dismissed H-1B Case: Publishing

(b)(6)
DATE: MAY 0 1 2015 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECE IPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service' 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
REV 3/2015 www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a two­
employee "Printing and Publishing Magazine" established in In order to employ the 
beneficiary in what it designates as a "Computer Graphic Designer" position, the petitioner seeks to 
classify her as a nonimmigrant worker in a specialty occupation pursuant to section 
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U. S.C. 
§ 1101(a)(15)(H)(i)(b). 
The Director denied the petitiOn, finding that the evidence did not establish that the proffered 
position qualifies as a specialty occupation. On appeal, the petitioner asserts that the Director's 
decision was erroneous. 
The record of proceeding contains the following: (1) the Form I-129 and supporting documentation; 
(2) the Director's request for additional evidence (RFE); (3) the petitioner's response to the RFE; 
(4) the Director's letter denying the petition; (5) the Notice of Appeal or Motion (Form I-290B) and 
supporting documentation; (6) our Notice of Derogatory Information and Intent to Dismiss (NODI); 
and (7) the petitioner's response to the NODI. We have reviewed the record in its entirety before 
issuing our decision. 
Upon review, we agree with the Director that the evidence fails to establish that the proffered 
position is a specialty occupation. The appeal will be dismissed. 
I. FACTUAL AND PROCEDURAL HISTORY 
As noted above, the petitioner describes itself on the Form 1-129 as a two-employee "Printing and 
Publishing Magazine" established in In support of the petition, the petitioner submitted a 
letter dated March 18, 2013 stating that it "publishes a Persian Magazine [and] is 
a diverse enterprise specializing in an independent, bilingual, non-political, non-religious journal." 
The petitioner stated that it "contract[s] with a full staff of a publishing company where they 
generate and publish our magazine." The petitioner further stated that due to its "rapidly increasing 
project load" and "g oal [] to expand and diversify the scope of our magazine," it would like to 
employ the beneficiary as a computer graphic designer to perform the following duties: 
• Design and layout art and graphics in Persian on topics related to the Persian 
communities (over 600,000) in the United States[; ] 
• Prepare layouts using special Persian Calligraphy language desktop publishing 
software[; ] 
• Develop the magazine's interactive web site usmg Persian 
Calligraphy language based web development software[;] 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
• Confer with clients to discuss and determine layout design[;] 
• Study illustrations and photographs to plan presentation of materials, products, or 
services with clients[;] 
• Produce visual solutions to the communication needs using a mix of creative skills 
and commercial awareness[;] 
• Awareness of current fashions in the visual arts, working knowledge of the latest 
computer packages and an understanding of material costs and time limits, all of 
which can impact on the design[; ] 
• Creates professional designs and layouts for promotional materials including direct 
mailings, handouts, advertisements, posters, signs, logos, and other visual layouts[;] 
• Prepare new and unique illustrations, innovative layout prints and rough sketches of 
presentation and organization brochures and design graphics for website in line with 
branding guidelines[; ] 
• Determines style, technique, and medium best suited to organization promotion 
strategies[; and] 
• Assists in copywriting as necessary and performs typesetting for forms and 
publications[.] 
The Labor Condition Application (LCA) submitted to support the visa petition states that the 
proffered position corresponds to Standard Occupational Classification (SOC) code and occupation 
title "27-1024, Graphic Designers" from the Occupational Information Network (O*NET). The 
LCA further states that the proffered position is a Level III position. 
The petitioner submitted, inter alia, a letter from confirming that the 
petitioner has been utilizing its "printing and pre-press services since 2001 for the full color 
magazine. " 
The petitioner submitted one of its recent publications. In pertinent part, the magazine identifies the 
signatory of the instant petition, as the publisher, and as the 
Senior Editor. 
The petitioner also submitted various documents relating to the beneficiary's qualifications for the 
proffered position, including: evidence that the beneficiary received the equivalent of a U.S. 
bachelor's degree in Computer Engineering; the beneficiary's transcripts from 
showing that she obtained a bachelor's degree in Computer Engineering- Software; the 
beneficiary's resume; and a letter from her former employer, 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
confirming the beneficiary's full-time employment from September 1998 to October 2001, and then 
on a contract basis from February 2002 onwards. This letter stated that the beneficiary provided 
"professional services in the fields of Programming, Systems Design, Graphic Design, Network 
Management, Software Management and Website Design," and also "successfully developed 
networks and data transfer systems. " 
The Director issued an RFE in this matter. The Director requested, inter alia, evidence that the 
proffered position qualifies as a specialty occupation, and evidence to establish that the beneficiary 
is qualified to perform the proffered position. 
In response to the RFE, the petitioner submitted, inter alia, a letter dated November 26, 2013 
providing another description of the duties of proffered position, along with percentages .of time 
spent on each duty, as follows: 
• Design and layout art and graphics of the magazine in Farsi/English ( 45%) 
• Develop the magazine's interactive web site (15% ) 
• Keeping update of all new and emerging in Publishing technologies. Awareness of 
current fashions in the visual arts (5%) 
• Ensures operation of computer equipments and preventative maintenance (5%) 
• Meeting clients or account managers to discuss the business objectives and 
developing a concept to suit their purpose (15%) 
• Working as part of a team with printers, copywriters, photographers, designers, 
account executives, etc. (10%) 
• Creates professional designs and layouts for promotional materials and illustrations, 
innovative print's layout presentation (5%) 
Level of Responsibility 
[The beneficiary] will act as a senior graphic designer and she will be responsible for 
the design solutions from concept to completion. She will generate comps, design 
and create layouts which will contain special Farsi and English calligraphy and 
provide the final art of the graphic design. Her responsibility is to design using 
graphic applications such as collaborative material for the magazine to corporate 
identify and branding, design new unique and innovative layout prints, to provide 
rough sketches for various organizational brochures as well as other organizational 
promotional strategies, copywriting as necessary, perform type setting for forms and 
publications, film tinting and multimedia interfaces, from conception to completion. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
In the same letter, the petitioner listed the employees who "worked or are working for the company." 
Specifically, the petitioner currently employs: (1) Senior Editor (part-
time), who is "[i]n charge of Editing and modifying the ads"; and (2) , Associate Editor 
(part-time), who is "[i]n charge of Editing the Persian language on the ads." The petitioner 
previously employed . Project Manager (part-time), as an "Art Director, Web 
Designer, and Marketing. " 
With respect to the nature of the petitioner's business and its need to employ the beneficiary, the 
petitioner stated: 
Due to increased demand and changes in the graphic design component of the 
promotional industry, [the petitioner] ("Company") requires a full-time bi-lingual 
Computer Graphic Designer. The Company has not had a Computer Graphic 
Designer pr�viously. Hiring independent contractors with the required specifications 
to provide such services would be extremely difficult to locate, very costly and 
therefore not economically efficient. This type of expense and delay would have an 
adverse impact on the Company. 
Further, because of such changes, the demand for our promotional products has also 
substantially increased; hence, we are now requiring a senior level Computer Graphic 
Designer to meet those demands. Our customers are well aware of the advances in 
the computer graphic design field and demand that our company be able to provide 
their products accordingly. 
Furthermore, our Company deals with many professionals such as attorneys, doctors 
and other professionals who currently advertise in the Company's publication as well 
as famous writers who mostly hold PhD degrees, that contribute various articles to the 
publication to be viewed by the community and its .readers. Thus, we feel that 
dealing with such group of highly educated professionals and the demand associated 
with their products for purpose of publication, requires a high demand to create high 
standard marketing to design promotional materials for their businesses. To meet the 
demand of our current and future clients and other professionals involved in this 
publication and to ensure the success of our company we must hire an employee with 
at least a bachelor's degree in Computer Graphic Design with excellent 
communication skills as well as other required skills, so that she would be able to 
absorb the high level dialogue between them and then to reflect the same in her 
performance of the project as a graphic design work. 
The petitioner submitted, inter alia, letters and vacancy announcements from other companies, as 
well as a vacancy announcement purportedly placed by the petitioner. 
The petitioner submitted an evaluation from Dr. Professor Art­
Graphic Design, : , concluding that the beneficiary has the equivalent of a 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
bachelor's degree in graphic design based on a combination of her education and employment 
experience. Dr. also concludes that "the position of Graphic Designer 
qualifies as a 'Specialty Occupation' as per the Immigration (USCIS) regulations." 
The petitioner submitted a second letter from verifying the 
beneficiary's employment since 1998 "by providing her professional services in the field of software 
programming, Systems Design and Graphic Design for our Newsletters and publications. " The 
petitioner also submitted a third letter from concluding that the 
beneficiary qualifies as an "expert in Graphic Design. " This letter provided a more detailed list of 
the beneficiary's prior job duties. 
The Director denied the petition, concluding that the petitioner failed to establish that the proffered 
position qualifies for classification as a specialty occupation. In denying the petition, the Director 
found that the duties of the proffered position are more consistent with those of a desktop publisher 
than a graphic designer. 
The petitioner filed an appeal. On appeal, the petitioner asserted that the proffered position is 
consistent with those of a graphic designer rather than a desktop publisher. The petitioner 
emphasized that "[t]he position requires creating new graphics and publications from scratch, with 
layout and design in Farsi and using Farsi in the design .. . [and] calligraphy and art in Farsi for the 
final design." The petitioner also emphasized the required "extra computer skills beyond design: 
specifically, website development . . . [and] ensuring operation of computer equipment and 
performing preventative maintenance. " 
During our preliminary review of the appeal, we noted concerns regarding the petitioner's corporate 
status and business operations. We consequently issued a NODI. In response to the NODI, the 
petitioner provided evidence that it has bona fide business operations. The petitioner also asserted 
that it has a bona fide job offer and need for a graphic designer position. In a separate letter, the 
petitioner's President stated that it "continues to require a professional graphic designer to assure that 
our online and print magazine remains competitive." The petitioner stated that it publishes the 
magazine in both physical print form and online at 1 
The 
petitioner stated: "We require a professional graphic designer in order for our print and online 
magazine to remain competitive. We fully expect the graphic designer to increase the quality of our 
product and to help sustain our reputation as the lead Farsi speaking magazine in South California. " 
1 We note that is not a working web address. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
II. SPECIALTY OCCUPATION 
The primary issue to be addressed is whether the petitioner has demonstrated that the proffered 
position qualifies as a specialty occupation. 
A. The Law 
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) 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 
also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the m1mmum 
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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
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 384, 387 (5th Cir. 2000). 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. 
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 aliens 
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 alien, 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)(6)
NON-PRECEDENT DECISION 
Page 9 
B. Preliminary Findings 
The Director found that the proffered position is more similar to a desktop publisher than a graphic 
designer. We agree with this finding. 
We recognize the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) as 
an authoritative source on the duties and educational requirements of the wide variety of occupations 
that it addresses ? The Handbook states the following about the duties of desktop publishers: 
Desktop publishers use computer software to design page layouts for newspapers, 
books, brochures, and other items that are printed or put online. They collect the text, 
graphics, and other materials they will need and format them into a finished product. 
Duties 
Desktop publishers typically do the following: 
• Gather existing materials or work with designers and writers to create new 
artwork or text 
• Find and edit graphics, such as photographs or illustrations 
• Use scanners to turn drawings and other materials into digital images 
• Import text and graphics into desktop publishing software programs 
• Position artwork and text on the page layout 
• Select formatting properties, such as text size, column width, and spacing 
• Check proofs, or preliminary layouts, for errors and make corrections 
• Finalize formatted documents for printing or electronic publication 
• Send final files to a commercial printer or print the documents on a high­
resolution printer 
Desktop publishers use publishing software to create page layouts for print or 
electronic publication. In addition to designing pages, desktop publishers may edit or 
write text. Some desktop publishers might be responsible for correcting spelling, 
punctuation, and grammar or for writing original content themselves. 
Desktop publishers' responsibilities may vary widely from project to project and 
employer to employer. Smaller firms typically use desktop publishers to perform a 
wide range of tasks, while desktop publishers at larger firms may specialize in one 
part of the publishing process. 
2 The Handbook, which is available in printed form, may also be accessed on the Internet, at 
http://www.bls.go v/oco/. Our references to the Handbook are to the 2014- 2015 edition available online. 
(b)(6)
Page 10 
NON-PRECEDENT DECISION 
Desktop publishers work with other design and media professionals, such as writers, 
editors, and graphic designers. For example, they work with graphic designers to 
come up with images that complement the text and fit the available space. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Desktop Publishers," http://www. bls.gov /ooh/ office-and-administrative-support/ desktop­
publishers.htm#tab-2 (last visited Apr. 15, 2015). 
On the balance, we agree with the Director that the duties of the proffered position are more similar 
to desktop publishers than graphic designers. Most of the duties of the proffered position are 
centered around preparing and designing the magazine's page layouts, including the duties of 
"[d]esign and layout art and graphics," "[p]repare layouts using special Persian Calligraphy language 
desktop publishing software," and "[c]reat[ing] professional designs and layouts for promotional 
materials." These duties are consistent with the Handbook's summary of the duties of desktop 
publishers, i.e., that they "use computer software to design page layouts for newspapers, books, 
brochures, and other items that are printed or put online." /d. 
The petitioner asserts that the proffered position is more similar to a graphic designer because the 
proffered duties are "design and development focused" and "involve[] creating original graphics." 
For instance, the petitioner highlighted that the beneficiary will spend 45% of her time on "[d]esign 
and layout art and graphics of the magazine in Farsi/English." The problem here is that the 
petitioner did not clarify what proportion of this 45% of time will be spent on "[d]esign," and what 
proportion will be spent on "[l]ayout." The petitioner also asserted that the beneficiary will be 
responsible for "additional responsibilities" including "design[ing] solutions from concept to 
completion," "provid[ing] the final art of the graphic design" and "design[ing] using graphic 
applications." Without knowing the percentages of time spent on these particular duties, however, 
we cannot find that the proffered position primarily involves creating new, original designs 
consistent with a graphic designer position. 
Moreover, the petitioner states that the proffered position is more like a graphic designer because it 
"combines design with computer skills and knowledge of computer systems." The petitioner 
asserts that computer skills and knowledge are not required of desktop publishers. In particular, the 
petitioner highlights that 15% of the beneficiary's time will be spent on "[ d]evelop[ing] the 
magazine's interactive web site," and another 5% will be spent on "[e]nsur[ing] operation of 
computer equipments and preventative maintenance." However, these duties are outside of the 
scope of duties for graphic designers. While the Handbook does state that graphic designers 
"[d]evelop graphics for ... websites," it does not state that graphic designers develop the actual 
websites or are responsible for computer maintenance. See U.S. Dep't of Labor, Bureau of Labor 
Statistics, Occupational Outlook Handbook, 2014-15 ed., "Graphic Designers," 
http:// www .bls.gov/ooh/arts-and-design/graphic-designers.htm#tab-2 (last visited Apr. 15, 2015). 
Furthermore, contrary to the petitioner's assertions, the Handbook indicates that desktop publishers 
also need computer skills and knowledge of computer systems. The Handbook states that the duties 
(b)(6)
NON-PRECEDENT DECISION 
Page 11 
of desktop publishers include "us[ing] computer software to design page layouts" and "us[ing] 
publishing software to create page layouts for print or electronic publication." See U.S. Dep't of 
Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., "Desktop 
Publishers," http:// www .bls.gov /ooh/office-and -administrative-support/ desktop-pu blishers.htm#tab-
2 (last visited Apr. 15, 2015). In fact, the Handbook specifically states that "[ c]omputer skills, 
including knowledge of desktop publishing software, are important" for desktop publishers. U.S. 
Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., "Desktop 
Publishers," http:// www . bls.gov /ooh/office-and -administrative-support/ desktop-publishers.htm#tab-
4 (last visited Apr. 15, 2015). As such, the petitioner has not sufficiently explained and documented 
why the duties of the proffered position are more similar to those of a graphic designer than a 
desktop publisher by virtue of its computer skills and knowledge. 
In concluding that the proffered position is not a graphic designer position, we must also take into 
account the lack of evidence establishing that the petitioner actually provides graphic design 
services. Specifically, the petitioner asserts that "the demand for our promotional products has also 
substantially increased" and that there is a "high demand to create high standard marketing to design 
promotional materials for their businesses. "3 However, there is insufficient evidence to establish that 
the petitioner actually designed and created the promotional materials for the companies advertising 
in its magazines, and consequently, that "the demand for [its] promotional products has also 
substantially increased." For instance, there are no invoices or other objective evidence establishing 
that the petitioner created and designed the advertisements for and the 
which appear in its 2012 magazine. There is also no explanation, corroborated by 
objective evidence, establishing who originally designed and created the cover pages and the other 
visual images appearing in the petitioner's monthly magazines. 4 
Thus, considering the duties of the proffered position and the lack of evidence establishing that the 
petitioner provides graphic design services, we are not persuaded by the petitioner's assertions that 
the proffered position is a graphic designer position. We find that the position is more likely than 
3 The petitioner's letterhead suggests that it provides services in graphic design, printing, and publishing. 
4 Here, we note inconsistencies with regards to the duties of the petitioner's employees. On appeal, the 
petitioner now asserts that its three present and former employees "perform graphic designer duties." 
However, the petitioner previously stated that it has never had a Computer Graphic Designer previously, and 
the listed duties for its three employees did not include any graphic design services. The petitioner has not 
submitted an explanation, corroborated by objective evidence, resolving this inconsistency. It is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In addition, we note that the petitioner "contract[s] with a full staff of a publishing company where they 
generate and publish our magazine." However, there is no further clarification on what particular duties this 
publishing company provides. 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
not a desktop publisher position, and any further discussion of the proffered position will proceed 
under this finding. 
C. Discussion of Criteria 
We will now discuss whether the proffered position qualifies for classification as a specialty 
occupation under the supplemental, additional criteria at 8 C.P.R. § 214. 2(h)(4)(iii)(A). 
We will first address the requirement under 8 C.P.R. § 214. 2(h)(4)(iii)(A)(l): A baccalaureate or 
higher degree or its equivalent is normally the minimum requirement for entry into the particular 
position. As stated above, we recognize the Handbook as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses. 
The Handbook subchapter on "How to Become a Desktop Publisher" states the following: 
Desktop publishers have a variety of educational backgrounds, but most have earned 
some form of postsecondary degree or award, such as an associate's degree. 
Education 
Desktop publishers have various educational backgrounds, but postsecondary 
education, such as an associate's degree, is typical. Workers usually learn some of 
their skills on the job. Computer skills, including-knowledge of desktop publishing 
software, are important. 
Although many desktop publishers have earned associate's degrees, others have 
earned postsecondary nondegree awards. These usually take less than 2 years to 
complete, or they sometimes earn bachelor's degrees. Experience in a related field 
can sometimes substitute for education. 
Those who earn degrees usually study fields such as graphic design, graphic arts, or 
graphic communications. Community colleges and trade and technical schools also 
may offer desktop publishing courses. These classes teach students about desktop 
publishing software used to format pages and how to import text and graphics into 
electronic page layouts. 
/d., at http:// www .bls.gov/ooh/office-and-administrative-support/desktop-p ublishers.htm#tab-4 (last 
visited Apr. 15, 2015). 
The Handbook does not indicate that a desktop publisher position, as a category, qualifies for 
classification as a specialty occupation. More specifically, the above excerpt from the Handbook 
states that "[ d]esktop publishers have various educational backgrounds, but postsecondary 
education, such as an associate's degree, is typical." !d. The above excerpt also states that "many 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
desktop publishers have earned associate's degrees" and that "others have earned postsecondary 
non degree awards." /d. The Handbook, therefore, does not support the proposition that a bachelor's 
degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into 
the particular position. 
The Handbook does not support the proposition that the proffered position is one that normally 
requires a minimum of a bachelor's degree in a specific specialty, or the equivalent, to satisfy this 
first alternative criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A); therefore, it is incumbent upon the 
petitioner to provide persuasive evidence that the proffered position otherwise qualifies as a 
specialty occupation under this criterion, notwithstanding the absence of Handbook support on the 
issue. In this matter, the petitioner has not provided sufficient evidence. 
As the evidence of record does not establish that the particular position here proffered is one for 
which the normal minimum entry requirement is a baccalaureate or higher degree in a specific 
specialty, or the equivalent, the petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
Next, we will review the record 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 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 at 1165 (quoting 
Hird/Blaker Corp. v. Sava, 712 F. Supp. at 1102. 
In the instant case, the petitioner has not established that the proffered position falls under an 
occupational category for which the Handbook, or other reliable and authoritative source, indicates 
that there is a standard, minimum entry requirement of at least a bachelor's degree in a specific 
specialty or its equivalent. 
Under this criterion, the petitiOner submitted a letter from the 
attesting that "it is [the] company's policy to employ Graphic Designers with a bachelor's 
degree" in order to perform job duties similar to those of the proffered position. The petitioner also 
submitted two identical letters from expressing its intent to hire "2 Graphic 
Designers with a bachelor's degree" in order to perform job duties similar to those of the proffered 
position. However, contrary to the purpose for which they were submitted, these letters do not state 
that a bachelor's degree in a specific specialty, or its equivalent, is required for the positions. 
Furthermore, the petitioner has not supplemented the record with sufficient information to establish 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
that and are similar to the petitioner. For 
the petitioner to establish that an organization is similar, it must demonstrate that it shares the same 
general characteristics with the advertising organization. 5 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. 
In addition, the petitioner submitted numerous vacancy announcements from other compames 
including! 
However, the petitioner has neither established 
that it and the advertising organizations are similar and in the same industry. Furthermore, several of 
the vacancy announcements do not state that a bachelor's degree in a specific specialty, or its 
equivalent, is required for the positions. For instance, some announcements state a requirement of a 
bachelor's degree without further specification, or that a bachelor's degree in graphic design is 
preferred.6 
On appeal, the petitiOner acknowledges that "these organizations span a multitude of different 
industries," but asserts that these organizations should nevertheless be considered "s imilar 
organizations when producing similar types of materials." In other words, the petitioner asserts that 
these organizations should be considered "similar" to the petitioner because the graphic designers are 
performing similar duties as the proffered position. However, the petitioner's assertions are not 
persuasive. The plain language of 8 C.F.R. § 214. 2(h)(4)(iii)(A)(2) requires that "[t]he degree 
requirement is common to the industry in parallel positions among similar organizations (emphasis 
added). " That is, the petitioner must establish that the positions are parallel to the proffered position, 
i.e., that the graphic designers perform similar duties as the proffered position, in addition to also 
establishing that the advertising organizations are similar to and in the same industry as the 
petitioner. The petitioner has not done so here. In any event, we again observe that some of the 
vacancy announcements do not state that a bachelor's degree in a specific specialty, or its equivalent, 
is required for the positions. 
Thus, the evidence of record does not establish that a requirement of a bachelor's or higher degree in 
a specific specialty, or its equivalent, is common to positions that are (1) in the petitioner's industry, 
(2) parallel to the proffered position, and also (3) located in organizations that are similar to the 
petitioner. The petitioner has not, therefore, satisfied the first alternative prong of 8 C.F.R. 
§ 214. 2(h)(4)(iii)(A)(2). 
5 When determining whether the pet1t10ner and the advertising organizations share the same general 
characteristics, such factors may include the nature or type of organization, 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 without providing a legitimate basis for 
such an assertion. 
6 A preference for a degree is not a requirement. 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
The evidence of record also does not satisfy the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)( A)(2), which provides that "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." A review of the 
record indicates insufficient evidence to demonstrate that the duties that comprise the proffered 
position entail such complexity or uniqueness as to constitute a position so complex or unique that it 
can be performed only by a person with at least a bachelor's degree in a specific specialty. 
The petitioner asserts that the proffered position is complex because "it requires extra computer 
skills beyond design: specifically, website development, keeping up-to-date on all new and emerging 
publishing technology, and ensuring operation of computer equipment and performing preventative 
maintenance." However, the job duties of website development and computer maintenance do not 
reasonably fall within the scope of duties for desktop publishers (nor, as discussed supra, are they 
consistent with the duties of graphic designers). With respect to the duty of "keeping up-to-date on 
all new and emerging publishing technology," the petitioner has not explained why this duty 
distinguishes the proffered position from other desktop publisher positions, especially considering 
the Handbook's statement that "[ c]omputer skills, including knowledge of desktop publishing 
software, are important" to desktop publishers." U.S. Dep't of Labor, Bureau of Labor Statistics, 
Occupational Outlook Handbook, 2014-15 ed., "Desktop Publishers," 
http:// www .bls.gov/ooh/office-and-administrative-support/desktop-publishers.htm#tab-4 (last visited 
Apr. 15, 2015). 
The petitioner also asserts that the proffered position is complex because "the in-depth cultural 
knowledge and language skills required to perform [graphics and calligraphy art] in Farsi and target 
the Iranian community in the United States make [it] highly specialized." While this aspect of the 
position may possibly make it more complex or unique than other desktop publisher positions, the 
petitioner has not explained how the required cultural knowledge and language skills can be 
performed only by a person with at least a bachelor's degree in Computer Graphic Design. Overall, 
the evidence of record is insufficient to establish to satisfy the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(2). 
We will next address the criterion at 8 C.F.R. § 214. 2(h)(4)(iii)(A)(3), which may be satisfied if the 
petitioner demonstrates that it normally requires a minimum of a bachelor's degree in a specific 
specialty or its equivalent for the proffered position. 7 
7 While a petitioner may believe or otherwise assert that a proffered position requires a degree, that opinion 
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 employer 
artificially created a token degree requirement, whereby all individuals employed in a particular position 
possessed a baccalaureate or higher degree in a specific specialty or its equivalent. See Defensor v. Meissner, 
201 F. 3d at 387. In other words, if a petitioner's degree requirement is only symbolic and the proffered 
position does not in fact require such a specialty degree or its equivalent to perform its duties, the occupation 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
With respect to this criterion, the petitioner stated that it "has not had a Computer Graphic Designer 
previously." While a first-time hiring for a position is certainly not a basis for precluding a position 
from recognition as a specialty occupation, it is unclear how an employer that has never previously 
recruited and hired for the position would be able to satisfy the criterion at 8 C.F.R. 
§ 214. 2(h)(4)(iii)(A)(3), which requires a demonstration that it normally requires at least a bachelor's 
degree in a specific specialty or its equivalent for the position. 
On appeal, the petitioner stated that the Director "entirely ignored petitioner's evidence regarding its 
prior practice of hiring 3 professionals who perform graphic designer duties and that they all had 
bachelor's degrees as well as its own attempts to advertise for the proffered position." However, the 
petitioner has never previously indicated that its three current and former employees performed 
graphic designer duties, and the petitioner has not resolved this apparent discrepancy. 8 Moreover, 
the petitioner indicated that its three current and former employees have bachelor's degrees in 
science/journalism, business, and an otherwise unspecified bachelor of science degree. Their 
degrees in fields other than Computer Graphic Design undermine the petitioner's eligibility under 
this criterion. Further, the petitioner's own vacancy advertisement for the proffered position, which 
we note was not accompanied by evidence of actual publication, did not specify any educational 
requirement for the proffered position. 
Accordingly, the evidence of record 1s insufficient to satisfy the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3). 
Finally, we will address the alternative criterion at 8 C.F.R. § 214. 2(h)(4)(iii)(A)(4), which is 
satisfied if the petitioner establishes that the nature of the specific duties is so specialized and 
complex that knowledge required to perform them is usually associated with the attainment of a 
baccalaureate or higher degree in a specific specialty or its equivalent. 
Relative specialization and complexity have not been sufficiently developed by the petitioner as an 
aspect of the proffered position. The duties of the proffered position have not been shown to be of a 
nature so specialized and complex that they require knowledge usually associated with attainment of 
a minimum of a bachelor's degree in a specific specialty or its equivalent. The record does not 
include sufficient consistent and probative evidence to establish that the position proffered here 
encompasses the performance of specialized and complex duties the nature of which requires 
knowledge usually associated with at least a bachelor's degree in a specific specialty. The evidence 
of record is insufficient to establish eligibility under the criterion at 8 C.F.R. 
§ 214. 2(h)(4)(iii)(A)(4). 
would not meet the statutory or regulatory definition of a specialty occupation. See § 214(i)(l) of the Act; 
8 C.P.R.§ 214.2(h)(4)(ii) (defining the term "specialty occupation"). 
8 The petitioner listed its three current and former employees as a senior editor "[i]n charge of Editing and 
modifying the ads," an associate editor "[i]n charge of Editing the Persian language on the ads," and a project 
manager in charge of "Art Director, Web Designer, and Marketing [sic]." 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
Accordingly, as the evidence of record is insufficient to satisfy any of the criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. The appeal will be dismissed and the petition denied for this reason. 
III. BENEFICIARY QUALIFICATION S 
A beneficiary's credentials to perform a particular job are relevant only when the job is found to be a 
specialty occupation. As discussed in this decision, the evidence of record does not es tablish that 
the proffered position requires a baccalaureate or higher degree in a specific specialty or its 
equivalent. As such, we will not address the beneficiary's qualifications further, except to note 
additional deficiencies with respect to the submitted evidence. More specifically, when the 
petitioner seeks to establish that the beneficiary is qualified to perform services in a specialty 
occupation under the regulation 8 C.F.R. § 214. 2(h)(4)(iii)(C)(4), it not only must establish that the 
beneficiary has the education, specialized training, and/or progressi vely responsible experience 
equivalent to a U.S. bachelor's or higher degree in the specialty occupation, but it must also establish 
that the beneficiary has "recognition of expertise in the specialty through progressi vely responsible 
positions directly related to the specialty." Here, the letters from 
and other relevant evidence do not address or establish whether the 
beneficiary has obtained "recognition of expertise in the specialty through progre ssive ly responsible 
positions" as required under 8 C.F.R. § 214.2(h)(4)(iii)(C)(4). As such, the petition could not be 
approved even if eligibility for the benefit sought had been otherwise est ablished. 
IV. CONCLUSION 
The evidence of record fails to establish that the proffered position qualifies as a specialty 
occupation. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the 
immigration benefit sought. Section 291 of the Act, 8 U.S. C. § 1361; Matter of Otiende, 26 I&N 
Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied.