position with requires a minimum of five years marketing 
intelligence experience and a minimum of three years syndicated experience; and the position 
with requires at least two or more years of experience. However, the 
petitioner designated its proffered position as a wage level I (entry level) on the LCA.10 The 
8 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 
http://www.census.gov/eos/www/naics/ (last visited July 8, 20 15). 
9 For example , an announcement from indicates that it is a municipal utility company in Florida; 
is in the banking business; and is in the automotive and part s manufacturing 
business. Some announcements are from staffing companies or contain little or no information about the 
employers. For instance , an announcement from states that it is a "full service staffing agency ," but 
does not provide further information about the employer. Similarly, the announcement from 
states that its client is "the largest stand-alone brand in the country within CPG industry," but does 
not provide further information about its client. The petitioner did not supplement the record of 
proceeding to establish that the advertising organizations are similar to it. Consequently , the record does 
not contain sufficient information regarding the advertising organizations to conduct a legitimate 
comparison of the organizations to the petitioner. 
10 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I 
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advertised positions appear to involve more senior positions than the proffered position. More 
importantly, the petitioner has not sufficiently established that the primary duties and 
responsibilities of the advertised positions are parallel to those of the proffered position. 
Further, some advertisements do not indicate that at least a bachelor's degree in a directly related 
specific specialty (or its equivalent) is required .11 For instance, the advertisements from 
do not state that a specific 
specialty is required or they allow for a general degree, such as business. 
Even if all of the job advertisements 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 
advertisements 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. 
wage rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who 
have only a basic understanding of the occupation. These employees perform routine 
tasks that require limited , if any , exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs . The employees 
may perform higher level work for training and developmental purposes. These 
employees work under close supervision and receive specific instructions on required 
tasks and results expected. Their work is closely monitored and reviewed for accuracy. 
Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Level I wage should be considered. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov 
/pdf/NPWHC_Guidance_Revised _11_2009.pdf. 
11 As discussed , the degree requirement set by the statutory and regulatory framework of the H-1 B 
program is not just a bachelor's or higher degree, but a degree in a specific specialty that is directly related 
to the duties ofthe position. See 214(i)(l)(b) ofthe Act and 8 C.F.R. § 214.2(h)(4)(ii). 
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As the documentation does not establish that the petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job advertisements is 
not necessary. 12 That is, not every deficit of every job advertisement has been addressed . 
The evidence of record has not established that a requirement of a bachelor's or higher 
degree in a specific specialty, or its equivalent , is common to the petitioner's industry in 
positions that are ( 1) in the petitioner's industry, (2) parallel to the proffered position, and 
also (3) located in organizations that are similar to the petitioner. For the reasons 
discussed above, the petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can be pe1:[ormed 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 of8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the evidence of record shows that the petitioner's 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 the instant case, the evidence of record does not credibly demonstrate relative complexity or 
uniqueness as aspects of the proffered position. Specifically, it is unclear how the marketing 
specialist position, as described, necessitates the theoretical and practical application of a body of 
highly specialized knowledge such that a person who has attained a bachelor's or higher degree in a 
specific specialty or its equivalent is required to perform them. Rather, we find, that, as reflected 
in this decision's earlier quotation of duty descriptions from the record of proceeding, the 
evidence of record does not distinguish the proffered position from other positions falling within 
the "Market Research Analysts" occupational category , which, the Handbook indicates, do not 
necessarily require a person with at least a bachelor's degree in a specific specialty or its 
equivalent to enter those positions . 
More specifically, the petitioner did not demonstrate how the duties described require the 
theoretical and practical application of a body of highly specialized knowledge such that a 
bachelor's or higher degree in a specific specialty, or its equivalent, is required to perform them. 
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 of the proffered position. While related courses may be beneficial, or even essential , 
in performing certain duties of a continuous quality improvement supervisor position, the 
12 The petitioner did not provide any independent evidence of how representative the job advertisements 
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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evidence of record does not demonstrate how an established cutTiculum 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 petitioner's proffered position. 
This is further evidenced by the LCA submitted by the pettttoner in support of the instant 
petition. The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four 
assignable wage levels. 13 Without further evidence, the evidence does not demonstrate that the 
proffered position is complex or unique as such a position falling under this occupational 
category would likely be classified at a higher-level , such as a Level III (experienced) or Level 
IV (fully competent) position, requiring a significantly higher prevailing wage.14 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." 15 The evidence of 
record does not establish 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. 
The petitioner claims that the beneficiary is well qualified for the position, and references her 
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 evidence of the record has not 
satisfied the second alternative prong of 8 C.F .R. § 214.2(h)( 4 )(iii)(A)(2). 
13 As previously mentioned, the wage-level of the proffered position indicates that (relative to other 
positions falling under this occupational category) the beneficiary is only required to have a basic 
understanding of the occupation ; that she will be expected to perform routine tasks that require limited , if 
any , exercise of judgment ; that she will be closely supervised and her work closely monitor ed and 
reviewed for accuracy; and that she will receive specific instructions on required tasks and expected 
results . 
14 The issue here is that the petitioner's designation of this position as a Level I, entry-level postt1on 
undermines its claim that the position is particularly complex , specialized , or unique compared to other 
positions within the same occupation. Nevertheless , it is important to note that a Level I wage­
designation does not preclude a proffered position from classification as a specialty occupation. In certain 
occupations (doctor s or lawyers , for example) , an entry-level position would still require a minimum of a 
bachelor's degree in a specific specialty, or its equivalent , for entry . Similarly, however, a Level IV 
wage-designation would not reflect that an occupation qualifies as a specialty occupation if that higher­
level position does not have an entry requirement of at least a bachelor's degree in a specific specialty or 
its equivalent. That is, a position's wage level designation may be a consideration but is not a substitute 
for a determination of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
15 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_R evised 
_11_ 2009.pdf 
(b)(6)
Page 14 
NON-PRECEDENTDEC~ION 
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 perfmm 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. 
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. 
The record does not contain documentary evidence demonstrating a hiring history by the 
petitioner. 16 As the record of proceeding does not demonstrate that the petitioner normally 
requires at least a bachelor's degree in a specific specialty or its equivalent for the proffered 
position, it does not satisfy 8 C.P.R. § 214.2(h)(4)(iii)(A)(3). 
16 The petitioner states that although it is a start-up company, its parent company in China has a history of 
20 years. However, the petitioner did not submit evidence demonstrating its parent company's hiring 
history. 
(b)(6)
Page 15 
NON-PRECEDENT DECISION 
The nature of the spectfic 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 demonstrate 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. 
Again, relative specialization and complexity have not been sufficiently developed by the 
petitioner as an aspect of the proffered position's duties. In other words, the proposed duties 
have not been described with sufficient specificity to show that their nature is more specialized 
and complex than market research analyst positions whose duties are not of a nature so 
specialized and complex that their performance requires knowledge usually associated with a 
degree in a specific specialty. In reviewing the record of proceeding under this criterion, we 
reiterate our earlier discussion regarding the Handbook's entries for positions falling within the 
"Market Research Analysts and Marketing Specialists" occupational category . Again, the 
Handbook does not indicate that a bachelor's degree in a specific specialty, or the equivalent, is a 
standard, minimum requirement to perform the duties of such positions, and the record indicates 
no factors that would elevate the duties proposed for the beneficiary above those discussed for 
similar positions in the Handbook. With regard to the specific duties of the position proffered 
here, we find that the record of proceeding lacks sufficient, credible evidence establishing that 
they are so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a bachelor's degree in a specific specialty, or the equivalent. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (the 
lowest of four assignable wage-levels) relative to others within the occupational category. 
Without more, the duties of the position are not likely distinguishable by relatively specialized 
and complex duties. That is, without further evidence, the petitioner has not demonstrated that 
its proffered position is one with specialized and complex duties as such a position falling under 
this occupational category would likely be classified at a higher-level , such as a Level III 
(experienced) or Level IV (fully competent) position, requiring a substantially higher prevailing 
wage. 17 
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 not satisfied 
the criterion ofthe regulations at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
17 As previously discussed , a Level IV (fully competent) position is designated by DO!; for employees 
who "use advanced skills and diversified knowledge to solve unusual and complex problems" and 
requires a significantly higher wage . 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
For the reasons related in the preceding discussion, the evidence of the record of proceeding has 
not established that the petitioner 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 ~ualifies as a specialty occupation. 
The appeal will therefore be dismissed and the petition denied. 8 
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the 
immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 
Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
18 Since the identified basis for denial is dispositive of the petitioner's appeal, we will not address other 
grounds of ineligibility we observe in the record of proceeding.