dismissed H-1B Case: Retail

U.S. Citizenship 
and Immigration 
Services 
In Re: 6411951 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 27, 2020 
The Petitioner , a gas station, convenience store, and electronics retailer, seeks to temporarily employ 
the Beneficiary as a "product marketing and logistics specialist" under the H-lB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB 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 of the California Service Center denied the petition, concluding that the record did not 
establish that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits a brief and asserts that the Director erred in denying the petition. 
Upon de nova review, we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the tenn "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: 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(]) 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 construe the term "degree" 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. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific 
specialty" as "one that relates directly to the duties and responsibilities of a particular position"). 
II. THE PROFFERED POSITION 
The Petitioner seeks to employ the Beneficiary as a "product marketing and logistics specialist." In 
response to the Director's request for evidence (RFE), the Petitioner provided a list ofjob duties for the 
proffered position, indicating that the Beneficiary would devote 5% of her time to researching market 
conditions for convenience and wireless products to determine potential marketing strategies; 5% of her 
time to gathering and analyzing information on competitors, including prices, sales, methods of 
marketing, and distribution; 10% of her time to synthesizing data to forecast and track marketing and 
sales trends; 10% of her time to working closely with other members of the marketing department to 
develop and evaluate marketing and advertising campaigns; 5% of her time to benchmarking industry 
trends and changes to ensure constant availability of products in high demand and/or new products; 20% 
of her time to developing, establishing, and executing new merchandising strategies related to product 
management to ensure increase in sales and profits of the phone section; 5% of her time to maintaining 
accurate, detailed inventory reports; 1 % of her time to receiving and checking daily deliveries for ordered 
products; 5% of her time to managing timely internal deliveries to avoid issues related to speed to shelf 
and excess inventory; 25% of her time to receiving, processing, and preparing for deliveries of phones 
and accessories orders from the Petitioner's stores; 5% of her time to helping identify, qualify, and 
onboard new vendors; 5% of your time to solving problems as they arise, such as lost/damaged products, 
late deliveries, product returns, etc.; and 4% of her time to strong customer and sales orientation with 
ability to distill requests from the field into impactful deliverables. The Petitioner also included tasks 
the Beneficiary would perform in carrying out each duty. 
The Petitioner indicated that the minimum entry requirement for the proffered position is a bachelor's 
degree, or equivalent, in marketing, business, logistics, or a related field. 
2 
III. ANALYSIS 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation. 2 Specifically, we find that two separate factors independently bar approval of 
this petition: (1) the Petitioner's lack of a requirement for a bachelor's degree in a specific specialty, 
or the equivalent; and (2) the Petitioner's failure to satisfy at least one of the four regulatory specialty­
occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). In particular, the record does 
not: (1) describe the proffered position in sufficient detail; and (2) establish that the job duties require 
an educational background, or its equivalent, commensurate with a specialty occupation. 
A. Lack of a Requirement for a Bachelor's Degree in a Specific Specialty, or the Equivalent 
First, the petition is not approvable because the Petitioner's claimed entry requirement of at least a 
bachelor's degree, or equivalent, in marketing, logistics, or business, without more, is inadequate to 
establish that the proposed position qualifies as a specialty occupation. 
A petitioner must demonstrate that the proffered position requires a precise and specific course of study 
that relates directly and closely to the position in question. There must be a close correlation between the 
required specialized studies and the position; thus, the mere requirement of a general degree, such as 
business, without further specification, does not establish the position as a specialty occupation. 3 Royal 
Siam Corp., 484 F.3d at 147 (a general-purpose bachelor's degree in business may be a legitimate 
prerequisite for a particular position, but such a degree, without more, will not justify a finding that a 
particular position qualifies for classification as a specialty occupation). Cf Matter of Michael Hertz 
Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The 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."). 
Without more, it cannot be found that the proffered position requires anything more than a general 
bachelor's degree and accordingly it does not qualify under the definition of a specialty occupation. 
B. The Specialty-Occupation Criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4) 
1. 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 
2 The Petitioner submitted documentation in support of the H-lB 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 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 with a concentration in a 
specific field, or a bachelor's or higher degree in business 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. 
3 
entry into the particular position. 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. 4 
On the labor condition application (LCA) 5 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Market Research Analysts and 
Marketing Specialists" corresponding to the Standard Occupational Classification (SOC) code 
13-1161. Thus, we reviewed the Handbook's subchapter entitled "How to Become a Market Research 
Analyst," which states, in pertinent part, that market research analysts typically need a bachelor's 
degree in market research or a related field. 6 According to the Handbook, some individuals have 
degrees in fields such as statistics, math, computer science, business administration, the social 
sciences, or communications. It continues by stating that some jobs require a master's degree and that 
many analysts complete degrees in fields such as statistics and marketing or earn a master's degree in 
business administration (MBA). 7 
The Handbook reports that market research analysts have degrees and backgrounds in a wide-variety 
of disparate fields. The Handbook farther identifies various courses as essential to this occupation, 
including statistics, research methods, and marketing and farther elucidates that courses in 
communications and social sciences (such as economics, psychology, and sociology) are also 
important. Therefore, although the Handbook indicates that market research analysts may need an 
advanced degree, particularly for "leadership positions or positions that perform more technical 
research," it also indicates that degrees and backgrounds in various fields are acceptable for jobs in 
this occupation - including computer science and the social sciences, as well as statistics and 
communications. 8 
4 We do not maintain that the Handbook is the exclusive source ofrelevant 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 we regularly review 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 ofproofremains 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. 
5 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-lB 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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). 
6 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Market Research Analysts 
https://www.bls.gov/ooh/business-and-financial/market-research-analysts.htm#tab-4 (last visited Feb. 26, 2020). 
7 Id. 
8 In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum of a bachelor's or 
higher degree in more than one specialty is recognized as satisfying the "degree in the specific specialty ( or its equivalent)" 
requirement of section 214(i)(l )(B) of the Act. In such a case, the required "body of highly specialized knowledge" would 
essentially be the same. Since there must be a close correlation between the required "body of highly specialized 
knowledge" and the position, however, a minimum entry requirement of a degree in two disparate fields, such as 
philosophy and engineering, would not meet the statutory requirement that the degree be •'in the specific specialty ( or its 
equivalent)," unless the Petitioner establishes how each field is directly related to the duties and responsibilities of the 
particular position such that the required body of highly specialized knowledge is essentially an amalgamation of these 
different specialties. Section 2 l 4(i)(l )(B) of the Act ( emphasis added). 
Whether read with the statutory "the" or the regulatory "a," both readings denote a singular "specialty." Section 
214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). Still, we do not so narrowly interpret these provisions to exclude 
4 
In addition to recognizing degrees in disparate fields, i.e., social science and computer science, as 
acceptable for entry into this field, the Handbook also states that "[ o ]thers have backgrounds in 
business administration." Although a general-purpose bachelor's degree, such as a 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., 484 F .3d at 14 7. Therefore, the Handbook's recognition that 
a general, non-specialty "background" in business administration, or one of a number of other fields, 
is sufficient for entry into the occupation strongly suggests that a bachelor's degree in a specific 
specialty is not a standard, minimum entry requirement for this occupation. The Handbook, therefore, 
does not support the assertion that at least a bachelor's degree in a specific specialty, or its equivalent, 
is normally the minimum requirement for these positions. 
The narrative of the Handbook further reports that some employees obtain professional certification 
to demonstrate a level of professional competency. It continues by outlining the requirements for 
market research analysts to achieve the Professional Researcher Certification (PRC), and states that 
candidates qualify based upon their experience and knowledge. According to the Handbook, the PRC 
is granted by the Marketing Research Association, now known as the Insights Association,9 to those 
who pass an exam, have at least three years of experience working in opinion and market research, 
and complete 12 hours of industry-related education courses. 10 
We reviewed the Insights Association's website, which confirms the Handbook's statement regarding 
the requirements for the PRC (i.e., passage of an exam, three years of relevant industry experience, 
and 12 hours of industry-related education), and further specifies that the "education" necessary to 
apply for PRC is "12 industry-related education hours within the two preceding years." The website 
includes information regarding "How to Enter the Industry" which lists a variety of possible degrees, 
such as business administration, liberal arts, statistics/math, qualitative analysts, computer science, 
social science, and communications, and a variety of "helpful skills," including "attention to detail," 
"presentation skills," and "basic computer skills." It does not indicate that a market research analyst 
position has any specific minimum academic requirement for entry, nor does it state that it requires 
any particular level of education to be identified as qualified and possessing a level of expertise or 
competence. Instead, the Insights Association's website highlights the importance of professional 
experience and industry-related professional courses (through conferences, seminars, and webinars). 
Consequently, neither the Handbook nor the Insights Association website support the assertion that at 
least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum requirement 
for these positions. 
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. 
9 The Marketing Research Association merged with the Council of American Survey Research Organizations in 2017 to 
become the Insights Association. See http://www.insightsassociation.org/about (last visited Feb. 26, 2020). The Insights 
Association is therefore the successor to the Marketing Research Association. 
10 The Insights Association website states that it "strives to effectively represent, advance, and grow the research profession 
and industry." For additional information, see http://www.insightsassociation.org/about (last visited Feb. 26, 2020). 
5 
The Petitioner also references DOL's Occupational Information Network (O*NET) summary report 
for "Market Research Analysts and Marketing Specialists" listed as SOC code 13-1161.00 for our 
consideration under this criterion. 
Though relevant, the information the Petitioner submits from O*NET does not establish the 
Petitioner's eligibility under the first criterion, as it does not establish that a bachelor's degree in a 
specific specialty, or the equivalent, is normally required. The summary report provides general 
information regarding the occupation; however, it does not support the Petitioner's assertion regarding 
the educational requirements for these positions. For example, the Specific Vocational Preparation 
(SVP) rating, which is defined as "the amount oflapsed time required by a typical worker to learn the 
techniques, acquire the information, and develop the facility needed for average performance in a 
specific job-worker situation," cited within O*NET's Job Zone designates this position as having an 
SVP 7 < 8. This indicates that the occupation requires "over 2 years up to and including 4 years" of 
training. 11 While the SVP rating provides the total number of years of vocational 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. 12 The O*NET summary report for this occupation 
also does not specify that a degree is required, but instead states, "most of these occupations require a 
four-year bachelor's degree, but some do not." Similar to the SVP rating, the Job Zone Four 
designation does not indicate that any academic credentials for Job Zone Four occupations must be 
directly related to the duties performed. 
Further, we note that the summary report provides the educational requirements of "respondents." 
However, 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 respondents must be in a specific specialty. 13 Thus, the Petitioner's 
reliance on the 100% of"respondents" claiming to hold at least a bachelor's degree as a demonstration 
that a bachelor's degree is the normal requirement for the occupation is misguided. A requirement for 
a bachelor's degree alone is not sufficient. Instead, we construe the term "degree" 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., 484 F.3d at 147 (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). 
O*NET, therefore, also does not support the assertion that at least a bachelor's degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for these positions. 
On appeal, the Petitioner cites Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 
2012). We agree that "[t]he knowledge and not the title of the degree is what is important." However, 
11 This training may be acquired in a school, work, military, institutional, or vocational environment. Specific vocational 
training includes: vocational education, apprenticeship training, in-plant training, on-the-job training, and essential 
experience in other jobs. 
12 For additional information. see the O*NET Online Help webpage available at http://www.onetonline.org/help/ 
online/svp. 
13 Nor is it apparent whether these credentials were prerequisites to these individuals' hiring. 
6 
in general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty ( or its equivalent)" requirement of section 214(i)(l )(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since there 
must be a close correlation between the required "body of highly specialized knowledge" and the 
position, however, a minimum entry requirement of a degree in two disparate fields, such as English 
and business, 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. Section 214(i)(l)(B) of the Act (emphasis added). 14 For the 
aforementioned reasons, however, the Petitioner has not met its burden to establish that the particular 
position offered in this matter requires a bachelor's or higher degree in a specific specialty, or its 
equivalent, directly related to its duties in order to perform those tasks. 
In any event, the Petitioner has famished no evidence to establish that the facts of the instant petition 
are analogous to those in Residential Finance. 15 Again, we are not bound to follow the published 
decision of a United States district court in matters arising even within the same district. See K-S-, 20 
I&N Dec. at 719-20. It is also important to note that in a subsequent case reviewed in the same 
jurisdiction, the court agreed with our analysis of Residential Finance. See Health Carousel, LLC v. 
USCIS, No. 1:13-CV-23, 2014 WL 29591 (S.D. Ohio 2014). 
The Petitioner also cites Raj and Co. v. USCIS, 85 F. Supp. 3d 1241 (W.D. Wash. 2015). We agree 
with the court that a specialty occupation is one that requires the attainment of a bachelor's or higher 
degree in a specific specialty or its equivalent. However, we farther note that a petitioner must also 
demonstrate that the position requires the theoretical and practical application of a body of highly 
specialized knowledge in accordance with section 214(i)(l)(B) of the Act and 8 C.F.R. § 
214.2(h)(4)(ii), and satisfy one of the four criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Further, in Raj, the court stated that a specialty occupation requires the attainment of a bachelor's 
degree or higher in a specific specialty, or its equivalent. The court confirmed that this issue is well­
settled in case law and with the agency's reasonable interpretation of the regulatory framework. In 
the decision, the court noted that "permitting an occupation to qualify simply by requiring a 
generalized bachelor degree would run contrary to congressional intent to provide a visa program for 
specialized, as opposed to merely educated, workers." The court stated that the regulatory provisions 
do not restrict qualifying occupations to those for which there exists a single, specifically tailored and 
titled degree program; but rather, the statute and regulations contain an equivalency provision. 16 
14 The court in Residential Finance did not eliminate the statutory "bachelor's or higher degree in the specific specialty" 
language imposed by Congress. Rather, it found that the petitioner in that case had satisfied the requirement. 
15 The district judge's decision appears to have been based largely on the many factual errors made by the Director in the 
decision denying the petition. We further note that the Director's decision was not appealed to us. Based on the district 
court's findings and description of the record, if that matter had first been appealed through the available administrative 
process, we may very well have remanded the matter to the service center for a new decision for many of the same reasons 
articulated by the district court if these errors could not have been remedied by us in our de novo review of the matter. 
16 We agree with the court that a specialty occupation is one that requires the attainment of a bachelor's or higher degree 
in a specific specialty or its equivalent. We further note that a petitioner must also demonstrate that the position requires 
the theoretical and practical application of a body of highly specialized knowledge in accordance with section 214(i)(l )(B) 
of the Act and 8 C.F.R. § 214.2(h)(4)(ii), and satisfy one of the four criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
7 
In Raj, the court concluded that the employer met the first criterion. We must note, however, that the 
court stated that "[t]he first regulatory criterion requires the agency to examine the generic position 
requirements of a market research analyst in order to determine whether a specific bachelor's degree 
or its equivalent is a minimum requirement for entry into the profession." Thus, the decision misstates 
the regulatory requirement. That is, the first criterion requires the petitioner to establish that a 
baccalaureate or higher degree (in a specific specialty) or its equivalent is normally the minimum 
requirement for entry into the particular position. 
Consequently, if the court meant to suggest that any position classified under the occupational category 
"Market Research Analysts" would, as it stated, "come within the first qualifying criteria" - we must 
disagree. 17 The occupational category designated by a petitioner is considered as an aspect in 
establishing the general tasks and responsibilities of a proffered position, and USCIS regularly reviews 
the Handbook on the duties and educational requirements of the wide variety of occupations that it 
addresses. However, 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. That is, to determine whether a 
particular job qualifies as a specialty occupation, USCIS does not simply rely on a position's title or 
designated occupational category. 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 beneficiary, and determine whether the position qualifies as 
a specialty occupation. See generally Defensor, 201 F.3d 384. 
Nevertheless, it is important to note that the court in Raj determined that the evidence in the record 
demonstrated that the particular position proffered required a bachelor's degree in market research or 
its equivalent as a minimum for entry. Further, the court noted that "[t]he patently specialized nature 
of the position sets it apart from those that merely require a generic degree." The position in Raj can, 
therefore, be distinguished from the instant position. Here, the duties and requirements of the position 
as described in the record of proceeding do not indicate that this particular position proffered by the 
petitioner is one for which a baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry. Thus, the Petitioner has not satisfied the criterion at 8 
C.F.R. § 214.2(h)(4)(iii)(A)(l). 
The record lacks sufficient probative evidence to support a finding that the proffered position is one 
for which a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the 
minimum requirement for entry. For the aforementioned reasons, the Petitioner has not met its burden 
to establish that the particular position offered in this matter requires a bachelor's or higher degree in 
a specific specialty, or its equivalent, directly related to its duties in order to perform those tasks. Thus, 
the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
17 In Raj, the court quoted a brief excerpt from the Handbook; however, the quotation is from the 2012-2013 edition rather 
than the current 2014-2015 edition (which contains several revisions). Further, we observe that the court did not address 
the section of the Handbook indicating that there are no specific degree requirements to obtain the Professional Researcher 
Certification credential - and therefore to work as a market research analyst. 
8 
2. 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 unique 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 casts its gaze upon the common 
industry practice, while the alternative prong narrows its focus to the Petitioner's specific position. 
a. 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. 
We generally consider the following sources of evidence to determine if there is such a common degree 
requirement: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry attest that such firms "routinely employ and recruit 
only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) ( quoting 
Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989) (considering these "factors" to 
inform the commonality of a degree requirement)). 
The Petitioner has not established that its proffered position is one for which the Handbook ( or other 
independent, authoritative sources) reports an industry-wide requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on the 
matter. Also, there are no submissions from the industry's professional association indicating that it has 
made a degree a minimum entry requirement. 
In response to the RFE, the Petitioner stated that "in addition to managing gas stations and convenience 
stores, [it] has established a material business presence in the cell phone and electronics space," thus, 
the Petitioner provided evidence within the cell phone electronics industry. 
First, the Petitioner submitted two letters from the Vice President of Product Development at T-Cetra 
and the Manager of Prepaid Sales and Distribution at Sprint for consideration under this prong. In 
sum, each of the authors describes his experience within the industry and states that it is common for 
positions similar to the one proffered here to require a bachelor's degree in marketing, business, 
logistics, or a related field. However, neither of the letters are supported by evidence or the necessary 
information to determine that the companies routinely employ or recruit only specifically degreed 
individuals for "product marketing and logistics specialists" or market research analyst positions ( or 
parallel positions). 18 As such, we find that the letters are not sufficient to satisfy the first prong. 
Next, the Petitioner also submitted job vacancy announcements for our consideration under this prong. 
To be relevant for this consideration, the job vacancy announcements must advertise "parallel 
18 Further, as previously explained, a requirement for a degree in business, without more, is insufficient to establish the 
position as a specialty occupation. 
9 
positions," and the announcements must have been placed by organizations that (1) conduct business 
in the Petitioner's industry and (2) are also "similar" to the Petitioner. These job vacancy 
announcements do not satisfy that threshold. Upon review of the documents, we find that the 
Petitioner's reliance on the job announcements is misplaced. 
We will first consider whether the advertised job opportunities could be considered "parallel 
positions." As noted, the Petitioner attested to DOL that the proffered position is a Level I position. 
However, one of the advertised positions requires work experience beyond the requirements for a 
Level I position; it requires a master's degree plus three years ofrelevant experience or a bachelor's 
degree plus five years of relevant experience, along with specified years of experience with specific 
computer programs. Further, some of the advertisements do not include sufficient information about 
the duties and responsibilities for the advertised positions. Thus, it is not possible to determine 
important aspects of the jobs, such as the day-to-day responsibilities, complexity of the job duties, 
supervisory duties (if any), and independent judgment required or the amount of supervision received. 
Therefore, the Petitioner has not sufficiently established that the primary duties and responsibilities of 
the advertised positions parallel those of the proffered position. 
Nor does the record contain documentary evidence sufficient to establish that these job vacancy 
announcements were placed by companies that (1) conduct business in the Petitioner's industry and 
(2) are also "similar" to the Petitioner. Here, the Petitioner claims that it has 145 employees 19 and 
stated that it has established a material business presence in the cell phone and electronics space, which 
appears to be the focus of the proffered position. In contrast, one of the advertised positions is for a 
communications company with 3,500 employees; another is for a "digital consumer choice platform" 
also with 3,500 employees; and the remaining advertisements do not provide sufficient information 
regarding the hiring employers. While the Petitioner claims, on appeal, that these advertised positions 
are within the same electronics-related industry as the Petitioner, the Petitioner did not supplement the 
record of proceedings to establish that these advertising organizations are similar to it. 20 
Moreover, some of the postings do not indicate that at least a bachelor's degree in a directly related 
specific specialty (or its equivalent) is required. For instance, one of the advertised positions requires 
a bachelor's degree in marketing, business, mathematics, economics, engineering, or other relevant 
field, but further states that "experience may be substituted on a year-for-year basis plus two (2) to 
four ( 4) years of progressive experience" and that "additional relevant education may be substituted 
on a year-for-year basis," and another advertised position also lists a bachelor's degree in business as 
a requirement. However, these advertised positions indicate that business or business administration 
are acceptable fields of study for entry into their positions, which, without further specialization, we 
would not consider to be a requirement for a bachelor's degree in a specific specialty. Overall, the job 
19 Per the Petitioner's claim on the Form 1-129 at the time of filing the petition. 
20 The language of the regulation is clear and when determining whether the job vacancy announcements are relevant for 
consideration, the Petitioner must show that they are "similar" organizations. When determining whether the Petitioner 
and another organization share the same general characteristics, such factors may include information regarding the nature 
or type of organization, and, when pe1iinent, the pa1iicular scope of operations, as well as the level ofrevenue 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 basis for the assertion. 
10 
postings suggest, at best, that although a bachelor's degree is sometimes required for these positions, 
a bachelor's degree in a specific specialty (or its equivalent) is not. 
For all of these reasons, the Petitioner has not established that these job vacancy announcements are 
relevant. 21 As the documentation does not establish that the Petitioner has met this prong of the 
regulations, further analysis regarding the specific information contained in each of the job postings 
is not necessary. 22 That is, not every deficit of every job posting has been addressed. 
The Petitioner has not provided sufficient evidence to establish that a bachelor's degree in a specific 
specialty, or its equivalent, is common to the industry in parallel positions among similar 
organizations. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
b. 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 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. 
We reviewed the Petitioner's statements regarding the proffered pos1t10n; however, while the 
Petitioner briefly stated that the product marketing and logistics specialist "will be responsible for 
conducting regular market research and analysis to develop profitable marketing strategies for our 
products and ensure the availability of products at all times," it has not sufficiently developed relative 
complexity or uniqueness as an aspect of the proffered position. That is, the Petitioner has not 
explained in detail how tasks such as: research market conditions for convenience and wireless 
products; research trends for major wireless companies; analyze data and develop plan to proactively 
implement innovations and get new/best product mix to stores; meet with wireless partners to 
maximize allocations to each location and develop marketing strategies; gather and analyze 
information on competitors; synthesize data to forecast and track marketing and sales trends; collect 
and analyze data from the field to evaluate promotions and pricing strategies; closely monitor product 
availability; work closely with other members of the marketing department to develop and evaluate 
marketing and advertising campaigns; benchmark industry trends and changes; track advertised 
release dates for new phone models/tablets in order to place timely orders and get proper inventory 
levels; develop, establish, and execute new merchandising strategies related to product management 
21 Even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty is common to 
the industry in parallel positions among similar organizations (which they do not), the Petitioner has not demonstrated 
what statistically valid inferences, if any. can be drawn from the advertisements with regard to determining the common 
educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The Practice 
of Social Research 186-228 (1995). Moreover, given that there is no indication that the advertisements were randomly 
selected, the validity of any such inferences could not be accurately determined even if the sampling unit were sufficiently 
large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] process [of probability sampling]" and 
that "random selection offers access to the body of probability theory, which provides the basis for estimates of population 
parameters and estimates of error"). 
22 The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
11 
develop new "speed to shelf process," new item tagging, and pricing strategies by visiting all locations 
on a regular basis to ensure that accessories for all phone models are properly displayed, tagged, and 
in stock; place orders with existing vendors in a timely manner to get shipments on time and avoid 
being "out of stock"; maintain accurate, detailed inventory reports; develop a system of tracking 
current inventory levels at each location; receive and check daily deliveries for ordered products; track 
estimated arrival time of deliveries to ensure merchandise is processed; manage timely internal 
deliveries; set schedules for internal delivery employee; receive, process, and prepare for deliveries of 
phones and accessories orders from other stores; help identify, qualify, and onboard new vendors; 
locate new vendors in the US and other countries with better product selection and/or better pricing, 
and negotiate pricing, payment terms, and shipment process; process damaged products; process all 
returns from stores and redistribute overstock items to other locations or return to vendor due to 
damage/poor quality; engage with employees and customers while in the field working with stores' 
wireless specialists for feedback; and capture any customer complaints and address as necessary 
require the theoretical and practical application of a body of highly specialized knowledge. These 
listed duties, when read in combination with the Petitioner's statements about its business operations, 
suggests that this particular position is not so complex or unique relative to other product marketing 
and logistics specialists that the duties can only be performed by an individual with a bachelor's degree 
or higher in a specific specialty, or its equivalent. 
Further, the Beneficiary's proposed job duties include collaborations with "wireless partners," "the 
field," "other members of the marketing department," "vendors," "store managers," "internal delivery 
employee," "customers," and "stores." However, the Petitioner has not identified the individuals the 
Beneficiary would work with, or any "customers" the Beneficiary would support in the proffered 
position. On appeal, the Petitioner addresses its organizational chart and its lack of a "marketing 
department;" the Petitioner states that it has 145 employees and not all of them were included in the 
organizational chart due to space constraints. The Petitioner further states "other employees do in fact 
contribute to [ the company's] marketing activities by assisting in the design of promotion posters and 
brochure and discount cards ... hence, despite not having a formal marketing department, [its] other 
employees do contribute to the company's marketing efforts on the whole." However, the Petitioner's 
organizational does not identify any employees with marketing roles and the Petitioner did not 
specifically identify which employees make up the listed "marketing department" when addressing 
this issue on appeal. Further, the Petitioner lists "the field" and "stores" that the Beneficiary would 
work with and support in the proffered position; however, the Petitioner also failed to identify what 
stores the Beneficiary would work with or support. While the Petitioner submitted a "sampling of 
invoices with companies around the world showing the international reach of [its] operations," it did 
not submit evidence of stores in the United States. 
Additionally, the Petitioner claims that the Beneficiary is well qualified for the position, and references 
her qualifications. The Petitioner provided detailed information about the courses related to the 
knowledge required in order to perform the duties of the proffered position. The Petitioner indicated 
that these courses and specific coursework provided the Beneficiary with the skills necessary to 
perform the listed duties. 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. Simply providing a long list of the 
Beneficiary's coursework, or courses available in a degree program, does not sufficiently develop 
relative complexity or uniqueness of the particular position. 
12 
The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the duties 
of the position, and it did not identify any tasks that are so complex or unique that only a specifically 
degreed individual could perform them. Accordingly, the Petitioner has not satisfied the second 
alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
3. 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 equivalent, for the position. 
As this is the first time the Petitioner hires for the proffered position, it did not submit evidence of 
previous or current employees who have served in the proffered position. The Petitioner indicated 
that it previously hired employees in similar positions, two market research analysts and one strategic 
business analyst, and submitted copies of their degrees and immigration documents. The duties listed 
for one of the market research analysts are the same as those for the proffered position. However, the 
Petitioner did not submit any evidence that this individual was actually employed by the Petitioner in 
the claimed position. 
The Petitioner also submitted copies of internal job advertisements for a market research analyst 
position and a strategic business analyst position. The Petitioner contends that it always requires a 
bachelor's degree in a specific specialty for positions similar to the one proffered here. However, the 
market research analyst position advertised indicates that the Petitioner requires a master's degree, or 
equivalent, in business, marketing, or a related field, and fluency in Russian. While the Petitioner 
indicated that the proffered position here is at a Wage Level I on the LCA, it appears that the advertised 
position is for a more senior position in its requirement for a master's degree and an additional 
language skill. Further, the advertisement does not provide sufficient information about the duties of 
the position to demonstrate that it is the same or similar to the duties of the proffered position. The 
strategic business analyst position advertised indicates that the Petitioner requires a bachelor's degree 
in business, economics, or a related field; however, the duties listed for the position do not indicate 
that it is the same or similar to the proffered position, and, as previously explained, a requirement for 
a degree in business, without more, is insufficient to establish the position as a specialty occupation. 
As such, the Petitioner has not sufficiently established that the proffered position is the same or similar 
to the advertised position such that we can conclude that the Petitioner normally requires a bachelor's 
degree in a specific specialty, or its equivalent for this position. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference for 
high-caliber candidates but is necessitated instead by performance requirements of the position. See 
Defensor, 201 F.3d at 387-88. Were we limited solely to reviewing a petitioner's claimed self-imposed 
requirements, an organization could bring any individual with a bachelor's degree to the United States to 
perform any occupation as long as the petitioning entity created a token degree requirement. Id. Evidence 
provided in support of this criterion may include, but is not limited to, documentation regarding the 
Petitioner's past recruitment and hiring practices, as well as information regarding employees who 
previously held the position. 
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We conclude that the Petitioner did not provide sufficient documentary evidence to support the assertion 
that it normally requires at least a bachelor's degree in a specific specialty, or its equivalent, directly 
related to the duties of the position. The Petitioner has not satisfied the third criterion of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
4. 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. 
For reasons similar to those discussed under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), we 
find that the Petitioner has not established that its proffered position is one with duties sufficiently 
specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). We incorporate our earlier 
discussion and analysis on this matter. 
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. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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