dismissed H-1B Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-P- INC . 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 11, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a local pharmacy and general merchandise retailer, seeks to employ the Beneficiary 
temporarily as an "administrative services manager" under the H-1B nonirnrnigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(l5)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both: (a) the theoretical and practical application 
of a body 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 Vermont Service Center denied the Form 1-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish that the proffered position qualifies as a specialty 
occupation. On appeal , the Petitioner submits additional evidence and asserts that the Director erred 
in denying the petition. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l) , defines the term "specialty occupation" as an 
occupation that requires : 
(A) theoretical and practical application of a body of highly specialized knowledge , 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214 .2(h)( 4)(ii) largely restates this statutory definition and adds a 
non-exhaustive list of fields of endeavor. 
Matter of C-P- Inc. 
II. ANALYSIS 
For the reasons discussed below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. Specifically, we conclude that, based on the 
Petitioner's own requirements, the proffered position does not meet the statutory or regulatory 
definition of a specialty occupation. Additionally, we determine that the Petitioner has not established 
the substantive nature of the position, which precludes a determination that the proffered position 
qualifies as a specialty occupation under any of the four regulatory criteria enumerated at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l)-( 4). 
A. Definition of 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. Within the initial filing, the Petitioner 
indicated the minimum education required for the proffered position was "a Master or Bachelor's 
degree in a related field for all of our professionals .... " Within the response to the Director's request 
for evidence (RFE), the Petitioner did not provide any additional details pertaining to its degree 
requirements, but instead relied on the contents of an opinion letter that surmised the proffered position 
required a bachelor's degree in business administration and related fields. After acquiring new 
counsel, the Petitioner's appeal brief now reflects that it requires a minimum of a bachelor's degree 
( or equivalent) in business administration concentrating on accounting and finance, or a closely related 
field. 
First, the Petitioner's initial filing did not specify any particular concentration for its degree 
requirement; it merely required a degree in a related field and it did not provide any greater detail 
when responding to the RFE. We note that we will not attribute the opinion letter author's conclusions 
to the Petitioner's actual education requirements for the proffered position, as the Petitioner did not 
specifically express that these were its requirements. The opinion letter and industry norms are not 
equivalent to the Petitioner's requirements, which are mandatory. 1 Furthermore, the degree 
requirements expressed on appeal will not factor into our analysis, as these differ from the Petitioner's 
initial education standards and the Petitioner offers no explanation for amending its requirements on 
appeal. A petitioner must establish eligibility at the time it files the nonimmigrant visa petition. 2 U.S. 
Citizenship and Immigration Services (USCIS) may not approve a visa petition at a future date after a 
petitioner or a beneficiary becomes eligible under a new set of facts. 3 Moreover, a petitioner may not 
make material changes to a petition that has already been filed in an effort to make an apparently 
deficient petition conform to USCIS requirements. 4 
Returning to the Petitioner's position prerequisites, it did not specify any specific specialty or 
discipline associated with the degree. Instead, it has only required a degree "in a related field" without 
indicating what concentrations it would find acceptable. The Petitioner's claim that a "Master or 
1 See section 214(i)(l)(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). See also Royal Siam Co1p., 484 F.3d at 147. 
2 8 C.F.R. § 103.2(b)(l), (12). 
3 Matter of Michelin Tire Corp., 17 T&N Dec. 248, 249 (Reg'! Comm'r 1978). 
4 See Matter of Izummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 1998). 
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Matter of C-P- Inc. 
Bachelor's degree in a related field for all of our professionals" is a sufficient minimum requirement 
for entry into the proffered position is inadequate to establish that the proposed position qualifies as a 
specialty occupation. Although a general-purpose bachelor's degree may be a legitimate prerequisite 
for a particular position, requiring such a degree, without more, will not justify a conclusion that a 
particular position qualifies for classification as a specialty occupation. 5 Since there must be a close 
correlation between the required specialized studies and the position, the requirement of a degree with 
a generalized title, and without farther specification, does not establish the position as a specialty 
occupation. 6 
Based on the Petitioner's amorphous statements, we cannot conclude that the particular position 
proffered has a normal minimum entry requirement of a bachelor's or higher degree in a specific 
specialty or its equivalent under the Petitioner's own standards. Consequently, the Petitioner's 
unspecified education requirement is inadequate to satisfy the statutory definition of a specialty 
occupation. The process of demonstrating that a proffered position is sufficient to meet the 
requirements under the H-lB program includes more than satisfying one of the criteria at 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A). The regulation also requires a petitioner to demonstrate that a petition "involves 
a specialty occupation as defined in section 2 l 4(i)(l) of the Act." 7 This statutory definition states: 
"the term 'specialty occupation' means an occupation that requires ... [a] theoretical and practical 
application of a body of highly specialized knowledge, and ... attainment of a bachelor's or higher 
degree in the specific specialty ( or its equivalent) as a minimum for entry into the occupation in the 
United States." 
From this, we reason that the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) should be read logically as being 
necessary-but not necessarily sufficient-to meet the statutory and regulatory definition of a 
specialty occupation. To otherwise interpret this section as stating the necessary, but not necessarily 
sufficient conditions are adequate to qualify would result in some positions meeting a condition under 
the criteria, but not under the statutory definition. 8 To avoid this erroneous result, 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that must be met in 
accordance with, and not as alternatives to, the statutory definition of a specialty occupation. This 
results in a multi-part analysis to determine whether a particular position qualifies as a specialty 
5 See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007). Specifically, the judge explained in Royal Siam, 
484 F.3d at 147, that: 
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-lB specialty 
occupation visa. See, e.g., Tapis Int'! 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 T&N Dec. 558, 560 ([Comm'r] 1988) 
(providing frequently cited analysis in connection with a conceptually similar provision). This is as it 
should be: elsewise, 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. 
6 Cf Michael Hertz Assocs., 19 T&N Dec. at 560. 
7 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
8 See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000); Sagarwala v. Cissna, No. CV 18-2860 (RC), 2019 WL 
3084309, at *5 (D.D.C. July 15, 2019). 
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Matter of C-P- Inc. 
occupation. In summary, the Petitioner's position requirements do not satisfy the statutory definition 
of a specialty occupation. 
B. Substantive Nature of the Proffered Position 
We observe an additional deficiency that adversely affects the Petitioner's eligibility. A crucial aspect 
of this matter is whether the Petitioner has sufficiently described the proffered position's duties such 
that we may discern the nature of the position. The Petitioner has not done so here. The Petitioner's 
initially provided duties were either directly copied or closely paraphrased, primarily from the U.S. 
Department of Labor's (DOL) Occupational Outlook Handbook (Handbook), but also from the 
Occupational Information Network (O*NET). Although its revised duties within the RFE response 
provided addition information in the way of examples, it remains that the broad overarching functions 
were apparently appropriated from the above government's Internet resources. 
Offering generic position duties from the Handbook is generally insufficient to demonstrate eligibility, as 
the duties themselves provide the nature of the employment. 9 While this type of description may be 
appropriate when defining the range of duties that may be performed within an occupational category, it 
does not adequately convey the substantive work that the Beneficiary will perform on a day-to-day basis 
within the Petitioner's business operations. 10 Here, the job descriptions from the Petitioner do not 
sufficiently communicate: (1) the actual work that the Beneficiary would perform; (2) the complexity, 
uniqueness and/or specialization of the tasks; and/or (3) the correlation between that work and a need for 
a particular level of knowledge in a specific specialty. 
Finally, the revised duties within the appellate brief: offered for the first time on appeal, will not factor 
into our analysis. The Director requested more specific duties within the RFE and the Petitioner 
responded to that portion of the request. The purpose of an RFE is to elicit further information that 
clarifies whether the Petitioner has established eligibility for the benefit sought as of the filing date of the 
petition. 11 As in the present matter, where the Director put the Petitioner on notice of a deficiency in the 
evidence and gave the Petitioner an opportunity to respond to that deficiency, we will not accept evidence 
offered for the first time on appeal. 12 If the Petitioner had wanted the Director to consider the new duties 
offered on appeal, it should have submitted this version in response to the Director's RFE. 13 Under the 
circumstances, we will not consider the sufficiency of the evidence submitted on appeal. 
9 Cf Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990) (stating 
specifics are an important indication of the nature of a beneficiary's duties, otherwise meeting the requirements would 
simply be a matter of providing a job title or reiterating the regulations.) 
10 DOL guidance states that for a wage level determination, it is important that the job description include "sufficient 
information to determine the complexity of the job duties, the level of judgment, the amount and level of supervision, and 
the level of understanding required to perform the job duties." 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.foreignlaborce11.doleta.gov/pdfi'NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
11 See 8 C.F.R. ~ 103.2(b)(8), (12). 
12 See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988). 
13 Id. 
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Matter of C-P- Inc. 
The reason for filing an appeal is to provide an affected party with the means to remedy what they 
perceive as an erroneous conclusion of law or statement of fact within a decision in a previous 
proceeding. 14 An appeal is a request to a higher authority to review a decision. The appeal is not intended 
as a petitioner's opportunity to improve upon its eligibility claims or its evidence. Instead, it is an 
opportunity to illustrate how the Director's determinations were incorrect. The Petitioner may not make 
such a significant change to an element that serves as the underlying basis for eligibility at this stage of 
the process. Eligibility must be demonstrated when a petition is filed.15 Accordingly, a petitioner may 
not make material changes to a petition-or to its supporting evidence-in an effort to make an apparently 
deficient petition conform to USCIS requirements. 16 
For all of the above reasons, we conclude that the Petitioner has not described the position's duties 
and educational requirements with sufficient detail and consistency. Without more, we cannot 
determine the substantive nature of the proffered position, and consequently, whether it requires an 
educational background, or its equivalent, commensurate with a specialty occupation. Absent such a 
foundational showing, we cannot determine whether the proffered position is a specialty occupation. 
Based on this shortcoming, we cannot conclude that the Petitioner has sufficiently demonstrated the 
actual, substantive nature of the work the Beneficiary would perform. This precludes a finding that 
the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the 
substantive nature of that work that determines (1) the normal minimum educational requirement for 
the particular position, which is the focus of criterion one; (2) industry positions which are parallel to 
the proffered position and thus appropriate for review for a common degree requirement, under the 
first alternate prong of criterion two; (3) the level of complexity or uniqueness of the proffered 
position, which is the focus of the second alternate prong of criterion two; (4) the factual justification 
for a petitioner normally requiring a degree or its equivalent, when that is an issue under criterion 
three; and ( 5) the degree of specialization and complexity of the specific duties, which is the focus of 
criterion four. 17 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a 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. 
Cite as Matter of C-P- Inc., ID# 4742448 (AAO Sept. 11, 2019) 
14 See 8 C.F.R. § 103.3(a)(l)(v). 
15 8 C.F.R. § 103.2(b)(l), (12). 
16 See Izummi, 22 l&N Dec. at 175. 
17 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal. 
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