dismissed H-1B Case: Mobile Game Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 9531033 
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 : WL Y 29, 2020 
The Petitioner, a mobile game applications developer , seeks to temporarily employ the Beneficiary as 
an "associate product manager" under the H-1 B nonimmigrant classification for specialty occupations . 
See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C . 
§ l 10l(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 Vermont Service Center denied the petition, concluding that the evidence of record 
does not establish that the proffered position qualifies as a specialty occupation. The matter is now 
before us on appeal. 
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 I&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 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: 
( 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 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"). 
II. THE PROFFERED POSITION 
The Petitioner seeks to employ the Beneficiary as an "associate product manager." In a letter 
submitted in support of the petition, the Petitioner described the duties and responsibilities of the 
proffered position as follows: 
• Owning the analysis, product roadmap, and merchandising of virtual goods; 
• Responsible for driving financial results; 
• Coordinating and collaborating with multiple teams, resources, and timeline to 
create engaging and profitable content; 
• Writing clear and concise specifications, and both wireframe and designing new 
features; 
• Analyzing key success metrics and rigorously test and optimize for them; 
• Analyzing mobile game performance against key KPI metrics using SCDL and 
Excel to drive insights; 
• Designing player level and progression system by modeling the potential impact on 
game economy and experience; and 
• Optimizing in-game digital goods store merchandising and pricing strategy to drive 
revenue mcrease. 
The Petitioner stated that the position requires "a bachelor's degree or equivalent experience in 
Engineering (any), or a related field of study." 
In its response to the Director's request for evidence (RFE), the Petitioner expanded on these duties 
and indicated the percentages of time the Beneficiary would devote to each duty. For the sake of 
brevity, we will not quote the expanded version of the duties provided in the RFE response; however, 
we have closely reviewed and considered them. 
2 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons discussed below, we have determined that 
the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 1 
Specifically, we conclude that the record does not establish that the job duties require an educational 
background, or its equivalent, commensurate with a specialty occupation." 2 
A. First Criterion 
We tum first 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. To inform this inquiry, we will consider the information contained 
in the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the 
duties and educational requirements of the wide variety of occupations it addresses. 3 
In the labor condition application (LCA), the Petitioner classified the proffered position under the 
occupational title Market Research Analysts and Marketing Specialists, corresponding to the Standard 
Occupational Classification (SOC) code 13-1161. 4 Under this criterion, the Petitioner addresses the 
Handbook entry for this occupation. The Handbook reports that market research analysts have degrees 
and backgrounds in a wide-variety of disparate fields. The Handbook identifies various courses as 
essential to this occupation, including statistics, research methods, and marketing, and further explains 
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 may 
need an advanced degree, particularly for "leadership positions or positions that perform more 
technical research," it also indicates that degrees and backgrounds in various fields are acceptable for 
jobs in this occupation - including computer science and the social sciences, as well as statistics and 
communications. 5 
1 The Petitioner submitted documentation to suppmt the H-1 B 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. 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 All of our references to the Handbook may be accessed at the Internet site http://www.bls.gov/ooh/. We consider the 
information in the Handbook regarding the duties and educational requirements of the wide variety of occupations that it 
addresses. We do not, however, maintain that the Handbook is the exclusive source ofrelevant 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 we regularly review the Handbook on the duties and educational requirements 
of the wide variety of occupations that it addresses. However, the burden of proof remains on the Petitioner to submit 
sufficient evidence to establish that the proffered position qualifies as a specialty occupation. 
4 A petitioner submits the LCA to the Department of Labor (DOL) to demonstrate that it will pay an H-lB worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.73l(a). 
5 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 2 l 4(i)( I )(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 c01Telation 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 
3 
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 "[ o ]thers have backgrounds 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. Royal Siam Corp., 484 F .3d at 14 7. Therefore, the Handbook's recognition that 
a general, non-specialty "background" in business administration, or one of a number of other fields, 
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. The Handbook, therefore, 
does not support the assertion that at least a bachelor's degree in a specific specialty, or its equivalent, 
is normally the minimum requirement for these positions. 
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 Professional Researcher Certification (PRC), and states that 
candidates qualify based upon their experience and knowledge. According to the Handbook, the PRC 
is granted by the Marketing Research Association, now known as the Insights Association, 6 to those 
who pass an exam, have at least three years of experience working in opinion and market research, 
and complete 12 hours of industry-related education courses. 7 
We reviewed the Insights Association's website, which confirms the Handbook's statement regarding 
the requirements for the PRC (i.e., passage of an exam, three years of relevant industry experience, 
and 12 hours of industry-related education), and further specifies that the "education" necessary to 
apply for PRC is "12 industry-related education hours within the two preceding years." The website 
includes information regarding "How to Enter the Industry" which lists a variety of possible degrees, 
such as business administration, liberal arts, statistics/math, qualitative analysts, computer science, 
social science, and communications, and a variety of "helpful skills," including "attention to detail," 
"presentation skills," 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, the Insights Association's website highlights the importance of professional 
experience and industry-related professional courses (through conferences, seminars, and webinars). 
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. Section 214(i)(l )(B) of the Act ( emphasis added). 
Whether read with the statutory "the" or the regulatory "a," both readings denote a singular "specialty." Section 
214(i)(l)(B) of the 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. 
6 The Marketing Research Association merged with the Council of American Survey Research Organizations in 2017 to 
become the Insights Association. See http://www.insightsassociation.org/about (last visited July 27, 2020). The Insights 
Association is therefore the successor to the Marketing Research Association. 
7 The Insights Association website states that it "strives to effectively represent, advance, and grow the research profession 
and industry." For additional information. see http://www.insightsassociation.org/about (last visited July 27, 2020). 
4 
Consequently, neither the Handbook nor the Insights Association website support the assertion that at 
least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum requirement 
for these positions. 
On appeal, the Petitioner cites Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 
2012) and states that the courts have "rejected the notion that an offered position cannot qualify as a 
specialty occupation" when the Handbook "provides that a multiple field of study are accepted." The 
court in Residential Finance stated that "[t]he knowledge and not the title of the degree is what is 
important" with which we agree. However, 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 engineering and business, 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. Section 214(i)(l)(B) of the Act (emphasis added). 8 For the aforementioned 
reasons, however, the Petitioner has not met its burden to establish that the particular position offered 
in this matter requires a bachelor's or higher degree in a specific specialty, or its equivalent, directly 
related to its duties in order to perform those tasks. 
In any event, the Petitioner has famished no evidence to establish that the facts of the instant petition 
are analogous to those in Residential Finance. 9 We are not bound to follow the published decision of 
a United States district court in matters arising even within the same district. See K-S-, 20 I&N Dec. 
at 719-20. It is also important to note that in a subsequent case reviewed in the same jurisdiction, the 
court agreed with our analysis of Residential Finance. See Health Carousel, LLC v. USCIS, No. 1: 13-
CV-23, 2014 WL 29591 (S.D. Ohio 2014). 
In response to the RFE, the Petitioner also submitted DOL's Occupational Information Network 
(O*NET) summary report for "Market Research Analysts and Marketing Specialists" listed as SOC 
code 13-1161.00 for consideration under this criterion. Though relevant, the information the 
Petitioner submits from O*NET does not establish the Petitioner's eligibility under the first criterion, 
as it does not establish that a bachelor's degree in a spec[fic specialty, or the equivalent, is normally 
required. The O*NET Summary Report provides general information regarding the occupation, but 
it does not support a conclusion that the proffered position requires a bachelor's degree in a specific 
specialty, or the equivalent. Instead, O*NET assigns these positions a "Job Zone Four" rating, which 
states "most of these occupations require a four-year bachelor's degree, but some do not." Moreover, 
8 The court in Residential Finance did not eliminate the statutory ·'bachelor's or higher degree in the specific specialty" 
language imposed by Congress. Rather, it found that the petitioner in that case had satisfied the requirement. 
9 The district judge's decision appears to have been based largely on the many factual errors made by the Director in the 
decision denying the petition. We further note that the Director's decision was not appealed to us. Based on the district 
court's findings and description of the record, if that matter had first been appealed through the available administrative 
process, we may very well have remanded the matter to the service center for a new decision for many of the same reasons 
articulated by the district court if these errors could not have been remedied by us in our de novo review of the matter. 
5 
the Job Zone Four designation does not indicate that any academic credentials for Job Zone Four 
occupations must be directly related to the duties performed. In addition, the specialized vocational 
preparation (SVP) rating designates this occupation as 7 < 8. An SVP rating of 7 to less than ("<") 8 
indicates that the occupation requires "over 2 years up to and including 4 years" of training. While 
the SVP rating indicates the total number of years of vocational preparation required for a particular 
position, it is important to note that it does not describe how those years are to be divided among 
training, experience, and formal education. The SVP rating also does not specify the particular type 
of degree, if any, that a position would require. 10 
Further, we note that the summary report provides the educational requirements of "respondents." 
However, the respondents' positions within the occupation are not distinguished by career level (e.g., 
entry-level, mid-level, senior-level). Additionally, the graph in the summary report does not indicate 
that the "education level" for the respondents must be in a specific specialty. 11 A requirement for a 
bachelor's degree alone is not sufficient. Instead, as we noted, 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., 484 F.3d at 147 (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). O*NET, therefore, also does not support the assertion that at least a bachelor's degree in 
a specific specialty, or its equivalent, is normally the minimum requirement for these positions. 
The record lacks sufficient evidence to support a finding that the proffered position is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. For the aforementioned reasons, the Petitioner has not met its burden to 
establish that the particular position offered in this matter requires a bachelor's or higher degree in a 
specific specialty, or its equivalent, directly related to its duties in order to perform those tasks. Thus, 
the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]). 
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 contemplates 
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. 
1° For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/ 
help/online/svp. 
11 Nor is it apparent whether these credentials were prerequisites to these individuals' hiring. 
6 
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 noted, the Handbook does not indicate that a bachelor's degree in a specific specialty is a common 
requirement within the industry for parallel positions among similar organizations. In support of this 
criterion, the Petitioner submitted copies of three job announcements placed by other employers. 
Upon review of the documents, we conclude that the Petitioner's reliance on the job announcements 
is misplaced. We will first consider whether the advertised job opportunities could be considered 
"parallel positions." We note that the Petitioner did not state that the proffered position requires any 
experience in addition to a bachelor's degree in a specific specialty. However, the advertised positions 
list specific experience requirements, such as experience in social media marketing, data mining and 
analytics, in addition to the degree requirement. Further, the advertisements do not include sufficient 
information about the duties and responsibilities for the announced positions. Thus, it is not possible 
to determine important aspects of the jobs, such as the specific responsibilities, complexity of the job 
duties, supervisory duties (if any), and independent judgment required or the amount of supervision 
received. Therefore, the Petitioner has not sufficiently established that the primary duties and 
responsibilities of the advertised positions parallel those of the proffered position. 
In addition, the advertised position by Niantic lists a bachelor's degree in business administration as 
one of the acceptable degrees. As we noted earlier, the requirement of a bachelor's degree in business 
administration is inadequate to establish that a position qualifies as a specialty occupation. 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 administration, 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). 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 conclusion that a particular position qualifies for 
classification as a specialty occupation. Royal Siam Corp., 484 F.3d at 147. Overall, the job postings 
suggest, at best, that although a bachelor's degree is sometimes required for these positions, a 
bachelor's degree in a spec[fic specialty ( or its equivalent) is not. 12 
12 It must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a specific 
specialty is common to the industry in parallel positions among similar organizations (which they do not), the Petitioner 
has not demonstrated what statistically valid inferences, if any, can be drawn from the 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). 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 if the 
sampling unit were sufficiently large. See id. at 195-196 (explaining that "[r]andom selection is the 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"). 
7 
Moreover, the record does not contain documentary evidence sufficient to establish that these job 
vacancy announcements were placed by companies that (1) conduct business in the Petitioner's 
industry and (2) are also "similar" to the Petitioner. In fact, none of the advertisements provide 
sufficient information regarding the hiring employers and the Petitioner did not supplement the record 
of proceedings to establish that these advertising organizations are similar to it. The language of the 
regulation is clear and when determining whether the job vacancy announcements are relevant for 
consideration, the Petitioner must show that they are "similar" organizations. When determining 
whether the Petitioner and another 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 ofrevenue 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 basis for the assertion. 
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 postings is not 
necessary. 13 That is, not every deficit of every job posting has been addressed. 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's degree 
in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar 
organizations. Thus, the Petitioner has not satisfied the first alternative prong of 8 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. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the Petitioner 
described the proffered position and its business operations. However, the Petitioner has not 
sufficiently developed relative complexity or uniqueness as an aspect of the proffered position. In 
other words, the Petitioner has not demonstrated how the duties of the proffered position 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 example, the Petitioner stated that the Beneficiary will spend 20 percent of his time in"[ m ]anaging 
user experience designer, software engineers and quality assurance staff to design multiple 
prototypes," 10 percent of his time "[w]orking closely with marketing teams to develop a strategy," 
and another 20 percent of his time in "[ m ]anaging user experience designers, software engineers and 
quality assurance staff to design, implement and test product features." However, the record contains 
insufficient information regarding the Petitioner's business operations that would delineate its 
13 The Petitioner did not provide any independent evidence of how representative the job postings 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. 
8 
organization, and the Beneficiary's position within its overall organizational hierarchy. The Petitioner 
did not submit an organizational chart demonstrating various departments or teams within its 
organization with which the Beneficiary will be interacting. Therefore, the extent of his duties cannot 
be determined. The evidence does not show the operational structure within the Petitioner's business 
operations in a manner that would establish the Beneficiary's relative role therein. The Petitioner has 
not adequately evidenced the scope of the Beneficiary's responsibilities within the context of its 
business operations. 
Moreover, the record does not contain a sufficiently detailed description of the Beneficiary's duties to 
establish that the position 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, 
or its equivalent. For example, the Petitioner does not specify and explain in detail what the 
Beneficiary's collaborative duties entail. Duties such as "working closely with marketing teams," 
"managing user experience designer, software engineers and quality assurance staff:" and "manage a 
fast paced bi-weekly delivery cycle using Agile methodologies for software development" do not 
illuminate the substantive application of knowledge involved or any particular educational 
requirement associated with such duties. 
The Petitioner further states that the Beneficiary's duties will include [c]onducting user tests, 
interviews, surveys and manage focus group sessions to gather feedback," but does not explain which 
testing techniques the Beneficiary will use, what types of interview and survey methodologies he will 
utilize and what exactly managing focus groups entails. Nor does it explain the frequency of these 
tests, interviews, surveys, and focus group activities. Furthermore, the Petitioner does not explain in 
detail how the Beneficiary will utilize the information obtained through these activities and why these 
duties would require a bachelor's degree, or the equivalent, in a specific specialty. 
Duties as described do not illuminate the substantive application of knowledge involved or any 
particular educational requirement associated with such duties. With the broadly described duties, the 
record lacks sufficient information to understand the nature of the actual proffered position and to 
determine that the duties require the theoretical and practical application of a body of highly 
specialized knowledge attained by a bachelor's degree, or higher, in a specific discipline. 
With its RFE response, the Petitioner submitted documents that it described as "work products and 
projects [the Beneficiary] has previously provided services for in the capacity of Associate Product 
Manager." 14 These documents include a presentation entitled 1 !Analytics Presentation" and a 
"spec template" document entitled "PvP-Centered Progression." However, these documents do not 
provide insight into the Beneficiary's specific duties. It is not clear who authored the presentation or 
the template, and the extent of the Beneficiary's involvement with these documents cannot be 
determined. For example, the comments on the template document are numbered but they do not 
identify the authors of the comments by name. Furthermore, one of the comments indicates that a task 
was assigned to the Beneficiary. 15 However, the comment provides very little insight into the 
Beneficiary's specific duty associated with such assignment or that such assignment requires the 
theoretical and practical application of a body of highly specialized knowledge attained by a bachelor's 
14 See Exhibit B of the Petitioner's RFE response. 
15 See "Comment 3" on the template document. 
9 
degree, or higher, in a specific discipline. These documents have little probative value in establishing 
the actual work to be performed by the Beneficiary and that the proffered position is a specialty 
occupation. 
The Petitioner also discussed the Beneficiary's previous coursework for the purpose of correlating the 
need for the Beneficiary's education with the associated job duties of the position. While a few related 
courses and skills may be beneficial in performing certain duties of the position, the Petitioner has not 
demonstrated how an established curriculum 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 proffered 
position. The Petitioner repeatedly claims that the Beneficiary is well qualified for the position and 
references his 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. We are required to follow long-standing 
legal standards and determine first, whether the proffered position qualifies for classification as a 
specialty occupation, and second, whether the Beneficiary was qualified for the position at the time 
the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. at 560 
('The facts of a beneficiary's background only come at issue after it is found that the position in which 
the petitioner intends to employ him falls within [a specialty occupation]."). 
The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the 
position. 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. 
On appeal, the Petitioner asserts that its job announcements submitted in response to the RFE 
demonstrates that it "normally requires a specialized degree or its equivalent for the position." The 
record contains two job announcements placed by the Petitioner - one for an "associate growth 
marketing manager" and the other for a "product manager." The announcements state that the 
positions require a "Bachelor's degree" and "ideally in a quantitative discipline (CS, Engineering, 
Math, Econ, etc.)," which suggests that while the Petitioner requires a bachelor's degree, a degree in 
a quantitative filed is a preference. A preference for a degree in a field is not necessarily an indication 
of a minimum requirement. Overall, the job postings suggest, at best, that although the Petitioner 
requires a bachelor's degree for these positions, it does not require a bachelor's degree in a spec[fic 
specialty ( or its equivalent). 
Moreover, the Petitioner did not provide any independent evidence of how representative the job 
postings are of its recruiting history. As the advertisements are only solicitations for hire, they are not 
evidence of the Petitioner's actual hiring practices. 
Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
10 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner 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. 
For reasons we discussed under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), we conclude that 
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). We incorporate our earlier 
discussion and analysis on this matter. 
Consequently, the Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
ORDER: The appeal is dismissed. 
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