dismissed H-1B Case: Marketing

MATTER OF A-C- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 20, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a consumer electronics' company, seeks to temporarily employ the Beneficiary as a 
"marketing specialist" under the H-1B 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-1B 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 Director of the California Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that: (1) the proffered position is a specialty occupation; and (2) the labor 
condition application (LCA) corresponds to and supports the H-lB petition. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter of A-C- Inc. 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted 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 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
The Petitioner stated in the H -1 B petition that the Beneficiary will serve as a "marketing specialist." 
The Petitioner stated the following with regard to the proffered position in its response to the 
Director's request for additional evidence (RFE) (note: errors in the original text have not been 
changed): 
The position of Marketing Specialist is a complex position and requires a degree 
specific to the industry. This position is extremely important for fast growing startup 
companies such as [the Petitioner]. This position is responsible for performing on­
going product and market research analysis; gathering market intelligence and 
customer feedback; identifying potential and existing opportunities and threats; 
providing market intelligence support for new product development; providing data 
analytics support including customer feedback for marketing for existing products; 
defining and executing marketing plan including social media, paid advertising, 
content marketing and Search Engine Optimization (SEO); managing paid advertising 
campaigns, identify opportunities; and defining budget and budget plan and oversee 
creatives creation. 
Below is a breakdown of the specific job duties including the percentage of time 
spent on each duty. This position is full-time and therefore requires 40 hours of work 
per work. 
2 
Matter of A-C- Inc. 
Data Research: This component requires performing ongoing market research on 
competitor sales and methods and marketing distribution, gathering data on customer 
demographics, preferences and buying habits to identify markets. This is critical in 
fashion wearable technology because it is so new and new competitors arise on a 
regular basis. Understanding the strengths and weaknesses of our competitors allow 
us to market more effectively. This duty includes fathering market intelligence and 
customer feedback. The knowledge required to perform this duty is gained though 
obtaining a Bachelor Degree in a business related field. These duties comprise 
approximately 40% of the position. 
Analyzing Data: This component requir_es analyzing data to identify correlations and 
contributing variables and clustered customer data to provide insight and 
recommendations for business implementations such as targeting advertisings on 
outbound marketing channels using analytics software such as SAS. Analysis of the 
emerging and ever changing market is critical. We much understand new technology 
that can be utilized before our competitors. The knowledge required to perform this 
duty is gained through obtaining a Bachelor degree in a business related field. These 
duties comprise approximately 30% ofthe position. 
Preparing Reports: This component requires preparing reports of findings, 
illustrating data graphically and translating complex findings to report to 
management. Delivering the research and analysis through reports is critical to our 
team's ability to react to market changes. The knowledge required to perform this 
duty is gained through obtaining a Bachelor degree in a business related field. These 
duties comprise approximately 30% of the position. 1 
The Petitioner stated that the proffered position requires a bachelor's degree in business or a related 
field. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation.2 
1 The Petitioner expands upon these duties significantly on appeal. However, the Petitioner must establish that the 
position offered to the Beneficiary when the petition was filed merits classification for the benefit sought. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'] Comm'r 1978). A petitioner may not make material changes to a 
petition in an effort to make a deficient petition conform to U.S. Citizenship and Immigration Services (USCIS) 
requirements. See Matter of lzummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1998). On appeal, the Petitioner cannot 
offer a new position to the Beneficiary, or materially change a position's title, its level of authority within the 
organizational hierarchy, the associated job responsibilities, or the requirements of the position. 
2 
Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 
Matter of A-C- Inc. 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 3 
Before addressing the specialty-occupation criteria contained at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4), 
we will briefly discuss an issue which precludes a finding that the proffered position is a specialty 
occupation. I 
The Petitioner did not demonstrate that the educational requirements for the position qualify as a 
specialty occupation. As noted, the Petitioner stated that a bachelor's degree would adequately 
prepare an individual t~ perform the duties of the proffered position. However, a requirement for 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 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 I&N Dec. 558, 560 
(Comm'r 1988). 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. As explained above, we interpret the degree requirement at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
position. We have consistently stated that, 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. Royal Siam Corp., 484 F.3d at 147. 
The Petitioner's statement therefore indicates that the proffered position is not in fact a specialty 
occupation, and the Director's decision must therefore be affirmed and the appeal dismissed on this 
basis alone. While this issue precludes approval of the petition; for the purpose of performing a 
more comprehensive analysis, we will nonetheless review the evidence of record in light of the four 
specialty-occupation criteria contained at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
A. First Criterion 
We tum next to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), 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 ofLabor's 
3 The Petitioner submitted documentation to support the H-1 8 petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
4 
Matter of A-C- Inc. 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.4 
On the LCA5 submitted in support of the H-lB petition, the Petitioner designated the proffered 
position under the occupational category "Market Research Analysts and Marketing Specialists" 
corresponding to the Standard Occupational Classification code 13-1161.6 The Handbook states the 
following with regard to the educational requirements of positions located within this occupational 
category: 
Most market research analysts need at least a bachelor's degree. Top research 
positions may require a master's degree. Strong math and analytical skills are 
essential. 
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. 
Education 
Courses in statistics, research methods, and marketing are essential for these workers. 
Courses in communications and social sciences, such as economics or consumer 
behavior, 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 
4 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, 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 USC IS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, 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. 
5 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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 experience and qualifications who are performing the same services. See 
Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
6 The Petitioner classified the proffered position at a Level II wage. We will consider this selection in our analysis of the 
position. The "Prevailing Wage Determination Policy Guidance" issued by the DOL provides a description of the wage 
levels. DOL's wage-level guidance specifies that a Level II designation is reserved for positions for involving only 
moderately complex tasks requiring limited judgment. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 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. /d. 
5 
Matter of A-C-Ine. 
other fields, such as statistics and marketing, and/or earn a maste(s degree in 
business administration (MBA). A master's degree is often required for leadership 
positions or positions that perform more technical research. 
Licenses, Certifications, and Registrations 
Certification is voluntary, but analysts may pursue certification to demonstrate a level 
of professional competency. The Marketing Research Association otiers the 
Professional Researcher Certification (PRC) for market research analysts. Candidates 
qualify based on experience and knowledge; they must pass an exam, be a member of 
a professional organization, and have at least 3 years working in opinion and 
marketing research. Individuals must complete 20 hours of industry-related 
continuing education courses every 2 years to renew their certification. 
Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Market Research 
Analysts (2016-17 ed.). 
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 
I 
statistics, math, or computer science. According to the Handbook, others have backgrounds in fields 
such as business administration, the social sciences, or communications. This passage of the 
Handbook identifies various courses as essential to this occupation, including statistics, research 
methods, and marketing. It further elucidates that courses in communications and social sciences 
(such as economics, psychology, and sociology) are also important. Therefore, although the 
Handbook indicates that market research analysts typically need 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. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty (or its equivalent)" requirement of section 214(i)(l )(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since 
there must be a close correlation between the required "body of highly specialized knowledge" and 
the position, however, a minimum entry requirement of a degree in disparate fields, such as 
philosophy and engineering, would not meet the statutory requirement that the degree be "in the 
specific specialty (or its equivalent)," unless the petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required body of 
highly specialized knowledge is essentially an amalgamation of these different specialties. 7 Section 
214(i)(l)(B) ofthe Act (emphasis added). 
7 
Whether read with the statutory "the" or the regulatory "a," both readings denote a singular "specialty." Section 
6 
Matter of A-C- Inc. 
The Handbook also states that "others have a background in business administration." As discussed, 
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 specffic specialty is not 
normally the minimum entry requirement for this occupation. 
The narrative of the Handbook further reports that some employees obtain professional certification 
to demonstrate a level of professional competency. It continues by outlining the requirements for 
market research analysts to achieve the PRC, and states that candidates qualify based upon their 
experience and knowledge. According to the Handbook, the credential is granted by the Marketing 
Research Association- now known as the Insights Association 8 - to those who pass an exam and 
have at least three years of experience working in market research.9 
We reviewed the Insights Association's website, which confirms the Handbook's statement 
regarding the requirements for prof~ssional certification (i.e., passage of an exam and three years of 
relevant industry experience), and further specifies that the "education" necessary to apply for 
professional certification is "12 industry-related education hours within the two preceding years." It 
also emphasizes that the credentialing program differentiates the individual who takes it and 
provides a "'badge' of competence in the given areas and an assurance that the individual is current 
in knowledge and experience." The narrative continues by stating that the credential "provides a 
vehicle for developing a pool of well-trained, competent marketing researchers, thereby improving 
both perceived and substantive standards." The website includes information regarding "How to 
Enter the Industry" which lists a variety of possible degrees, such as business administration, liberal 
arts, computer science and communications, and a variety of "helpful skills," including "attention to 
detail," and "basic computer skills." It does not indicate that a market research analyst position has 
any specific minimum academic requirement for entry, nor does it state that it requires any particular 
level of education to be identified as qualified and possessing a level of expertise or competence. 
Instead, IA highlights the importance of professional experience and industry-related professional 
courses (through conferences, seminars, and webinars). 
214(i)(I)(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. This also includes even seemingly disparate specialties provided the evidence of record 
establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
8 The Marketing Research Association merged with the Council of American Survey Research Organizations in 2017 to 
become the Insights Association (lA). See http://www.insightsassociation.org/about (last visited June 20, 2017). The 
Insights Association is therefore the successor to the Marketing Research Association. 
9 
The Insights Association website states that it "strives to effectively represent, advance, and grow the research 
profession and industry." For additipnal information, see http://www.insightsassociation.org/about (last visited June 20, 
2017). 
7 
.
Matter of A-C- Inc. 
Thus, the Handbook and the Insights Association website therefore do not support the claim that the 
occupational category "Market Research Analysts" is one for which normally the minimum 
requirement for entry is a baccalaureate degree (or higher) in a specific specialty, or its equivalent. 
The information the Petitioner submits from O*NET Online (O*NET) does not establish the 
proffered position as a specialty occupation, either. First, O*NET assigns these positions a "Job 
Zone Four" rating, which groups it among occupations for which "most ... require a four-year 
bachelor's degree, but some do not." It is therefore not clear that a bachelor's degree is even 
required, which is consistent with the Handbook. Further, as indicated above a requirement for a 
bachelor's degree alone is not sufficient. Instead, we have consistently interpreted 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 Siam Corp., 484 F.3d at 147; Defensor, 201 F.3d at 387. 
O*NET does not indicate that when a four-year bachelor's degree is required, that it must be in a 
specific specialty directly rehited to the occupation, or the equivalent. For both reasons, this 
information does not establish the proffered position as a specialty occupation. 
The information from the California Employment Development Department (EDD) is also 
insufficient for similar reasons. While the EDD indicates that these positions require a bachelor's 
degree, it does not state the degree must be in any particular field of study. Again, we interpret 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. 
Likewise, the printout from US. News & World Report states that "[b]ecoming a market research 
analyst requires at least a bachelor's degree, but you could choose from a range of majors" 
(emphasis added). Bachelor's degrees in "business administration" and "one of the social sciences" 
are then listed as being among the range of degrees that would provide adequate preparation. 
Nor does the position evaluation the Petitioner submits meet its burden. According to Professor 
a bachelor's degree in business administration would adequately prepare an individual to 
perform the duties of the proffered position. That conclusion is consistent with the Handbook. Once 
again, however , the issue here is that a requirement for a bachelor's degree in a business 
administration is inadequate to establish that the position qualifies as a specialty occupation. For this 
reason alone, Professor evaluation does not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A). 
However, even if we set that foundational deficiency aside we would still find that Professor 
evaluation did not satisfy the first criterion. Professor does not discuss the duties of 
the proffered position or the Petitioner's business operation in any meaningful detail. Nor does he 
reference the Petitioner's Level II wage-level designation, and we question whether he was aware 
that the proffered position possesses the Level II wage characteristics outlined above. Considered 
collectively, we find that these shortcomings indicate an incomplete review of the proffered position. 
We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of 
Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in 
8 
Matter of A-C- Inc. 
accord with other information or is in any way questionable, w~ are not required to accept or may 
give less weight to that evidence. !d. Consistent with Caron Int''l, we find that this evaluation does 
not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) and, for the sake of efficiency, hereby incorporate this 
l" 
finding into our analysis of the remaining specialty-occupation criteria. 
For all of these reasons, we find that the Petitioner has not established that the proffered position is 
located within an occupational category for which the Handbook, or any other relevant, authoritative 
source, indicates that the normal minimum entry requirement is at least a bachelor's degree in a 
specific specialty, or the equivalent. Consequently, the evidence of record does not support a finding 
that the particular position proffered here, a position located within the "Market Research Analysts 
and Marketing Specialists" occupational category which only requires the Beneficiary to "perform 
moderately complex tasks that require limited judgment," would normally have such a minimum 
specialty degree requirement, or the equivalent. The Petitioner therefore has not satisfied the 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
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 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
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) 
(considering these "factors" to inform the commonality of a degree requirement)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a 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. Furthermore, the Petitioner did not submit 
9 
Matter of A-C- Inc. 
any letters or affidavits from similar firms or individuals in the Petitioner's industry to establish that 
such firms "routinely employ and recruit only degreed individuals." 
The record contains 11 job vacancy announcements for our consideration under this prong. To be 
relevant for this consideration, the job vacancy announcements must advertise "parallel positions," 
and the announcements must have been placed by organizations that conduct business in the 
Petitioner's "industry" and are also otherwise "similar" to the Petitioner. Upon review, we find that 
these job vacancy announcements do not satisfy that threshold. 
The Petitioner has not established that the advertisements are for "parallel positions." As noted, the 
Petitioner attested to DOL that the proffered position is a Level II position involving moderately 
complex tasks that require limited judgment. However, some advertised positions require the ability 
to work independently, and one posting states that a successful applicant may be required to 
supervise peers. We observe further that one of the advertised positions contains the word "senior" 
in its title. These factors indicate that the advertised positions involve more than moderately 
complex tasks that require limited judgment, and that they are not "parallel positions" to the one 
proffered here. Further, the Petitioner has not sufficiently established that the primary duties and 
responsibilities of the advertised positions are parallel to the proffered position. 
Nor did the Petitioner submit sufficient evidence to establish that these advertising companies (1) 
conduct business in the Petitioner's industry and (2) are also "similar" to the Petitioner. The 
Petitioner is a wearable consumer electronics startup company with five employees. However, th~ 
Petitioner submitted job vacancy announcements placed by inter alia, the world's largest social 
network, a financial services company, a location tracking app, a peer-to-peer sharing app, and a 
"service to streamline the sales and registration of automobile aftermarket and insurance products." 
Notably, several advertisers do not provide sufficient information about their businesses, and we are 
unable to ascertain the nature of their businesses to condu~t a legitimate comparison of the 
advertisers to the Petitioner. The Petitioner did submit an advertisement placed by a company which 
claims to be "creating a revolution in wearable technology." However, the record does not contain 
documentary evidence to establish the similarity of this company to the Petitioner in terms of size, 
scale and scope of operations, or any other essential nature in order to demonstrate that it is also 
"similar" to the Petitioner for purposes of the first prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
For all of these reasons, the Petitioner has not established that these job vacancy announcements are 
relevant. Even if that threshold had been met, we would still find that they did not satisfy this prong 
of the second criterion, as they do not indicate that a bachelor's degree in a spec~fic specialty, or the 
equivalent, is common to the industry in parallel positions among similar organizations. 10 To the 
10 In addition, the Petitioner does not demonstrate what statistically valid inferences, if any, could be drawn from the job 
postings with regard to the common educational requirements for entry into parallel positions in simil'!r organizations. 
See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 1995). Moreover, given that there is no 
indication that the advertisements were randomly selected, the validity of any such inferences could not be accurately 
determined even ifthe sampling unit were sufficiently large. See id. at 195-96 (explaining that "[r]andom selection is the 
10 
Matter of A-C- Inc. 
contrary, several advertisers indicate that a degree in any field of study would suffice, and several 
others state that they would find acceptable a bachelor's degree in business, with no further 
specialization. 
Thus, the Petitioner has not satisfied the first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(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. 
Neither the Handbook nor O*NET indicate that a bachelor's degree in a specific specialty, or the 
equivalent, is normally required for positions located within the occupational category designated by 
the Petitioner. The Petitioner's implications that the knowledge and associated entry requirements 
associated with the proffered position exceed those of other positions located within the occupational 
category are acknowledged. For example, the Petitioner emphasizes the complex nature of the 
position and its constituent duties throughout the petition, and stated in its RFE response that the 
proffered position "is critical for the success and image" of the company. On appeal, the Petitioner 
emphasizes that the Beneficiary will be required to "be capable of working independently," and the 
Beneficiary's resume contains phrases such as "took ownership" and "lead" to describe her work for 
the Petitioner. However, the Petitioner's Level II wage designation undermines these claims.11 
When the Petitioner assigned the proffered position a Level II wage, it attested to DOL that the 
Beneficiary would perform moderately complex tasks that require limited judgment. In other words, 
if typical positions located within the occupational category do not require a bachelor's degree in a 
key to [the] process [of probability sampling]" and that "random selection offers access to the body of probability theory, 
which provides the basis for estimates of population parameters and estimates of error"). 
As such, even if the job vacancy announcements supported the finding that the position requires a bachelor's or higher 
degree in a specific specialty, or its equivalent, it could not be found that such a limited number ofpostings that appear to 
have been consciously selected could credibly refute 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. 
11 The Petitioner's designation of this position as a Level II position undermines its claim that the position is particularly 
complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a Level II wage­
designation does not preclude a proffered position from classification as a specialty occupation, just as a Level IV wage­
designation does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Level 
II 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 relevant factor but is not itself 
conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
II 
Matter of A-C- Inc. 
specific specialty, or the equivalent, then it is unclear how a position with these Level II 
characteristics would, regardless of the Petitioner's assertions. 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references her 
qualifications repeatedly. However, the test to establish a position as a specialty occupation is not 
the education or experience of a proposed beneficiary, but whether the position itself requires at least 
a bachelor's degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently 
develop relative complexity or uniqueness as an aspect of the duties of the position, and it did not 
identify any tasks that are so complex or unique that only a specifically degreed individual could 
perform them. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(2). 
C. Third Criterion 
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. 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 instead by performance requirements of 
the J?OSition. See Defensor, 201 F.3d at 387-88. If we were solely limited to reviewing the 
Petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the Petitioner created a token 
degree requirement. Id. Evidence provided in support of this criterion may include, but is not 
limited to, documentation regarding the Petitioner's past recruitment and hiring practices, as well as 
information regarding employees who previously held the position. 
In its RFE response, the Petitioner conceded that this is a newly-created positiOn, and that it 
therefore has no information to submit regarding its past hiring practices for the positon. However, 
on appeal, the Petitioner states that it recently filed a product marketing position, which it 
characterizes as similar to the one proffered here, and submits a copy of an advertisement it posted 
announcing the job vacancy as well as information regarding the credentials of the individual it 
ultimately hired to fill the position. However, we find this evidence insufficient to satisfy the third 
criterion, as it is not apparent that this position is the same or similar to the proffered position. For 
example, the advertisement states that the position involves "little supervision" and requires the 
ability work independently. Further, the position will be "responsible for managing all aspects of 
content creation and social media" and "lead [the Petitioner] in a wide range of areas." This 
contrasts with the proffered position which, by virtue of the Level II wage designation, involves 
moderately complex tasks requiring limited judgment. The Petitioner does not reconcile this 
discrepancy - if the proffered duties are only moderately complex and require the exercise of only 
limited judgment, then it is unclear how the position is similar to the new position that requires the 
ability to work independently and lead a wide range of areas. In any event, it undermines the claim 
that this announcement advertises the same position as the one proffered here. 
12 
.
Matter of A-C-Ine . 
Setting that issue aside, we observe that the Petitioner's advertisement specifically states that it 
would accept a bachelor's degree in business administration. Again, a requirement for a bachelor's 
degree in business, or business administration, is not a requirement for a degree m a specific 
\ specialty, or the equivalent. 
Without more, the Petitioner has not provided sufficient evidence to establish that it normally 
requires at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered 
position. Therefore, it has not satisfied the third criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires apetitioner 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 acknowledge the Petitioner's assertions regarding the specialization and complexity of the 
position's duties. However, as discussed above, those claims are undermined by the Petitioner 's 
Level II wage designation. Again, in classifying the proffered position at a Level II wage, the 
Petitioner effectively attested to DOL that the Beneficiary would perform moderately complex tasks 
that require limited judgment. 12 Further, given the findings of the Handbook and O*NET that a 
bachelor's degree in a specific specialty, 
or the equivalent, is not required to perform the duties of 
typical positions located within this occupational category, it seems unlikely that a position 
involving only moderately complex tasks that require limited judgment would have such a 
requirement. The Petitioner has not demonstrated in the record that its proffered position is one with 
duties sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
E. The Case Law Cited by the Petitioner 
We acknowledge the case law cited by the Petitioner. However, the facts in most those decisions are 
not analogous to the instant petition, as they involved immigrant visa petitions and whether the 
beneficiaries of those petitions were members of the professions as defined in section 101(a)(32) of 
the Act, 8 U.S.C. § 1101(a)(32), and as that term was previously interpreted. The issue before us is 
whether the Petitioner's proffered position qualifies as a nonimmigrant H-IB specialty occupation­
not whether it is a profession. 13 The matters cited by the Petitioner are irrelevant. 14 
12 Again, the Petitioner's designation of this position as a Level II position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. 
13 The primary and fundamental difference between qualifying as a profession and qualifying as a specialty occupation is 
that specialty occupations require the U.S. bachelor's or higher degree to be in a specific specialty, or its equivalent. 
Thus, while an occupation may be specifically identified as qualifying as a profession as defined in section I 0 I (a)(32) of 
the Act, that occupation would not necessarily qualify as a specialty occupation unless it met the definition of that term 
at section 214(i){l) of the Act. · 
14 We ·observe further that this letter misstated the name of the Petitioner as •· and stated that the Petitioner 
13 
Matter of A-C- Inc. 
IV. THELCA 
The Director also found that the Petitioner did not submit an LCA that corresponds to and supports 
the H-lB petition. However, because the proffered position is not a specialty occupation, which is 
dispositive of the Petitioner's appeal, we will not address it further. 
V. CONCLUSION 
The Petitioner has not established eligibility for the benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-C-Ine., ID# 380783 (AAO June 20, 2017) 
was applying for approval of an E-3 visa petition on behalf of the Beneficiary. These errors lead us to question whether 
the letter was actually intended to be used in support of another beneficiary's visa petition. 
14