dismissed H-1B Case: Media

U.S. Citizenship 
and Immigration 
Services 
In Re: 10016592 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 14, 2021 
The Petitioner, a non-profit Chinese-language radio media company located in California, seeks to 
temporarily employ the Beneficiary as a "market research analyst" under the H-lB nonimmigrant 
classification for specialty occupations . Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). 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 Director of the Vermont Service Center denied the petition, concluding the evidence was 
insufficient to establish that the position qualified as a specialty occupation under any of the criteria 
in 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4) . The matter is now before us on appeal. On appeal, the 
Petitioner asserts that the Director's decision was in error. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-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)(l) of the Act, 8 U.S.C. § 1184(i)(l), 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)(l) of the Act but adds a 
non-exhaustive list of fields of endeavor. In addition , 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 1 Lastly, 
1 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions ofa specialty occupation under 
8 C.F.R. § 214.2(h)(4)(i)(A)(I) states that an H-lB 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 services the Beneficiary will perform in the position determine: (1) the normal 
minimum educational requirement for entry into the particular position, which is the focus of criterion 
1; (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 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, 
when that is an issue under criterion 3; and (5) the degree of specialization and complexity of the 
specific duties, which is the focus of criterion 4. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b )(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
II. THE PROFFERED POSITION 
The Petitioner describes itself on the Form 1-129, Petition for a Nonimmigrant Worker, as a non-profit 
public radio company established in 2003. More specifically, in its initial letter in support of the 
petition, the Petitioner states that it is "an independent Chinese language public radio, [the Petitioner] 
produces and distributes high-quality news and cultural programs that are trusted and loved by its 
listeners -Chinese Americans .... " The Petitioner designates the proffered position on the labor 
condition application (LCA)2 as being located within the "Market Research Analysts and Marketing 
Specialists" occupational category corresponding to the standard occupation classification (SOC) code 
13-1161, at a level I wage. 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe the term "degree" to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Cmp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as 
"one that relates directly to the duties and responsibilities of a particular position"). 
2 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 duties, experience and qualifications who are performing the same services. See Section 
212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). 
2 
The Petitioner identifies the duties of the position as follows: 
• "Market Research" 30--40% 
o Build marketing databases by gathering, analyzing, and summarizing market data, 
industry data, geographic information, market trends etc. 
o Present competitive reports by analyzing and summarizing competitor information for 
our advertisement customers and developing primary compet1t10n graphs, 
recommending changes in product, service, and marketing strategies for our 
advertisement customers. 
o Based on the databases and reports generated, build market analysis models for 
assessing market characteristics, and supporting market strategy development. 
• "Marketing" 30--40% 
o Develop online marketing campaigns for our customers. Manage brand life cycle of 
digital marketing from research, development through launch and reporting. Track 
records, collect social metrics and provide strategic analysis with insights, prepare 
campaign reports. Synthesizing information into concise takeaways. 
o Design digital campaign by running PPC, display advertising, SEO, and social media 
campaigns to improve our customers' marketing performance. 
o Create and develop the marketing content for social media campaigns to grow 
awareness in Chinese American Community. Responsible for designing, editing, 
posting/publishing content across all social platforms. 
• "Business Analytics" 20-40% 
o Build in-house contract databases for monitoring the life circles of all our business 
contracts executions. 
o Generate sales report for management and sales team. Identify trends in financial 
performance and provide recommendations for improvement. 
The position is part-time (ranging from 12-35 hours per week) with the Beneficiary reporting to the 
Petitioner's Vice President. The Petitioner states that the minimum qualification for the position is a 
bachelor's degree in computer science, mathematics, statistics, or a related field. 3 
III. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently and 
consistently established the substantive nature of the services in a specialty occupation that the 
Beneficiary would perform during the requested period of employment, which precludes a 
determination of whether the proffered position qualifies as a specialty occupation under sections 
3 The Petitioner's Oct. 7, 2019 response to the request for evidence (RFE) changes the minimum qualifications for the 
position by stating that "we specifically looked for someone with an advanced degree in computer science." While not a 
focus of this decision. the Petitioner's change in the minimum qualifications creates an additional issue regarding the 
Beneficiary's qualifications for the position. The term "advanced degree" is commonly understood to mean a master's or 
doctorate degree. Since the Beneficiary holds a bachelor's degree in computer science, it appears she would not meet the 
Petitioner's minimum qualifications for this position based on the RFE response. 
At minimum. this inconsistency calls into question the reliability of the Petitioner's statements. At most, it constitutes an 
additional (and independent) basis upon which to deny the petition. The Petitioner should be prepared to address this issue 
in any future H-lB filings. 
3 
10l(a)(15)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(i)(A)(l), 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 4 
The Petitioner initially provided a broad overview of the proposed duties of the position that lacked 
sufficient probative detail to ascertain the nature of the position and determine whether the certified 
LCA corresponded to the petition. Thus, on July 15, 2019, the Director issued an RFE for more 
information to determine if the proffered position is a specialty occupation. In response to the RFE, 
the Petitioner provided a significantly different description of the position, which creates additional 
ambiguity in the record concerning the actual, substantive nature of the position. The purpose of an 
RFE is to elicit farther information that clarifies whether eligibility for the benefit sought has been 
established. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, a petitioner cannot offer a new 
position to the Beneficiary, or materially change a position's title, its level of authority within the 
organizational hierarchy, its associated job responsibilities, or the requirements of the position. A 
petitioner must establish that the position offered to a 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'l 
Comm'r 1978). If significant changes are made to the initial request for approval, a petitioner must 
file a new petition rather than seek approval of a petition that is not supported by the facts in the record. 
In the Petitioner's initial letter describing the position, three generic duties (market research, 
marketing, and business analytics) are described, which the Petitioner indicates will take between 80-
120% of the position's time. In the RFE response, the Petitioner added six more duties (search 
algorithm and ranking factors, ecosystem optimization, website analysis and development, market 
study and digital marketing plan, digital customer relationship management and membership metrics 
analysis, and developing a customer contract database and user interface), which are described as 
taking between 85-145% of the position's time. Furthermore, the position's title in the petition and 
initial letter is "market research analyst" whereas in the RFE response, the position's title changes to 
"digital market research analyst," however the Petitioner did not explain this newfound focus on the 
"digital" nature of the position. The Petitioner provided no explanation for the two inconsistent 
descriptions of the position and the record does not contain other evidence demonstrating why the 
position significantly changed at the RFE stage. Further, the appearance of industry terms such as 
"ecosystem optimization," "search algorithm and ranking factors," "digital customer relationship 
management and membership metrics analysis," and "customer contract database and user interface," 
for the first time in the Petitioner's RFE response raises concerns regarding the substantive nature of 
the position. Without a proper context to understand the additional duties, it appears the Petitioner 
may have added these industry terms to make the position seem more complex and in line with the 
industry standard, yet the record as constituted, does not reflect that the additional duties represent the 
genuine, substantive nature of the position. In sum, because the Petitioner did not provide any 
explanation for the two significantly different descriptions of the position, and the initial duties are 
vague and generic, we are unable to ascertain the true, substantive nature of the position. 
That the Petitioner's two descriptions of the position contain duties that appear outside the scope of 
the Petitioner's business operations raises additional questions as to the actual, substantive nature of 
4 The Petitioner submitted documentation to suppmt the H-lB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
4 
the position. In the Petitioner's initial letter, the position is said to be used to offer the Petitioner's 
"advertisement customers various digital and internet advertisement packages." However, based upon 
our understanding of the scope of the Petitioner's business, we are unclear as to where the duty of 
"building an in-house contract database for monitoring the life circles of its business contract 
executions" would fit. Similarly, the generation of sales reports for the Petitioner's management and 
sales teams does not appear to be connected to the goal of supporting the Petitioner's advertising 
customers. In addition, identifying trends in financial performance and providing recommendations 
for improvement is a vaguely worded duty even when considered within the scope of the Petitioner's 
operations. 5 We cannot sufficiently identify the actual work involved from this broad statement. 
In the RFE response, the Petitioner described the scope of the position differently, stating that the 
position "will not only help [it] to promote itself: its car donation programs, membership/registered 
viewer programs" but "also to help [the Petitioner's] underwriters/commercial clients to digitally 
market their products and services." With this description, the Petitioner changed the focus and scope 
of the position from one that provides generic market research analyst services to one that is focused 
on improving the Petitioner's clients/customers' performance in the digital marketplace. Without a 
clear description of the position's duties and how the position would operate within the Petitioner's 
business operations, we are unable to ascertain the substantive nature of the proffered position. 
The RFE response also does not appear to support the Petitioner's designation of the occupation on 
the certified LCA. 6 If the initial description of the position's duties accurately reflects the proffered 
position, then it is possible that the Petitioner designated the correct SOC code (13-1161) on the LCA, 
corresponding to the occupational title "Market Research Analysts and Marketing Specialists." 
However, if our analysis is based on the duties included in the Petitioner's RFE response, the Petitioner 
has not established, by a preponderance of the evidence, that the proffered position's duties correspond 
to those located within SOC code 13-1161, the occupational code designated on the certified LCA. 7 
According to the Occupational Information Network (O*NET) job description, positions located 
within the "Market Research Analysts and Marketing Specialists" occupational category, SOC code 
13-1161, include tasks that are primarily focused on researching market conditions or gathering 
information to determine potential sales of a product or service, or creating a marketing campaign. 
5 For instance, we question for whom the Beneficiary is identifying trends (the Petitioner or its customers), and to whom 
she would be providing recommendations. The record does not explain for whom the Beneficiary is performing this duty. 
6 The LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C. § l 182(n)(l). See Labor 
Condition Applications and Requirements for Employers Using Nonimmigrants on H-IB Visas in Specialty Occupations 
and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United States, 65 Fed. 
Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage 
protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring 
temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] with 
[DOL ]."). According to section 2 l 2(n)( I )(A) of the Act, an employer must attest that it will pay a holder of an H-1 B visa 
the higher of the prevailing wage in the "area of employment" or the amount paid to other employees with similar 
experience and qualifications who are performing the same services. See, 20 C.F.R. § 655.73 l(a); Venkatraman v. REI 
Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 2005); Patel v. Boghra, 369 F. App'x 722,723 (7th Cir. 2010); Michal 
Vojtisek-Lom & Adm 'r Wage & Hour Div. v. Clean Air Tech. Int'/, Inc., No. 07-97, 2009 WL 2371236, at 8 (Dep't of 
Labor Admin. Rev. Bd. July 30, 2009). 
7 Moreover, we find the inconsistency troubling in and of itself in that it leads us to question the overall credibility of the 
Petitioner's assertions regarding the substantive nature of the position. 
5 
The DOL' s "Prevailing Wage Determination Policy Guidance" 8 (DOL guidance) explains that a job's 
SOC code is identified by selecting the O*NET job description "that most closely matches the 
employer's request" from a list of similar occupations. Here, if the RFE description of the position's 
duties is accurate, then it appears that the duties would be properly classified under the "Search 
Marketing Strategists" occupation (SOC code 15-1199 .10), which more closely aligns with the 
Petitioner's description of the proffered position. 9 Thus, the inconsistent descriptions in the record 
generate significant uncertainty regarding the substantive nature of the position and whether the 
Petitioner properly designated the occupation on the LCA. Without clarifying information regarding 
the focus of the position within the Petitioner's business operations, we cannot conclude that the 
proposed position is a "Market Research Analysts and Specialists" occupation as designated on the 
LCA which, in tum, raises questions as to its actual, substantive nature. 
We point out that even if the particular position proffered here incorporates tasks that fall within more 
than one occupational category (i.e., "Market Research Analysts and Specialists," and "Search 
Marketing Strategists," as it appears from the RFE description), the DOL's guidance states that the 
employer "should default directly to the relevant O*NET-SOC code for the highest paying 
occupation." At the time the Petitioner's LCA was certified, the Level I prevailing wage for "Market 
Research Analysts and Specialists" in the area of intended employment was $27.48 per hour, 10 which 
is significantly lower than the prevailing wage for "Search Marketing Strategists" which was $33. 73 
per hour. 11 Thus, the highest paying occupation, for the proposed position would be the "Search 
Marketing Strategist" occupation and should have been so designated on the LCA. Here, the 
Petitioner's revision to the proposed duties is not only a material change likely requiring a new 
petition, the revision also demonstrates that the certified LCA likely does not support the petition. 
There are additional concerns related to the position's minimum qualifications that also suggest the 
wage level on the LCA is inaccurate and that therefore, the LCA likely does not correspond to the 
petition. As stated above, the Petitioner designated the position at a Level I prevailing wage on the 
LCA. Under the DOL's guidance, which provides a five-step process for determining the appropriate 
wage level for LCAs, 12 step four focuses on "Special Skills and Other Requirements." 13 Here, a 
review of the tasks, work activities, knowledge, and job zone examples in the O*NET report for 
"Market Research Analysts and Marketing Specialists" does not reveal any foreign language-related 
8 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009); http://flcdatacenter.com/download/NPWHC_Guidance_Revised_l 1_2009.pdf 
9 O*NET describes that a "Search Marketing Strategist" focuses on researching and deploying marketing tactics in a digital 
environment and also analyzes "research, data, or technology to understand user intent and measure outcomes for ongoing 
optimization." See https://www.onetonline.org/link/summaiy/15-l 199.10 (last visited Dec. 31, 2020). These duties closely 
mirror the Petitioner's RFE duties. 
10 See Foreign Labor Certification Data Center Online Wage Libra1y at 
https://www.flcdatacenter.com/OesQuickResults.aspx?code= 13-1161 &area9vear=ll 9&source= 1. 
11 Id. at https://www.t1cdatacenter.com/OesQuickResults.aspx?code=l 5-1199&area &year=l 9&source=l. 
12 Prevailing Wage Determination Policy Guidance, supra. 
13 Step 4 provides the following instructions, "[i]n situations where the employer's requirements are not listed in the O*NET 
[Occupational Tnfonnation Network] Tasks, Work Activities, Knowledge, and Job Zone Examples for the selected 
occupation, then the requirements should be evaluated to determine if they represent special skills." If the skills required 
for the job are generally encompassed by the O*NET position description, no wage level point should be added to the 
prevailing wage rate. The guidance continues "[h ]owever, if it is determined that the requirements are indicators of skills 
that are beyond those of an entry level worker, consider whether a point should be entered on the worksheet in the Wage 
Level Column." 
6 
aspects. 14 However, the record suggests that the proffered position could only be performed by an 
individual with foreign language fluency. The job duty requiring the Beneficiary to create and develop 
the marketing content for social media campaigns to grow awareness in the Chinese-American 
community reflects the Petitioner's immersion in the Chinese-American market and would appear to 
include a need for Chinese fluency to carry out the duty. Furthermore, on appeal, the Petitioner states 
that the Beneficiary will "build bilanguage sites for clients." Moreover, the Petitioner states that in 
addition to her educational background, the Beneficiary qualifies for the position because of her 
fluency in Chinese and how well she relates to the Chinese American community. 15 As a result, it 
appears more likely than not that the Petitioner should also have increased the wage level on the LCA 
due to a foreign language requirement in its position. 
Additionally, the Petitioner describes duties related to web development which fall outside the tasks 
described in the O*NET report for "Market Research Analysts and Marketing Specialists" 13-1161. 
In its RFE response, the Petitioner describes that 20-30% of the position will be spent in website 
analysis and development. If that is the case, then the combination of the foreign language requirement 
and the duties related to website analysis and development would necessitate two wage level increases 
under the DOL's guidance. 
For all of these reasons the record as it currently stands does not establish that the LCA corresponds 
to and supports the H-lB petition, which in tum raises yet more questions as to the actual, substantive 
nature of the position. 
The lack of detail in the position description, the inconsistencies in the record regarding the proposed 
duties, and the ambiguity regarding the occupational classification and wage level cloud the record on 
the substantive nature of the position. We consequently cannot find that the proffered position satisfies 
any criterion a 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for the particular position, which is the focus 
of criterion 1; (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 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong of 
criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, when 
that is an issue under criterion 3; and ( 5) the degree of specialization and complexity of the specific duties, 
which is the focus of criterion 4. 16 
14 O*NET summary report for: 13-1161.00 - Market Research Analysts and Marketing Specialists, O*NET Online, 
https://www.onetonline.org/link/summary/13-l 161.00 (last visited Dec. 31, 2020). Similarly, the O*NET summary report 
for "Search Marketing Strategists" does not include a foreign language requirement as a typical task. See 
https://www.onetonline.org/link/summary/15-l l 99.10 (last visited Dec. 31, 2020). 
15 This information is found in the Petitioner's initial letter in support of the petition. 
16 Even if the proffered position's substantive nature had been established to the point that we could proceed to an analysis 
under the regulatory specialty-occupation criteria set forth at 8 C.F.R. § 214.2(h)(4)(iii)(A), the petition would likely still 
not be approved. In particular, we take note of certain evidence the Petitioner submitted for consideration under 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3). which involves an examination of the recruiting and hiring requirements by "similar 
organizations" for "parallel positions." According to the Petitioner's evidence, many of these organizations recruit 
candidates with a bachelor's in business, or business administration, with no further specialization, for such "parallel 
positions." 
However, if an individual with a bachelor's degree in business, or business administration, can perform the duties of a 
7 
IV. CONCLUSION 
Upon review of the totality of the evidence submitted, the Petitioner has not established that more 
likely than not, the Beneficiary will provide services in a specialty occupation under any of the criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A). Nor does the record currently establish that the LCA corresponds to 
and supports the H-1 B petition. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
position, the position is likely not a specialty occupation. USCTS has consistently stated that, although a general-purpose 
bachelor's degree, such as a degree in business, may be a legitimate prerequisite for a particular position, requiring such a 
degree, without more. will not justify a conclusion that a paiticular position qualifies for classification as a specialty 
occupation. Royal Siam Co1p .. 484 F.3d at 147. See also Vision Builders, LLC v. USC1S, No. 19-3159, 20 WL 5891546. 
at *4 (D.D.C. Oct. 5, 2020). 
8