dismissed H-1B Case: Sales And Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 10089211 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 01, 2020 
The Petitioner, a women's shoe company, seeks to temporarily employ the Beneficiary as an 
"international sales & marketing executive" under the H-18 nonimmigrant classification for specialty 
occupations. Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-18 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 is a specialty occupation.1 On appeal, the Petitioner submits a 
brief and asserts that the Director erred by denying the petition. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. 2 We review the questions in this matter de nova. 3 Upon de nova 
review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-18 nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
1 The Director also states that the Petitioner appears to have not maintained lawful status while awaiting a change of status. 
However, there is no provision in the regulations for an appeal from a denial of a change of status and extension of stay 
request. See 8 C.F.R. §§ 214.1 (c)(5), 248.3(g); see also OHS Delegation Number 0150.1 (effective March 1, 2003); 
8 C.F.R. § 2.1 (2003). We therefore have no jurisdiction over this matter and consequently will address neither (1) the 
Director's statement regarding the Beneficiary's status, nor (2) the claims made on appeal contesting that statement. 
2 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
(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) 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.4 
II. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation.5 In particular, we find that two separate factors independently bar 
approval of this petition: (1) 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)(1)-(4). 
The Petitioner initially provided the position's description and expanded on those duties in response 
to the Director's request for evidence (RFE). 6 For the sake of brevity, we will not quote the 
descriptions; however, we have closely reviewed and considered the duties. According to the 
4 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"). 
5 The Petitioner submitted documentation to support the H-1B 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. 
6 The Petitioner's RFE Response reorganized and reworded some of the job duties from the Petitioner's original 
submission. 
2 
Petitioner, the proffered position requires a bachelor's degree or its equivalent in marketing, business 
administration, communications, or a closely related major for entry into the position. 
A. Lack of a Requirement for a Bachelor's Degree in a Specific Specialty, or the Equivalent 
That the Petitioner would find acceptable a bachelor's degree in business administration, with no 
further specialization, alone precludes a determination that the position involves a "body of highly 
specialized knowledge" or that it requires the attainment of a bachelor's degree in a "specific 
specialty." The First Circuit Court of Appeals 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-1B specialty occupation visa. See, e.g., Tapis 
lnt'I v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. Supp. 2d at 1164-
66; cf. Matter of Michael Hertz Assocs., 19 I & &N Dec. 558, 560 ([Comm'r] 1988) 
(providing 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.7 
7 Id. But see India House, Inc. v. McAleenan, 449 F. Supp. 3d 4 (D.R.I. 2020). In India House the court distinguished 
Royal Siam on factual grounds but did not dispute its central reasoning: that a position whose duties can be fulfilled by an 
individual with a general-purpose bachelor's degree in business administration is not a specialty occupation. Instead, it 
distinguished Royal Siam on factual grounds. Here, the Petitioner specifically recognizes an unspecialized bachelor's 
degree in business administration as being one of the degrees it considers as providing an adequate preparation to perform 
the duties of the proffered position. 
The agency has longstanding concerns regarding general-purpose bachelor's degrees in business administration with no 
additional specialization. For example, in Matter of Ling, 13 I. & N. Dec. 35 (Reg'I Comm'r 1968), the agency stated that 
attainment of a bachelor's degree in business administration alone was insufficient to qualify a foreign national as a 
member of the professions pursuant to section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32). Twenty years later, the 
agency looked to the nature of the position itself and clarified that a requirement for a degree with a generalized title, such 
as business administration, without further specification, was insufficient to qualify the position as one that is professional 
pursuant to section 101(a)(32) of the Act. Michael Hertz Assocs., 19 l&N Dec. at 560. See also Matter of Caron lnt'I, 
Inc., 19 l&N Dec. 791 (Comm'r 1988) (vice president for manufacturing in a textile company was not a professional 
position because individual holding general degree in business, engineering or science could perform its duties). 
Congress created the modern H-18 program as part of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978. 
In doing so, it pivoted away from the prior H-1 standard of whether a position was "professional." Instead, petitioners 
were now required to demonstrate that a proffered position qualified as a "specialty occupation." Section 
101(a)(15)(H)(i)(b) of the Act. In the final rule setting forth the requirements for the revamped H-18 program, the agency, 
responding to commenters suggesting that the proposed regulatory "specific specialty" requirement "was too severe and 
would exclude certain occupations from classifications as specialty occupations," stated that "[t]he definition of specialty 
occupation contained in the statute contains this requirement." Temporary Alien Workers Seeking Classification Under 
the Immigration and Nationality Act, 56 Fed. Reg. 61111, 61112 (Dec. 2, 1991). 
3 
For this reason alone, the record satisfies neither the statutory nor the regulatory definitions of the term 
"specialty occupation," and we could end our analysis here and dismiss the appeal on that basis. But 
we will not do so, because even if we were to set the issue of the "business administration" degree 
aside we would still dismiss the appeal because the evidence of record does not satisfy any of the four 
specialty-occupation criteria. 
B. The Specialty-Occupation Criteria Enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4) 
As noted, even if we were to set that issue aside we would still conclude that the proffered position is 
not a specialty occupation because the evidence of record does not satisfy at least one of the criteria 
set forth at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). For this additional reason, the petition cannot be 
approved. 
1. First Criterion 
We turn now to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we consider the information contained in the 
U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the duties 
and educational requirements of the wide variety of occupations it addresses. 8 
On the labor condition application (LCA)9 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 
from the Occupational Information Network (O*NET). The Handbook's subchapter entitled "How to 
Become a Market Research Analyst"10 does not indicate that a bachelor's degree in a specific 
specialty, or the equivalent, is normally required for entry into market research analysts' positions. In 
The agency's concerns regarding a general-purpose, non-specific bachelor's degree in business, or business administration, 
continued under the revamped H-1B program. See, e.g., Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151 (D. Minn. 1999); Royal 
Siam, 484 F.3d at 147; 2233 Paradise Road, LLC v. Cissna, No. 17-cv-01018-APG-VCF, 2018 WL 3312967 (D. Nev., 
July 3, 2018); Xiao Tong Liu v. Baran, No. 18-00376-JVS, 2018 WL 7348851 (C.D. Cal., Dec. 21, 2018); Parzenn Partners 
v. Baran, No. 19-cv-11515-ADB, 2019 WL 6130678 (D. Mass., Nov. 19, 2019); Vision Builders, LLC v. USCIS, No. 19-
3159, 20 WL 5891546, at *4 (D.D.C., Oct. 5, 2020). 
To the extent the Petitioner is arguing that a bachelor's degree in business administration, with no further specialization 
(or the equivalent), is a bachelor's degree in a specific specialty, then consistent with agency history and federal case law, 
we must disagree. 
8 We do not maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category 
designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered 
position, and we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. Nevertheless, 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. 
9 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-1B 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. § 655.731(a). 
10 The Handbook labels this occupation "Market Research Analysts;" while O*NET identifies SOC code 13-1161 as a 
"Market Research Analysts and Marketing Specialists" occupation. 
4 
the initial summary of this subchapter the Handbook recognizes that "[m]ost market research analysts 
need at least a bachelor's degree" while also reporting that "[s]ome research positions may require a 
master's degree" and that "[s]trong math and analytical skills are essential. "11 Thus, generally these 
positions may require a bachelor's degree and some skills, but not a bachelor's degree in a specific 
specialty, or its equivalent. Although the Handbook also reports that "[m]arket research analysts 
typically need a bachelor's degree in market research or a related field," it then adds that "[m]any have 
degrees in fields such as statistics, math, and computer science. Others have backgrounds in business 
administration, the social sciences, or communications."12 
The Handbook's observation that disparate fields of study, including statistics, computer science, and 
the social sciences, may qualify a worker to enter positions located within the "Market Research 
Analysts" occupational category indicates that a bachelor's or higher degree in a specific specialty, or 
its equivalent, is not normally the minimum requirement for entry.13 That is, the Handbook does not 
describe the normal minimum educational requirement for the occupation in a categorical manner, 
other than recognizing that these occupations generally require a bachelor's degree. As noted, in 
addition to recognizing degrees in disparate fields, 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 conclusion that a particular position qualifies for 
classification as a specialty occupation.14 Therefore, the Handbook's recognition that a general, 
non-specialty "background" in business administration is sufficient for entry into the occupation 
strongly suggests that a bachelor's degree in a specific specialty is not a standard, minimum entry 
requirement for this occupation. Accordingly, as the Handbook indicates that working as a market 
research analyst does not normally require at least a bachelor's degree in a specific specialty or its 
equivalent for entry into the occupation, it does not support the particular position proffered here as 
being a specialty occupation. 
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 
11 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Market Research Analysts, at 
https://www.bls.gov/ooh/business-and-financial/market-research-analysts.htm (last visited Nov. 30, 2020). 
12 Id. 
13 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. Section 214{i)(1){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)(1)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). Still, we do not so narrowly interpret these provisions to exclude 
positions from qualifying as specialty occupations if they permit, as a minimum entry requirement, degrees in more than 
one closely related specialty. This also includes even seemingly disparate specialties provided the evidence of record 
establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
14 Royal Siam Corp., 484 F.3d at 147. 
5 
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, 15 to those 
who have at least three years of experience working in opinion and market research, pass an exam, 
and complete only 12 hours of industry-related education courses.16 As noted, the PRC has been 
expanded and rebranded as the Insights Professional Certification {IPC), which has three senior tiers: 
IPC Fellow, IPC Master, and IPC Principal.17 The IRC Principal certification replaces the PRC.18 
We reviewed the Insights Association's website, which confirms the Handbook's statement regarding 
the requirements for the PRC, now the IRC Principal (i.e., three years of relevant industry experience 
and passage of an exam). The website includes information regarding "How to Enter the Industry" 
and lists a variety of possible degrees, such as business administration, liberal arts, computer science, 
social science, and communications, and a variety of "helpful skills," including "attention to detail," 
"presentation skills," and "basic computer skills." 19 It does not indicate that a market research analyst 
position has any specific minimum academic requirement for entry, nor does it identify any particular 
level of education as a basis to qualify for a market research analyst position. 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 industry's association website support the claim that positions located within the 
"Market Research Analysts" occupational category normally require at least a bachelor's degree in a 
specific specialty, or the equivalent. 
The Petitioner cites to Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012), 
for the proposition that "[t]he knowledge and not the title of the degree is what is important. Diplomas 
rarely come bearing occupation-specific majors. What is required is an occupation that requires highly 
specialized knowledge and a prospective employee who has attained the credentialing indicating 
possession of that knowledge."20 
We agree with the aforementioned proposition that "[t]he knowledge and not the title of the degree is 
what is important." Again, provided the specialties are closely related, e.g., chemistry and 
biochemistry, a minimum of a bachelor's or higher degree in more than one specialty is recognized as 
satisfying the "degree in the specific specialty (or its equivalent)" requirement of section 214(i)(1)(B) 
of the Act. In such a case, the required "body of highly specialized knowledge" would essentially be 
the same. Since there must be a close correlation between the required "body of highly specialized 
knowledge" and the position, however, a minimum entry requirement of a degree in two disparate 
15 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 Nov. 30, 2020). The Insights 
Association is therefore the successor to the Marketing Research Association. 
16 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 Nov. 30, 2020). 
17 See https://www.insightsassociation.org/article/new-insights-professional-certification-ipc-announced-2020 (last 
visited Nov. 30, 2020). 
18 According to the Insights Association, the I PC Principal certification "replaces the PRC within the insights community." 
Id. 
19 See https://www.insightsassociation.org/career-guide (last visited Nov. 30, 2020). 
20 It is important to note that in Residential Finance the court did not eliminate the "specific specialty" requirement. Rather, 
the court found that the petitioner in that case had satisfied it. 
6 
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.21 The Petitioner, however, 
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 furnished no evidence to establish that 
the facts of the instant petition are analogous to those in Residential Finance. 22 Moreover, it is 
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 to a district court case, Raj and Co. v. USCIS, 85 F. Supp. 3d 1241 (W.D. 
Wash. 2015), and claims it is relevant here. 23 We reviewed the decision; however, the Petitioner has 
not established that the duties and responsibilities, level of judgment, complexity, supervisory duties, 
independent judgment, or amount of supervision in that case are analogous to the position proffered 
here. 24 There is little indication that the positions are similar. 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's degree would run contrary to 
congressional intent to provide a visa program for specialized, as opposed to merely educated, 
workers. " 25 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. 26 
21 Section 214(i)(l)(B) of the Act (emphasis added). 
22 It is noted that the district judge's decision in that case 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 conclusions 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. 
23 In contrast to the broad precedential authority of the case law of a United States circuit court, we are not bound to follow 
the published decision of a United States district court in matters arising even within the same district. See Matter of 
K-S-, 20 l&N Dec. 715 (BIA 1993). Although the reasoning underlying a district judge's decision will be given due 
consideration when it is properly before us, the analysis does not have to be followed as a matter of law. Id. at 719. 
24 As with Residential Finance, we note that the Director's decision was not appealed to our office. 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 in our de novo review of the 
matter. 
25 In the instant case, the Petitioner claims a business administration degree, a general purpose degree, is acceptable to 
perform the proffered position. As will be discussed, a general-purpose bachelor's degree, such as a degree in business, 
without more, wi 11 not justify a conclusion that a particular position qualifies for classification as a specialty occupation. Royal 
Siam Corp., 484 F.3d at 147. 
26 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). The Director 
here did not state the position could only have one degree for a specific specialty. Rather, the Director found the 
Petitioner's stated spectrum of acceptable degrees too broad to support a finding that the proffered position requires a 
bachelor's degree in a specific specialty, or the equivalent. 
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 a 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. 
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."27 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. 
The Petitioner has not provided sufficient documentation from a probative, authoritative source to 
substantiate its assertion regarding the normal minimum requirement for entry into this particular 
position. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1). 
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 contemplates 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 28 
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 
27 In other words, as above, the court in Raj did not eliminate the "specific specialty" requirement. Rather, the court found 
that the petitioner in that case had satisfied it 
28 We will discuss the second prong of the second criterion in section D below. 
8 
affidavits from firms or individuals in the industry establish that such firms "routinely employ and 
recruit only degreed individuals."29 
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. We also note that the industry's professional association, Marketing 
Research Association, now known as the Insights Association, also does not appear to require a degree 
in a specific specialty as a minimum entry requirement. 
On appeal, the Petitioner asserts that this position qualifies as a specialty occupation because a degree 
requirement is common to the industry in parallel positions. To be relevant for consideration under this 
prong, however, the job vacancy announcements must advertise "parallel 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. Absent such evidence, job postings submitted by a 
Petitioner are generally outside the scope of consideration for this prong. None of these job vacancy 
announcements meet this threshold. 
In response to the Director's RFE, the Petitioner provided several job postings to demonstrate that 
positions comparable to the Petitioner's position require at least a minimum of a bachelor's degree in a 
specialty field for the position. The Petitioner is a women's shoes company; but some of the job 
postings include companies not in the clothing industry. For example, one of the companies is a tools 
manufacturer, one of the other companies is a marketing company, and another is an e-commerce 
management firm. As such, the Petitioner has not demonstrated these job postings are in the same 
industry. 
In addition, we note that the Petitioner does not specifically discuss whether the job postings advertise 
parallel positions. However, our review of the job postings confirms that the advertised job 
opportunities are not "parallel positions." The Petitioner does not require any work experience to enter 
the proffered position. However, most of the advertised positions included with the RFE response 
require work experience, some substantial. For example, one of the positions requires at least one to 
two years of work experience, one of the other positions requires two to three years of work 
experience, another one requires two to five years of experience, and three position requires at the 
minimum three years of experience. Considered collectively, these factors indicate that the advertised 
positions are not "parallel" to the proposed position. 30 Also, the variety of job duties described in the 
submitted job postings do not demonstrate that the duties of the positions are parallel to the proffered 
position. The job postings are insufficiently detailed or include duties not found in the proffered 
position to accurately compare the level of responsibility and scope of duties of the job postings to the 
proposed position. For example, some of the position offerings appear to require experience in SQL, 
HTML, and CSS, which is not required for the proffered position. 
29 See Shanti, Inc. v. Reno, 36 F. Supp. 2d at 1165 (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)). 
30 On the other hand, if they are parallel positions as claimed, then we would have to conclude that the LCA, which was 
certified for a Level 11 position, does not correspond to and support the H-1B position as required, and we would deny the 
petition on that basis. A requirement for three years of work experience would necessitate at minimum a Level 111 wage. 
9 
Even if the job postings advertised positions that are parallel to the proffered position, they would still not 
be relevant for our consideration under this prong because they do not confirm that the job postings 
mandate at least a bachelor's in a specialty degree. We note six out of the eight advertising companies 
accept a general degree in business to perform the duties of the advertised positions. We have consistently 
stated that, although a general-purpose bachelor's degree, such as a degree in business, 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.31 Thus, if the 
Petitioner contends that these job postings are evidence of degree requirements that are similar to its 
degree requirements and are normally required in its industry, the Petitioner confirms that the proffered 
position is not a specialty occupation. 
We also considered the letters authored by rk ing Science at 
,.__ __ ---,.JI and an adjunct professor of Universit and byl I 
1r----_ ...... lE_x_ec_u__,tive VP of Branding at~----~and a lecturer at,____~ and University of 
,___ ____ _____.I regarding industry requirements for the Petitioner's particular position. On appeal, 
the Petitioner asserts that U.S. Citizenship and Immigration Services (USCIS) discredited these expert 
letters without any legal grounds or analysis. 
~-----~ describes his experience in the industry and as a professor and concludes that it is 
common for positions similar to the one proffered here to require at least a bachelor's degree. 
I I states that it is industry practice "for e-commerce and online wholesale and retail 
brands in the United States to employ International Sales & Marketing Executives to have at least a 
baccalaureate deciree in a Marketing, Business Administration, Communications, or a closely related 
field." Similarly:! ts letter states his experience in marketing analytics and his time as a 
lecturer. He further states the "industry standard" and in his professional opinion "that online 
wholesaler and retailers hire International Sales & (sic) Marketing Executives who have, at the 
minimum, a baccalaureate degree in Marketing, Business Administration, Communications, or a 
closely related field." 
Neither! I nor I I offer probative evidence to support their conclusions. 
While they may have anecdotal information based on their experience working in the industry or in 
academics, neither indicate they have published, conducted research, or run surveys regarding the 
minimum education requirements for positions such as the position proffered here. They do not discuss 
any relevant research, studies, or authoritative publications they utilized as part of their review and 
foundation for their opinion that an international sales and marketing executive position requires "at least 
a bachelor's level degree in a field such as Marketing, Business Administration, Communications, or a 
closely related field." In addition, they do not consider the Handbook, professional associations, or 
other industry sources that discuss a wide variety of backgrounds and degrees that would prepare an 
individual to perform the duties of a market research position. Notably, they both find that a bachelor's 
degree in business administration, without a concentration in marketing or other concentration, will 
prepare a candidate to perform this position. However, we again emphasize that since there must be 
a close correlation between the required specialized studies and the position, the acceptance of a degree 
31 Royal Siam Corp., 484 F.3d at 147. 
10 
with a generalized title, such as business administration, without further specification, to perform the 
position, undermines a claim that the position is a specialty occupation. 32 
The Petitioner has not provided sufficient probative 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). 
3. Third Criterion 
The third criterion at 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. Evidence 
provided to establish this criterion may include, but is not limited to, an organizational chart showing 
the Petitioner's hierarchy and staffing levels with corresponding and experience requirements for this 
position, as well as documentary evidence of past employment practices for the position. The 
Petitioner does not challenge the Director's decision on this criterion. The record also does not 
establish that the Petitioner normally requires at least a bachelor's degree in a specific specialty, or its 
equivalent, for the proffered position. Therefore, the Petitioner has not satisfied the criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
4. Second Prong of the Second Criterion and Fourth Criterion 
The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) 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. 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. 
Upon review, we conclude that the Petitioner has not sufficiently developed relative specialization and 
complexity or uniqueness as an aspect of the proffered position. The job duties provided are generic 
and routine, including duties, such as "[s]et specific marketing goals in order to increase sales and 
target new customers, "[p]repare weekly reports for the company's President," "[a]ttend and 
participate in staff meetings, professional conferences and in-service training," "[m]aintain and update 
the website in order to keep customers up to date with new deigns and products," and "[d]efine and 
set strategic Social Media Marketing and Recruitment Strategy." These tasks are the routine duties of 
the "Market Research Analysts and Marketing Specialists" occupation as set out in the O*NET. The 
Petitioner has not explained how these duties are more specialized and complex or unique than other 
market research analysts and marketing specialists. 
We considered the Petitioner's claim made in its March 12, 2019 support letter that the position 
requires knowledge of "Digital Analytics" to analyze "qualitative and [quantitative] data" and have 
knowledge of mathematics "to be able to make accurate computations (rations and percentages)." 
However, although an individual who takes one or several math courses may be prepared to perform 
32 Royal Siam Corp., 484 F.3d at 147. 
11 
the duties of this position, the Petitioner does not demonstrate how an established curriculum of 
courses leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is required 
to perform the duties of the proffered position. 
On appeal, the Petitioner states that USCIS did not discuss the Petitioner's "social media marketing 
strategy" duties. These duties include "[d]efine and set strategic Social Marketing and Recruitment 
Strategy," "provide keyword research for all SEO [Search Engine Optimization] accounts 
established," "[t]rack, measure and communicate all efforts on a weekly basis, including brand 
awareness, (website traffic, page views, video views, document views, downloads, social chatter, and 
referral links)," and "[p]rovide strategies and analytics to market the company; measure and analyze 
the marketing strategy's performance to maximize its effectiveness and optimize its return on 
investment." We recognize that these tasks appear to focus on data analytics and search engine 
optimization. These duties appear more similar to the tasks found in O*NET SOC occupation 
15-1199.1033 Search Marketing Strategists,34 which is a higher paying occupation.35 In addition, we 
also note these aforementioned duties do not provide the type of detail necessary to ascertain the focus 
of the position and whether the correct occupational code has been designated on the LCA. In addition, 
these duties are not sufficiently comprehensive to demonstrate that a bachelor's degree in a specific 
specialty would be required to perform them, rather than certifications or courses that do not culminate 
in a university degree. 
Further, with their RFE response and again on appeal, the Petitioner attempts to provide further 
explanation of the proffered job duties by providing supplemental information, including the 
knowledge and relevant degree coursework; corresponding O*NET duties and Handbook's 
description; and percentage of time spent on the duties. Although this supplemental information 
provides more context, the Petitioner still does not demonstrate how the described proffered duties 
require the theoretical and practical application of a body of highly specialized knowledge such that a 
bachelor's or higher degree in a specific specialty, or its equivalent, is required to perform them. 
Moreover, whether or not the Beneficiary in this case has completed a specialized course of study directly 
related to the proffered position is irrelevant to the issue of whether the proffered position qualifies as a 
specialty occupation, i.e., whether the duties of the proffered position require the theoretical and practical 
application of a body of highly specialized knowledge and the attainment of a bachelor's degree or higher 
in a specific specialty, or its equivalent. Although the beneficiary may be well-qualified and her 
coursework will prepare her for the duties of the proffered position, the test to establish a position as 
33 On Nov. 17, 2020, O*NET Online updated the occupation SOC 15-1199.10, Search Marketing Strategists to SOC 13-
1161.01, Search Marketing Strategists. For the purposes of this decision, we will refer to the occupation to the code and 
name at the time of the Director's decision, SOC15-1199.10, Search Marketing Strategists. See 
https://www.onetonline.org/link/summary/13-1161.01 ?redir=15-1199.10 (last visited Nov. 30, 2020). 
34 The O*NET tasks for Search Marketing Strategists include "[c]ollect and analyze web metrics, such as visits, time on 
site, page views per visit, transaction volume and revenue, traffic mix, click-through rates, conversion rates, cost per 
acquisition, or cost per click," and "[o]ptimize Web site exposure by analyzing search engine patterns to direct online 
placement of keywords or other content." Id. 
35 According to the Foreign Labor Certification Data Center Online Wage Library for Mar. 18, 2019 (the date the LCA 
was certified) in the area of employment, SOC 15-1199, wage level II is $63,322.00 compared to prevailing wage of 
$54,517.00 assigned to the Petitioner's proffered position. 
12 
a specialty occupation is not the education or experience of a particular beneficiary, but whether the 
position itself requires at least a bachelor's degree in a specific specialty, or its equivalent.36 
We now turn to the position evaluations provided byl landl lofl I 
In both their letters.I landl leach individually (1) describe the credentials 
that they assert qualify them to opine upon the nature of the proffered position; (2) list the evidence 
they reviewed for their own assessment; and (3) state the position is specialized and requires at least a 
bachelor's degree or its equivalent in marketing, business administration, communications, or a closely 
related field. Their evaluations are not persuasive. 
Neithe~ lnorl !discuss the principles and methods they used to reach their 
conclusion and they do not offer a discussion of how they applied any principles and methods in reaching 
said conclusion. The opinion letters provide several sentences describing the job duties involved in the 
position, but they do not explain why these duties are specialized and complex, or unique. Rather, 
,___ _____ __,andl I provide several conclusionary statements that only an individual 
with a bachelor's degree in marketing, business administration, communications, or a closely related field 
will be able to perform these duties. The following illustrate a few of I Is conclusory 
statements: 
I "A baccalaureate or higher degree in in Marketing, Business Administration, 
Communications, or a closely related field provides the adequate preparation for one to 
assume a specialized and complex position[.] ... [w]ithout this academic training, it would 
not be possible for anyone to perform the aforementioned duties;" and 
I "Such degree and experience requirements are absolutely necessary as the training and 
the knowledge required to perform the duties and functions of International Sales & 
Marketing Executives are so complex and specialized that only professionals with a 
baccalaureate or higher degree in Marketing, Business Administration, Communications, 
or a closely related field can accomplish." 
Likewise,l,___ ___ _.I provides the following statements: 
I "Such skill-set and knowledge are only attainable through the completion of university­
level courses in Social Media Marketing, Digital Analytics, Marketing Principles and 
Practices, Marketing Management, and E-commerce Management, etc. Because of the 
training and the knowledge required for the position it is the industry standard and my 
professional opinion that online wholesaler and retailers hire International Sales 
& (sic) Marketing Executives who have, at the minimum, a baccalaureate degree in 
Marketing, Business Administration, Communications, or a closely related field." 
Within these conclusory statements -that only a person who has earned a bachelor's degree in marketing, 
business administration, communications, or a related field could perform the proffered position's 
36We are required to follow long-standing legal standards and determine first, whether the proffered position qualifies for 
classification as a specialty occupation, and second, whether the Beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf. Matter of Michael Hertz Assocs., 19 l&N Dec. at 560, ("The facts of a 
beneficiary's background only come at issue after it is found that the position in which the petitioner intends to employ 
him falls within [a specialty occupation]."). 
13 
responsibilities -~----~andl I rule out other methods one could utilize to attain 
the requisite knowledge. However, I I and I I do not discuss why other 
methods would not lead to a sufficiently similar knowledge set, for example, the amount of required 
training or experience to gain this knowledge or alternate degrees that would be acceptable. 
Consequently,~--------- andl I do not account for obvious alternative explanations. 37 
A lack of sufficient consideration of alternatives is a basis that can adverse!] affect the evidentiary weight 
of such an opinion.38 Additionally.I I and I _ do not provide a persuasive 
analysis explaining why the Petitioner's duties require one of these three degrees. 
On appeal, the Petitioner states this case is distinguishable from Matter of Caron lnt'I, Inc., 19 l&N 
Dec. 791, 795 (Comm'r 1988). However, for the reasons stated, the aforementioned opinion letters 
do not provide a sufficient basis to establish that the actual position described requires a bachelor's 
degree in a specific specialty, or its equivalent, and thus do not assist in establishing the position as a 
specialty occupation. As a matter of discretion, we may use opinion statements submitted by the 
Petitioner as advisory.39 However, we may reject an opinion or give it less weight if it is not in accord 
with other information in the record or if it is in any way questionable. 40 As neither opinion discusses 
obvious alternative explanations and distinguishes the conclusions from those of the Handbook, other 
independent sources, or professional associations, the analysis is questionable. 
We also reviewed the sample work product which includes several documents: (1) About Blossom 
Footwear, Inc., (2) Competitor's Report, (3) Trends Report, (4) Analytics Report, (5) Social media 
Marketing Posts Guidelines, (6) Retail & Wholesale App, (7) Marketing and Tradeshow Calendar, (8) 
Email Marketing Analytics Report; and (9) Potential Customers Report. The Petitioner did not provide 
any explanation regarding the work product. The work product is without specific context and reveals 
few details about the duties involved in producing the work product. Without any substantive 
explanation, the sample work product does not convey an understanding of the specialization and 
complexity or uniqueness of the creation of the work product. 
Finally, the Petitioner designated the proffered position as requiring only a wage level 11 on the 
certified LCA. However, in this case, that level 11 designation when read in combination with the 
evidence presented indicates that this particular position is likely not so specialized and complex or 
unique that the duties could only be performed by an individual with a bachelor's degree or higher in 
a specific specialty, or its equivalent. Again, as noted above the Handbook indicates that typical 
positions located within this occupational category do not require a bachelor's degree in a specific 
specialty, or the equivalent. The wage level 11 suggests that the position will be doing the basic 
functions of a market research analysts and marketing specialists. Thus, the wage level 11 is at odds 
with the implicit claims made by the Petitioner that the duties of the proffered position are "complex 
or unique" as well as "specialized and complex" as compared to other market research analysts and 
37 See Claar v. Burlington N.R.R., 29 F.3d 499, 502 (9th Cir. 1994). 
38 See Ambrosini v. Labarraque, 101 F.3d 129, 140 (D.C. Cir. 1996). 
39 Matter of Caron lnt'I, Inc., 19 l&N Dec. 791, 795 (Comm'r 1988). 
40 Id. 
14 
marketing specialists. 41 The record lacks sufficiently detailed and unambiguous information to 
distinguish the proffered position as unique from or more specialized and complex than other closely 
related positions that can be performed by persons without at least a bachelor's degree in a specific 
specialty, or its equivalent. 
In light of all the above, we conclude that the Petitioner did not sufficiently develop relative 
specialization and complexity or uniqueness as an aspect of the duties of the position, and it did not 
identify any tasks that are so specialized and 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) or 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
Upon review of the totality of the record, the Petitioner has not satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A); thus, it has not demonstrated that the proffered position qualifies as a specialty 
occupation. Moreover, the record does not establish that the Petitioner satisfied the statutory and 
regulatory definitions of specialty occupation. 
111. CONCLUSION 
As set forth above, we conclude that the evidence of record does not establish, more likely than not, 
that the proffered position qualifies for classification as a specialty occupation. Accordingly, 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. 
41A wage level 11 position is for an employee who has a good understanding of the occupation but who will only perform 
moderately complex tasks that require limited judgment. 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_11_2009.pdf. Therefore, it does not appear 
that, relative to other positions located within the occupational category, this is one with specialized and complex, or unique 
duties, as such a higher-level position would be classified as a Level 111 or Level IV position, requiring a significantly 
higher prevailing wage. While not dispositive, a salary that is beneath the median wage for the occupational category in 
the area of intended employment (which is the case with a Level 11 wage) suggests that the position is not particularly 
specialized, complex, or unique relative to other positions within the occupational category. 
15