dismissed H-1B Case: Marketing And Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9605245 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 26, 2020 
The Petitioner, a marketing and technology company, seeks to employ the Beneficiary temporarily 
under the H-lB nonimmigrant classification for specialty occupations.1 The H-lB program allows a 
U.S. employer to temporarily employ a qualified foreign worker in a position that requires both: (a) 
the theoretical and practical application of a body of highly specialized knowledge; and (b) the 
attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum 
prerequisite for entry into the position. 
The California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. The Director further found the record lacking as it relates to the labor certification 
application and the Beneficiary's qualifications. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate el ig ibi 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-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services .. . in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum for entry into the occupation in the United States." The 
regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(I) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position.4 Lastly, 
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 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... "(emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
The Petitioner must preponderantly demonstrate the position requires a qualifying degree as that can 
illustrate: (1) the normal minimum educational requirement for entry into the particular position, which 
is the focus of criterion one; (2) industry positions which are parallel to the proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion two; 
(3) the level of complexity or uniqueness of the proffered position, which is the focus of the second 
alternate prong of criterion two; (4) the factual justification for a petitioner normally requiring a degree 
or its equivalent, when that is an issue under criterion three; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion four.5 
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. 6 The Director may request additional evidence 
in the course of making this determination. 7 In addition, a petitioner must establish eligibility at the 
time of filing the petition and must continue to be eligible through adjudication.8 
II. ANALYSIS 
For the reasons discussed below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. Specifically, we conclude that, as a result of the 
Petitioner's own requirements, the proffered position does not meet the statutory or regulatory 
definition of a specialty occupation. In particular, we find that the Petitioner has not established the 
substantive nature of the position, which precludes a determination that the proffered position qualifies 
as a specialty occupation under any of the four regulatory criteria enumerated at 8 C.F.R. 
§ 214.2(h)( 4)(i i i)(A)(l)-( 4). 
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. Here, the Petitioner not only failed 
section 214(i)(1) 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 
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)(iii)(A). 
6 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
7 8 C.F.R. § 103.2(b)(8). 
8 8 C.F.R. § 103.2(b)(1). 
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to meet that requirement, but it also provided inconsistent position prerequisites throughout the 
proceedings before the Director. 
A. Insufficient Degree Requirements 
As it relates to the required education, the Petitioner indicated the minimum requirements for the 
offered position was a bachelor's degree in computer science, mathematics, business, or a related field 
(or its equivalent). 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 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. The Petitioner's 
acceptance of a business degree to perform the duties of the proffered position without further 
specification, strongly suggests that the Petitioner's particular position does not require a bachelor's 
degree in a specific specialty.9 
An entry requirement of a bachelor's or higher degree in business with a concentration in a specific field, 
or a bachelor's or higher degree in business combined with relevant education, training, and/or 
experience, in certain instances, might qualify the proffered position as a specialty occupation.10 In either 
case, the Petitioner must demonstrate that the entry requirement is equivalent to a bachelor's or higher 
degree in a specific specialty that is directly related to the proffered position.11 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.12 Here, the Petitioner does not expound upon the focus of the business degree, 
specifically as it directly relates to the duties of the proposed position. Accordingly, it appears the 
Petitioner accepts a general business degree as sufficient to enter the proposed position. 
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.13 For this 
9 Cf. Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988). 
10 See Tapis lnt'I v. INS, 94 F. Supp. 2d 172, 176-77 (D. Mass. 2000). 
11 See section 214(i)(1)(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). Parzenn Partners, LLC v. Baran, No. 19-cv-11515-
ADB, 2019 WL 6130678, at *4 (D. Mass. Nov. 19, 2019) (finding that "[c]ourts have regularly interpreted Criteria One 
in conjunction with other statutory and regulatory language to mean that specialty occupations must require at least a 
bachelor's degree in a specific specialty." See also PayJoy, Inc. v. Cuccinelli, No. 19-cv-03977, 2019 WL 3207839, at *3 
(N.D. Cal. July 16, 2019) (agreeing with U.S. Citizenship and Immigration Services' (USCIS) interpretation of degree 
requirement as meaning "one in a specific specialty that is directly related to the proffered position"); Stellar IT Sols., Inc. 
v. USCIS, No. 18-cv-2015, 2018 WL 6047413, at *8 (D.D.C. Nov. 19, 2018) (observing that the H-1B "regulations must 
be read in the context of the statutory definition" and noting with approval that USCIS "consistently interprets the term 
degree in the regulations to mean not just any bachelor's or higher degree, but one in a specific specialty that is directly 
related to the proffered position" (internal citations omitted)); Royal Siam Corp, 484 F.3d at 147 (finding that "a degree 
requirement in a specific specialty" means "one that relates directly to the duties and responsibilities of a particular 
position."). 
12 Cf. Michael Hertz Assocs., 19 l&N Dec. at 560. 
13 Royal Siam, 484 F.3d at 147. 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). 
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reason alone, the proffered position would not be a specialty occupation, even if the Petitioner's job 
description were sufficient. 
B. Inconsistent Position Prerequisites 
We note additional deficiencies within the record that preclude the petition's approval. The Petitioner 
has presented inconsistent prerequisites to qualify for the position. When it filed the petition, the 
Petitioner stated the only requirements to qualify for the job was a bachelor's degree in computer 
science, mathematics, business, or a related field (or its equivalent). The Director subsequently issued 
a request for evidence (RFE) in which she noted the acceptance of a bachelor's degree in business 
alone did not "delineate a specific specialty field." When the Petitioner responded to the RFE, it 
offered varying position requirements. 
Within its RFE response cover letter at page 13, the Petitioner reiterated the same prerequisites from 
the initial filing. However, at page 19, it changed those qualifications and stated the employer also 
required one year of experience. This addition to the requirements to qualify for the position appears 
to be in response to the Director noting that the Petitioner's acceptance of a bachelor's degree in 
business alone was particularly disqualifying under the H-1B program. 
As a result, it appears the changes were made in response to the RFE, rather than based on the 
Petitioner's actual position requirements. Evidence that the Petitioner creates after USCIS points out 
the deficiencies in the petition is not necessarily independent and objective evidence. Fundamentally, 
independent and objective evidence would be evidence that is contemporaneous with the event to be 
proven and existent at the time of the Director's notice.14 Therefore, the Petitioner's claims of 
experience associated with the business degree requirement carry significantly reduced value within 
these proceedings than if it had fully represented its position requirements prior to being notified of 
the deficiency. 
Even if we were to ignore this adjustment, within the Petitioner's own job announcement it provided in 
the same RFE response, it accepted a wider range of degree disciplines as well as mandating two different 
forms of work experience of more than one year in each type of experience. Now within the appeal, 
the Petitioner again offers discordant position prerequisites. The Petitioner did not provide an 
explanation for the variances in its position requirements, and as a result, it has not satisfied its burden of 
proof. The Petitioner must resolve this dissonance in the record with independent, objective evidence 
pointing to where the truth lies.15 To allow such inconsistencies to pass unchallenged would serve to 
undermine the concept that the burden rests with a petitioner to provide credible and consistent 
material that preponderantly supports its el igi bi I ity.16 
14 See lnnova Solutions, Inc. v. Baran, Case No. 18CV09732DDPRAOX, 2019 WL 5748215, at *4 (C.D. Cal. Nov. 5, 
2019) (finding that USCIS may assign evidence less probative weight because it was created after the agency issued an 
RFE informing a petitioner of the evidentiary shortcoming). 
15 Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
16 See section 291 of the Act; Matter of Soo Hoo, 11 l&N Dec. 151, 152 (BIA 1965) (finding that the petitioner had not 
established eligibility by a preponderance of the evidence because the submitted evidence was not credible); see also 
Chawathe, 25 l&N Dec. at 376 (discussing the necessity that evidence be relevant, probative, and credible). 
4 
As explained above, the statutory and regulatory definition of a specialty occupation requires a degree 
in a specific specialty that is directly related to the proposed position, and the Petitioner has not met 
those definitions. As a result, it is unnecessary to address the regulatory criteria at 8 C.F.R. 
§ 214.2(h)( 4)(i i i)(A)(l)-( 4). Even if the Petitioner were to demonstrate that it satisfied one of the I isted 
criteria, this would not result in this petition's approval, as it still has not shown that the proffered position 
satisfies the statutory or regulatory definition of a "specialty occupation."17 The statutory definition 
constitutes the primary requirement for a position to qualify as a specialty occupation. Only after this 
antecedent requirement has been met, may a petitioner move to demonstrate how it may satisfy one of 
the supplementary criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A).18 
111. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
17 See section 214(i)(I) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
18 We do not agree with the Director's methodology concerning the adverse determination on the labor condition 
application issues. The Director indicated that the duties appear beyond a level I, but for that to be we ti rst look to the five 
steps as described in the guidance from U.S. Department of Labor; not the wage definition within that same guidance. 
We evaluate the wage level based on those elements, and the Director did not explain how any of the duties are atypical 
or fall outside of the Operations Research Analysts occupational classification. The Director also stated that the wage 
level definitions should be considered in the totality. Although we agree those definitions may be considered collectively 
with the five-step process, it is necessary to articulate what elements of the position exceed those of an entry level worker. 
It does not appear that the Director executed such an analysis. As the lack of probative and consistent evidence in the 
record precludes a conclusion that the proffered position is a specialty occupation and is dispositive of the appeal, it is 
unnecessary that we address whether the Beneficiary was qualified to occupy the position and we will not discuss the 
Petitioner's further assertions on appeal. 
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