dismissed H-1B Case: Sales

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-F- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY21,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a grocery store and wholesale distributor, seeks to temporarily employ the Beneficiary 
as a "sales supervisor" under the H-IB nonimmigrant classification. See Immigration and 
Nationality Act (the Act) section IOI(a)(l5)(H)(i)(b), 8 U.S.C. § IIOI(a)(l5)(H)(i)(b). The H-1 B 
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, California Service Center, denied the petition. The Director concluded that the 
position offered to the Beneficiary did not qualify as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the position of "sales supervisor" is not a specialty 
occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, 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: 
(b)(6)
Matter of M-F- LLC 
(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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted 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 proposed 
position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (Ist Cir. 2007) (describing "a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the initial letter of support, the Petitioner indicated that the Beneficiary will "serve as an entry 
level "sales supervisor" and perform the following job duties: 
• Talking with the sales departments between China and USA with Chinese and 
English. Listen to and resolve customer complaints regarding services, products, 
or personnel. 
• Contract administration including thorough reviews with accounting and project 
executives as well as continuous recognitions of both pitfalls and opportunities in 
working toward the company's best interest. 
• Confer with company officials to develop methods and procedures to increase 
sales, expand markets, and promote business. Analyze details of sales territories 
to access their growth potential and to set quotas. 
• Responsible for updating weekly estimate final costs as well as managing 
monthly cash flow and cost reporting using or similar software. 
• Responsible for creating schedules of value, monthly billings and monthly billing 
reports to accounting. 
• Provide staff with assistance in performing difficult or complicated duties. 
Together with the project superintendent, determine the quantity and types of 
human resources needed to maintain project schedule and budget. It includes 
Hiring, training, and evaluating personnel. 
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Matter of M-F- LLC 
• Prioritizes own and team's work. [She] ant1c1pates consequences of actions, 
potential problems or opportunities for change. 
• Attend company meetings to exchange product information and coordinate work 
activities with other departments. Prepare sales and inventory reports for 
management and budget departments. 
In response to the Director's request for evidence (RFE), the Petitioner provided the following 
additional duties for the proffered position, along with the percentage of time allocated to each of the 
tasks: 
• Responsible for project planning, marketing, and sales management (5%) 
• Direct and supervise employees engaged in sales, inventory - taking, reconciling 
cash receipts, or performing specific services (30%) 
• Monitoring sales staff performance; hiring, training, and evaluating personnel 
(20%) 
• Contracting administration including through reviews with accounting and project 
executives as well as continuous recognitions of both pitfalls and opportunities in 
working toward the company's best interest (5%) 
• Providing staff with assistance in performing ditlicult or complicated duties 
(20%) 
• Together with the project superintendent, determine the quantity and types of 
human resources needed to maintain project schedule and budget (5%) 
• Listen to and resolve customer complaints; Excellent conversation with Chinese 
and English, accounting skills, and computer skills (I 0%) 
• Confer with company officials to develop methods and procedures to increase 
sales, expand markets, and promote business; Analyzes details of sales territories 
to access their growth potential and to set quotas (5%) 
In the RFE response, the Petitioner noted that the "minimum education needed for such a position is 
a Bachelor's degree due to the complexity of the job duties and the nature of the business." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position satisfies any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) and, therefore, qualifies as a specialty occupation. Specifically, the record does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 1 
1 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position. While we may not discuss every document submitted, we have reviewed and considered each one. 
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Matter of M-F- LLC 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position.2 To inform this inquiry, we recognize the U.S. Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties 
and educational requirements of the wide variety of occupations that it addresses.3 
On the labor condition application (LCA) submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "First-Line Supervisors of Non­
retail Sales Workers" corresponding to the Standard Occupational Classilication (SOC) code 
41-l 012 at a Level I wage.4 
The Handbook's entry entitled "First-Line Supervisors of Non-Retail Sales Workers" falls into the 
group of occupations for which a high school diploma or equivalent is the typical entry-level 
education.5 Accordingly, the Handbook does not report that a bachelor's degree in a specific 
specialty is a requirement for entry into this occupational category. 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 All of our references are to the 2016-2017 edition of the Handbook, available at http://www.bls.gov/ooh/. We do not, 
however, 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 USCIS regularly reviews the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. To satisfy the first criterion, however, the burden 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. 
4 We will consider the Petitioner's classification of the proffered position at a Level I wage (the lowest of four assignable 
wage levels) in our analysis of the position. The "Prevailing Wage Detennination Policy Guidance" issued by the DOL 
provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which the 
Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that the 
Beneficiary will be expected to perfonn routine tasks that require limited, if any, exercise of judgment; (2) that she will 
be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive specific 
instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download!NPWHC _Guidance_ Revised _11_2009.pdf. A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. /d. A Level I wage should be considered for research fellows, workers 
in training, or internships. !d. 
5 We reviewed the information in the Handbook regarding the selected occupational category and note that this 
occupation is one for which the Handbook does not provide detailed data. For additional information, see U.S. Dep't of 
Labor, Bureau of Labor Statistics. Occupational Outlook Handbook, 2016-17 ed., "Data for Occupations Not Covered in 
Detail," http://www.bls.gov/ooh/about/data-for-occupations-not-covered-in-detail.htm (last visited July 13, 2016). 
In the RFE and appeal, the Petitioner references the occupational category "Sales Managers" (a distinct and separate 
category rrom "First-Line Supervisors of Non-Retail Sales Workers."). Importantly, if the Petitioner believed that its 
proffered positon was a combination of occupations, then it should have selected the relevant occupational category for 
the highest paying occupation, which in this instance would have been "Sales Managers." U.S. Dep't of Labor, Emp't & 
Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), 
4 
Matter of M-F- LLC 
Moreover, the Petitioner designated the proffered position under this occupational category at a 
Level I on the LCA. This designation is indicative of a 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 and will perform routine tasks that require limited, if any, 
exercise ofjudgment. In accordance with the relevant DOL explanatory information on wage levels, 
the Beneficiary will be closely supervised and her work closely monitored and reviewed for 
accuracy. Furthermore, she will receive specific instructions on required tasks and expected results. 
DOL guidance indicates that a Level I designation is appropriate for a research fellow, a worker in 
training, or an internship. 
Finally, we note that the Petitioner cites to several United States District Court cases for the 
proposition that there is no apparent requirement that the specialized study be in a single academic 
discipline. For example, the Petitioner cites to Residential Finance Corp. v. USCJS, 839 F. Supp, 2d 
985 (S.D. Ohio 2012), and asserts 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." 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 disparate fields, such as 
philosophy and engineering, would not meet the statutory requirement that the degree be "in the 
specific specialty (or its equivalent)," unless the Petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required body of 
highly specialized knowledge is essentially an amalgamation of these different specialties. Section 
214(i)(l)(B) of the Act (emphasis added). For the aforementioned reasons, however, the Petitioner 
has not met its burden to establish that the particular position offered in this matter requires a 
bachelor's or higher degree in a specific specialty, or its equivalent, directly related to its duties in 
order to perform those tasks. 
In any event, the Petitioner has furnished no evidence to establish that the facts of the instant petition 
are analogous to those in Residential Finance6 We also note that, in contrast to the broad 
available at http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _11_2009.pdf. 
6 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 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 
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Matter of M-F- LLC 
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 of law. !d. 
Here the Petitioner has not provided documentation from an authoritative source that supports its 
assertion that this particular position qualifies as a specialty occupation. Thus, the Petitioner has not 
satisfied the criterion at 8 C.F .R. § 214.2(h)( 4)(iii)(A)(J). 
B. 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 the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
I. First Prong 
To satisfY this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
l999)(quotingHird/BlakerCorp. v. Sava, 712 F. Supp. 1095, 1102(S.D.N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or other authoritative source, reports a requirement for at least a bachelor's degree in 
a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on 
the matter. Also, there are no submissions from the industry's professional association indicating 
that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did not submit 
any letters or affidavits from similar firms or individuals in the Petitioner's industry attesting that 
such firms "routinely employ and recruit only degreed individuals." Thus, the Petitioner has not 
satisfied the first alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
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. 
6 
(b)(6)
Matter of M-F- LLC 
In support of the assertion that the degree requirement is common to the Petitioner's industry in 
parallel positions among similar organizations , the Petitioner submitted copies of job advertisements. 
We observe that the Petitioner submitted multiple copies of the same advertisements. Upon review 
of the documents, we find that the Petitioner's reliance on the job announcements is misplaced. 7 
First, we note that some of the job postings do not appear to involve organizations similar to the 
Petitioner. For example, one posting is for an organization that sells watches. 
The second posting is for a heating, ventilation, and air conditioning 
(HV AC) distributor. The third posting is from a staffing company, 
for which little or no inform
ation regarding the hiring employer is provided. Consequently, there is 
insufficient information regarding this employer's business operation s to conduct a legitimate 
comparison to the Petitioner' s operation s. 
It is not sufficient for the Petitioner to claim that an organization is similar and in the same industry 
without providin g a legitimate basis for such an assertion. "[G]oing on record without supporting 
doc
umentary evidence is not sufficient for purposes of meetin g t he burden of proof in these 
proceedings. " In re Soj]ici, 22 I&N Dec. 158, 165 (Comm 'r 1998) (citing Matter of Treasure Craft 
ofCa l. , 14 I&N Dec. 190 (Reg'! Comm'r 1972)). 
Second, not all of the postings require a t least a bachelor 's degree in a specific specialty, or its 
equivalent. For example , one posting is f rom The employer is recruiting an 
individual who has five plus years of experience in sales. It does not require a bachelor 's degree in a 
specific specialty, or its e quivalent. Several job postings indicate a requirement for a bachelor's 
degree but do not require that such a degree be in a specific specialty.8 Another posting is for an 
international food sales manager for and states a preference for a bachelor's degree 
and prior experience. A preference for a bachelor's degree is not an indication of a requirement. 
Finally, we observe that some of the advertisements do not appear to involve parallel positions. For 
example, one posting i s for a meat plant sales manager for and requires a degree 
and a minimum of ten years of experience in a sales role and five years of experience in the 
foodservice industry. Another posting is for a director of sales, national accounts for 
and requires a bachelor 's degree and five years of direct selling experience to particular 
vendors and ten years of food experience sales. The Petitioner designated its proffered position as a 
wage level I (entry level) position on the LCA. The advertised positions therefore appear to involve 
more senior positions than the proffered position. More importa ntly, the Petitioner has not 
7 As previously mentioned , the occupational category "Sales Managers" is a distinct and separate category from 
"First-Line Supervisors of Non-Retail Sales Workers." Here, job announcements include postings for various types of 
sales managers. Nevertheless, we reviewed all of the posting provided by the Petitioner. 
8 The postings include the following: ( I) area sales manager; (2) sales director 
foodservice ; (3) plant manager; (4) area sales director; (5) area sales 
manage r; (6) sales supervisor; (7) sales representative ; and (8) 
regiona l sales manager dairy food services. 
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Matter of M-F- LLC 
sufficiently established that the primary duties and responsibilities of the advertised positions are 
parallel to those of the proffered position. 
Thus, for the reasons discussed above, the Petitioner has not satisfied the first alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
We reviewed the Petitioner's job duties and the documentation regarding its business operations, 
including the Petitioner's financial records and accompanying organizational chart. In the initial 
petition, the Petitioner described job duties related to supervising employees in. retail sales while 
managing customer concerns in English and Chinese. The Petitioner stated the position is an 
"entry-level Sales Supervisor." In the RFE response, the Petitioner expanded the job duties to 
include project planning and marketing and described the position as a "high-level" executive sales 
supervisor. The Petitioner asserts that the minimum education needed for the position is a bachelor's 
degree due to the complexity of the tasks and the nature of its business operations. 
While the Petitioner claims that the proffered position meets this criterion of the regulations, it does 
not sufficiently demonstrate how the sales supervisor position as described requires the theoretical 
and practical application of a body of highly specialized knowledge and the attainment of a 
bachelor's or higher degree in a specific specialty, or its equivalent. For instance, the Petitioner did 
not submit information relevant to a detailed course of study leading to a specialty degree and did 
not establish how such a curriculum is necessary to perform the duties it claims are so complex or 
unique. While a few related courses may be beneficial in performing certain duties of the position, 
the Petitioner has not demonstrated how an established curriculum of such courses is required. 
Further, the evidence of record does not establish that this position is significantly different from 
other positions within the occupation such that it refutes the Handbook's information to the effect 
that a high school diploma is sufficient for entry into the occupation. Without more, the record lacks 
sufficiently detailed information to distinguish the level of judgment and understanding necessary to 
perform the duties as complex or unique. Rather, it appears that the knowledge to perform the tasks 
can be obtained by an individual without at least a bachelor's degree in a specific specialty, or its 
equivalent. 
The Petitioner claims that the Beneficiary is well qualified for the position, and references her 
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 of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
8 
(b)(6)
Malter of M-F- LLC 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor 's degree in a specific specialty, or its equivalent , for the position. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not 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 conoborat ing evidence 
cannot establish the position as a specialty occupation. Were USClS limited solely to reviewing the 
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 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. Evidence provided in support of this criterion may include, but is not limited to, 
documentation regarding the Petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position. 
We reviewed the Petitioner's statements regarding the proffered position. 
The Petitioner, however, 
does not assert that it has previously employed specialty-degreed individuals in the proffered 
position. The Petitioner submitted job announcements for the proffer ed position that were published 
in the in support of its assertion that it requires a degree in a specific 
specialty, or its equivalent, for the position. However, these job postings were published after the 
submission of the LCA and the instant petition, and do not demonstrate a hiring history for the 
proffered position. 
Moreover , the job advertisements have varying educational requirements. For example, two of the 
job postings indicate that a bachelor's degree is needed for the position, but they do not state that the 
degree must be in a particular discipline. The third posting states a preference for an individual with 
a bachelor degree in business, sales, or project management. A preference for a degree is not an 
indication of a requirement. Therefore , even if these posting had been representative of the 
Petitioner' s past hiring practices, the postings do not state that the Petitioner requires a degree in a 
specific specialty for the position. Thus, without more, the documentation does not establish that the 
Petitioner satisfied the third criterion of 8 C.F .R. § 214.2(h)( 4)(iii)(A). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and compl ex that the knowledge required to perfom1 them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
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Matter of M-F- LLC 
We reviewed the Petitioner's statements regarding the proffered posttJOn. However, relative 
specialization and complexity have not been sufficiently developed by the Petitioner as an aspect of 
the proffered position. Specifically, we incorporate our earlier discussion and analysis regarding the 
designation of the proffered position in the LCA as a Level I position (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. 
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). 
IV. REQUIRED WAGE 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address 
another ground of ineligibility we observe in the record of proceeding. Nevertheless, we will brietly 
note and summarize it here with the hope and intention that, if the Petitioner seeks again to employ 
the Beneficiary or another individual as an H-1 B employee in the proffered position, it will submit 
sufficient independent objective evidence to address and overcome this additional ground in any 
future filing. 
More specifically, wage levels should be determined only after selecting the most relevant O*NET 
code classification. Then, a prevailing wage determination is made by selecting one of four wage 
levels for an occupation based on a comparison of the employer's job requirements to the 
occupational requirements, including tasks, knowledge, skills, and specific vocational preparation 
(education, training and experience) generally required for acceptable performance in that 
occupation.9 
Here, the Petitioner initially stated that the Beneficiary would serve in an entry-level sales supervisor 
position, but later claimed that she would serve as a high-level executive. The Petitioner further 
explained that it will rely heavily on the Beneficiary's work product and expertise to make critical 
decisions regarding the company's business and operations. According to the Petitioner, the position 
involves complex and specialized duties. Moreover, the Petitioner stated that the position requires 
Mandarin and Cantonese language skills. 
9 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 _I I_ 2009.pdf. 
10 
Matter of M-F- LLC 
It does not appear that such aspects of the work were reflected in the wage-level selected by the 
Petitioner for the proffered position. 10 Therefore, we must question the stated requirements, as well 
as the level of complexity, independent judgment and understanding that are needed to perform the 
duties as the LCA is certified for a Level I entry-level position. 
Under the H-lB program, the Petitioner must pay the Beneficiary at least the same wage rate as that 
paid to other employees with similar experience and qualifications or the local prevailing wage for 
the occupation in the area of employment, whichever is higher. 11 Consequently, the Petitioner has 
not established that it would pay the beneficiary an adequate salary for her work, as required under 
the Act, if the petition were granted. 12 
V. CONCLUSION 
For the reasons discussed, 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 burden is on the Petitioner to show eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter o[Otiende, 26 I&N Dec. 127, 128 
(BIA 20 13). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-F- LLC, ID# 17133 (AAO July 21, 2016) 
1° For example, according to DOL guidance, a language requireme;nt other than English in a petitioner's job offer 
generally is considered a special skill, requiring a higher wage-level. !d. 
11 Moreover, the Petitioner has provided inconsistent information regarding the offered wage. The Petitioner indicated in 
the Form 1-129, Petition for a Nonimmigrant Worker, that it would pay the Beneficiary $49,920 per year. However in 
the RFE response, the Petitioner indicated that it would provide a wage of$46,080 per year. 
12 The petitioner was required to provide, at the time of filing the H-1 B petition, an LCA certified for the correct wage 
level in order for it to be found to correspond to the petition. To permit otherwise would result in a petitioner paying a 
wage lower than that required by section 212(n)(l )(A) of the Act, by allowing that petitioner to simply submit an LCA 
for a different wage level at a lower prevailing wage than the one that it claims it is offering to the beneficiary. 
I I