dismissed H-1B Case: Retail Sales

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-W-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 16, 2015 
PETITION: FORM 
I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an authorized retailer of wireless products and services, seeks to employ the 
Beneficiary as an Area Retail Sales and Operations Manager and to classify him as a 
nonimmigrant worker in a specialty occupation . See section 101 ( a)(15)(H)(i)(b) of the 
Immigration and Nationalit y Act (the Act), 8 U.S.C. § 110l(a)(15)(H)(i)(b) . The Director, 
Vermont Service Center, denied the petition. The matter is now before us on appeal. The appeal 
will be dismissed. 
The Director denied the petition, finding that the evidence of record did not establish that the 
proffered position qualifies as a specialty occupation. 
The record of proceeding before us contains the following: (1) the Form I-129 and supporting 
documentation ; (2) the Director 's request for additional evidence (RFE); (3) the Petitioner 's 
response to the RFE; (4) the Director 's letter denying the petition ; and (5) the Form I-290B, 
Notice of Appeal or Motion, and supporting documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record does not 
overcome the Director's basis for denying this petition. Accordingly, the appeal will be dismissed, 
and the petition will be denied. 
I. SPECIALTY OCCUPATION 
The issue is whether the evidence of record demonstrates by a preponderance of the evidence that 
the Petitioner will employ the Beneficiary 
in a specialty occupation position. 1 
1 The "preponderance of the evidence " standard requires that the evidence demonstrate that the applicant's claim is 
"probabl y true," where the determination of "truth" is made based on the factual circumstances of each individual 
case. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M-, 20 I&N Dec. 77, 79-80 
(Comm 'r 1989)). 
Matter of N- W-, Inc. 
A. Legal Framework 
For an H -1 B petition to be granted, the Petitioner must provide sufficient evidence to establish that 
it will employ the Beneficiary in a specialty occupation position. To meet its burden of proof in 
this regard, the Petitioner must establish that the employment it is offering to the Beneficiary 
meets the applicable statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty 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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F .R. § 214.2(h)( 4 )(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(I) 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 a 
baccalaureate or higher degree. 
2 
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Matter of N- W-, Inc. 
As a threshold issue, it is noted that 8 C.F .R. § 214.2(h)( 4 )(iii)( A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F .R. § 214.2(h)( 4 )(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the 
statute as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that 
construction of language which takes into account the design of the statute as a whole is 
preferred); see also COlT Independence Joint Venture v. Federal Sav. And Loan Ins. Corp., 489 
U.S. 561 (1989); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 
8 C.F.R. § 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily 
sufficient to meet the statutory and regulatory definition of specialty occupation. To otherwise 
interpret this section as stating the necessary and sufficient conditions for meeting the definition of 
specialty occupation would result in particular positions meeting a condition under 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
F.3d 387. To avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing 
supplemental criteria that must be met in accordance with, and not as alternatives to, the statutory 
and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Cherto.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"). Applying this standard, USCIS regularly approves H -1 B petitions for qualified foreign 
nationals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which Petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a 
baccalaureate or higher degree in a specific specialty or its equivalent directly related to the duties 
and responsibilities of the particular position, fairly represent the types of specialty occupations 
that Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the foreign national, and determine whether the position qualifies as a 
specialty occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is 
not the title of the position nor an employer's self-imposed standards, but whether the position 
actually requires the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty as the 
minimum for entry into the occupation, as required by the Act. 
3 
(b)(6)
Matter of N- W-, Inc. 
B. The Proffered Position 
In its support letter, the Petitioner 
provided the following information regarding the duties of the 
proffered position: 
The part-time ARSOM's (Area Retail Sales and Operations Manager's] 
duties will include: business development and ensuring that the company is 
operating properly, directly supervising the Manager of each of the company's 
seven (7) retail locations, including supervising each location's marketing efforts 
and training the Managers as to how to train their respective new hires; liaising 
with to ensure that new information is rolled down to each of the stores; 
evaluating each store's performance to determine best practices and procedures; 
formulating and ensuring compliance with standard operating procedures 
throughout the stores; advising management as to ways to later or change operating 
procedures and implemented and followed; assisting the Director of Sales with 
supervising each store's operations and sales; and, as the company continues to 
grow, directly supervising the District Managers, as they are hired. 
The Labor Condition Application (LCA) submitted by the Petitioner in support of the petition was 
certified for use with a job prospect within the "Sales Managers" occupational classification, SOC 
(O*NET/OES) Code 11-2022, a Level I (entry-level) prevailing wage rate, the lowest of the four 
assignable wage-levels 
In its RFE response letter, the Petitioner compared some of the proffered position's duties to those 
of Sales Managers as described in the U.S. Department of Labor's (DOL) Occupational Outlook 
Handbook (Handbook) to show their similarities. The Petitioner stated that it requires an 
individual with "a bachelor's degree in business administration , with a specialization in 
management" for the proffered position. 
C. Analysis 
Considering the totality of all of the Petitioner's duty descriptions, we find that the evidence of record 
does not establish the depth, complexity, or level of specialization, or substantive aspects of the 
matters upon which the Petitioner claims that the Beneficiary will engage. Rather, the duties of the 
proffered position, and the position itself, are described in relatively generalized and abstract terms 
that do not relate substantial details about either the position or its constituent duties. 
The abstract level of information provided about the proffered position and its constituent duties is 
exemplified by the Petitioner's assertion that the Beneficiary will be involved in "business 
development" and that he will "ensure that the company operates properly." However, these 
statements provide no insight into the Beneficiary's actual tasks. The abstract nature ofthe proposed 
duties is further illustrated by the Petitioner's statement that the Beneficiary will "(assist] the Director 
of Sales with supervising each store's operations and sales." The Petitioner does not explain the 
Beneficiary's specific tasks involved with assisting and supervising each store. Again, the 
4 
Matter of N- W-, Inc. 
generalized nature of the duties is exemplified by the Petitioner's statement that the Beneficiary 
will train managers without providing any details regarding his role in the training activities, the 
frequency of the training sessions, and the substance of the trainings. Notably, the Petitioner does 
not explain how the performance of the proffered duties, as described in the record, would require 
the attainment of a bachelor's or higher degree in a specific specialty, or its equivalent. This type 
of generalized description may be appropriate when defining the range of duties that may be 
performed within an occupational category, but it does not adequately convey the substantive 
work that the Beneficiary will perform within the Petitioner's business operations and, thus, 
cannot be relied upon by the Petitioner when discussing the duties attached to specific 
employment. 
In the instant case, the Petitioner has not described the proffered position with sufficient detail to 
determine that the minimum requirements are a bachelor's degree in a specialized field of study. 
It is incumbent on the Petitioner to provide sufficient evidence to establish that the particular 
position that it proffers would necessitate services at a level requiring both the theoretical and 
practical application of a body of highly specialized knowledge and the attainment of at least a 
bachelor's degree in a specific specialty, or its equivalent. When "any person makes an 
application for a visa or any other document required for entry, or makes an application for 
admission, [ ... ] the burden of proof shall be upon such person to establish that he is eligible" for 
such benefit. Section 291 of the Act; see also Matter of Treasure Craft of California, 14 I&N 
Dec. 190 (Reg'l Comm'r 1972). 
Without a meaningful job description, the record lacks evidence sufficiently concrete and 
informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. The tasks as described do not 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 education of 
highly specialized knowledge in a specific specialty. The Petitioner's assertion with regard to the 
educational requirement for the position is conclusory and unpersuasive, as it is not supported by 
the job description or probative evidence. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Nevertheless, we will analyze the duties as described and the evidence .of record to determine 
whether the proffered position as described would qualify as a specialty occupation. To that end 
and to make our determination as to whether the employment described above qualifies as a 
specialty occupation, we turn first to the criterion at 8 C.P.R.§ 214.2(h)(4)(iii)(A)(l). 
5 
Matter of N- W-, Inc. 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirementfor entry into the particular position 
USCIS recognizes the Handbook as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses. 2 The Petitioner asserted in the 
LCA that the proffered position falls under the occupational category "Sales Manager." 
The Handbook states the following with regard to the educational requirements necessary for 
entrance into this field: 
Education 
Most sales managers have a bachelor's degree: some have a master's degree. 
Educational requirements are less strict for job candidates who have significant 
experience as a sales representative. Courses in business law, management, 
economics, accounting, finance, mathematics, marketing, and statistics are 
advantageous. 
Work Experience 
Work experience is typically required for someone to become a sales manager. The 
preferred duration varies, but employers usually seek candidates who have at least 
1 to 5 years of experience. 
Sales managers typically enter the occupation from other sales and related 
occupations, such as sales representatives or purchasing agents. In small 
organizations, the number of sales manager positions is often limited, so 
advancement for sales workers usually comes slowly. In large organizations, 
promotion may occur more quickly. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Sales Managers," available at http://www.bls.gov/ooh/management/sales-managers.htm#tab-4 
(last visited Oct. 14, 2015). 
When reviewing the Handbook, we must note that the Petitioner designated the proffered position 
under this occupational category at a Level I on the LCA.3 This designation is indicative of a 
2 All of the references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/OCO/. The excerpts of the Handbook regarding the duties and requirements of the referenced 
occupational category are hereby incorporated into the record of proceeding. 
3 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage rate is 
described as follows: 
Matter of N-W-, Inc. 
comparatively low, entry-level position relative to others within the occupation and signifies that 
the Beneficiary is only expected to possess a basic understanding of the occupation. This 
designation suggests that the Beneficiary will not serve in a high-level position relative to others 
within the occupational category, and undermines the Petitioner's assertions to the contrary. 
The Handbook 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 entry into this occupational 
category. Rather, the Handbook states that while most sales managers have a bachelor's degree, it 
does not state that they are required to possess a bachelor's degree in a specific specialty, or the 
equivalent. Although the Handbook does make provision for work experience, it does not state 
that such experience must be equivalent to a bachelor's degree in a specific specialty. 
The Handbook does not indicate that employers normally require a degree in a specific specialty 
(or its equivalent) for entry into the occupation. The Handbook reports that courses in business 
law, management, economics, accounting, finance, mathematics, marketing, and statistics are 
advantageous for sales manager positions. A statement that various courses are advantageous is 
not an indication that such courses are required. 
Moreover, 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" 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 statement that it is advantageous to take courses in disparate fields, 
such as business law, management, economics, accounting, finance, mathematics, marketing, and 
statistics, would not meet the statutory requirement that the degree be "in the specific specialty." 4 
Section 214(i)(l )(B) (emphasis added). The text suggests that a baccalaureate degree or higher 
may be a preference among employers of sales managers in some environments, but that some 
Levell (entry) wage rates are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These employees perform routine tasks that require limited, 
if any, exercise of judgment. The tasks provide experience and familiarization with the employer's 
methods, practices, and programs. The employees may perform higher level work for training and 
developmental purposes. These employees work under close supervision and receive. specific 
instructions on required tasks and results expected. Their work is closely monitored and reviewed 
for accuracy. Statements that the job offer is for a research fellow, a worker in training, or an 
internship are indicators that a Level I wage should be considered. 
For additional information on wage levels, 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_Il_2009.pdf(last visited Oct. 14, 2015). 
4 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 
positions from qualifying as specialty occupations if they permit, as a minimum entry requirement, degrees in more 
than one closely related specialty 
(b)(6)
Matter of N- W-, Inc. 
employers hire employees with less than a bachelor's degree. For employers requiring a degree, it 
appears that a degree in any field and/or in an unrelated field is acceptable. The narrative of the 
Handbook emphasizes the importance of work experience. The Handbook does not indicate that 
at least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry into the occupation. 
The Petitioner submitted an advisory opinion letter from , an associate dean at 
We reviewed the opinion letter in its entirety. However, as discussed 
below, the letter is not persuasive in establishing the proffered position as a specialty occupation · 
position. 5 
In the letter, asserts that "(t]heoretical and practical knowledge in business and 
operations, planning, and management equivalent to at least a Bachelor's Degree or equivalent in 
business administration with a concentration in management or related field is required to perform 
the responsibilities of this job." He then lists six courses which he claims that would "provide the 
minimum requisite knowledge and skills." provided a brief description of the 
Petitioner's business and a job description for the proffered position. However, there is no 
indication that he possesses any knowledge of the Petitioner's proffered position beyond this 
information. For example, he does not discuss the duties of the proffered position in any 
substantive detail. To the contrary, he simply lists the tasks in bullet-point fashion, and claims that 
the appropriate knowledge required for these job duties would be a bachelor's degree in business 
administration or a related area. He does not demonstrate or assert in-depth knowledge of the 
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 instance, there is no evidence 
that has 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. The very fact that he attributes a 
degree requirement to such a generalized treatment of the proffered position undermines the 
credibility of his opinion. Importantly, his statements are not supported by copies or citations of 
research material that may have been used. He has not provided sufficient facts that would 
support the contention that the proffered position requires at least a bachelor's degree in a specific 
specialty. 
5 Recognized authority means a person or organization with expertise in a particular field, special skills or knowledge 
in that field, and the expertise to render the type of opinion requested. 8 C.F.R. § 214.2(h)(4)(ii). A recognized 
authority's opinion must state: (1) the writer's qualifications as an expert ; (2) the writer's experience giving such 
opinions, citing specific instances where past opinions have been accepted as authoritative and by whom; (3) how the 
conclusions were reached ; and (4) the basis for the conclusions supported by copies or citations of any research 
material used. Jd. 
(b)(6)
Matter of N-W-, Inc. 
Moreover, assertion that the proffered pos1t1on requires an applicant to hold a 
minimum of a bachelor's degree in business administration or a related field is inadequate to 
establish that a 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. Since there must be a close correlation between the required specialized 
studies 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 a specialty 
occupation. C.f Matter of Michael Hertz Associates , 19 I&N Dec. 558 (Comm'r 1988). In 
addition to demonstrating that a job requires the theoretical and practical application of a body of 
specialized knowledge as required by section 214(i)(l) of the Act, a petitioner must also establish 
that the position requires the attainment of a bachelor's or higher degree in a specialized field of 
study or its equivalent. As explained above, USCIS interprets the supplemental degree 
requirement at 8 C.F .R. § 214.2(h)( 4 )(iii)(A) as requiring a degree in a specific specialty that is 
directly related to the proposed position. USCIS has consistently stated that, 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. See Royal 
Siam Corp. v. Chertoff, 484 F.3d at 147. 
In his letter, provides weblinks to three job announcements and asserts that parallel 
positions in organizations similar to the Petitioner "routinely recruit and employ individuals with 
· at least a Bachelor's Degree or equivalent in business, or related field plus experience ." However, 
the record of proceeding does not contain copies of these advertisements. In making a 
determination of statutory eligibility, USCIS is limited to the information contained in the record 
of proceeding. See 8 C.F .R. § 103 .2(b )(16)(ii). In any event, the Petitioner did not supplement 
letter with evidence to demonstrate that these organizations are similar to the 
Petitioner. More importantly , the Petitioner has not sufficiently established that the primary duties 
and responsibilities of the advertised positions are parallel to those of the proffered position. 
Furthermore, does not state that the advertised positions require a bachelor's degree in a 
specific specialty. Rather, state that these positions require "at least a bachelor's degree 
in a related field plus experience " without specifying any degree specialty, which undermines his 
assertion that the proffered position is a specialty occupation . Again, USCIS interprets the 
supplemental degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) as requiring a degree in a 
specific specialty that is directly related to the proffered position . 
Furthermore, description of the position upon which he opines does not indicate that he 
considered, or was even aware of, the fact that the Petitioner submitted an LCA certified for a 
wage-level that is only appropriate for a comparatively low, entry-level position relative to others 
within its occupation which, as discussed above, signifies that the Beneficiary is only expected to 
possess a basic understanding of the occupation. In any event, he nowhere discusses this aspect of 
the proffered position. We consider this a material omission, in that it suggests an incomplete 
review of the position in question and a faulty factual basis for his ultimate conclusion as to the 
educational requirements of the position upon which he opines. The author's omission of such an 
9 
(b)(6)
Matter ofN-W- , Inc. 
important factor as the LCA wage-level significantly diminishes the evidentiary value of his 
assertions. The Petitioner's LCA wage-level designation does not support conclusion 
that the proffered position is "so complex and specialized." 
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). As a reasonable exercise of our discretion we 
discount the advisory opinion letter as not probative of any criterion of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A). For efficiency's sake, we hereby incorporate the above discussion and 
analysis regarding the opinion letter into each of the bases in this decision for dismissing the 
appeal. 
In summary, for the reasons discussed above, we conclude that the opinion letter rendered by 
does not establish the proffered position as a specialty occupation ~ The conclusions reached 
by lack the requisite specificity and detail and are not supported by independent , 
objective evidence demonstrating the manner in which he reached such conclusions . Therefore, we 
decline to defer to findings and ultimate conclusions, and further find that his opinion 
letter is not probative evidence towards satisfying any criterion of the regulation at 8 C.F.R. § 
214.2(h)( 4 )(iii)(A). 
Upon review of the totality of the evidence in the entire record of proceeding, we conclude that the 
Petitioner has not established that the proffered position falls within an occupational category for 
which the Handbook, or other authoritative source, indicates that a requirement for at least a 
bachelor's degree in a specific specialty, or its equivalent, is normally required for entry into the 
occupation. Furthermore, the duties and requirements of the proffered position as described in the 
record of proceeding do not indicate that the particular position that is the subject of this petition 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 first criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
The requirement of a baccalaureat e or higher degree in a specific specialty , 
or its equivalent, is common to the industry in parall el 
positions among similar organi zations 
Next, we will review the record of proceedin g regarding the first of the two alternative prongs of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common 
for positions that are identifiable as being (1) in the Petitioner's industry, (2) parallel to the 
proffered position, and also (3) located in organizations that are similar to the Petitioner. 
As discussed above, opinion letter is insufficient to demonstrate that a requirement of a 
bachelor 's or higher degree in a specific specialty, or its equivalent , is common for positions that 
10 
(b)(6)
Matter of N-W-, Inc. 
are identifiable as being (1) in the Petitioner's industry, (2) parallel to the proffered position, and 
(3) located in organizations that are similar to the Petitioner. We therefore incorporate by 
reference our previous discussion on the matter. 
In a letter dated August 21, 2014, CEO of asserted 
that like the Petitioner, is an authorized retailer of products and 
services. He further stated that his company's "standard is to require a Bachelor of Business 
Administration degree in management for our District Manager position." did not provide 
any information with regard to what constitutes the duties of the "District Manager" position. Nor 
did he support his assertions with independent and objective evidence. Counsel stated that for 
"privacy reasons," did not submit the educational credentials of his company's employees. 
Furthermore, did not provide any supporting evidence to demonstrate that 
both conducts business in the Petitioner's industry and is also similar to it. 
Again, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Sofjici , 22 I&N Dec. at 165. 
Moreover, provided no information to demonstrate that the duties of the district 
manager position in his company parallel those of the proffered position . Furthermore, as we 
discussed above, a requirement of a general degree such as a bachelor 's degree in business 
administration is insufficient to demonstrate that a position is a specialty occupation. We 
incorporate by reference our previous discussion on the matter. 
Thus, based upon a complete review of the record , we find that the Petitioner has not established 
that a requirement for at least a bachelor 's degree in a specific specialty, or its equivalent, is 
common for positions that are identifiable as being (1) in the Petitioner 's industry, (2) parallel to 
the proffered position, and also (3) located in organizations that are similar to the Petitioner. Thus, 
for the reasons discussed above, the Petitioner has not satisfied the first alternative prong of 
8 C.P.R.§ 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
We will next consider the second alternative prong of 8 C.P.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. 
In the instant case, the Petitioner did not sufficiently develop relative complexity or uniqueness as 
an aspect of the proffered position of area retail sales and operations manager. Specifically , the 
record does not demonstrate how the area retail sales and operations manager position described 
6 The Florida Departm ent of State Division of Corporation s' website reveals that 
registered agent and one of its officers . 
II 
is the Petitioner's 
Matter of N- W-, Inc. 
requires the theoretical and practical application of a body of highly specialized knowledge such 
that a bachelor's or higher degree in a specific specialty or its equivalent is required to perform 
them. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four assignable 
wage levels. 7 Without further evidence, the evidence does not demonstrate that the proffered 
position is complex or unique as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully 
competent) position, requiring a significantly higher prevailing wage.8 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." 9 The evidence ofrecord does not 
establish that this position is significantly different 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 claims that the Beneficiary is well qualified for the position, and references his 
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 Petitioner has not satisfied the 
second alternative prong of 8 C.P.R.§ 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
The third criterion of 8 C.P.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we review the Petitioner's past recruiting and hiring practices, as well as information 
7 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. 
8 The issue here is that 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, it is important to note that a Level I wage-designation does not preclude a proffered 
position from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an 
entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for 
entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty 
occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific 
specialty or its equivalent. That is, a position's wage level designation may be a consideration but is not a substitute 
for a determination of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
9 For additional information regarding wage levels as defined by DOL, 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 _II_ 2009.pdf 
12 
Matter of N- W-, Inc. 
regarding employees who previously held the position, and any other documentation submitted by 
a petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a petitioner may assert that 
a proffered position requires a specific degree, that statement alone without corroborating 
evidence cannot establish the position as a specialty occupation. Were USCIS limited solely to 
reviewing a petitioner's claimed self-imposed requirements, then any individual with a bachelor's 
degree could be brought to the United States to perform any occupation as long as the Petitioner 
artificially created a token degree requirement, whereby all individuals employed in a particular 
position possessed a baccalaureate or higher degree in the specific specialty, or its equivalent. See 
Defensor v. Meissner, 201 F.3d at 388. 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. users must examine the actual employment requirements, and, on the 
basis of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title 
of the position, or the fact that an employer has routinely insisted on certain educational standards, 
but whether performance of the position actually requires the theoretical and practical application 
of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree 
in the specific specialty as the minimum for entry into the occupation as required by the Act. 
The record of proceeding does not establish the Petitioner's history of recruiting and hiring for the 
proffered position that would be necessary to satisfy that the position actually requires the 
theoretical and practical application of knowledge. Although the fact that a proffered position is a 
newly-created one is not in itself generally a basis for precluding a position from recognition as a 
specialty occupation, an employer that has never recruited and hired for the position cannot satisfy 
the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(3), which requires a demonstration that it normally 
requires a bachelor's degree, or the equivalent, in a specific specialty for the position. 
As the record of proceeding does not demonstrate that the Petitioner normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the proffered position, it does not 
satisfy 8 C.P.R.§ 214.2(h)(4)(iii)(A)(3). 
The nature of the specific duties is so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment Q[ a 
baccalaureate or higher degree in a specific specialty, or its equivalent 
The fourth criterion at 8 C.P.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 
13 
Matter ofN-W-, Inc. 
them is usually associated with the attainment of a baccalaureate or higher degree in a specific 
specialty, or its equivalent. 
The Petitioner claims that the nature of the specific duties of the position 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 reviewed the Petitioner's statements regarding the proffered position and its 
business operations. However, relative specialization and complexity have not been sufficiently 
developed by the Petitioner 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 of four assignable wage-levels) relative to others within the occupational category. Without 
more, the position is one not likely distinguishable by relatively specialized and complex 
duties. That is, without further evidence, the Petitioner has not demonstrated that its proffered 
position is one with specialized and complex duties as such a position would likely be classified at 
a higher-level, such as a Level III (experienced) or Level IV (fully competent) position, requiring 
a substantially higher prevailing wage. 10 
Although the Petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the Petitioner has submitted 
inadequate probative evidence to satisfy the criterion of the regulations at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed. 11 
II. CONCLUSION AND ORDER 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the _Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
10 A Level IV (fully competent) position is designated by DOL for employees who "use advanced skills and 
diversified knowledge to solve unusual and complex problems" and requires a significantly higher wage. 
11 
As the grounds discussed above are dispositive of the Petitioner's eligibility for the benefit sought in this matter, we 
will not address and will instead reserve our determination on the additional issues and deficiencies that we observe in 
the record of proceeding with regard to the approval of the H-1 8 petition. 
14 
Matter of N- W-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of N- W-, Inc., ID# 14084 (AAO Oct. 16, 20 15) 
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