dismissed H-1B Case: Real Estate

MATTER OF G-W-R-E-, CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 9, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM J-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a five-employee commercial and residential real estate brokerage company, seeks to 
temporarily employ the Beneficiary as a "visual and digital illustrator" under the H-1 B nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b). The H-1B program allows a U.S. employer to 
temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and 
practical application of a body ofhighly specialized knowledge and (b) the attainment of a bachelor's or 
higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for entry into the 
position. 
The Director, California Service Center, denied the petition. The Director concluded that the Petitioner 
had not established that the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that it has satisfied all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proflered 
position must meet one of the following criteria to qualify as a specialty occupation: 
Matter ofG-W-R-E-, Corp. 
(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 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted 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 proposed position. See Royal Siam Corp. v. Cherto.fj; 
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"); Defensor v. Meissner, 
201 F.3d 384, 387-88 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as its "visual and digital 
illustrator." In a letter submitted in support of the petition, the Petitioner stated the job duties for the 
position as follows (bullet points added and paraphrased for clarity): 
• Explore a wide range of concepts with a deep understanding of aesthetics and 
core design principles; 
• Conceptualize and communicate ideas into innovative designing; 
• Combine artistic talent with research on listed property to design visual and 
digital marketing materials to create most functional and appealing product 
design; 
• Create new visual brand language in collaborating with marketing strategies; and 
• Assist company's real estate agents and brokers in learning about, becoming 
proficient in, and applying instructional technology to promote their own 
properties or projects. 
The Petitioner stated that the proffered position requires a minimum of a bachelor's degree in "Fine 
Arts, News Media, Design, Architecture, or related principles." 1 
1 We note that the Petitioner repeatedly refers to a "news media" degree while the Beneficiary's degree is in ·"new 
media." 
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Matter ofG-W-R-E-, Corp. 
In response to the Director's request for evidence (RFE), the Petitioner distributed the above duties 
into three categories and allocated the Beneficiary's time to those categories as follows (paraphrased 
for brevity): 
• Explore a wide range of concepts with a deep understanding of aesthetics and 
core design principles - 25%; 
• Conceptualize and communicate ideas into innovative designing, combine artistic 
talent with research on listed property to design visual and digital marketing 
materials, and create new visual brand language in collaboration \vith market 
strategies - 40%; and 
• Assist company's real estate agents and brokers in learning about, becoming 
proficient in, and applying instructional technology to promote their own 
properties or projects- 35%. 
The Petitioner added a narrative to the above categories explaining the concept, theory, technique, 
and skills of illustration. The Petitioner noted that the visual and digital illustrator will "design 
visual and digital marketing materials" including the real estate post sign, company stationery, gift 
recycling bag, investment offering memorandums such as brochures, pitch books, and executive 
summaries, business presentations, and interactive floor plans. The Petitioner stated that the visual 
and digital illustrator must be able to design quality graphical user interfaces, and be proficient in 
current and emerging web and mobile technologies and standard design software packages in order 
to use and teach those technologies to the company's real estate agents. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not (1) describe the position's duties with sufficient detail; and (2) 
establish that the job duties require an educational background, or its equivalent, commensurate with 
a specialty occupation. 2 
On the labor condition application (LCA) 3 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Commercial and Industrial 
Designers" corresponding to the Standard Occupational Classification code 27-1021. 4 We have 
2 The Petitioner submitted documentation. in support of the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 The Petitioner is required to submit a certified LCA to USC IS to demonstrate that it will pay an H-I B ·worker the 
higher of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage 
paid by the employer to other employees with similar experience and qualifications who are performing the same • 
services. See 1'vfatter ofSimeio Solutions. LLC, 26 I&N Dec. 542, 545-46 (AAO 20 15). 
4 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
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Matter ofG-W-R-E-, Corp. 
-reviewed the Petitioner's descriptions of duties, including the Petitioner's table comparing the duties 
of the proffered position to the duties listed in the Occupational Information Network (O*NET) 
Online Summary Report for a "Commercial and Industrial Designer," offered on appeal. The 
Petitioner claims that the only difference in the positions of an industrial and commercial designer 
and the proffered position is that the industrial and commercial designer's "job involves 
manufactured goods and [the proffered position] involves real estate, houses." We disagree. 
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. 5 The Handbook reports that industrial designers6 "develop the 
concepts for manufactured products, such as cars, home appliances, and toys" and "combine art, 
business, and engineering to make products that people use every day." See U.S. Dep't of Labor, 
Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., "Industrial Designers," 
https://www.bls.gov/ooh/arts-and-design/industrial-designers.htm#tab-2 (last visited Feb. 1, 2017). 
While both the Handbook's overview of the industrial designer occupation and the Petitioner's 
description of its visual and digital illustrator include elements of aesthetics and conceptualizing 
design, an industrial designer develops actual goods and/or products while the proffered position is 
involved in creating marketing materials to advertise goods, in this matter real estate. 7 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Elnp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC_Guidance_Revised_ll_2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements ofthe Petitioner's job opportunity. !d. 
5 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USC IS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations' that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
6 The Handbook identifies this occupation as an Industrial designer occupation and not a "commercial and industrial 
designer" occupation. 
7 We also note that the Handbook reports that a "bachelor's degree in industrial design, architecture, or engineering is 
usually required for entry-level industrial design jobs," and that "[m]ost industrial design programs include courses that 
industrial designers need in design: drawing, computer-aided design and drafting (CADD), and three-dimensional 
modeling," as well as including "courses in business, industrial materials and processes, and manufacturing methods that 
industrial designers need when developing their design." See U.S. Dep't of Labor, Bureau of Labor Statistics, 
Occupational Outlook Handbook, 2016-17 ed., "Industrial Designers," https://www.bls.gov/ooh/arts-and­
design/industrial-designers.htm#tab-4 (last visited Feb. I, 20 17). As the Beneficiary's bachelor's degree is in fine arts in 
new media, her degree would not qualify her to perform the duties of an industrial engineer. 
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(b)(6)
Matter ofG-W-R-E-, Corp. 
The Petitioner also submitted advertisements for a graphic designer, a UX Visual Designer, and a 
senior designer, to establish that a degree in a specific specialty is common to the industry in parallel 
positions among similar organizations. The record does not include any advertisements for an 
industrial designer. Additionally , the Petitioner submitted an opinion letter prepared by 
Associate Director who opines that " [a] 
'Visual and Digital Illustrator' position falls within the broader field of Graphic Design." This 
information underscores the conclusion that the proffered position is not an industrial designer 
position. 
We have reviewed the Petitioner ' s description of duties and other information in the record to 
determine whether there is sufficient evidence to identify the occupation of the proffered position 
and .to determine whether the duties, as 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. 
The Petitioner has provided a generalized description of the Beneficiary's proposed duties which 
does not convey sufficient substantive information to establish the relative complexity, uniqueness 
and/or specialization of the proffered position or its duties. Accordingly, we are unable to discern 
the nature of the actual position and whether the tasks described entail the need for a particular level 
of education, or educational equivalency , in a body of highly specialized knowledge in a specific 
specialty. 
Furthermore , the Petitioner ' s claimed entry requirement of a bachelor of fine arts, news media, 
design, architecture, or a related degree for the proffered position, without more, is inadequate to 
establish that the proposed position qualifies as a specialty occupation. In general, provided the 
specialties are closely related, e.g., chemistry and biochemistry , a minimum of a bachelor's or higher 
degree in more than one specialty is recognized as satisfying the "degree in the specific specialty (or 
its equivalent)" requirement of section 214(i)(1 )(B) of the Act. In such a case, the required "body of 
highly specialized knowledge" would essentially be the same. Since there must be a close 
correlation between the required "body of highly specialized knowledge" and the position, however, 
a minimum entry requirement of a degree in two disparate fields, such as architecture . and news 
media, would not meet the statutory requirement that the degree be "in the specific specialty (or its 
equivalent), " unless the Petitioner establishes how each field is directly related to the duties and 
responsibilities of the particular position such that the required "body of highly specialized 
I 
knowledge" is essentially an amalgamation of these different specialties. Section 214(i)(1 )(B) of the 
Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," 
we do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
occupations if they permit , as a minimum entry requirement , degrees in more than one closely 
related specialty . See section 214(i)(l)(B) ofthe Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
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Matter ofG-W-R-E-, Corp. 
acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
The Petitioner has not demonstrated that the fields of new(s) media, design, architecture, and all of 
the fine arts are closely related specialties, and how these fields are directly related to the dt~ties and 
responsibiliti"es of the proffered position. While these fields may share some basic courses, the 
Petitioner did not establish that the required "body of highly specialized knowledge" is essentially 
the same. Accordingly, as such evidence does not establish a minimum requirement of at least a 
bachelor's degree in a specific specialty, or its equivalent, for entry into the occupation, it does not 
support the proffered position as being a specialty occupation. 
The Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, which therefore precludes a finding that the proflered position satisfies any criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) 
the normal minimum educational requirement for entry into the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 
2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization 
and complexity of the specific duties, which is the focus of criterion 4. 
Consequently, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F .R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. The appeal will be dismissed and the petition denied for this reason. 
IV. LCA DOES NOT CORRESPOND TO PETITION 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need 
not fully address other issues evident in the record. That said, we wish to identify an additional issue 
to inform the Petitioner that this matter should be addressed in any future proceedings. 8 
Specifically, the petition cannot be approved because the Petitioner has not provided a certified LCA 
that corresponds to the petition. The job title and occupation code on the LCA submitted with the 
petition is for a "Commercial and Industrial Designer," certified for SOC code 27-1021. 
While DOL is the agency that certifies an LCA before it is submitted to U.S. Citizenship and 
Immigration Services (USCIS), DOL regulations note that the Department of Homeland Security 
(DHS) (i.e., its immigration benefits branch, USCIS) is the department responsible for determining 
8 In reviewing a matter de novo, we may identify additional issues not addressed in the Director's decision. See Spencer 
Enters., Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E. D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003). 
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Matter ofG-W-R-E-, Corp. 
whether the content of an LCA filed\ for a particular Form l-129 actually supports that petition. See 
20 C.F.R. § 655.705(b), which states, inpertinent part (emphasis added): 
For H-1B visas ... DHS accepts the employer's petition(DHS Form I-129) with the 
DOL-certified LCA attached. In doing so, the DHS determines whether the petition 
is supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1 B visa classification. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-lB petition filed on behalf of the Beneficiary. As the Petitioner has not demonstrated that the 
proffered position is a commercial or industrial designer position, the Petitioner has not submitted a 
valid LCA that has been certified for the proper occupational classification, and the petition is not 
approvable for this additional reason. 
V. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fG-W-R-E-, Corp., ID# 186362 (AAO Feb. 9, 2017)