dismissed H-1B Case: Sales Management

U.S. Citizenship 
and Immigration 
Services 
In Re : 10186868 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WLY 10, 2020 
The Petitioner, a publishing company, seeks to employ the Beneficiary temporarily as a "sales 
manager" under the H-lB nonirnrnigrant classification for specialty occupations. 1 The H-lB program 
allows a U.S . employer to temporarily employ a qualified foreign worker in a position that requires 
both : (a) the theoretical and practical application of a body of highly specialized knowledge; and (b) 
the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a 
minimum prerequisite for entry into the position. 
The Vermont Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. The matter is now before us on appeal. The Petitioner bears the burden of proof to 
demonstrate eligibility 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. ANALYSIS 
Upon review of the entire record, for the reasons set out below , we have determined that the Petitioner 
has not demonstrated that the proffered position qualifies as a specialty occupation. The Director 
concluded that the Petitioner did not establish that the offered position qualifies as a specialty 
occupation. In her decision, the Director thoroughly discussed the Petitioner's failure to meet any of 
the four regulatory criteria at 8 C.F .R. § 2 l 4.2(h)( 4)(iii)(A)(l)-( 4). Upon consideration of the entire 
record, including the evidence submitted and arguments made on appeal, we adopt and affirm the 
Director's decision with the comments below. 4 
1 See Immigration and Nationality Act (the Act) section 10l( a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b) . 
2 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 20 l 0). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . 
4 See Matter of P. Singh, Attorney, 26 I&N Dec. 623 (BIA 2015) (citing Matter of Burbano , 20 l&N Dec. 872, 874 (BIA 
1994)); see also Chen v. INS, 87 F .3d 5, 7-8 (1st Cir. 1996) ("[I]f a reviewing tribunal decides that the facts and evaluative 
judgments prescinding from them have been adequately confronted and correctly resolved by a trial judge or hearing 
officer, then the tribunal is free simply to adopt those findings" provided the tribunal 's order reflects individualized 
attention to the case). 
In its initial filing, the Petitioner failed to indicate the proffered position requires a bachelor's level 
degree in a spec[fic specialty as required by the statute and the regulations. 5 In its response to the 
Director's request for evidence (RFE), the Petitioner indicates that the position requires a bachelor's 
degree in business administration. 6 
The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, the Petitioner 
cannot offer a new position to the Beneficiary, or materially change a position's title, its level of 
authority within the organizational hierarchy, its associated job responsibilities, or the requirements of 
the position. The Petitioner must establish that the position offered to the Beneficiary when the 
petition was filed merits classification for the benefit sought. See Matter of Michelin Tire Corp., 17 
I&N Dec. 248, 249 (Reg'l Comm'r 1978). If significant changes are made to the initial request for 
approval, the Petitioner must file a new petition rather than seek approval of a petition that is not 
supported by the facts in the record. The information provided by the Petitioner in its response to the 
Director's RFE added a new minimum requirement to the proffered position. 
Further, as explained by the Director, the Petitioner's addition of a minimum education requirement 
in the field of business administration, without further specialization, is inadequate to establish that 
the proposed position qualifies as a specialty occupation. A petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly and closely to 
the position in question. 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. 
Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its equivalent. 
We interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific 
specialty that is directly related to the proposed position. We have 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 
conclusion that a particular position qualifies for classification as a specialty occupation. Royal Siam 
Corp., 484 F.3d at 147. 
For the reasons discussed above, the petition is not approvable. Nevertheless, we will discuss the 
Petitioner's arguments on appeal below. 
Regarding the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]), as explained by the Director in her 
decision, the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) does 
5 In its initial support letter, the Petitioner repeatedly stated that the minimum requirement for the position is a bachelor's 
degree with no specific field requirement. While we do acknowledge the Petitioner's single statement under the fourth 
criterion that "[i]t is mandatory for [a] Sales Manager to have an academic background in business," having an academic 
background in a field is not the equivalent of a degree requirement in a specific field. 
6 The Petitioner appears to consider a degree in business administration equivalent to a degree in business management as 
it uses both fields throughout the record. 
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not indicate that the sales manager occupation normally requires a bachelor's degree or higher, or its 
equivalent, in a specific field of study for entry. 
First, the Handbook states that "[m]ost sales managers have a bachelor's degree and work experience 
as a sales representative." It goes on to clarify that: 
Sales managers are typically required to have a bachelor's degree, although some positions 
may only require a high school diploma. Courses in business law, management, economics, 
accounting, finance, mathematics, marketing, and statistics are advantageous. 
In other words, the Handbook does not provide that the bachelor's level degree be in any specific field, 
as "advantageous courses" are not equivalent to a normal minimum requirement of a bachelor's degree 
in a specific field, and even indicates that "some positions may only require a high school diploma." 
Therefore, the Petitioner's assertion on appeal that "Business Management is 'a related field' as 
contemplated by the OOH" is incorrect. 
Similarly, the Petitioner's reliance on Tapis Int'l v. Immigration and Naturalization Service, 94 F. 
Supp. 2d 172 (D. Mass. 2000) and Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. 
Ohio 2012) is also misplaced. In Tapis, the U.S. district court found that while the former Immigration 
and Naturalization Service (INS) was reasonable in requiring a bachelor's degree in a specific field, it 
abused its discretion by ignoring the portion of the regulations that allows for the equivalent of a 
specialized baccalaureate degree. According to the U.S. district court, INS's interpretation was not 
reasonable because then H-1B visas would only be available in fields where a specific degree was 
offered, ignoring the statutory definition allowing for "various combinations of academic and 
experience based training." Tapis Int'l v. INS, 94 F. Supp. 2d at 176. The court elaborated that "[i]n 
fields where no specifically tailored baccalaureate program exists, the only possible way to achieve 
something equivalent is by studying a related field ( or fields) and then obtaining specialized 
experience." Id. at 177. 
We agree with the district court judge in Tap is, that in satisfying the specialty occupation requirements, 
both the Act and the regulations require a bachelor's degree in a specific specialty, or its equivalent, 
and that this language indicates that the degree does not have to be a degree in a single specific 
specialty. 7 Moreover, we also agree that, if the requirements to perform the duties and job 
responsibilities of a proffered position are a combination of a general bachelor's degree and experience 
such that the standards at both section 214(i)(l)(A) and (B) of the Act have been satisfied, then the 
proffered position may qualify as a specialty occupation. We do not conclude, however, that the U.S. 
district court is stating that any position can qualify as a specialty occupation based solely on the 
claimed requirements of a petitioner. 
7 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 c01Telation between the required "body of highly specialized 
knowledge" and the position, however, a minimum entry requirement of a degree in 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 pa1iicular position. 
Section 214(i)(l)(B) of the Act (emphasis added). 
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Instead, we 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, 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 a specific specialty as the minimum for entry into 
the occupation as required by the Act. 
In addition, the district court judge does not state in Tapis that, simply because there is no specialty 
degree requirement for entry into a particular position in a given occupational category, we must 
recognize such a position as a specialty occupation if the beneficiary has the equivalent of a bachelor's 
degree in that field. In other words, we do not conclude that Tapis stands for either (1) that a specialty 
occupation is determined by the qualifications of a beneficiary being petitioned to perform it; or (2) 
that a position may qualify as a specialty occupation even when there is no specialty degree 
requirement, or its equivalent, for entry into a particular position in a given occupational category. 
First, we cannot determine if a particular job is a specialty occupation based on the qualifications of a 
beneficiary. A beneficiary's credentials to perform a particular job are relevant only when the job is 
first found to qualify as a specialty occupation. We are required instead to follow long-standing legal 
standards and determine first, whether the proffered position qualifies 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 I&N Dec. 558,560 (Comm'r 1988) ("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]."). 
Second, in promulgating the H-1 B regulations, the former INS made clear that the definition of the 
term "specialty occupation" could not be expanded "to include those occupations which did not require 
a bachelor's degree in the specific specialty." Temporary Alien Workers Seeking Classification Under 
the Immigration and Nationality Act, 56 Fed. Reg. 61,111, 61,112 (Dec. 2, 1991) (to be codified at 8 
C.F.R. pt. 214). More specifically, in responding to comments that "the definition of specialty 
occupation was too severe and would exclude certain occupations from classification as specialty 
occupations," the former INS stated that "[t]he definition of specialty occupation contained in the 
statute contains this requirement [for a bachelor's degree in the specific specialty, or its equivalent]" 
and, therefore, "may not be amended in the final rule." 
The Petitioner also cites to Residential Finance 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." 
We agree with the aforementioned proposition that "[t]he knowledge and not the title of the degree is 
what is important." As previously discussed, 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. Again, since there must be a close correlation between 
the required "body of highly specialized knowledge" and the position, however, a minimum entry 
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requirement of a degree in two disparate fields, would not meet the statutory requirement that the 
degree be "in the specific specialty ( or its equivalent)," unless the Petitioner establishes how each field 
is directly related to the duties and responsibilities of the particular position. Section 214(i)(l)(B) of 
the Act ( emphasis added). For the previously discussed reasons, however, the Petitioner has not met 
its burden to establish that the particular position offered in this matter requires a bachelor's or higher 
degree in a specific specialty, or its equivalent, directly related to its duties in order to perform those 
tasks. 
In any event, the Petitioner has famished no evidence to establish that the facts of the instant petition 
are analogous to those in Tapis or Residential Finance. We also note that, 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 I&N Dec. 715, 719-20 (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 oflaw. Id. 
The Petitioner also references the letter from I The letter, however, addresses the 
Beneficiary's qualifications and not the normal minimum requirements for entry into the particular 
position, which is the focus of the criterion. 
Regarding the first prong of the second criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I the Petitioner 
relies on the letter from.__ ________ ___.atl !University.~-----~ 
concludes that the proffered position requires the attainment of a bachelor's degree in business 
administration, or its equivalent. As previously discussed, the requirement of a bachelor's degree in 
business administration is inadequate to establish that a position qualifies as a specialty occupation. 
Referencing the second prong of the second criterion, which the Petitioner appears to combine with 
the fourth criterion, the Petitioner again relies on the qualifications of the Beneficiary, rather than 
establishing that either its particular position is so complex or unique that it can be performed only by 
an individual with a degree or that 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. 
Regarding the third criterion, the Petitioner again asserts that it "has documented its history of hiring 
employees with bachelor's degree in Business Administration or a related field." We note, however, 
that according to the letter from the Petitioner's Sales Director, Americas, he "manage[s] a team of 8 
Sales Managers," but only submitted resumes for himself and two other individuals. Not only does 
the letter not address the education of the six remaining sales managers for the Americas region, but 
it also does not address the sales managers for other potential regions. 
For all of these reasons, the Petitioner has not established that it has met any of the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
Finally, we also note that it is unclear whether the position would require the Beneficiary to speak a 
foreign language and whether such a requirement is reflected in the wage level indicated on the 
certified labor condition application. This issue remains unresolved. 
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II. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden here, and the 
petition will remain denied. 
ORDER: The appeal is dismissed. 
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