dismissed H-1B Case: Real Estate Investment

MATTER OF R-W- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 22,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a real estate investment firm with four employees, seeks to temporarily employ the 
Beneficiary as a "business development specialist" under the H-lB 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-IB program allows a U.S. employer to temporarily employ 
a qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish that the proffered position qualifies as a specialty occupation in 
accordance with the applicable statutory and regulatory provisions. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred by finding that the proffered position is not a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. 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) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
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Matter of R-W- LLC 
(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 tnat 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). U.S. Citizenship and Immigration Services (USCIS) has 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.ff, 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 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the initial H-lB filing, the Petitioner described the proffered position and its associated job duties 
as follows (verbatim): 
The Beneficiary will be responsible for sourcing, promoting, and marking real estate 
investment deals designed to appeal to Russian and/or Chinese clients and/or 
prospective clients presently residing in Russia and/or China and who are seeking real 
estate investment opportunities in 
The Beneficiary will examine deal opportunities undertaking financial evaluation, 
data analysis, and investigation on investment opportunities and will prepare financial 
statement reports that review the viability of investment opportunities for foreign 
clients, having in mind current cune ncy exchange rates as between Russia, or China, 
and the United States, and researching any regulatory and/or legal requirements that 
may factor into the financial analysis of the viability of real estate investment deal 
prospects in and around The Beneficiary will engage in market 
research analysis , investigating the appeal, desire, and financial feasibility of 
prospective clients in Russia and/or China .. . , and will explore if there are any legal 
or regulatory barriers or considerations in the home countries of current and 
prospective clients that will impact investment decisions. 
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Matter of R-W- LLC 
In addition, the Beneficiary will liaise with foreign equity sources and investors (in 
Russia and/or China) to raise capital and funding for deals, with the aim of sourcing 
real estate investment deals that yield a strong and high quality deal flow conforming 
to established investment metrics and investors' risk-reward preferences. The 
Beneficiary will identify specific customer groups that align with [the Petitioner 's] 
business strategy and will identify and quantify the needs and requirements of 
specific customer groups in Russia and/or China. 
The Beneficiary will also be responsible for overseeing the financial analysis of 
investments and the preparation of investment memoranda (institutional grade), 
translating pertinent documentation into Russian and/or Chinese, and creating 
marketing materials to maintain and attract Russian and/or Chinese speaking 
clientele. 
The Beneficiary will provide analysis for project financing efforts to secure the best 
financing terms available for each project in terms of agency financing or term years, 
taking into account variables such as interest rates, amortization, prepayment 
penalties and assumption, non-recourse and property insurance and will liaise with 
foreign banking authorities in Russia and/or China as needed to facilitate real estate 
investment deals. 
The Petitioner stated that the business development specialist position requires the minimum of a 
bachelor's degree in business administration, economics, finance, real estate finance, law or the 
equivalent. 
In response to the Director 's request for evidence (RFE), the Petitioner provided the following 
description of the proffered position (verbatim): ' 
In this position , the Beneficiary will be responsible for collecting and analyzing 
data on customer demographics , preferences , needs, and buying habits to -identify 
markets and factors affecting demand tor real estate investment offerings in or 
around The Beneficiary will conduct market analysis of 
prevailing and commercial residential rents for immediatel y neighboring 
properties, will perform some financial modeling of current and historical cash 
flows of specific properties , and will review historical profit and loss statements 
to understand how real estate investment portfolio strategies conform to clients' 
investment goals. Based on this data, the Beneficiary will create client-specific 
and unique investment portfolio presentation materials that target real estate 
investment opportunities matching client expectations and investment goats and 
will create unique property specific marketing plans, personalized campaigns, 
custom designed pieces, advertisements and listing presentation materials. ( 40% 
of the Beneficiary ' s time will be allocated towards the performance of these 
duties). 
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Matter of R-W- LLC 
In addition, the Beneficiary will also lead the creation and development of 
compelling marketing campaign content, including online advertising, website 
marketing materials, print marketing presentation materials (including 
newsletters , press releases and/or direct marketing campaigns) in order to attract 
potential investors, based on the above-noted market research analysis, to invest 
in our real estate offerings. The Beneficiary will drive consistency and integrity 
of all marketing materials and will liaise and collaborate with outside marketing 
professionals, where appropriate, to optimize our company's brand recognition, 
including leveraging and evaluating Search Engine Optimization ("SEO") 
techniques to drive the company's sales. The Beneficiary will also lead 
coordination of advertising/marketing events, and manage conference/tradeshow 
participation, including pre-planning, logistics, and post-event analysis. ( 40% of 
the Beneficiary's time will be allocated towards the performance of these duties). 
In addition, the Beneficiary will also be responsible for researching and analyzing 
marketing topics in relation to the real estate industry, will draft and oversee the 
publication of relevant marketing content on company or real 
estate industry blogs and online news forums, and will oversee day-to-day social 
media efforts, evaluating and reporting on the efficacy and appeal of social media 
marketing campaigns that identify and target specific demographics according to 
market research evaluations of unique, specific customer preferences. (20% of the 
Beneficiary's time will be allocated towards the performance of these duties). 
In the RFE response, the Petitioner stated that the business development specialist position requires a 
minimum of a bachelor's degree in marketing, communications, business, journalism, English, or a 
related field. 
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 establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 1 
As a threshold matter, the Petitioner has not consistently stated the job duties of the position and its 
minimum educational requirement for the proffered position. For instance, there are a number of 
differences in the job description provided by the Petitioner when compared to the description 
submitted in response to the RFE. Further, the Petitioner initially stated that the position requires the 
minimum of a bachelor's degree in business administration, economics, finance, real estate finance, 
1 The Petitioner submitted documentation to support 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. 
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Matter of R-W- LLC 
law or the equivalent. In its RFE response, however, the Petitioner stated that the position requires 
at least a bachelor's degree in marketing, communications, business, journalism, English, or a related 
field. The Petitioner has not provided an explanation reconciling its inconsistent statements. 
It is incumbent upon the Petitioner to resolve inconsistencies in the record by submitting competent 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). Further, when responding to an RFE, the Petitioner cannot offer a new position to the 
Beneficiary, or materially change the job duties, educational requirements, or other salient aspects of 
the position. The Petitioner must establish that the position offered to the Beneficiary when the 
petition was filed merits classification for the benefit sought. See Matter of Michelin Tire Corp., 17 
I&N Dec. 248, 249 (Reg'! Comm'r 1978). If significant changes are made to the initial request for 
approval, the Petitioner must file a new petition rather than seek approval of a petition that is not 
supported by the facts in the record. 
If the Petitioner's minimum educational requirement for the proffered position can be satisfied by 
degrees in a broad range of fields including economics, journalism, and English, then this generally 
indicates that the proffered position is not a specialty occupation. More specifically, provided the 
specialties are closely related, e.g., economics and finance, 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)( I )(B) of the Act. In such a case, the required "body of 
highly specialized knowledge" would essentially be the same. Since there must be a direct 
correlation between the required "body of highly specialized knowledge" and the position, however, 
a minimum entry requirement of degrees in disparate fields, such as economics and English, would 
not meet the statutory requirement that the degree be "in the specific specialty (or its equivalent)," 
unless the Petitioner establishes how each field is directly related to the duties and responsibilities of 
the particular position such that the required body of highly specialized knowledge is essentially an 
amalgamation of these different specialties. 2 Section 214(i)(l)(B) of the Act (emphasis added). The 
Petitioner has not adequately done so here. 
Regardless, the Petitioner has consistently stated that a degree in business administration is sufficient 
for entry into the proffered position. This suggests that the proffered position is not a specialty 
occupation. As previously stated, USCIS interprets the degree requirement at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)( A) to require a degree in a specific specialty (or its equivalent) that is directly 
related to the proposed position. Since there must be a direct correlation between the required "body 
of highly specialized knowledge" and the position, the requirement of a degree with a generalized 
title such as business administration, without further specification, does not establish the position as 
2 Whether read with the statutory "the" or the regulatory "a," both readings denote a singular "specialty." Section 
214(i)(I)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). Still, we do not so narrowly interpret these provisions to exclude 
positions from qualifying as specialty occupations if they permit, as a minimum entry requirement, degrees in more than 
one closely related specialty. This also includes even seemingly disparate specialties provided the evidence of record 
establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
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Matter of R-W- LLC 
a specialty occupation. Cf Matter of Michael Hertz Associates, 19 I&N Dec. 558 (Comm'r 1988). 
Although a general-purpose bachelor's degree in business administration may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a finding 
that a particular position qualifies for classification as a specialty occupation. Royal Siam Corp. v. 
Cherto.ff, 484 F.3d 139 at 147:3 
Based on the Petitioner's stated requirements, we cannot find that the proffered position qualifies as 
a specialty occupation. Nevertheless, for the purpose of performing a comprehensive analysis of the 
proffered position will discuss the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 4 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we 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 addresses5 
On the labor condition application (LCA) submitted to support the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Marketing Research Analysts and 
Marketing Specialists," corresponding to Standard Occupational Classification (SOC) code 13-1161, 
at a Level I wage.6 
3 Specifically, the court in Royal Siam Corp. v. Chertoff, 484 F.3d 139 at 147, stated: 
The courts and the agency consistently have stated that, although a general-purpose bachelor's degree, 
such as a business administration degree, may be a legitimate prerequisite for a particular position, 
requiring such a degree, without more, will not justify the granting of a petition for an H-1 B specialty 
occupation visa. See, e.g., Tapis lnt 'I v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. 
Supp.2d at 1164-66; cf Matter of Michael Hertz Assocs., 19 I & N Dec. 558, 560 ([Comm'r] 1988) 
(providing rrequently cited analysis in connection with a conceptually similar provision). This is as it 
should be: e\sewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
4 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
5 All of our references are to the 2016-2017 edition of the Handbook, available at 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, 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 We will consider the Petitioner's classification of the proffered position at a Levell wage (the lowest of four assignable 
wage levels) in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 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 she will 
be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive specific 
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Matter of R-W- LLC 
The subchapter of the Handbook entitled "How to Become a Market Research Analyst" states in 
pertinent part: "Market research analysts typically need a bachelor's degree in market research or a 
related field. Many have degrees in fields such as statistics, math, and computer science. Others 
have backgrounds in business administration, the social sciences, or communications."7 The 
Handbook further states that "[ c ]ourses in statistics, research methods, and marketing are essential 
for these workers. Courses in communications and social sciences, such as economics or consumer 
behavior, are also important." 8 
The Handbook does not support the assertion that at least a bachelor's degree in a .1pecijic specialty, 
or its equivalent, is normally the minimum requirement for entry into a general and operations 
manager position. Rather, the Handbook indicates that a business administration background is 
sufficient for entry into the position. The Handbook's recognition that a general, non-specialty 
background in business administration is sufficient for entry into the occupation strongly suggests 
that a bachelor's degree in a specific specialty (or its equivalent) is not normally the minimum entry 
requirement for this occupation 9 See Royal Siam Corp. v. Chertoff, 484 F.3d 139 at 147 
(recognizing a business administration degree as a general-purpose degree). 
The Handbook also indicates that degrees and backgrounds in various fields - including computer 
science and the social sciences - are acceptable for jobs in this occupation. It further elucidates that 
courses in a wide variety of fields - such as statistics and communications- are also important. The 
Handbook's recognition that degrees in disparate fields are sufficient for entry into the occupation 
further indicates that a bachelor's degree in a specific specialty (or its equivalent) is not normally the 
minimum entry requirement for this occupation. 
On appeal, the Petitioner points to the Handbook's statements that most industries encompassing a 
wide variety of sectors use market research. 10 The Petitioner therefore asserts that a bachelor's 
instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/downloadfNPWHC _Guidance_ Revised_JJ_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 of the Petitioner's job opportunity. /d. A Level I wage should be considered for research fellows, workers 
in training, or internships. /d. 
7 U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., "Market Research 
Analysts," http://www.bls.gov/ooh/business-and-financial/print/market-research-analysts.htm (last visited July 20, 
2016). 
8 !d. 
9 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation. 
In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a 
specific specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertojf, 484 F.3d at 147 
10 See U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook. 2016-17 ed., "Market Research 
Analysts," http://www.bls.gov/ooh/business-and-financial/print/market-research-analysts.htm (last visited July 20, 
2016). 
7 
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Matter of R-W- LLC 
degree in a specific specialty (or its equivalent) is normally required, as "the specific field of study 
required can vary according to the industry in which the Market Research Analyst position is 
advertised or sought." But the criterion at 8 C.F.R. § 
2 14.2(h)( 4)(iii)(A)(l) does not limit its focus to 
the normal minimum requirement for entry into the particula r position in the industry. C.f 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). The Handbook does not support the position ' s eligibility under this 
criterion. 
The Petitioner also referenced the Occupational Information Network (O*NET) OnLine Summary 
Report for "Market Research Analysts and Marketing Specialists." The summary report provides 
general information regarding the occupation; however, it does not support the Petitioner's assertion 
regarding the educational requirements for the occupation. For example, the Specialized Vocational 
Preparation (SVP) rating cited within O*NET's Job Zone designates this occupation as 7 < 8. An 
SVP rating of 7 to less than ("<") 8 indicates that the occupation requires "over 2 years up to and 
including 4 years" of training. Further, while the SYP rating indicate s the total number of years of 
vocatio nal preparation required for a particular position, it is important to note that it does not 
describe how those years are to be divided among training, formal education , and experience- and it 
does not specify the particular type of degree, if any, that a position would require.11 
Further, the summary report provides the educational requirement s of "respondents," but does not 
account for 100% of the "respondents." The respondents' positions within the occupation are not 
distinguished by career level (e.g., entry-level, mid-level, senior-level). Additionally, the graph in 
the summary report does not indicate that the "education level" for the r espondents must be in a 
specific specialty. 
In support of the petition , the Petitioner submitted an advisory opinion letter from 
We have reviewed the entire letter and determined that it is not persuastve m 
establishing the position as a specialty occupation. For instance, asserts that the 
proffered position can be performed by someone with a degree in communication s, marketing, and 
an otherwise unspecified bachelor 's degree in business administration. We incorporate our previous 
discussion regarding the deficiency of generalized degrees. 
In addition, there is no indication that possesses any knowledge of the Petitioner's 
proffered position beyond the limited information provided by the Petitioner in support of the instant 
petition . In fact, information appears to be based upon the proffered position as 
described in the RFE. His letter does not include any informatio n submitted with the original H-lB 
filing, and does not indicate whether he was aware of the Petitioner's different educational 
requirement s for the same positi
on. does not discuss how the Petitioner's initially 
stated requirement of a bachelor ' s degree in law, for example , would be sufficient for entry into the 
position. Nor does discuss how the Petitioner's subsequently stated requirement of a 
degree in journalism or English would be sufficient for entry into the position. Instead, 
II For add itional informat ion, s ee the O*NET Onl ine Help web page ava ilable at 
http ://www.o netonli ne.org/help/onllne/svp. 
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Matter of R-W- LLC 
limits his discussion of acceptable degrees to only three fields: communications, 
marketing, and business administration. 
Next, does not demonstrate or assert in-depth knowledge ofthe Petitioner's specific 
business operations or how the duties of the position would actually be performed in the context of 
the Petitioner's business enterprise. For example, there is no indication that visited 
the Petitioner's business, observed the Petitioner's employees, interviewed them about the nature of 
their work, or documented the knowledge that they apply on the job. opinion does 
not relate his conclusion to specific, concrete aspects of this Petitioner's business operations to 
demonstrate a sound factual basis for the conclusion about the educational requirements for the 
particular position here at issue. 
For all the reasons discussed above, we conclude that opmton letter does not 
establish the proffered position as a specialty occupation. 
1
" We may, in our discretion, use as 
advisory opinion statements submitted as expert testimony. However, where an opinion is not in 
accord with other information or is in any way questionable, we are not required to accept or may 
give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm'r 1988). 
The Petitioner has not provided sufficient documentation from a probative source to substantiate its 
assertion regarding the minimum requirement for entry into this particular position. Thus, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or uriique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
contemplates common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
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 
12 For all of the reasons discussed, 
§ 214.2(h)( 4)(iii)(A). 
letter also does not satisfY any of the remaining criteria at 8 C.F.R. 
9 
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Matter of R-W- LLC 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti , Inc. v. Reno , 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent. We incorporate by reference our previous discussion on the 
matter. Also, there are no submissions from the industry's professional association, nor are there 
letters or affidavits from similar firms or individuals in the Petitioner's industry. While 
attests to the industry-wide recruiting and hiring standards, he does not sufficiently explain 
what industry materials, publications, surveys, or other probative sources of information he consulted to 
support his opinions. "[G]oing on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings." Matter ofSoffici , 22 I&N Dec. 
158, 165 (Comrn'r 1998) (citing Matter ofTr easure Craft ofCal., 14 I&N Dec. 190 (Reg' l Comm'r 
1 972)). 
We will next address the job advertisements submitted by the Petitioner. 13 We find the Petitioner's 
reliance upon these advertisements misplaced. 
First, the Petitioner has not established that the advertising organization s are similar. For the 
Petitioner to establish that an organization is similar, it must demonstrate that the Petitioner and the 
organization share the same general characteristics. Without such evidence, documentation 
submitted by a petitioner is generally outside the scope of consideration for this criterion, which 
encompasses only organizations that are similar to the Petitioner. When determining whether the 
Petitioner and the advertising organization share the same general characteristics , such factors may 
include information regarding the nature or type of organization, and, when pertinent, the particular 
scope of operations, as well as the level of revenue and staffing (to list just a few elements that may 
be considered). It is not sufficient for the Petitioner to claim that an organization is similar without 
providing a legitimate basis for such an assertion. 
The advertisement from a staffing company, provides 
insufficient information about the actual hiring entity or "client" referenced in the advertisement. As 
for this company is "the nation's largest residential real estate brokerage firm" 
and has approximately 790 offices ) 46,400 affiliated sales associates, and 5,300 employees. Without 
more, the record does not demonstrate that these organizations are similar to the Petitioner, which 
describes itself as a "boutique" firm with four employees , and a gross annual income of $300,000.
14 
13 The Petitioner initially submitted four adverti sements, but on appeal "discount [s]" two of the advert isements a s " non­
p,robative." 
4 It is reasonable to assume that the size of an emplo yer's business has or could have an impact on the claimed duties of 
a particular position. See EG Enters., Inc. v. Dep 't qf Homeland Sec., 467 F. Supp . 2d 728 (E. D. Mich. 2006). Thus, the 
size of a petitioner may be consider ed as a component of the nature of the petition er's business, as the size impacts upon 
the actual duties of a particular position. 
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Matter of R-W- LLC 
~ 
Second, the advertisements do not state a minimum requirement of a baccalaureate or higher degree 
in a specific specialty, or its equivalent. The advertisement states that an "Associate's degree 
with equivalent work experience " is sufficient, but does not specify the a mount of work experience 
deemed to be "equivalent" to a.bachelor's degree. 15 The advertisement states that non-specific 
bachelor's degrees in a wide range of fields (e.g., business, liberal arts, or science) "are ideal." 16 A 
preference for a degree is not an indication of a requirement. Further, since there must be a close 
correlation between the required specialized studies and the position, the requirement of general­
purpose degrees or degrees in disparate fields does not establish the position as a specialty 
occupation. Royal Siam Corp. v. Chertoff, 484 F.3d 139 at 147; cf Matter of Michael Hertz 
Associates, 19 I&N Dec. 558. 
The Petitioner also has not sufficiently established that the primary duties and responsibilities of the 
advertis.ed positions are parallel to the proffered position. For example, the advertisement is 
for a position which trains "individual agents" and "acts as an ambassador for the brokerage to 
agents in offices throughout [the United States]." 
Without more, we cannot conclude that the documentation provided is probative evidence under this 
criterion. 17 The Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position i s 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. 
The evidence of record does not credibly demonstrate relative complexity or uniqueness as aspects of 
the proffered position. For: example, the Petitioner highlights the skills needed to source, evaluate, 
review, and market "the contract terms of large, multi-million dollar real estate investment deals in 
or arollild The Petitioner then proceeds to state that the duties of the proffered 
position are "not 'substantially similar' to those of a Real Estate Investment Broker." The 
Petitioner's position on this aspect of the proffered duties is not clear.18 Moreover, the Petitioner 
15 This advert isement lists a minimu m of two years of digital marketing exper ience as a separate requirement. 
16 The language that these degr ees are ideal does not necessarily indicate that these degrees are required. 
17 It must be noted that even if a ll of the job postings indicated that a requ irement of a bachelor's degree in a specific 
spec ialty is commo n to the industry in parallel posit ions amo ng simila r organizations (whic h they do not), the Petitioner 
does not demons trate what statistically valid inferences , if any, can be drawn from two advert isements. See generally 
Earl Babbie , The Practice of Social Research 186-228 ( 1995). 
18 If t he Petitioner believed its position was appropr iately described in a combinat ion of occupat ions i ncluding " Real 
Estate Brokers " (SOC code 41-9021 ), then the Petitioner should have submitted an LCA for a position under the "Rea l 
Estate Brokers" occupational classification beca use it has a higher prevailing wage than " Market Research Analys ts and 
Marketing Spec ialists." With respect to the LCA, DOL 's " Prevailing Wage Determinat ion Policy Guidance" states that, 
II 
(b)(6)
Matter of R- W- LLC 
highlights the proffered duties of "representing and developing the company's online presence and 
marketing brand, creating and evaluating marketing campaigns," but does not distinguish these from 
other duties typically expected of market research analyst positions which do not require a 
bachelor's degree in a specific specialty, or the equivalent. Again, "going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings." Matter ofSo.ffici, 22 I&N Dec. at 165. 
The lack of relative complexity or uniqueness is further evidenced by the LCA submitted in support 
of the petition. The Petitioner designated the position on the LCA at a Level I (entry) wage level, 
which is the lowest of four assignable wage levels. 19 Without further evidence, the record does not 
demonstrate that the proffered position is complex or unique as such a position falling under this 
occupational category would likely be classified at a higher level, requiring a significantly higher 
prevailing wage.2° 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." 21 The evidence of record does not establish that this position is significantly different 
"[i]f the employer's job opportunity has worker requirements described in a combination of O*NET occupations, the 
[employer] should default directly to the relevant O*NET-SOC occupational code for the highest paying occupation 
(emphasis added)." 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 _II_ 2009.pdf. 
As indicated on the LCA, the prevailing wage for a Levell position under the "Market Research Analysts and Marketing 
Specialists" occupational classification in the NY-NJ MSA for the time period 07/2014 
to 06/2015 is $21.46 per hour. The prevailing wage for a Level I "Real Estate Brokers" position in the same locality and 
time period is $24.89 per hour. For more information regarding wages for "Real Estate Brokers" (SOC code 41-9021) in 
the NY-NJ MSA for the period 7/2014 6/2015, see 
http://www.flcdatacenter.com/OesQuickResults.aspx?code~ &year= 15&source=I (last visited July 
20, 2016). 
19 
As previously mentioned, 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. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination 
Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov /pdf/NPWHC _Guidance _Revised_!!_ 2009.pdf 
20 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation , just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
21 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www. foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_2009 .pdf 
12 
(b)(6)
Matter of R-W- LLC 
from other positions in the occupational category such that it refutes the Handbook 's information 
that a bachelor's degree in a specific specialty, or its equivalent, is not required for the proffered 
position. 
The Petitioner also cites to letter under this criterion. However, the Petitioner's 
designation of the position as a Level I (entry) wage rate is inconsistent with 
characterizations of the proffered position as having a "great level of responsibility" and a 
"leadership role." does not indicate whether he considered, or was even aware of, the 
Petitioner's submission of an LCA certified for a wage level that is only appropriate for a 
comparatively low, entry-level position? 2 As noted above, at this wage-level, the Beneficiary is 
only expected to possess a basic understanding of the occupation and will perform routine tasks that 
require limited, if any, exercise of judgment. We consider this a significant omission, in that it 
suggests an incomplete review of the position in question. Moreover, without this information, the 
Petitioner has not demonstrated that possessed the requisite information necessary to 
adequately assess the nature of the Petitioner ' s position and appropriately determine parallel 
positions based upon job duties and responsibilities. The author 's omission of such an important 
factor as the LCA wage-level significantly diminishes the evidentiary value of his assertions. 
The Petitioner claims that the Beneficiary is well qualified for the position, and references her 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The evidence of the record does not satisfy the 
second alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its e quivalent, for the position. 
Evidence provided in support of this criterion may include, but is not limited to, documentation 
regarding the Petitioner's past recruiting and hiring practices , as well as infmmation regarding 
employees who previously held the position. 
The Petitioner indicated that it previously employed one person, in the same or 
similar position. The Petitioner submitted , int er alia, a copy of bachelor ' s degree in 
business administration, and a copy of the Petitioner 's brief in support of H-1 B petition. 
In this brief, the Petitioner stated the that "the position of Market Research/Financial Analyst 
requires the minimum of a Bachelor' s degree in Business Administration, or the equivalent plus 
relevant experience in the field." 
The Petitioner ' s requirement , and possession of, a general-purpose business 
admini stration degree demonstrate s that the Petitioner does not normally require a bachelor's degree 
22 !d. 
13 
Matter of R-W- LLC 
in a specific specialty, or its equivalent, for the position. The Petitioner also has not explained why 
its former degree requirement (i.e., a business administration degree) differs significantly from the 
degree requirement now claimed (including degrees in business administration, economics, finance, 
real estate finance, Jaw, and/or marketing, communications, business, journalism, English).23 
We note that we are not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See Matter of 
Church Scientology lnt'l, 19 I&N Dec. 593, 597 (Comm'r 1988). Furthermore, our authority over 
the service centers is comparable to the relationship between a court of appeals and a district 
court. Even if a service center director had approved nonimmigrant petitions on behalf of a 
beneficiary, we would not be bound to follow the contrary decision of a service center. See La. 
Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999). 
Without further information, the Petitioner has not satisfied the third criterion of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The Petitioner ~]aims that the nature of the specific duties of the posttwn in the context of its 
business operations is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. We have reviewed the Petitioner's statements regarding the proffered position and 
the Petitioner's business operations. However, relative specialization and complexity have not been 
sufficiently developed as an aspect of the proffered position. That is, the proposed duties have not 
been described with sufficient specificity to establish that they are more specialized and complex 
than positions that are not usually associated with at least a bachelor's degree in a specific specialty, 
or its equivalent. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (of the lowest 
23 While the Petitioner may assert that a proffered position requires a specific degree, that statement alone without 
corroborating evidence cannot establish the position as a specialty occupation. Were USC IS limited solely to reviewing 
the 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 created a token degree requirement, whereby all 
individuals employed in a particular position possessed a baccalaureate or higher degree in the specific specialty, or its 
equivalent. See Defensor v. Meissner, 201 F.3d at 388. To merit approval of the petition under this criterion, the record 
must establish that the Petitioner's imposition of a degree requirement is not merely a matter of preference for high­
caliber candidates but is necessitated by the position's performance requirements. 
14 
Matter of R-W- LLC 
of four assignable wage-levels) relative to others within the occupational category24 Without 
additional evidence, the Petitioner has not demonstrated that its proffered position 1s one with 
sufficiently specialized and complex duties to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. The burden is on the 
Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter o{Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofR-W- LLC, ID# 16942 (AAO July 22, 2016) 
24 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _I I_ 2009.pdf 
15