dismissed H-1B Case: Natural Stone Distribution

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF MSI-, INC. DATE: JAN. 19,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a distributor and importer of natural stone, . seeks to temporarily employ the 
Beneficiary as a "management analyst" under the H-lB nonimmigrant classification. See 
Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The Director, California Service Center, denied the petition. The matter is now before us on appeal. 
The appeal will be dismissed. 
I. ISSUE 
The issue before us is whether the proffered position qualifies as a specialty occupation m 
accordance with the applicable statutory and regulatory provisions. 1 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
For an H-1B petition to be granted, the Petitioner must provide sufficient evidence to establish that it 
will employ the Beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the Petitioner must establish that the employment it is offering to the Beneficiary meets the 
applicable statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
1 We reviewed the record in its entirety before issuing our decision. We conduct appellate review on a de novo 
basis. Matter ofSimeio Solutions, LLC, 26 l&N Dec. 542 (AAO 2015); see also 5 U.S.C. § 557(b) ("On appeal from or 
review of the initial decision, the agency has all the powers which it would have in making the initial decision except as 
it may limit the issues on notice or by rule."); Dor v. INS, 891 F.2d 997, 1002 n.9 (2d Cir. 1989). We follow the 
preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 201 0). 
Matter of MSI-, Inc. 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(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 a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)( 4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. And Loan Ins. Corp., 489 U.S. 561 (1989); Matter of 
W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 387. To avoid this result, 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that must be met in 
accordance with, and not as alternatives to, the statutory and regulatory definitions of specialty 
occupation. 
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Matter of MSI-, Inc. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-lB petitions for qualified foreign 
nationals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions; for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position 's title. The 
specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the foreign national, and determine whether the position qualifies as a 
specialty occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not 
the title of the position nor an employer's self-imposed standards, but whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Proffered Position 
In its support letter, the Petitioner provided the following information regarding the duties of the 
proffered position (verbatim): 
• Provide industrial solutions, documentation and development/design of 
management process and projects; 
• Analyze recent research on market conditions as well as customer information & 
projects; 
• Review & analyze annual contract deliverables, determining and recommending 
project staffing and support levels; 
• Identify critical schedules, potential shortfalls and avoiding underutilization of 
key personnel and resources; 
• Coordinate client service activities with product development and releasing 
schedules as well as coordinating with 6 branch offices (in 
~ ; 
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(b)(6)
Matter of MSI-, Inc. 
• Collect and analyze statistical productivity and performance measurement data 
and converting into relevant meaningful reports of distribution; 
• Oversee various improvement and strategic system projects of a highly complex 
environment; Monitor financial and operational performance of departments and 
perform analysis to identify trends and answer specific questions; 
• Develop and conduct continuous quality improvement training, data analysis and 
process improvement methodology ; 
• Monitor and maintain optimum levels of inventory as well as prepare financial 
data, and reports; 
• Implement approved staff development plans and provide recommendations to 
enhance effectiveness; 
• Advance the organization's ability to meet and exceed key strategic initiatives; 
• Develop and implement technologies impacting optimum organizational 
performance. 
The Petitioner stated that the management analyst position requires at a minimum a "Bachelor's 
degree in Business Administration, Management Studies, or another closely related field." 
In response to the Director's RFE, the Petitioner described the duties of the proffered position as 
follows (verbatim): 
1. Provide industrial solutions, documentation and development/design of 
management process and projects by analyzing and collecting statistical product 
performance data from domestic and international branches, and providing reports 
and recommendations which help benefit growth; 15% of work week to 
be spent, Approx 6-7 Hours per week 
n. Analyze recent research on market conditions as well as customer information & 
project results by providing analysis to help position its managerial staff to 
obtain the most benefit of gains to the business while researching and studying 
market and economic conditions and provide recommendations to the upper 
management in purchasing and sales departments and to facilitate critical business 
decision making; 5% Of work week to be spent approximately 2-3 Hours per 
week 
111. Review & analyze employees returns on annual deliverables and perform 
presentations related to demographic and geographic based sales and marketing 
data of top employees determine which products through progress graphs 
and inter-relational charts for management's review, determine and recommend 
project staffing and support levels utilizing principles of computational data 
modeling and interpretation for performing economic analysis of various product 
lines and for management of effective inventory control in order to minimize 
waste; 5% Of work week to be spent approximately 2-3 Hours per week 
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Matter of MSI-, Inc. 
IV. Identify critical schedules, potential shortfalls and avoiding underutilization of 
key personnel and resources by gathering and analyzing sale trends, customer 
satisfaction, and client interests, and presenting all the collected data analyzing 
statistical productivity and performance measurement data and converting into 
relevant meaningful reports of distribution; 15% of work week to be spent, 
Approx 6-7 Hours per week 
v. Coordinate client service activities with product development and releasing 
schedules as well as coordinating with 6 branch offices (in 
1 while working with branch HR Managers 
and department managers to further develop the organization structure, work 
design, and development paths and continue to work with HR to evaluate and 
implement wage and salary program to insure their competitiveness. 15% of 
work week to be spent, Approx 6-7 Hours per week 
v1. Oversee various improvement and strategic system projects of a highly complex 
environment by conducting research and analytical studies on a variety of 
business development and related initiatives and Issues; formulate 
recommendations and prepare reports summanzmg analyses and 
recommendations needed to monitor financial and operational performance of 
departments and perform analysis to identify trends and answer specific 
questions; Develop and conduct continuous quality improvement training, data 
analysis and process improvement methodology; 10% of work week to be spent, 
Approx. 4-5 Hours per week 
VII. Implement approved staff development plans and provide recommendations to 
enhance effectiveness by researching resources using statistics and mathematical 
data modeling and analysis for improving optimum productivity; Study and 
analyze enterprise wide performance levels and identify factors resulting in excess 
overhead costs and subsequently implement strategies to minimize resulting costs; 
10% of work week to be spent,Approx. 4-5 Hours per week 
vm . Advance the organization's ability to meet and exceed key strategic initiatives; 
Develop and implement technologies impacting optimum organizational 
performance. Assure that the company philosophy; quality services to clients; 
development, growth, involvement and recognition of employees; recommend 
and maintain policies for the security of the systems; lead and participate in 
improvements, which enhance our support of diversity; analyze existing and 
develop new company and facility policies and follow up to ensure consistent 
application ; 15% of work week to be spent, Approx 6-7 Hours per week 
IX. Lead the perfmmance , development, and delivery of business management 
solutions; assess business and mission challenges and recommend detailed, 
actionable solutions; responsible for collecting, analyzing, collaborating, 
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Matter of MSI-, Inc. 
summanzmg, and where necessary, challenging demand figures for assigned 
products; communicate and act on supply and demand alerts as well as key 
operational metrics to support achievement of business plan; 10% of work week 
to be spent, Approx. 4-5 Hours per week 
The Labor Condition Application (LCA) submitted by the Petitioner in support of the petition was 
certified for use with a job prospect within the "Management Analysts" occupational classification, 
SOC (O*NET/OES) Code 13-1111, and a Level I (entry-level) prevailing wage rate, the lowest of 
the four assignable wage-levels. 
C. Analysis 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We recognize the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook (the 
Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
of occupations it addresses. 2 As noted above, the LCA that the petitioner submitted in support of 
this petition was certified for a job offer falling within the "Management Analysts" occupational 
category. 
The Handbook states the following with regard to the educational requirements necessary for 
entrance into this field: 
2 
Most management analysts have at least a bachelor's degree. The Certified 
Management Consultant (CMC) designation may improve job prospects. 
Education 
A bachelor's degree is the typical entry-level requirement for management analysts. 
However, some employers prefer to hire candidates who have a master's degree in 
business administration (MBA). 
Few colleges and universities offer formal programs in management consulting. 
However, many fields of study provide a suitable education because of the range of 
areas that management analysts address. Common fields of study include business, 
management, economics, political science and government, accounting, finance, 
marketing, psychology, computer and information science, and English. 
The Handbook, which is available in printed form, may also be accessed online at 
http://www.bls.gov/ooh/. Our references to the Handbook are from the 2016-17 edition available online. 
6 
Matter of MSI-, Inc. 
Analysts also routinely attend conferences to stay up to date on current developments 
in their field. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Management Analysts," available at http://www. bls.gov/ ooh/business-and- financial/management­
analysts.htm#tab-4 (last visited Jan. 13, 2016). 
The Handbook does not state a normal minimum requirement of a U.S. bachelor's or higher degree 
in a specific specialty or its equivalent for entry into this occupational category; rather the Handbook 
indicates at most that a bachelor's or higher degree may be a common preference, and that the degree 
preference may be fulfilled by degrees from disparate fields3, including a general degree, such as a 
degree in business. 4 See id. The requirement of a bachelor's degree in business 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, 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)(l) 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, USCIS interprets 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. USCIS has 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, 
3 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 psychology and accounting, 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). In other words, while the statutory "the" 
and the regulatory "a" both denote a singular "specialty," 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. See section 214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). As·just stated, 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. 
4 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty 
occupation. In either case, it must be demonstrated 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. See Royal Siam Corp. v. Chertoff, 484 F.3d 
at 147. 
7 
Matter of MSI-, Inc. 
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. v. Chertojf, 484 F.3d 139, 147 (1st 
Cir. 2007). Therefore, the Handbook's recognition that a general, non-specialty "background" in 
business is sufficient for entry into the occupation strongly suggests that a bachelor's degree in a 
specific specialty is not a normal, minimum entry requirement for this occupation. Accordingly, as 
the Handbook indicates that working as a management analyst does not normally require at least a 
bachelor's degree in a specific specialty or its equivalent for entry into the occupation, it does not 
support the proffered position as being a specialty occupation. 
When, as here, the Handbook does not support the proposition that the proffered position satisfies 
this first criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A), it is incumbent upon the Petitioner to provide 
persuasive evidence that the proffered position otherwise satisfies the criterion, notwithstanding the 
absence of the Handbook's support on the issue. In such case, it is the Petitioner's responsibility to 
provide probative evidence (e.g., documentation from other authoritative sources) that supports a 
favorable finding with regard to this criterion. The regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides 
that "[a]n H-1B petition involving a specialty occupation shall be accompanied by [d]ocumentation 
... or any other required evidence sufficient to establish . . . that the services the beneficiary is to 
perform are in a specialty occupation." 
The Petitioner states that we "should consider fully the employer's evidence" and "should not rely 
simply" on the Handbook, citing the unpublished court decision in Unico American Corp. v. Watson, 
No. CV 89-6958DT(GHKX), 1991 WL 11002594 (C.D. Cal. March 19, 1991). The Petitioner, 
however, has furnished no evidence to establish that the facts of the instant petition are analogous to 
those in this unpublished decision. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of So. 22 I&N 
Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal(fornia, 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). 
In any event, we are not running counter to the proposition for which the Petitioner cites this 
decision, for we base our decision upon the totality of the evidence in the record of proceedings, and 
without sole or excessive reliance upon the relevant information contained in the Handbook. 
Furthermore, in contrast to the broad precedential authority of the case law of a United States circuit 
court, we are not bound to follow the published decision of a United States district court in cases 
arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning 
underlying a district judge's decision will be given due consideration when it is properly before us; 
however, the analysis does not have to be followed as a matter of law. ld. at 719. In addition, as the 
published decisions of the district courts are not binding on us outside of that particular proceeding, 
the unpublished decision of a district court would necessarily have even less persuasive value. 
Upon review of the totality of the evidence in the entire record of proceeding, we conclude that the 
Petitioner has not established that the proffered position falls within an occupational category for which 
the Handbook, or other authoritative source, indicates that a requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent, is normally required for entry into the occupation. Furthermore, 
the duties and requirements of the proffered position as described in the record of proceeding do not 
8 
Matter of MSI-, Inc. 
indicate that the particular position that is the subject of this petition is one for which a baccalaureate or 
higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry. 
Thus, the Petitioner has not satisfied the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
The requirement qf a baccalaureate or higher degree in a spec(fic specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record of proceeding regarding the first of the two alternative prongs of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for 
positions that are identifiable as being (1) in the Petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the Petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As discussed, the Petitioner has not established that its proffered position is one for which the 
Handbook (or other independent, authoritative source) reports a standard industry-wide requirement 
for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. Also, there are no submissions from the industry's 
professional association indicating that it has made a degree a minimum entry requirement. 
We will next address the four job advertisements submitted by the Petitioner. Upon review of the 
documents, we find that the Petitioner's reliance on the job advertisements is misplaced. 
For the Petitioner to establish that an organization in its industry is similar, it must demonstrate that 
the Petitioner and the organization share the same general characteristics. Without such evidence, 
documentation submitted by a petitioner is generally outside the scope of consideration for this 
criterion, which encompasses only organizations that are similar to the petitioner. When 
determining whether the Petitioner and the advertising organization share the same general 
characteristics, such factors may include information regarding the nature or type of organization, 
and, when pertinent, the particular scope of operations, as well as the level of revenue and staffing 
(to list just a few elements that may be considered). It is not sufficient for the Petitioner to claim that 
an organization is similar and in the same industry without providing a legitimate basis for such an 
assertion. 
Upon review, we find that the record does not demonstrate that a requirement of a bachelor's or 
higher degree in a specific specialty, or its equivalent, is common for positions that are identifiable 
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Matter of MSI-, Inc. 
as being (1) in the Petitioner's industry, (2) parallel to the proffered position, and (3) located in 
organizations that are similar to the Petitioner. 5 
First, the Petitioner did not state with specificity what characteristics the Petitioner shares with these 
companies, and the advertisements provide little or no information regarding the advertising 
entities. 6 Without further information, we are unable to determine whether the advertisements 
involve organizations that operate in the Petitioner's industry and that are similar to the Petitioner. 
The Petitioner did . not supplement the record of proceeding to establish that the advertising 
organizations are similar to it. "[G]oing on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings." In re Soffici, 22 I&N 
Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l 
Comm'r 1972)). 
Moreover, some of the advertised positions appear to be senior level positions requiring many years 
of experience in addition to the stated academic requirements. 7 However, as noted earlier, the 
Petitioner stated on the LCA that the proffered position is an entry-level position. Furthermore, 
these companies list a bachelor's 
degree in business as an acceptable degree for the positions. As we 
discussed above, a requirement of a general degree such as a bachelor's degree in business is 
insufficient to demonstrate that a position is a specialty occupation. We incorporate by reference our 
previous discussion on the matter. More importantly, the Petitioner has not sufficiently established 
that the primary duties and responsibilities of the advertised positions parallel those of the proffered 
position. 
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. That is, as the evidence does not establish that similar organizations in the same industry 
routinely require at least a bachelor's degree in a specific specialty, or its equivalent, for parallel 
positions, not every deficit of every job posting has been addressed. 8 
5 See 8 C.F.R . § 214.2(h)(4)(iii)(A)(2). 
6 Some of the advertisements appear to be from companies that contract with government agencies. See, e.g , the 
advertisements from 
7 See, e.g , the advertisement from which requires at least 12 years of experience ; 
see also the advertisement entitled "Management Analyst - Requisition ID ' (employer unknown) , which 
requires six years of contract management experience . 
8 Tt 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 
does not demonstrate 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"). 
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Matter of MSI-, Inc. 
Thus, based upon a complete review of the record, we find that the Petitioner has not established that 
arequirement for at least a bachelor's degree in a specific specialty, or its equivalent, is common for 
positions that are identifiable as being (1) in the Petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the Petitioner. Thus, for the reasons 
discussed above, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specffic specialty, or its equivalent 
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 the instant case, the Petitioner did not sufficiently develop relative complexity or uniqueness as an 
aspect of the proffered position of area retail sales and operations manager. Specifically, the record 
does not demonstrate how the management analyst position described requires 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. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four assignable 
wage levels. 9 Without further evidence, the evidence does not demonstrate that the proffered 
position is complex or unique as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a significantly higher prevailing wage. 1° For example, a Level IV (fully 
competent) position is designated by DOL for employees who "use advanced skills and diversified 
knowledge to solve unusual and complex problems." 11 The evidence of record does not establish 
9 The wage-level of the proffered position indicates that (relative to other positions falling under this occupational 
category) the Beneficiary is only required to have a basic understanding ofthe occupation. 
10 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I 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 I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 2I4(i)(l) of the Act. 
11 For additional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & Training 
Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available 
at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _II_ 2009.pdf 
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Matter of MSI-, Inc. 
that this position is significantly different from other positions in the occupational category such that 
it refutes the Handbook's information that a bachelor's degree in a specific specialty, or its equivalent 
is not required for the proffered position. 
The Petitioner claims that the Beneficiary is well qualified for the position, and references her 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner has not satisfied the second 
alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we review the Petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the Petitioner artificially 
created a token degree requirement, whereby all individuals employed in a particular position 
possessed a baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor 
v. Meissner, 201 F.3d at 388. 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. USCIS must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the 
specific specialty as the minimum for entry into the occupation as required by the Act. 
The Petitioner asserts that it employs management analysts "at various locations throughout the 
United States, ALL of whom possess the minimum of a Bachelor's Degree in Business 
Administration, Management, Communications or another closely related field" (emphasis in the 
12 
Matter of MSI-, Inc. 
original). 12 However, the Petitioner did not corroborate these assertions with documentary evidence. 
Again, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. In re So.ffici, 22 I&N Dec. at 165. Furthermore, 
the Petitioner has not established that the duties of those positions are the same or similar to those of 
the proffered position. 
Therefore, the Petitioner has not demonstrated that it normally requires at least a bachelor's degree 
in a specific specialty or its equivalent for the proffered position, it does not satisfy 8 C.F .R. 
§ 214.2(h)(4)(iii)(A)(3). 
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 in a spec?fic specialty, or its equivalent 
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. 
The Petitioner claims that the nature of the specific duties of the position in the context of its 
business operations 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 reviewed the Petitioner's statements regarding the proffered position and its 
business operations. However, relative specialization and complexity have not been sufficiently 
developed by the Petitioner as an aspect of the proffered position. That is, the proposed duties have 
not been described with sufficient specificity to establish that they are more specialized and complex 
than positions that are not usually associated with at least a bachelor's degree in a specific specialty, 
or its equivalent. 
12 
As discussed earlier, a general degree requirement does not necessarily preclude a proffered position from qualifying 
as a specialty occupation. For example, an entry requirement of a bachelor's or higher degree in business administration 
with a concentration in a specific field, or a bachelor's or higher degree in business administration combined with 
relevant education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty 
occupation. In either case, it must be demonstrated 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. See Royal Siam Corp. v. Chertoff, 484 F.3d 
at 147. 
It is also important to note that a position may not qualify as a specialty occupation based solely on either a preference 
for certain qualifications for the position or the claimed requirements of a petitioner. See Defensor v. Meissner, 201 F.3d 
384, 387 (5th Cir. 2000). Instead, the record must establish that the performance of the duties ofthe proffered position 
requires both the theoretical and practical application of a body of highly specialized knowledge and the attainment of a 
baccalaureate or higher degree in a specific specialty, or its equivalent, as the minimum for entry into the 
occupation. See section 214(i)(1) ofthe Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"). 
13 
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Matter of MSI-, Inc. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (of the lowest 
of four assignable wage-levels) relative to others within the occupational category. Without more, 
the position is one not likely distinguishable by relatively specialized and complex duties. That is, 
without further evidence, the Petitioner has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position would likely be classified at a higher-level, such as 
a Level III (experienced) or Level IV (fully competent) position, requiring a substantially higher 
prevailing wage. 13 
Although the Petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the Petitioner has submitted inadequate 
probative evidence to satisfy the criterion of the regulations at 8 C.F.R. § 214.2(h)( 4)(iii)(A)( 4).14 
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofMSI-, Inc., ID# 15623 (AAO Jan. 19, 2016) 
13 As previously discussed, a Level IV (fully competent) position is designated by DOL for employees who "use 
advanced skills and diversified knowledge to solve unusual and complex problems" and requires a significantly higher 
wage. 
14 As the grounds discussed above are dispositive of the Petitioner's eligibility for the benefit sought in this matter, we 
will not address and will instead reserve our determination on the additional issues and deficiencies that we observe in 
the record of proceeding with regard to the approval of the H-1 B petition. 
14