dismissed H-1B Case: Set Design

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-D-C-, CORP. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 14, 2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a studio, seeks to employ the Beneficiary as a set designer and classify her as a as a 
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The matter is now 
before us on appeal. The appeal will be dismissed. 
The Director denied the petition, finding that the evidence of record did not establish that the 
proffered position qualifies as a specialty occupation. On appeal, the Petitioner asserts that the 
Director's basis for denial was erroneous and contends that it satisfied all evidentiary requirements. 
For reasons that will be discussed below, we agree with the Director that the Petitioner has not 
established eligibility for the benefit sought. 1 
I. SPECIALITY OCCUPATION 
The primary issue is whether the Petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation. 
A. Legal Framework 
For an H-1 B petition to be granted, the petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements of a specialty occupation. 
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 
1 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
Matter of B-D-C-, Corp. 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)( 4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the m1mmum 
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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281,291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of W­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)( 4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
2 
Matter of B-D-C-, Corp. 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Cherto,ff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H -1 B petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty, or its equivalent, directly related to the duties and responsibilities of 
the particular position; fairly represent the types of specialty occupations that Congress contemplated 
when it created the H -1 B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Petitioner and the Proffered Position 
In the letter submitted in support of the instant petition, the Petitioner states that it "provides 
photography video and design services for individuals and companies." The Petitioner also states 
that its clients include fashion magazine companies, fine food restaurants, schools, designers, and 
bloggers. With respect to the proffered position, the Petitioner states that "candidates must possess 
at least a Bachelor's degree in set design or related academic field." The Petitioner also provided the 
following description of the job duties, along with the percentage of time spent performing each 
duty: 
1. Effectively coordinates vanous shooting and 20% 
editing projects by providing fresh concepts, 
lighting design and graphic design; 
2. Develop set designs based on evaluation of scripts, 20% 
budgets, research information, and available 
locations; 
3 
Matter of B-D-C-. Corp. 
3. Prepare rough drafts and scale working drawings 20% 
of sets, including floor plans, scenery, and 
properties to be constructed; 
4. Create[ sic] different art sets for photography and 15% 
video projects; estimate set- or exhibit-related 
costs, including materials, construction, and rental 
of props or locations; 
5. Sketch out set plans, using hand-rendering and 10% 
computer software; 
6. Produce scale models for director to approve; 10% 
7. Capture time period and mood with adequate props 5% 
and lighting. 
The Petitioner submitted a Labor Condition Application (LCA) in support of the instant H-1 B. The 
Petitioner indicates that the proffered position corresponds to the occupational category "Set and 
Exhibit Designers"-SOC (ONET/OES Code) 27-l 027, at a Level I (entry level) wage. 
C. Analysis 
A baccalaureate or higher degree in a specffic specialty, or its equivalent, is 
normally the minimum requirementfor entry into the particular position 
We will now discuss the proffered position in relation to the criterion at 8 C.P.R. 
§ 214.2(h)( 4)(iii)(A)(J), 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. 
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.2 We reviewed the information in the Handbook regarding the occupational category 
"Set and Exhibit Designers" and note that this occupation is one for which the Handbook does not 
provide detailed data. The Handbook states the following about these occupations: 
Data for Occupations Not Covered in Detail 
Although employment for hundreds of occupations are covered in detail in the 
Occupational Outlook Handbook, this page presents summary data on additional 
occupations for which employment projections are prepared but detailed occupational 
information is not developed. For each occupation, the Occupational Information 
2 All references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/OCO/. The excerpts of the Handbook regarding the duties and requirements of the referenced 
occupational category are hereby incorporated into the record of proceeding. 
4 
Matter of B-D-C-, Corp. 
Network (O*NET) code, the occupational definition, 2012 employment, the May 
2012 median annual wage, the projected employment change and growth rate from 
2012 to 2022, and education and training categories are presented. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Data for Occupations Not Covered in Detail," http://www.bls.gov/ooh/about/data-for-occupations­
not-covered-in-detail.htm (last visited Sept. 11, 2015). 
Thus, the narrative of the Handbook reports that there are some occupations for which only summary 
data is prepared but detailed occupational profiles are not developed? It appears that for at least some 
of the occupations, little meaningful information could be developed. 
Accordingly, in certain instances, the Handbook is not determinative. When the Handbook does not 
support the proposition that a proffered position is one that meets the statutory and regulatory 
provisions of a specialty occupation, it is incumbent upon the petitioner to provide persuasive 
evidence that the proffered position more likely than not satisfies this or one of the other three 
criteria, notwithstanding the absence of the Handbook's support on the issue. In such case, it is the 
petitioner's responsibility to provide probative evidence (e.g., documentation from other objective, 
authoritative sources) that supports a finding that the particular position in question qualifies as a 
specialty occupation. Whenever more than one authoritative source exists, an adjudicator will 
consider and weigh all of the evidence presented to determine whether the particular position 
qualifies as a specialty occupation. 
The Handbook does not indicate that set and exhibit designer positions comprise an occupational 
group for which normally the minimum requirement for entry is at least a bachelor's degree in a 
specific specialty, or its equivalent. The full-text of the Handbook regarding this occupational 
category is as follows: 
Set and Exhibit Designers 
(O*NET 27-1027.00) 
Design special exhibits and movie, television, and theater sets. May study scripts, confer with 
directors, and conduct research to determine appropriate architectural styles. 
• 2012 employment: 11,400 
• May 2012 median annual wage: $50,300 
• Projected employment change, 2012-22: 
3 The Handbook only includes summary data for a range of occupations, including for example, postmasters and mail 
superintendents; agents and business managers of artists, performers, and athletes; farm and home management advisors; 
audio visual and multimedia collections specialists; clergy; merchandise displayers and window trimmers; radio 
operators; first-line supervisors of police and detectives; crossing guards; travel guides; agricultural inspectors, as well as 
others. 
Matter of B-D-C-, Corp. 
• Number of new jobs: 700 
• Growth rate: 6 percent (slower than average) 
• Education and training: 
• Typical entry-level education: Bachelor's degree 
• Work experience in a related occupation: None 
• Typical on-the-job-training: None 
!d. (last visited Sept. 11, 20 15). 
The Handbook summary data provides "education and training" categories for occupations. The 
occupational category "Set and Exhibit Designers" falls into the group of occupations for which a 
bachelor's degree (no specific specialty) is the typical entry-level education. We note that, as evident in 
the above excerpt on this occupation, the Handbook does not report that bachelor's degrees held by 
those entering the occupation are limited to and must be in any specific specialty directly related to 
the occupation. Accordingly, the Handbook does not support the assertion that at least a bachelor's 
degree in a specific specialty is normally the minimum requirement for entry into this occupational 
category. 
On appeal, the Petitioner asserts that the information contained in the O*NET Summary Reports 
establish that the proffered position qualifies as a specialty occupation normally requiring at least a 
bachelor's degree or its equivalent in a specific specialty. Contrary to Petitioner's assertions, O*NET 
OnLine does not state a requirement for a bachelor's degree. Rather, it assigns this occupation a Job 
Zone "Four" rating, which groups it among occupations of which "most," but not all, "require a four­
year bachelor's degree." Further, O*NET OnLine does not indicate that four-year bachelor's degrees 
required by Job Zone Four occupations must be in a specific specialty directly related to the 
occupation. As previously discussed, USCIS interprets 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. 
The Petitioner further asserts that the Specific Vocational Preparation (SVP) level is also probative 
evidence that the position should be considered a specialty occupation for which the mm1mum 
requirement for entry is at least a bachelor's degree in a specific specialty, or its equivalent. We note 
that "Set and Exhibit Designers" has a SVP range of"7.0 to< 8.0." 
However, we find that the assignment of SVP range of "7.0 to < 8.0" is not indicative of a specialty 
occupation. This conclusion is apparent upon reading Section II of the DOTs Appendix C, 
Components of the Definition Trailer, which addresses the Specific Vocational Preparation (SVP) 
rating system.4 The section reads: 
4 The Appendix can be found at the following Internet website: http://www.oalj.dol.gov/PUBLIC/DOT/ 
REFERENCES/DOT APPC. HTM. 
Matter of B-D-C-, Corp. 
II. SPECIFIC VOCATIONAL PREPARATION (SVP) 
Specific Vocational Preparation is defined as the amount of lapsed time required by a 
typical worker to learn the techniques, acquire the information, and develop the 
facility needed for average performance in a specific job-worker situation. 
This training may be acquired in a school, work, military, institutional, or vocational 
environment. It does not include the orientation time required of a fully qualified 
worker to become accustomed to the special conditions of any new job. Specific 
vocational training includes: vocational education, apprenticeship training, in-plant 
training, on-the-job training, and essential experience in other jobs. 
Specific vocational training includes training given in any of the following 
circumstances: 
a. Vocational education (high school; commercial or shop training; technical school; 
art school; and that part of college training which is organized around a specific 
vocational objective); 
b. Apprenticeship training (for apprenticeable jobs only); 
c. In-plant training (organized classroom study provided by an employer); 
d. On-the-job training (serving as learner or trainee on the job under the instruction of 
a qualified worker); 
e. Essential experience in other jobs (serving in less responsible jobs which lead to 
the higher grade job or serving in other jobs which qualify). 
The following is an explanation of the various levels of specific vocational 
preparation: 
Level 
1 
2 
3 
4 
5 
6 
7 
8 
9 
Time 
Short demonstration only 
Anything beyond short demonstration up to and including 1 month 
Over 1 month up to and including 3 months 
Over 3 months up to and including 6 months 
Over 6 months up to and including 1 year 
Over 1 year up to and including 2 years 
Over 2 years up to and including 4 years 
Over 4 years up to and including 1 0 years 
Over 1 0 years 
Note: The levels of this scale are mutually exclusive and do not overlap. 
(b)(6)
Matter of B-D-C-, Corp. 
An SVP rating of"7.0 to < 8.0" indicates "[o]ver 2 years up to and including 4 years." This does not 
indicate that at least a four-year bachelor's degree is required or that such a degree must be in a 
specific specialty directly related to the occupation. Rather, the SVP rating simply indicates that the 
occupation requires over 2 years up to and including 4 years of training of the wide variety of forms 
of preparation described above, including experiential training. Accordingly , the DOT does not 
indicate that at least a bachelor's degree in a specific specialty (or its equivalent) is normally the 
minimum requirement for entry into these positions. 
In the instant case, the Petitioner has not established that the proffered position falls under an 
occupational category 
for which the Handbook, or other authoritative source, indicates that normally 
the minimum requirement for entry is at least a bachelor's degree in a specific specialty, or its 
equivalent. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions that 
are identifiable as being (1) in the petitioner's industry , (2) parallel to the proffered position, and also 
(3) located in organizations that are similar to the petitioner. 
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. 
1999) (quoting Hird/Blaker Corp. 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 independent, authoritative source) reports a standard 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. 
On appeal, the Petitioner submitted an advisory opinion letter from Professor School 
of Graduate Studies, Professor writes that "Exhibit 
Designer" is a specialty occupation "typically requiring of the minimum of a Bachelor's Degree and 
ideally a graduate degree, that includes coursework in exhibit design applications, technical set 
environment production , audience studies and narrative development. " 
However, there is no evidence that Professor is familiar with the Petitioner's business 
activities or how the duties of the position would actually be performed in the context of the 
(b)(6)
Matter of B-D-C- , Corp . 
Petitioner's business enterprise. For instance, there no evidence that she has any in-depth knowledge 
of the Petitioner's business operations gained through such means as visiting the Petitioner's 
premises, observing the Petitioner's employees, interviewing them about the nature of their work, or 
documenting the knowledge that they apply on the job. Her opinion does not relate her conclusion 
to specific, concrete aspects of this Petitioner's business operations to demonstrate a sound factual 
basis for the conclusion about the educational requirements for the particular position here at issue. 
She has not provided sufficient facts that would support the assertion that the proffered position 
requires at least a bachelor's degree in a specific specialty (or its equivalent). Further, Professor 
does not discuss the duties of the proffered position in any substantive detail; in fact, 
Professor describes the duties in general terms. For example, Professor states that the 
Beneficiary is responsible for "[d]eveloping the plans for the design, layout and furnishing of 
commercial displays" and "preparing drawing, sketches and scale models." However, the duties as 
described do not provide information as to the complexity of the job duties, level of judgement and 
understanding required to perform the duties, to adequately substantiate the requirements for the 
position. 
Professor further refers to two industry professional organizations; the Society for 
Environmental Graphic Designers, and the Exhibit Designers and Producers Association. However, 
the record does not contain evidence that these industry professional associations regard a bachelor's 
degree in a specific specialty, or its equivalent, to be the minimum entry requirement for the position 
of set designer. Further, Professor does not reference or discuss any studies, surveys, industry 
publications, authoritative publications, or other sources of empirical information which she may 
have consulted in the course of evaluative process. 
We may, in our discretion, use advisory opinion statements submitted by the petitioner as expert 
testimony. Matter o.f Caron International , 19 I&N Dec. 791 (Comm'r 1988). However, where an 
opinion is not in accord with other information or is in any way questionable, we are not required to 
accept or may give less weight to that evidence. !d. 
The Petitioner further submitted copies of job advertisements in supp011 of the assertion that the 
degree requirement is common to its industry in parallel positions among similar organizations. 
However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements is misplaced. 
In the Form 1-129 petition, the Petitioner states that it is a studio providing photography, video and 
design services, established in 2013 with " 1.5'' employees. The Petitioner states that it has annual 
gross revenue of "$200,000(est.)" and a net annual income of "$30,000(est.)." The Petitioner 
designated its business operations under the North American Industry Classification System 
(NAICS) code 541430, which corresponds to "Graphic Design Services."5 
5 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used to classify 
business establishments according to type of economic activity and each establishment is classified to an industry 
according to the primary business activity taking place there . See http://www .census .gov/eos/www/naics / (last visited 
Sept, I 
I, 20 15). 
9 
(b)(6)
Matter of B-D-C- , Corp. 
For the petitioner to establish that an organization is similar, it must demonstrate that the petitioner 
and the organization share the same general characteristics. Without such evidence, documentation 
submitted by a petitioner is generally outside the scope of consideration for this criterion, which 
encompasses only organizations that are similar to the petitioner. 
We will briefly note that, without more, the job postings do not appear to be from organizations 
similar to the Petitioner. 6 When determining whether the petitioner and the advertising organization 
share the same general characteristics, such factors may include information regarding the nature or 
type of organization, and, when pertinent, the particular scope of operations, as well as the level of 
revenue and staffing (to list just a few elements that may be considered). It is not sufficient for the 
petitioner to claim that an organization is similar and in the same industry without providing a 
legitimate basis for such an assertion. 
More specifically, the advertisements include, among others, positions with 
a division of a marketing agency; and 
a science and technology center. The Petitioner also provided job postings for and 
which do not provide information regarding the employers. The Petitioner did not 
supplement the record of proceeding with additional information or state which aspects or traits it 
shares with the advertising organizations. Without further information, the advertisements appear to 
be for organizations that are not similar to the petitioner. 
Further, the Petitioner has not established that the advertisements are for parallel positions. For 
example, the position with requires "3 years professional experience." The posting from 
requires "6 years feature film experience," while the posting from 
requires " [ m] inimum six ( 6) years equivalent work experience in specific design 
discipline." As previously discussed, the Petitioner designated the proffered position on the LCA 
through the wage level as a Level I (entry level) position relative to others within the occupation. 
The advertised positions appear to be for more senior positions than the proffered position. More 
importantly, the Petitioner has not sufficiently established that the primary duties and responsibilities 
of the advertised positions are parallel to the proffered position. 
In addition, some job postings do not indicate that a bachelor's degree in a directly related specific 
specialty is required. For example, prefers a Bachelor's degree, but it is not required and 
does not state a specific specialty. requires a bachelor's degree, but 
does not indicate a specific specialty. As discussed, the degree requirement set by the statutory and 
regulatory framework of the H-lB program is not just a bachelor's or higher degree, but such a 
6 Moreover, the Petitioner did not provide any independent evidence of how representative the job postings are of the 
particular advertising employers' recruiting history for the type of job advertised . As the advertisements are only 
solicitations for hire, they are not evidence of the actual hiring practices of these employers. 
10 
Matter of B-D-C-, Corp. 
degree in a specific specialty that IS directly related to the specialty occupation claimed m the 
petition. 
As the documentation does not establish that the petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. 7 That is, as the evidence does not establish that similar organizations in the same industry 
routinely require at least a bachelor's degree in a specific specialty, or its equivalent, for parallel 
positions, not every deficit of every job posting has been addressed. 
The Petitioner has not established that a requirement of a bachelor's or higher degree in a specific 
specialty, or its equivalent, is common to the petitioner's industry in positions that are (1) in the 
petitioner's industry, (2) parallel to the proffered position, and also (3) located in organizations that 
are similar to the petitioner. For the reasons discussed above, the petitioner has not satisfied the first 
alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
spec?fic specialty, or its equivalent 
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. 
In support of its assertion that the proffered positiOn qualifies as a specialty occupation, the 
Petitioner submitted various documents including evidence regarding its business operations such as 
incorporation documents, product brochures, and sales receipts; along with copies of the 
Beneficiary's work product. While the documents provide some information regarding the 
Petitioner's business operations and the Beneficiary's work, they do not adequately explain how this 
particular position is so complex or unique that it can only be performed by an individual with a 
baccalaureate or higher degree in a specific specialty, or its equivalent. 
7 Even if all of the job postings indicated that a bachelor's degree in a specific specialty, or its equivalent, is common to 
the industry in parallel positions among similar organizations (which they do not), the Petitioner does not demonstrate 
what inferences, if any, can be drawn from these advertisements with regard to determining the common educational 
requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The Practice of Social 
Research 186-228 ( 1995). 
As such, even if the job announcements supported the finding that the position required a bachelor's or higher degree in a 
specific specialty, or its equivalent (for organizations in the same industry that are similar to the Petitioner), it cannot be 
found that such a limited number ofpostings that appear to have been consciously selected outweigh the findings of the 
Handbook published by the Bureau of Labor Statistics that such a position does not normally require at least a 
baccalaureate degree in a specific specialty, or its equivalent, for entry into the occupation in the United States. 
11 
Matter of B-D-C-, Corp. 
Specifically, the Petitioner has not sufficiently developed relative complexity or uniqueness as an 
aspect of the proffered position. 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 may believe are so complex and unique. 
On appeal, the Petitioner states that the "proffered position involves a wide range of technologies 
and techniques in developing the assessments to the products including the message, stories, and 
objects or editorial still photography or videos. To accomplish all the needed job duties, the 
Beneficiary shall have clear understanding in cultural anthropology, human factors, and trend 
research, as well as the ability to produce the theory of narrative experience with the 
comprehensibility and accessibility." The Petitioner also provided a list of skills, such as skills in 
"computer design software, such as InDesign, Premier Pro, After Effects, Illustrator, and Photoshop" 
and skills in "3D modeling software such as AutoCAD, Maya, Sketchup, and Rhino" that would be 
beneficial to the proffered position. While certain skills or knowledge may be beneficial, or even 
required, in performing specific duties of the position, the evidence does not demonstrate that these 
skills and knowledge can only be gained through an established curriculum leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, nor has the Petitioner 
demonstrated that such a degree is required to perform the duties of the proffered position. The 
description of the duties does not specifically identify any tasks that are so complex or unique that 
only a specifically degreed individual could perform them. The record lacks sufficiently detailed 
information to distinguish the proffered position as more complex or unique from other positions 
that can be performed by persons without at least a bachelor's degree in a specific specialty, or its 
equivalent. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four assignable 
wage levels. 8 Without further evidence, the record of proceeding does not indicate that the proffered 
The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level 1 wage rate is 
described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These employees perform routine tasks that require limited, if 
any, exercise of judgment. The tasks provide experience and familiarization with the employer's 
methods, practices, and programs. The employees may perform higher level work for training and 
developmental purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored and reviewed for 
accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Level 1 wage should be considered. 
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. 
12 
Matter of B-D-C-, Corp. 
position is complex or unique as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a significantly higher prevailing wage.9 For example, a Level IV (fully 
competent) position is designated by DOL for employees who "use advanced skills and diversified 
knowledge to solve unusual and complex problems." 10 
The Petitioner claims that the Beneficiary is well qualified for the position. 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 did not establish that its particular position is so complex or unique 
that it can only be performed by an individual with at least a bachelor's degree in a specific specialty, 
or its equivalent. Therefore, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
The third criterion of 8 C.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 
this end, we review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could be 
Thus, in accordance with the relevant DOL explanatory information on wage levels, this wage rate indicates that the 
beneficiary is only required to have a basic understanding of the occupation and carries expectations that the beneficiary 
perform routine tasks that require limited exercise of judgment. 
9 The issue here is that the petitioner's designation of this position as a Level I, entry-level position undermines its claim 
that the position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an entry-level 
position would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for 
entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty 
occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific 
specialty or its equivalent. That is, a position's wage level designation may be a consideration but is not a substitute for a 
determination of whether a proffered position meets the requirements of section 2 I 4(i)(l) ofthe Act. 
1° For additional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & Training 
Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available 
at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _ Guidance_Revised_ll_ 2009.pdf 
13 
Matter of B-D-C-, Corp. 
brought to the United States to perform any occupation as long as the petitioner artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor v. Meissner, 
201 F.3d at 388. In other words, if a petitioner's stated degree requirement is only designed to 
artificially meet the standards for an H -1 B visa and/or to underemploy an individual in a position for 
which he or she is overqualified and if the proffered position does not in fact require such a specialty 
degree or its equivalent, to perform its duties, the occupation would not meet the statutory or 
regulatory definition of a specialty occupation. See§ 214(i)(l) ofthe Act; 8 C.F.R. § 214.2(h)(4)(ii) 
(defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. USCIS must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the 
specific specialty as the minimum for entry into the occupation as required by the Act. 
The Petitioner does not assert that it has a history of hiring only de greed individuals for the proffered 
position. In fact, based on the information provided in the record, it appears that the Beneficiary is 
the first person to hold the proffered position. Therefore, the Petitioner has not established a prior 
history of recruiting and hiring for the proffered position only persons with at least a bachelor's 
degree in a specific specialty, or its equivalent, and has not satisfied the third criterion of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
The nature qfthe specific duties is so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment qf a 
baccalaureate or higher 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 of the record of the proceeding, we note that the Petitioner has not provided probative 
evidence to satisfy this criterion of the regulations. In the instant case, relative specialization and 
complexity have not been sufficiently developed by the Petitioner as an aspect of the proffered 
position. That is, the proposed duties have not been described with sufficient specificity to establish 
that they are more specialized and complex than positions that are not usually associated with at least 
a bachelor's degree in a specific specialty, or its equivalent. 
14 
Matter of B-D-C-, Corp. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (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 falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a substantially higher prevailing wage. 11 
The Petitioner has submitted insufficient evidence to satisfy this criterion of the regulations. We, 
therefore, conclude that the Petitioner did not satisfy the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)( 4). 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. 
II. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 12 
ORDER: The appeal is dismissed. 
. Cite as Matter of B-D-C-, Corp. ID# 13323 (AAO Sept. 14, 2015) 
11 
As previously discussed, a Level IV (fully competent) position is designated by DOL for employees who "use 
advanced skills and diversified knowledge to solve unusual and complex problems" and requires a significantly higher 
wage. 
12 
Since the identified bases for denial are dispositive of the Petitioner's appeal, we will not address other grounds of 
ineligibility we observe in the record of proceeding. 
15