dismissed H-1B Case: Publishing

(b)(6)
DATE: JUN 1 9 2015 
IN RE: Petitioner : 
Beneficiary : 
U.S. n~partmt,nt of Homeland Security 
U.S. CiLizl:nship and Immi gration Sl:rvi~:cs 
1\dmini straliv c Appeals Oflicc 
20 Massuchusl:Hs 1\vc .. N.W .. MS 2090 
Washingto n. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT#: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOI(a)(I5 )(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § IIOI(a)(I5)(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 req uesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § I 03.5 . 
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 1-2908 web page (www.uscis .gov/ i-290b) contains the latest information on fee, filing 
locat ion, and other requirements. Please do not mail any motions directly to the AAO. 
Ron Rosen berg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
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DISCUSSION: The Director, Vermont Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
I. PROCEDURAL BACKGROUND 
In the Petition for a Nonimmigrant Worker (Form 1-129), the petitioner describes itself as a 
publishing house, with 34 employees, which was established in In order to employ the 
beneficiary in what it designates as an editorial assistant position; the petitioner seeks to classify her 
as a nonimmigrant worker in a specialty occupation pursuant to section IOI(a)(IS)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § liOl(a)(IS)(H)(i)(b). 
The Director denied the petition, concluding that the petitioner did not establish that the proffered 
positon qualifies as a specialty occupation. On appeal, the petitioner asserts that the Director's basis 
for denial of the petition was erroneous and contends that it satisfied all evidentiary requirements. 
The record of proceeding contains: (1) the Form 1-129 and supporting documentation; (2) the 
Director's request for evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the Director's 
decision; and (5) the Notice of Appeal or Motion (Form 1-2908) and supporting documentation. We 
reviewed the record in its entirety before issuing our decision. 1 
For the reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. SPECIALTY OCCUPATION 
The primary issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. 
A. Legal Framework 
For an H-1 B 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 beneticiary 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 occupat-ion" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
1 We conduct appellate review on a de novo basis. See So!lane v. DO.!, 381 F.3d 143, 145 (3d Cir . 2004) . 
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(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 [(I)] 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: 
(1) 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 
(I) 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)(I) 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); Malter 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 
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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. Cherto.fj; 484 F.Jd 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-1 B 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-1 B 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. Proffered Position 
In the Form I-129, the petitioner indicated that it wishes to employ the beneficiary as an editorial 
assistant on a full-time basis for an annual salary of $32,000. In the support letter, the petitioner 
asse11s: 
The minimum requirement for this professional position is a Bachelor's degree in publishing, 
photography, or a related field. The attainment of a Bachelor's degree for this positon 1s 
necessary because the work is highly complex and demanding ... 
The petitioner also provided the following information regarding the duties and requirements of the 
proffered position: 
[The beneficiary] will be responsible for the following: management of art logs , 
trafficking of artwork and related editorial tasks tor the development of book 
projects and to ensure the completion of individual book projects ; research and 
development of editorial content; hire and supervise freelance employees for 
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project specific tasks including copy editors and proofreaders by marking copy to 
indicate errors in type, arrangement, grammar, punctuation, or spelling; 
coordinate, sign off and route proofs, book related material , press releases, and 
catalog copy to and for publication 
and distribution. Additionally, [the beneficiary] will interview and train an 
editorial intern every session, oversee photo acquisition and permissions on a 
project-by-project basis ; train and supervise interns in related tasks. 
The Labor Condition Application (LCA) submitted to support the visa pet1t1on states that the 
proffered position corresponds to the occupational classification of "Proofreaders and Copy 
Markers"-SOC (ONET/OES Code) 43-9081, at a Level I (entry) wage. 
· In response to the Director's RFE, the petitioner provided additional details about the job duties and 
the percentage of time spent on each duty. 2 For example: 
Assist in the development of five or six titles per season, working in close 
collaboration with Editor(s). Editorial responsibility for all titles will be assigned 
by the Publisher and Editor, including: 
• Trafficking ofartworkand related editorial tasks for the development and 
completion of individual book projects - The editorial department works 
closely with the production department. Once all image tiles/physical 
artworks have been received for a book project , these are transmitted to 
production for processing. A transmittal log must be drafted alongside art 
receipts (required when transmitting physical art work), to track what has 
been transferred. This is also accompanied by a PDF of the book layout 
and a print out with detailed instructions on file codes and image sizing. 
These processes require intimate knowledge of both (Adobe) image 
processing software and administrative software, and experience in the 
handling of both digital and physical artworks. All files/artworks must be 
carefully checked for quality and size and coded/cataloged according to 
our in-house system. 
Time Allocation: 15% 
• Assist Editor(s) in maintaining corre.spondence and communication 1vilh 
photographers, designers, authors, and others involved in book projects -
There are a number of people involved in the making of a book. Each person 
provides a different service and has different requirements. It is of the upmost 
importance to understand the dynamics of this correspondence and be 
2 In the response to the RFE, the petitioner referred to the proffered position as a "co py editor" on its cover 
letter. 
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experienced in working with a variety of different people. Prior knowledge of 
the photographer, designers, and authors is extremely beneficial and 
something naturally accumulated during a related field of study in the a11s 
which often requires collaboration such as this and a vested/demonstrated 
interest in the industry. 
Time Allocation: 15% 
• Assist Editor(5) in research and development (~f editorial content - For any 
given project a foundation of materials must be developed in order to pitch an 
idea to the organization and expanded on as the project progresses. ln-depth 
research must be conducted into the main collaborators and ideas must be 
formed around the Editor and Editorial Assistant's concept. This requires a 
focused engagement in the subject, intellectual discipline and creative 
problem solving. 
Time Allocation: 25% 
• Track and draft contracts, maintain payment schedules, complimentary 
copies. and job cost allocation on assigned book projects - Maintain and 
update individual bookbinders in collaboration with production manager, 
Managing Editor, Publisher and Senior Text Editor. Run budget forms 
(publishing summaries) for each title in collaboration with the Production 
Manager, Editor, and CFO, and monitor distribution and updating budget 
documents throughout 
each project. 
Combine Time AJiocation: lO% 
• Oversee photo acquisition and permissions on a project-by-project basis: 
train and supervise interns to identijj: and contact sources, hargain fiJr lmver 
prices, issue check requests, prepare captions, and login/out photos. In 
collaboration with intern, develop and maintain hinders for each title~,. 
permission files - This requires specific knowledge and research skills to 
understand where to acquire artwork and at what price, being able to negotiate 
licenses, understand the intricacies of image copyright law and what 
information in needed in order to accurately present the work of other artists 
in the context of a book. 
Time Allocation: 10% 
On appeal, the petitioner submits a document titled "Specific Job Responsibilities Addendum" and 
states that the "supplementary job duty descriptions" provided below "do not replace the previously 
submitted descriptions, but are meant to further explain such duties." These supplementary job 
duties include: 
1) Trafficking of Artwork and Related Editorial Tasks for the Development and 
Completion of Individual Book Projects (Time Allocation Approximately 
15%) 
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After all the images associated with a specific book project are archived, 
as detailed in § 1, the image files, in either digital or physical form, are 
transmitted to production for processing. Prior to transmitting the image 
to production, the editorial assistant creates a transmittal log. The editorial 
assistant verifies the image quality and size and assigned code. These 
tasks are performed with the final product, the illustrated book, in mind. 
To complete the tasks in compliance with the high standards maintained 
by [the petitioner], the editorial assistant must have a comprehensive 
understanding of fine art book production, including, but not limited to: 
page count, trim size, image layout and sizing, paper weight, cover 
material, binding and stamping. 
2) Maintain Correspondence 
Designers, Authors, Others 
Approximately 15%) 
and Communications with Photographers, 
involved in Book Projects (Time Allocation 
The editorial assistant interacts and collaborates with photographers, photo 
agents, gallery owners/assistants, designers, authors, archivists, and book 
distributors on a daily basis. The editorial assistant must be able to discuss 
the technicalities of the images used in the photo books and the subject 
matter of the book projects as they relate to the photography industry. 
Competency in such topics is normally gained through specialized study in 
photography or a related field, and experience in photography or a related 
field. 
3) Research and Development of Editorial Content (Time Allocation 
Approximately 25%) 
The editorial assistant contributes to each season's book titles. In order to 
do so, the editorial assistant must apply their knowledge and 
understanding of the history of photography, how photography transcends 
to become a piece of fine art, photo composition, color balance, and the 
use of light. Additionally, the editorial assistant must understand the 
interests of practitioners, artists, and others involved in the fine art 
photography industry in order to develop editorial content that will be of 
value to [the petitioner] and fulfill [the petitioner ]'s mission. 
4) Track and draft contracts, maintain payment schedules, complimentary copies, 
and job cost allocation on assigned book projects (Time Allocation 
Approximately 10%) 
Maintain and update individual bookbinders in collaboration with the 
production manager, Managing Editor, Publisher and Senior Text 
Editor 
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Run budget forms for each title, monitor distribution and update budget 
documents throughout each project. 
5) Oversee photo acquisition and permissions on a project-by-project basis and 
interview, train, and supervise editorial interns (Time Allocation Approximately 
11%) 
The editorial assistant is responsible for acquiring artwork, negotiating 
artwork prices, negotiating licenses, and working in conformance with 
applicable copyright laws. The editorial assistant has the authority to assign 
such tasks to editorial interns, but is ultimately responsible for the acquisition 
of photographs used in book projects and obtaining the pe1missions necessary, 
ensuring that [the petitioner] does not violate copyright laws. 
C. Analysis 
A baccalaureate or higher degree in a specific specialty. or its equivalent, is 
normally the minimum requirement.fiH· enfty into the particular position 
We will now discuss the proffered position in relation to the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into the particular position. 
We recognize the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handhook) 
as an authoritative source on the duties and educational requirements of the wide variety of occupations 
that it addresses. 3 We reviewed the information in the Handbook regarding the occupational category 
"Proofreaders and Copy Markers" and note that this occupation is one for which the Handbook does 
not provide detailed data. The Handbook states the following about these occupations: 
Data for Occupations Not Covered in Detail 
Although employment for hundreds of occupations are covered in detail in the 
Occupational Outlook Handbook, this page presents summary data on additional 
occupations for which employment projections are prepared but detailed occupational 
information is not developed. For each occupation, the Occupational Information 
Network (O*NET) code, the occupational definition, 2012 employment, the May 
3 All references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/OCO/. The excerpts of the Handbook regarding the duties and requirements of the 
referenced occupational category are hereby incorporated into the record of proceeding. 
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2012 median annual wage, the projected employment change and growth rate from 
2012 to 2022, 
and education and training categories are presented. 
U.S. Dep't of Labor , Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Data for Occupations Not Covered in Detail ," http: //www.bls.gov/ooh /about/data-for-occupations­
not-covered-in-detail.htm (last visited June 16, 20 15). 
Thus, the narrative of the Handbook reports that there are some occupations for which only summary 
data is prepared but detailed occupational profiles are not developed. 4 lt appears that for at least some 
of the occupations, little meaningful information could be developed. 
Accordingly, in certain instances, the Handbook is not determinative. When the Handbook does not 
support the proposition that a proffered position is one that meets the statutory and regulatory 
provisions of a specialty occupation, it is incumbent upon the petitioner to provide persuasive 
evidence that the proffered position more likely than not satisfies this or one of the other three 
criteria, 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 objective, 
authoritative sources) that supports a finding that the particular position in question qualifies as a 
specialty occupation. Whenever more than one authoritative source exists, an adjudicator will 
consider and weigh all of the evidence presented to determine whether the particular position 
qualifies as a specialty occupation. 
The Handbook does not indicate that proof(eader and copy marker pos1t10ns comprise an 
occupational group for which nom1ally the minimum requirement for entry is at least a bachelor's 
degree in a specific specialty, or its equivalent. The full-text of the Handbook regarding this 
occupational category is as follows: 
Proofreaders and Copy Markers 
(O*NET 43-9081.00) 
Read transcripts or proof type to detect and correct any grammatical , typographical , or 
compositional errors . Excludes workers whose primary duty is editing copy. Includes 
proofreaders of Braille. 
2012 employment: 13,200 
May 2012 median annual wage: $32,780 
4 
The Handbook only includes summary data for a range of occupations, including for example, postmasters 
and mail superintendents ; agents and business managers of artists, performers, and athletes; farm and home 
management advisors; audio visual and multimedia collections specialists; clergy; merchandise displayers and 
window trimmers; radio operators; first-line supervisors of police and detectives; crossing guards; travel 
guides; agricultural inspectors, as well as others. 
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Projected employment change, 2012-22: 
Number of new jobs: -200 
Growth rate: -1 percent (little or no change) 
Education and training: 
Typical entry-level education: Bachelor's degree 
Work experience in a related occupation: None 
Typical on-the-job-training: None 
!d. (last visited June 16, 2015). 
The Handbook summary data provides "education and training categories" for occupations. The 
occupational category "Proofreaders and Copy Markers" falls into the group of occupations for which a 
bachelor's degree (no specific specialty) is the typical entry-level education. We note that, as evident in 
the above excerpt on this occupation, the Handbook does not report that bachelor's degrees held by 
those entering the occupation are limited to and must be in any specific specialty directly related to 
the occupation. Accordingly, the Handbook does not support the assertion that at least a bachelor's 
degree in a specific specialty is normally the minimum requirement for entry into this occupational 
category. 
In the instant case, the petltwner has not established that the proffered position falls under an 
occupational category for which the Handbook, or other authoritative source, indicates that normally 
the minimum requirement for entry is at least a bachelor's degree in a specitic specialty, or its 
equivalent. 5 Thus, the petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(/). 
5 On appeal, the petitioner asserts that the Handbook does not provide a job title or a job description that 
matches the position of editorial assistant for its organization. However, we note that the duties presented by 
the petitioner encompass duties described in several occupational categories in the Handbook, which include 
"Editors"-SOC (ONET/OES) Code 27-3041 and "Desktop Publishers"-SOC (ONET/OES) Code 43-9031. 
See http://www.bls.gov/ooh/media-and-communication/editors.htm#tab-2 and http://www.bls.gov/ooh/office­
and-administrative-support/desktop-publ ishers.htm#tab-2 (last viewed June 16, 20 15). Notably, the 
prevailing wage for editors at Levell in New York is $40,352 per year, and for desktop publishers 
is $34,694 per year, which is higher than the salary for the proffered position at $32,000 per year. See 
http://www.flcdatacenter.com/OesQuickResults.aspx' ccode=27-3041 &year= 14&source=l and 
http://www.flcdatacenter.com/OesQuickResults.aspx' ccode=43-903 I &year= l4&source= I (last 
viewed June 16, 20 15). 
According to the Department of Labor's "Prevailing Wage Determination Policy Guidance," "vhen a proffered 
position is a combination of occupations, the petitioner should select the relevant occupational code for the 
highest paying occupational category. 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/N PWHC_ Guidance_ Revised _I I_ 2009.pdf. 
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The requirement of a baccalaureate or higher degree in a specific .~pecially, 
or its equivalent, is common to the indus!ly in parallel 
positions among similar organizations 
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 ( l) 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 tirms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d I /51, 1165 (D. Minn. 
1999) (quotingHird/BlakerCorp. v. Sava, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
As previously discussed, the petitioner has not established that its proffered position is one for which 
the Handbook (or other independent, authoritative source) repot1s 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. 
In response to the Director's RFE, the petitioner asserted that similarly situated businesses require a 
Baccalaureate Degree in a specific field of study as a standard minimum requirement for the job 
offered. In support of this assertion, the petitioner submitted the following: 
• A letter from Managing Editor of the Editorial Department at the 
Mr. writes, "For all positions in the department, 
including editorial assistants, the Editorial Department requires a bachelor's degree." 
• A letter from Editor in Chief of the , stating, "the most 
basic requirement [for the position] is a bachelor's degree." 
• A letter from , Publisher of the Ms. writes, "all positions in the 
editorial department, including editorial assistants, reqmre a minimum of a bachelor's 
degree." 
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Page 12 
• A letter from Chief Financial Officer of who 
states that his company "requires all editorial assistants to have a minimum of a bachelor's 
degree." 
Each letter submitted in support of the petition states that the minimum requirement for editorial 
assistants in the petitioner's industry is a bachelor's degree. 6 The letters do not indicate that a 
bachelor's degree is a specific specialty, or its equivalent is the minimum requirement for an editorial 
assistant position. 7 Therefore, the letters do not establish that a bachelor's or higher degree in a 
specific specialty, or its equivalent, is a requirement common to the industry in parallel positions 
among similar organizations. 
On appeal, the petitioner submitted additional letters from the following professors and teachers of 
photography: 
• Assistant Professor of Photographic Arts and Sciences at 
• , Associate Professor of Photography, 
• Lori Novak, Professor of Photography and Imaging at 
Department of Photography & Imaging; 
• Professor of Photography at the 
; and 
6 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 discussed 
supra, 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. Thus, the mere requirement of a degree, 
without further specification, does not establish the position as a specialty occupation. ('/Matter qfMichael 
Hertz Associates, 19 I&N Dec. 558 (Comm'r 1988) (stating that "[t]he mere requirement of a college degree 
for the sake of general education, or to obtain what an employer perceives to be a higher caliber employee, 
also does not establish eligibility"). Thus, while a general-purpose degree or a degree in any discipline may 
be a legitimate prerequisite for a particular position, requiring such a degree, without more, \·Viii not justify a 
finding that a particular position qualities for classification as a specialty occupation. See Royal Siam Corp. 
v. Chertoff, 484 F.3d at 147. 
7 
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 letters 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 
letter has been addressed. 
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NON-PRECEDENT DECISION 
Page 13 
• , Teacher at the 
The letters listed above indicate that the professors would recommend that students wanting to be 
employed as an editorial assistant for an organization similar to the petitioner acquire a degree in 
photography or a related field. However , the letters do not indicate that such firms routinely employ 
and recruit only degreed employees in a specific specialty. For example, Professor states "it 
is widely acknowledged that no specific degree exists for the position of Editorial Assistant at a 
publisher such as (the petitioner]" but ''an employer must look to the specifics of that publisher in 
order to establish the best criteria and requirements for the role." 
In addition to the le.tters from the academia , the petitioner also submitted letters from 
Chairman of a non-profit publisher of fine art photography books, and a letter ti·om 
states: 
Mr. 
Marketing Manager at . an illustrated book publisher. Mr. 
In my experience, I have found that individuals with a minimum of a bachelor's 
degree in photography or a related field, as well as personal experience in 
photography are essential to the position of an editorial assistant in photo 
publishing. When an editorial assistant has these qualifi.cations, then we are able 
to collaborate on a professional level, and make decisions together that involve a 
high degree of subtlety. 
writes: 
The tasks required by [editorial assistants]- research and development of content, 
close collaboration with artists and designers, handling of artworks and materials, 
and development of promotions - requires someone with this direct knowledge 
gairted through university study and work experience. 
The letters from Mr. and Mr. discuss the benefits of having a candidate with a 
university level education in photography ; however, neither asserts that a bachelor's degree in 
photography or a related field , or its equivalent is a common requirement for editorial assistants in 
their field or for editorial assistants hired by their employers. Moreover, it must be noted that the 
letters previously submitted in response to the RFE did not indicate that a bachelor's degree in a 
specific specialty, or its equivalent is common for editorial assistants. As discussed, the letters only 
stated that a bachelor's degree is required, without stating a specific specialty. As such, the 
petitioner has not established that a requirement of a bachelor's or higher degree in a specitic 
specialty, or its equivalent, is common to the industry in parallel positions among similar 
organizations. 
The petitioner also submitted copies of job advertisements in support of the assertion that the degree 
requirement is common to the petitioner's industry in parallel positions among similar organizations. 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
In the Form I-129, the petitioner stated that it is a publishing house with 34 employees. The 
petitioner did not report its annual gross or net income. The petitioner designated its business 
operations under the North American Industry Classification System (NAICS) code 5 I 1120. R This 
NAICS code is designated for "Periodical Publishers." 
For the petitioner to establish that an organization is similar under this criterion of the regulations, it 
must demonstrate that the petitioner and the organization share the same general characteristics. 
Without such information, evidence 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 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. Going on record without supporting documentary evidence is not sufficient tor purposes 
of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Maller of Treasure Crcifi (?l CahfiJrnia, 14 I&N Dec. 190 (Reg. Comm'r 
1972)). 
In the instant case, the petitioner submitted three vacancy announcements. The announcements are 
from one of the world's leading publishers of books for women; a global 
scientific publisher, whose publications range from medicine to all fields of life sciences, and from 
mathematics to engineering; and a provider of instructional, assessment 
and learning-performance management solutions for the secondary, post-secondary, and professional 
markets. We will briefly note that, without more, the job postings do not appear to be from 
organizations similar to the petitioner. On appeal, the petitioner acknowledges the dit1erences 
between the petitioner's business and the businesses from the job advertisements, stating "it should 
be noted that previous submissions from publishing companies were provided from publishing 
companies that do not specialize in the printing of fine-art photography." 
Furthermore, the job postings state a bachelor's degree as a requirement, but do not indicate that the 
minimum requirement for an editorial assistant is a bachelor's degree in a specific specialty, or its 
equivalent. 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 
8 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used 
to classify business establishments according to type of economic activity and, each establishment is 
classified to an industry according to the primary business activity taking place there. See 
http://www.census.gov/eos/www/naics/ (last viewed June 16, 20 I 5). 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
is not necessary. 9 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. 
The petitioner has not established that a requirement of a bachelor's or higher degree in a specific 
specialty , or its equivalent, is common to the petitioner's industry in 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. For the reasons discussed above, the petitioner has not satisfied the first 
alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can be pe1:jhrmed on/.y hy 
an individual1vith a baccalaureate or higher degree in a 
.spec!fic .wecialty , 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. 
On appeal, the petitioner states "[t]he job duties of the editorial assistant at [the petitioner] are unique 
and contrast from those discussed in the Occupational Outlook Handbook or those discussed in the 
O*Net job description ... Specifically, the editorial assistant responsibilities are photography 
focused, requiring the editorial assistant to have an in-depth understanding of photography and 
related topics such as how a photograph transcends to become a piece of fine art , as well as photo 
composition, color balance, and the history of photography ... Such skills are not obtained through a 
general bachelor's degree , but require the study of photography or a related field at the undergraduate 
or the graduate level and /or extensive experience in the subject matter." 
However, the record 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 normal is so complex or 
9 Even if all of the job postings indicated that a bachelor's degree in a specific specialty, or its equivalent, is 
common to the industry in parallel positions among similar organizations (which they do not), the petitioner 
does not demonstrate what inferences, if any, can be drawn from these adve11isements with regard to 
determining the common educational requirements for entry into parallel positions in similar organizations. 
See generally Earl Babbie, The Praclice of Social Research 186-228 ( 1995) . 
As such, even if the job announcements supported the finding that the position required a bachelor's or higher 
degree in a specific specialty, or its equivalent (for organizations in the same industry that are similar to the 
petitioner), it cannot be found that such a limited number of postings that appear to have been consciously 
selected outweigh the findings of the Handbook published by the Bureau of Labor Statistics that such a 
position does not normally require at least a baccalaureate degree in a specific specialty, or its equivalent, for 
entry into the occupation in the United States. 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
unique that it can be performed only by an individual with a degree." To begin with, the record does 
not sufficiently develop relative complexity or uniqueness as an aspect of the proffered position of 
editorial assistant. Specifically, even though the petitioner asserts that some of the proffered 
position's duties are so complex and unique that a bachelor's degree is required, the petitioner does 
not demonstrate how the editorial assistant duties described require the theoretical and practical 
application of a body of highly specialized knowledge such that a bachelor's or higher degree in a 
specific specialty or its equivalent is required to perform them. For instance, the petitioner did not 
submit information relevant to a detailed course of study leading to a specialty degree and did not 
establish how such a curriculum is necessary to perform the duties it claims are so complex and 
unique. While a few courses in photography may be beneficial in performing certain duties of an 
editorial assistant position, the petitioner has not demonstrated how an established curriculum of 
such courses leading to a baccalaureate or higher degree in a specific specialty or its equivalent is 
required to perform the duties of the particular position here proffered. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
On appeal, the petitioner asserts that the editorial assistant is required to have "an in-depth 
understanding of photography and related topics" and "such skills are not obtained through a general 
bachelor's degree, but require the study of photography or related field at the undergraduate or the 
graduate level and/or extensive experience in the subject matter." However, the LCA indicates a 
wage level at a Level I (entry) wage, which is the lowest of four assignable wage levels. 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 of the 
occupation; that she will be expected to perform routine tasks that require limited, if any, exercise of 
judgment; that she will be closely supervised and her work closely monitored and reviewed for 
accuracy; and that she will receive specific instructions on required tasks and expected results. 
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 classitied 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 
10 The issue here is that the petitioner's designation of this posttton as a Level I, entry-level postt1on 
undermines its claim that the position is particularly complex, specialized, or unique compared to other 
positions within the same occupation. Nevertheless, it is important to note that a Level I wage-designation 
does not preclude a proffered position from classification as a specialty occupation. In certain occupations 
(doctors or lawyers, for example), an 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 consideration but is not a substitute for a determination of whether 
a proffered position meets the requirements of section 214(i)( I) of the Act. 
11 For additional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
We note that the petitioner repeatedly indicates that the beneficiary is "an ideal candidate" and well 
qualified for the proffered position. However, the test to establish a position as a specialty 
occupation is not the credentials and skills of a proposed beneficiary, but whether the position itself 
requires the theoretical and practical application of a body of highly specialized knowledge, and 
attainment of a bachelor's or higher degree in the specific specialty (or its equivalent). The petitioner 
did not establish that its particular position is so complex or unique that it can only be performed by 
an individual with 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 haccalaureale or higher degree in a 
specific .~pecialty, 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 specitic 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 Dej"ensor 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 qualities 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 
Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. 
Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_ll_ 
2009.pdf. 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
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. To interpret 
the regulations any other way would lead to absurd results: if USClS were constrained to recognize 
a specialty occupation merely because the petitioner has an established practice of demanding 
certain educational requirements for the proffered position - and without consideration of how a 
beneficiary is to be specifically employed - then any alien with a bachelor's degree in a specific 
specialty could be brought into the United States to perform non-specialty occupations , so long as 
the employer required all such employees to have baccalaureate or higher degrees . See id. at 388. 
In response to the Director's RFE, the petitioner submitted evidence of its recruiting history in the 
form of four job postings. The first posting, for an Editorial Assistant, states that a bachelor's degree 
is required and that knowledge of photography is preferred. The second posting , for a 
Proofreader/Copy Editor, states that it requires a bachelor's degree with knowledge of photography 
preferred and two to three years of copyediting and/or proofreading experience. The third posting is 
for an Education and Public Programs Assistant, which requires a bachelor's degree. The fourth 
posting is for an Executive Assistant, requiring a bachelor's degree and "associated work 
experience ." Upon review of the submitted job postings we note that only one of the postings is for 
a comparable position and that it does not require a bachelor's degree in a specific specialty, or its 
equivalent. Further, the additional three job postings for unrelated potions also do not require a 
bachelor's degree or equivalent in a specific specialty. 
in response to the RFE and also on appeal, the petitioner submitted the resumes and academic 
transcripts of some of its current staff who claim that they previously held the position as an editorial 
assistant. The educational backgrounds of the former editorial assistants include, among others, a 
bachelor's degree in History with an Art/Art History minor; a bachelor's degree in Film Studies with 
a minor in Studio Art (photography concentration); and a bachelor's degree in Journalism. The 
documents do not support the assertion that the petitioner normally requires a bachelor's degree in a 
specific specialty or its equivalent for the proffered position. Further the petitioner did not submit 
probative evidence to establish the individuals' current or past employment with the petitioner (e.g., 
pay statements, Form W-2 Wage and Tax Statements) . 
The record does not establish that the petitioner normally requires a bachelor's degree in a specific 
specialty, or its equivalent, for the proffered position and that performance of the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge. 
Therefore, the petitioner has not satisfied the third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). 
The nature of the .\pectfic duties is so .specialized and complex that knowledge 
required to pe1.form the duties is usually associated with the allainment of a 
haccalaureate or higher degree in a .\pectfic 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. 
(b)(6)
NUN-PRECEDENT DECISION 
Page 19 
We have reviewed the petitioner's information regarding the proffered position including the letters 
from individuals in the field of publishing and photography. While the evidence provides some 
insights into the petitioner's business operations and the proffered position , as discussed, the letters 
do not establish that the nature of the specific duties of the proffered position 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 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 (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's has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level m (experienced) or Level IV (fully competent) 
position, requiring a substantially higher prevailing wage. 12 
The petitioner has submitted insufficient evidence to satisfy this criterion of the regulations. Thus, 
the petitioner has not established that the nature of the specific duties of the proffered position is so 
specialized and complex that the knowledge required to perform the duties is usually associated with 
the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent. We, 
therefore, conclude that the petitioner did not satisfy the criterion at 8 C. F. R. 
§ 214.2(h)(4)(iii)(A)(4) . 
For the reasons related in the preceding discussion , the petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore , it cannot be found that 
the proffered position qualifies as a specialty occupation. 
III. CONCLUSION AND ORDER 
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 ofOtiende , 26 I&N Dec. 127, 128 
(BIA 2013). Here , that burden has not been met. 
ORDER: The appeal is dismissed. 
12 
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.