dismissed H-1B Case: Software Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9317647 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 8, 2020 
The Petitioner, a software technology company, seeks to temporarily employ the Beneficiary as a 
"product market manager" under the H-1B nonimmigrant classification for specialty occupations. 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-1B program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish that the proffered position is a specialty occupation. On appeal, the Petitioner submits a brief 
and asserts that the Director erred by denying the petition. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence.1 We review the questions in this matter de novo.2 Upon de nova 
review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
1 Section 291 of the Act ; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). 
11. PROFFERED POSITION 
The Petitioner seeks to employ the Beneficiary as a "product market manager." In the March 2019 
support letter, 3 the Petitioner provided the job duties of the proffered position as follows: 
I Managing the strategy for the0 Promotions Product Marketing function of our 
organization by assessing market needs and crafting targeted promotional 
campaigns; 
I Overseeing a Customer Relationship Marketing (CRM) Team of seven 
professional-level employees and an additional Marketing Strategist that will focus 
onl !Promotions; 
I Crafting brand messaging based on intensive data analyses and customer feedback 
assessments; 
I Interfacing with Product Managers, Data Scientists, Engineers, Marketing 
Manager
1, and I Content and Creative Asset Designers across a variety of teams to 
optimize Promotions initiatives; and 
I Supervising data-driven market research projects to evaluate promotional strategies 
and initiatives. 
The March 2019 Petitioner support letter states the position's required education is a bachelor's degree 
in "Management, Marketing, Economics, or a related field." 
3 In response to the Di rector's request for evidence, the Petitioner provided a supplemental narrative to the initially 
described duties. For the sake of brevity, we have not recited the supplemental duties, however, we have reviewed them 
in full. 
2 
111. 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 qualifies as a specialty occupation. 
Specifically, the record (1) does not consistently describe the position's duties with sufficient detail; 
and (2) does not establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation. 4 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we consider the information contained in the 
U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the duties 
and educational requirements of the wide variety of occupations it addresses. 5 
On the labor condition application (LCA)6 submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Market Research Analysts and 
Marketing Specialists" corresponding to the standard occupational classification (SOC) code 13-1161 
from the Occupational Information Network (O*NET). 7 The Handbook's subchapter entitled "How 
to Become a Market Research Analyst"8 does not indicate that a bachelor's degree in a specific 
specialty, or the equivalent, is normally required for entry into market research analysts' positions. In 
the initial summary of this subchapter the Handbook recognizes that "[m]ost market research analysts 
need at least a bachelor's degree" while also reporting that "[s]ome research positions may require a 
4 The Petitioner submitted documentation to support the H-1B petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
5 We do not maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category 
designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered 
position, and we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. Nevertheless, to satisfy the first criterion, the burden of proof remains on the Petitioner to 
submit sufficient evidence to support a finding that its particular position would normally have a minimum, specialty 
degree requirement, or its equivalent, for entry. 
6 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-lB worker the higher of either the prevailing 
wage for the occupational classification in the area of employment or the actual wage paid by the employer to other 
employees with similar duties, experience, and qualifications. Section 212(n)(1) of the Act; 20 C.F.R. § 655.731(a). 
7 We observe that the Petitioner's initial oveNiew of the proffered position generally described a "Marketing Manager" 
occupation, corresponding to the SOC code 11-2021, which requires a significantly higher wage. However, the Petitioner's 
response to the RFE, which provided supplemental information regarding the duties described a position that could fall 
within the parameters of the "Market Research Analysts and Marketing Specialists" occupation corresponding to the SOC 
code 13-1161. Although we question the substantive nature of the position and whether the Petitioner designated the 
proper occupation on the certified LCA, we have reviewed the Petitioner's proffered position as a "Market Research 
Analyst and Marketing Specialist" position. That said, these concerns raise questions as to what the Beneficiary would 
actually be doing and therefore undermine the overall credibility of this petition. The Petitioner should be prepared to 
fully address those concerns in any future H-1B filings. 
8 The Handbook labels this occupation "Market Research Analysts;" while O*NET identifies SOC code 13-1161 as a 
"Market Research Analysts and Marketing Specialists" occupation. 
3 
master's degree" and that "[s]trong math and analytical skills are essential. "9 Thus, generally these 
positions may require a bachelor's degree and some skills, but not a bachelor's degree in a specific 
specialty, or its equivalent. Although the Handbook also reports that "[m]arket research analysts 
typically need a bachelor's degree in market research or a related field," it then adds that "[m]any have 
degrees in fields such as statistics, math, and computer science. Others have backgrounds in business 
administration, the social sciences, or communications. " 10 
The Handbook's observation that disparate fields of study, including statistics, computer science, and 
the social sciences, may qualify a worker to enter positions in the "Market Research Analysts" 
occupational category indicates that a bachelor's or higher degree in a specific specialty, or its 
equivalent, is not normally the minimum requirement for entry. That is, the Handbook does not 
describe the normal minimum educational requirement for the occupation in a categorical manner, 
other than recognizing that these occupations generally require a bachelor's degree. As noted, in 
addition to recognizing degrees in disparate fields, the Handbook also states that "[o]thers have 
backgrounds in business administration." Although a general-purpose bachelor's degree, such as a 
degree in business administration, may be a legitimate prerequisite for a particular position, requiring 
such a degree, without more, will not justify a conclusion that a particular position qualifies for 
classification as a specialty occupation.11 Therefore, the Handbook's recognition that a general, non­
specialty "background" in business administration is sufficient for entry into the occupation strongly 
suggests that a bachelor's degree in a specific specialty is not a standard, minimum entry requirement 
for this occupation. Accordingly, as the Handbook indicates that working as a market research analyst 
does not normally require at least a bachelor's degree in a specific specialty or its equivalent for entry 
into the occupation, it does not support the particular position proffered here as being a specialty 
occupation. 
The narrative of the Handbook further reports that some employees obtain professional certification 
to demonstrate a level of professional competency. It continues by outlining the requirements for 
market research analysts to achieve the Professional Researcher Certification (PRC), and states that 
candidates qualify based upon their experience and knowledge. According to the Handbook, the PRC 
is granted by the Marketing Research Association, now known as the Insights Association, 12 to those 
have at least three years of experience working in opinion and market research and pass an exam.13 
Recently, the PRC has been expanded and rebranded as the Insights Professional Certification (IPC), 
which has three senior tiers: IPC Fellow, IPC Master, and IPC Principal.14 The IRC Principal 
certification replaces the PRC. 15 
9 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Market Research Analysts, at 
https://www.bls.gov/ooh/business-and-financial/market-research-analysts.htm (last visited Sep. 4, 2020). 
10 Id. 
11 Royal Siam Corp., 484 F.3d at 147. 
12 The Marketing Research Association merged with the Council of American Survey Research Organizations in 2017 to 
become the Insights Association. See http://www.insightsassociation.org/about (last visited Sep. 4, 2020). The Insights 
Association is therefore the successor to the Marketing Research Association. 
13 The Insights Association website states that it "strives to effectively represent, advance, and grow the research profession 
and industry." For additional information, see http://www.insightsassociation.org/about (last visited Sep. 4, 2020). 
14 See https://www.insightsassociation.org/article/new-insights-professional-certification-ipc-announced-2020 (last 
visited Sep. 4, 2020). 
15 According to the Insights Association, the IPC Principal certification "replaces the PRC within the insights community." 
Id. 
4 
We reviewed the Insights Association's website, which confirms the Handbook's statement regarding 
the requirements for the PRC, now the IRC Principal (i.e., three years of relevant industry experience 
and passage of an exam). The website includes information regarding "How to Enter the Industry" 
and lists a variety of possible degrees, such as business administration, liberal arts, computer science, 
social science, and communications, and a variety of "helpful skills," including "attention to detai I," 
"presentation skills," and "basic computer skills." 16 It does not indicate that a market research analyst 
position has any specific minimum academic requirement for entry, nor does it state that it requires 
any particular level of education to be identified as qualified and possessing a level of expertise or 
competence. Instead, the Insights Association's website highlights the importance of professional 
experience and industry-related professional courses (through conferences, seminars, and webinars). 
Consequently, neither the Handbook nor the Insights Association website support the claim that 
positions located within the "Market Research Analysts" occupational category normally require at 
least a bachelor's degree in a specific specialty, or the equivalent. 
The Petitioner cites to Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012), 
for the proposition that "[t]he knowledge and not the title of the degree is what is important. Diplomas 
rarely come bearing occupation-specific majors. What is required is an occupation that requires highly 
specialized knowledge and a prospective employee who has attained the credentialing indicating 
possession of that knowledge. "17 
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)(1)(B) 
of the Act. In such a case, the required "body of highly specialized knowledge" would essentially be 
the same. Since there must be a close correlation between the required "body of highly specialized 
knowledge" and the position, however, a minimum entry requirement of a degree in two disparate 
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.18 The Petitioner, however, 
has not met its burden to establish that the particular position offered in this matter requires a 
bachelor's or higher degree in a specific specialty, or its equivalent, directly related to its duties in 
order to perform those tasks. 
In any event, the Petitioner has furnished no evidence to establish that the facts of the instant petition 
are analogous to those in Residential Finance.19 We also note that, in contrast to the broad precedential 
16 See https://www.insightsassociation.org/career-guide (last visited Sep. 4, 2020). 
17 It is important to note that in Residential Finance the court did not eliminate the "specific specialty" requirement. Rather, 
the court found that the petitioner in that case had satisfied it. 
18 Section 214(i)(l){B) of the Act (emphasis added). 
19 It is noted that the district judge's decision in that case appears to have been based largely on the many factual errors 
made by the Director in the decision denying the petition. We further note that the Director's decision was not appealed 
to us. Based on the district court's conclusions and description of the record, if that matter had ti rst been appealed through 
the available administrative process, we may very well have remanded the matter to the service center for a new decision 
for many of the same reasons articulated by the district court if these errors could not have been remedied by us in our de 
novo review of the matter. 
5 
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. 20 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. 21 It is also important to note 
that in a subsequent case reviewed in the same jurisdiction, the court agreed with our analysis of 
Residential Finance. 22 
The Petitioner also cites to RELX, Inc. v. Baran23 to support its argument that a position may be 
specialized even when the position permits more than one specific specialty for entry into it. As the 
foregoing discussion demonstrates, while we agree that the bachelor's degree does not have to be a 
degree in a single specific specialty, we do not agree with the analytical framework set forth by the 
RELX court. That is, the RELX court does not undertake the proper inquiry regarding the position's 
specific educational requirements and instead concludes that a requirement for a general bachelor's 
degree is sufficient to discharge the petitioner's burden. In doing so, the court overlooks the statutory 
and regulatory provisions as they pertain to the requirement that the bachelor's degree, or its 
equivalent, be in the specific specialty. The court did not consider the requirement for specialization 
and ignored that neither the Handbook nor O*NET stated that the referenced bachelor's degree must 
be in a specific specialty. 24 Although we agree with the RELX court that the bachelor's degree does 
not have to be a degree in a single specific specialty, this agreement is predicated upon any acceptable 
fields of study being closely related to the duties of position and the record reflecting evidence 
sufficient to establish that relation. 25 When as here, support from the Handbook or other sources are 
absent, we must analyze whether the duties actually require 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. 26 
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. 27 Although the reasoning underlying a district judge's 
20 See Matter of K-S-, 20 l&N Dec. 715, 719-20 (BIA 1993). 
21 Id. 
22 See Health Carousel, LLC V. USCIS, No. 1:13-CV-23, 2014 WL 29591 (S.D. Ohio 2014). 
23 RELX, Inc. v. Baran, 397 F.Supp.3d 41 (D.D.C. Aug. 5, 2019). 
24 Because the Handbook and O*NET do not describe the normal minimum educational requirements with sufficient 
specificity to establish that the positions falling within the occupational category are specialized, we disagree with the 
court's reliance on these sources as establishing the requisite eligibility. 
25 Royal Siam Corp., 484 F.3d at 147 (describing "a degree requirement in a specific specialty" as "one that relates directly 
to the duties and responsibilities of a particular position"). 
26 Though the RELX court briefly discusses the duties of the position, it did not engage in analysis of whether the duties 
actually required 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. Instead it 
accepted the petitioner's stated standards concerning its position. However, the record must establish that a petitioner's 
stated degree requirement is not a matter of preference for high-caliber candidates but is necessitated instead by 
performance requirements of the position. See Defensor, 201 F.3d at 387-88. Were we limited solely to reviewing a 
petitioner's claimed self-imposed requirements, an organization could bring any individual with a bachelor's degree to the 
United States to perform any occupation as long as the petitioning entity created a token degree requirement. Id. 
27 Matter of K-S-, 20 l&N Dec. at 719-20. 
6 
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. 28 
The Petitioner has not provided sufficient documentation from a probative, authoritative source to 
substantiate its assertion regarding the normal minimum requirement for entry into this particular 
position. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(ii i)(A)(l). 
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 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 29 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
We generally consider the following sources of evidence to determine if there is such a common degree 
requirement: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry establish that such firms "routinely employ and 
recruit only degreed individuals. " 30 
The Petitioner has not established that its proffered position is one for which the Handbook (or other 
independent, authoritative sources) reports an industry-wide requirement for at least a bachelor's 
degree in a specific specialty, or its equivalent. Thus, we incorporate by reference the previous 
discussion on the matter. 
To be relevant for consideration under this prong, the job vacancy announcements must advertise "parallel 
positions," and the announcements must have been placed by organizations that (1) conduct business in 
the Petitioner's industry and (2) are also "similar" to the Petitioner. Absent such evidence, job postings 
submitted by a Petitioner are generally outside the scope of consideration for this prong, which 
encompasses only organizations that are similar to the Petitioner. None of these job vacancy 
announcements meet this threshold. 
On appeal, the Petitioner refers to several job postings submitted in response to the Director's request for 
evidence (RFE) as confirming the Petitioner's degree requirements are similar to those normally required 
in the high technology industry. We note that the Petitioner does not specifically discuss whether the 
job postings advertise parallel positions. However, our review of the job postings confirm that the 
2s Id. 
29 We will discuss the second prong of the second criterion in section D below. 
30 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) (considering these "factors" to inform the commonality of a degree requirement)). 
7 
advertised job opportunities are not "parallel positions." For example, the Petitioner does not require 
any work experience to enter the proffered position. However, most of the advertised positions 
included with the RFE response require work experience, some substantial. For example, one of the 
positions requires at least eight years of work experience, one of the other positions requires six years 
of work experience, another one requires at least five years of experience, one at least three years of 
experience, and another requires two to four years of experience. Considered collectively, these 
factors indicate that the advertised positions are for more senior positions than the position proffered 
here and thus are not "parallel" to the proposed position. Also, the variety of job duties described in 
the submitted job postings do not demonstrate that the duties of the positions are parallel to the 
proffered position. These job postings are insufficiently detailed or include duties not found in the 
proffered position to accurately compare the level of responsibility and scope of duties of the job 
postings to the proposed position. None of the position offerings appear to include supervisory duties, 
a component of the position proffered here. 
Even if the job postings advertised positions that are parallel to the proffered position, they do not confirm 
that the advertisers have degree requirements that are similar to the Petitioner's requirements and are 
normally required in the high technology industry. For example, four out of the five of advertising 
companies accept a general degree in business to perform the duties of the advertised positions. We have 
consistently stated that, although a general-purpose bachelor's degree, such as a degree in business, may 
be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify 
a conclusion that a particular position qualifies for classification as a specialty occupation. 31 Thus, if the 
Petitioner contends that these job postings are evidence of degree requirements that are similar to its 
degree requirements and are normally required in its industry, the Petitioner confirms that the proffered 
position is not a specialty occupation. 
We also considered the letter authored by Professor of Business Administration, School 
of Business, Leadership & Business Administration,,___ _ _.College, regarding industry requirements 
for the Petitioner's particular position. The author describes his experience as a professor and an 
evaluator of foreign credentials and concludes that it is common for positions similar to the one 
proffered here to require at least a bachelor's degree. I ~tates that it is standard practice in a 
"variety of industries including those with companies engaged in the substantial development and 
support of software application platforms such as [the Petitioner], to hire fully trained specialty-level 
market research analysts and marketing managers32 (emphasis added) for roles involving in-depth 
engagement in the aforementioned areas, and to ensure that the candidates for said positions possess 
the requisite specialty-level training, as obtained from bachelor's-level programs in Management, 
Marketing, Economics, or a related field." I I however, does not offer probative evidence to 
support his conclusion. While he may have anecdotal information based on his experience as a 
professor, he does not indicate he has published, conducted research, run surveys, or engaged in any 
enterprise or employment regarding the minimum education requirements for positions such as the 
position proffered here. Although he refers to "hiring data from publicly available resources" that he 
claims support an "overall trend and the industry-standard approach to hiring for such positions," he does 
not cite, interpret, or analyze these sources for the record. He does not discuss any relevant research, 
31 Royal Siam Corp., 484 F.3d at 147. 
32 The opinion letter does not distinguish if the term "marketing managers" is referring to the separate O*N ET occupation 
SOC 11-2021 Marketing Mangers, or to a shortened version of the Petitioner's position of "product marketing manager." 
8 
studies, or authoritative publications he utilized as part of his review and foundation for his opinion that 
a product marketing manager position requires "at least a bachelor's level degree in a field such as 
Management, Marketing, or Economics." 
The Petitioner has not provided sufficient probative evidence to establish that a bachelor's degree in a 
specific specialty, or its equivalent, is common to the industry in parallel positions among similar 
organizations. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
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. Evidence 
provided in this criterion may include, but is not limited to, an organizational chart showing the 
Petitioner's hierarchy and staffing levels with corresponding and experience requirements for this 
position, as well as documentary evidence of past employment practices for the position. 
In support of this criterion, the Petitioner provided a list of three employees it claims to have hired 
within the one-year period preceding its August 2019 RFE response letter. Two of the employees hold 
positions labeled senior product marketing manager, the most recently hired individual's position does 
not include the "senior" label. The Petitioner does not provide the job duties for the individuals in 
these positions. 33 Thus, we cannot compare the duties of the positions to determine if the positions 
are similar. For example, we cannot determine why two of the individuals hold senior positions. 
Additionally, the Petitioner did not submit any information regarding the supervisory duties (if any), 
the independent judgment required, or the amount of supervision these individuals received in these 
positions. Although the Petitioner provides each employee's education, and asserts that individuals in 
the product marketing positions or similar positions "hold a Bachelor's degree or higher in 
Management, Marketing, Economics, or a related field," the record does not include evidence of their 
salaries, their positions within the organization, or other evidence to assist in establishing that the 
duties and responsibilities of these individuals were the same or similar to the proffered position. The 
Petitioner's organizational charts submitted to demonstrate the Petitioner's hierarchy and staffing 
levels do not show the positions of all the "product marketing managers" positions and thus are not 
helpful to understanding the proffered position's role within the organization and in comparison to 
other product marketing managers. 34 
Also as footnoted above, even if the Petitioner always requires a bachelor's degree in a specific 
specialty to perform the duties of the proffered position, which it has not corroborated in this record,35 
33 This is a significant issue given our previously-stated concern over the actual nature of this position. 
34 The provided work product samples also include two different slides that show the Beneficiary in the Petitioner's "PM M 
Org Structure." We observe on these two slides it appears the Beneficiary does not have any subordinates. These charts 
do not provide the position titles, so it is unclear if the Beneficiary is holding the same position as the proffered position 
on these charts. The organizational charts included in the record present a confusing picture of the Petitioner's staffing 
hierarchy and the record does not include information clarifying the Beneficiary's position within the organization and in 
relation to other product marketing managers or senior product marketing managers. 
35 For example, the Petitioner which has been in business since 2010 and employs approximately 8000 individuals, does 
not provide evidence of how representative these three product marketing managers (two of whom are senior product 
marketing managers) are of its normal recruiting and hiring practices for the product marketing manager position. 
9 
the record must still establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 
See Defensor, 201 F.3d at 387-88. In this matter, the Petitioner has not established this essential 
element. 
D. Second Prong of the Second Criterion and Fourth Criterion 
The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) is satisfied if the Petitioner shows 
that its particular position is so complex or unique that it can be performed only by an individual with 
at least a bachelor's degree in a specific specialty, or its equivalent. The fourth criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature of the specific duties is so 
specialized and complex that the knowledge required to perform them is usually associated with the 
attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent. 
Upon review, we conclude that the Petitioner has not sufficiently developed relative specialization and 
complexity or uniqueness as an aspect of the proffered position. The original job duties provided are 
generic and routine, including duties, such as "[s]upervising data-driven market research projects to 
evaluate promotional strategies and initiatives." and "[m]anaging the strategy for tha._______,JPromotions 
Product Marketing function of our organization by assessing market needs and crafting targeted 
promotional campaigns." These tasks do not convey sufficient substantive information to establish 
how these duties are more specialized and complex or unique than other market research analysts and 
marketing specialists. 
Further, with their RFE response, the Petitioner attempts to provide an explanation of the proffered 
job duties by providing supplemental information regarding each duty; knowledge, skills, and tools 
needed to perform the duty; relevant degree coursework; corresponding O*N ET duties; and 
percentage of time spent on the duties. Although the supplemental information and the knowledge, 
skills, and tools to perform the duties provide more context, the Petitioner does not demonstrate how 
the described proffered duties require the theoretical and practical application of a body of highly 
specialized knowledge such that a bachelor's or higher degree in a specific specialty, or its equivalent, 
is required to perform them. In addition, there is insufficient evidence that some of the proffered 
position's skills and tools, such as Excel, SQL, or Tableau, require a bachelor's degree in a specific 
specialty rather than certifications or courses that do not culminate in a university degree. 
The Petitioner also provides a list of courses the Beneficiary completed and asserts these courses 
prepared her to perform the duties of the proffered position. However, whether or not the Beneficiary 
in this case has completed a specialized course of study directly related to the proffered position is 
irrelevant to the issue of whether the proffered position qualifies as a specialty occupation, i.e., whether 
the duties of the proffered position require the theoretical and practical application of a body of highly 
specialized knowledge and the attainment of a bachelor's degree or higher in a specific specialty, or its 
equivalent. Although the Petitioner claims that the beneficiary is well-qualified and her coursework 
will prepare her for the duties of the proffered position, the test to establish a position as a specialty 
10 
occupation is not the education or experience of a particular beneficiary, but whether the position itself 
requires at least a bachelor's degree in a specific specialty, or its equivalent.36 
We now turn to the position evaluation provided b~ I ofl I University. In his letter,D 
~~1(1) describes the credentials that he asserts qualify him to opine upon the nature of the proffered 
position; (2) lists the evidence he reviewed for assessment; and (3) states the position is specialized 
and requires at least a bachelor's degree or its equivalent in management, marketing, economics, or a 
related field. I ts assertions are not persuasive. 
In this matter, I ldoes not discuss the principles and methods he used to reach his conclusion and 
he does not offer a discussion of how he applied any principles and methods in reaching said conclusion. 
The opinion letter provides several paragraphs describing the job duties involved in the ,osition, but does 
not explain why these duties are specialized and complex, or unique. Rather, I j provides several 
conclusionary assertions that only an individual with a bachelor's degree in management, marketing, 
economics, or a related field will be able to perform these duties. The following illustrate a few of his 
conclusory statements: 
I The position is "a highly complex, analytical role that incorporates concepts of several technical 
disciplines and necessarily requires the prior completion of a bachelor's degree program in 
Management, Marketing, Economics, or a related field;" 
I "In order to successfully perform the complex tasks [ ... ], the candidate would necessitate a 
specialized degree in Management, Marketing, Economics, or a related field;" 
I "These highly technical, analytical job duties would clearly necessitate a bachelor's-level 
education in fields such as Management, Marketing, or Economics;" and, 
I "Such highly complex, technical duties only could be performed by an individual possessing at 
least a bachelor's degree in a highly analytical field such as Management, Marketing, or 
Economics." 
Within these conclusory statements - that only a person who has earned a bachelor's degree in 
management, marketing, economics or a related field could perform the proffered position's 
responsibilities~ I rules out any other methods one could utilize to attain the requisite knowledge. 
However.I ldoes not discuss why other methods could not lead to a sufficiently similar 
knowledge set, for example, the amount of required traininl or experience to gain this knowledge or 
alternate degrees that would be acceptable. Consequently, I does not account for obvious 
alternative explanations.37 A lack of sufficient consideration of alternatives is a basis that can adversely 
affect the evidentiary weight of such an opinion. 38 Additional!~ I does not provide a persuasive 
analysis explaining why the duties the Petitioner describes require one of the three degrees he concludes 
are necessary to perform them. 
36We are required to follow long-standing legal standards and determine first, whether the proffered position qualifies for 
classification as a specialty occupation, and second, whether the Beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf. Matter of Michael Hertz Assocs., 19 l&N Dec. 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]."). 
37 See Claar v. Burlington N.R.R., 29 F.3d 499, 502 (9th Cir. 1994). 
38 See Ambrosini v. Labarraque, 101 F.3d 129, 140 (D.C. Cir. 1996). 
11 
Further, the opinion letter includes tasks that are not clearly reflected in the Petitioner's job duties. 
Specifically, the letter states the Beneficiary would be required to perform analytical data tasks including 
"create custom reports and dashboards"; "create data visualizations by joining SQL queries with business 
intelligence tools"; "ensure data automation within dashboards"; "query, manipulate, and analyze raw 
data extracted from data analytics platforms"; "perform data cleansing and normalization to ensure data 
accuracy." These tasks are beyond the scope of the Petitioner's provided job duties and it is not clear 
wherel !obtained them. 39 
I Is opinion also conflates the Beneficiary's suitabili!Y or qualifications for the position with 
the minimum entry requirements for the position. I I writes, "My opinion herein is based on 
my review of extensive documentation pertaining to the position of Product Marketing Manager with 
[the Petitioner] and the academic credentials of [the Beneficiary]." In so doing, he explicitly states 
that a factor in his analysis was the Beneficiary's qualifications for the position, rather than solely the 
position requirements. As discussed above, the test to establish a position as a specialty occupation is 
not the skill set or education of a proposed beneficiary, but whether the position itself qualifies as a 
specialty occupation. 
For the reasons stated, the aforementioned opinion letter does not provide a sufficient basis to establish 
that the actual position described requires a bachelor's degree in a specific specialty, or its equivalent, 
and thus does not assist in establishing the position as a specialty occupation. As a matter of discretion, 
we may use opinion statements submitted by the Petitioner as advisory.40 However, we may reject an 
opinion or give it less weight if it is not in accord with other information in the record or if it is in any 
way questionable.41 
We also reviewed the sample work product which includes several slide presentations: (1) Rl, (2) Rx 
to the air art, 3 , (4) Incentives Literature Review, (5) Marketplace ~ I 
.___.....,,........-------=~L.:.::..:..::::.:....:.~~.:::.........JL.,-------,----..J....l.!7..L...!..,Product Marketing, (8) PM M 
Share out (sic); (9)~-----~ 2019; (10)~----~ Research; (11) Marketplace 
PMM 2019; and (12) New Offer Structures Follow Up. The Petitioner did not provide any explanation 
regarding the work product. The work product is without specific context and reveals few details 
about the duties involved in each task. The work product also does not demonstrate how much the 
Beneficiary actually contributed to each of the slide presentations. 42 Without any substantive 
explanation, the sample work product does not convey an understanding of the specialization and 
complexity or uniqueness of the creation of the work product. 
39 With the Petitioner's RFE response, the Petitioner provides an explanation of the duty "[i]nterfacing with Product 
Managers, Data Scientists, Engineers, Marketing Mangers, and Content and Creative Asset Designers across a variety of 
teams to optimize ~Promotions initiatives." The explanation seems to include some of the knowledge, skills, tools, 
and languages described in the additional tasks ofl ~ letter; however, the Petitifiner's job duties and RFE 
explanation fail to include these specifically described tasks. It is unclear where I gained knowledge that the 
position required these analytical data tasks and whether he is describing the Petitioner's proffered position. 
40 Matter of Caron lnt'I, Inc., 19 l&N Dec. 791, 795 (Comm'r 1988). 
41 Id. 
42 The "Product Marketing" slide presentation includes the name of the Director of Product Marketing on the first slide. 
Thus, it appears the Di rector of Product Marketing may have created or played a significant role in the development of the 
slides. The Beneficiary's involvement or anticipated involvement in similar work product is unclear. 
12 
The Petitioner designated the proffered position as requiring only a wage level 11 on the certified LCA. 
However, in this case, that level 11 designation when read in combination with the evidence presented 
indicates that this particular position is likely not so specialized and complex or unique that the duties 
could only be performed by an individual with a bachelor's degree or higher in a specific specialty, or 
its equivalent. The wage level 11 suggests that the position will be doing the basic functions of a market 
research analysts and marketing specialists. Thus, the wage level 11 is at odds with the claims made 
by the Petitioner that the duties of the proffered position are "complex or unique" as well as 
"specialized and complex" as compared to other market research analysts and marketing specialists.43 
In general, if a position is located within an occupational category that does not contain a normal 
requirement for a bachelor's degree in a specific specialty, or the equivalent, as is the case here, a 
petitioner must distinguish its proffered position from others within the same occupation through the 
proper wage level designation to indicate factors such as the relative complexity of the job duties, the 
level of judgment, the amount and level of supervision, and the level of understanding required to 
perform the job duties in order to establish eligibility under this criterion. 44 In other words, if typical 
positions located within the occupational category do not require a bachelor's degree in a specific 
specialty, or the equivalent, then it is unclear how a position with level 11 characteristics would, regard less 
of the Petitioner's assertions. The record lacks sufficiently detailed and unambiguous information to 
distinguish the proffered position as unique from or more specialized and complex than other closely 
related positions that can be performed by persons without at least a bachelor's degree in a specific 
specialty, or its equivalent. 
In light of all the above, the Petitioner did not sufficiently develop relative specialization and 
complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks 
that are so specialized and complex or unique that only a specifically degreed individual could perform 
them. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2) or 8 C.F.R. § 214.2(h)(4)(ii i)(A)(4). 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. Moreover, the record 
does not establish that the Petitioner satisfied the statutory and regulatory definitions of specialty 
occupation. 
IV. BENEFICIARY QUALIFICATIONS 
As discussed in this decision, the Petitioner did not submit sufficient evidence regarding the proffered 
position to conclude that it requires a baccalaureate or higher degree in a specific specialty or its 
equivalent. Absent this determination that a baccalaureate or higher degree in a specific specialty, or 
43A wage level 11 position is for an employee who has a good understanding of the occupation but who wi 11 only perform 
moderately complex tasks that require limited judgment. See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _ Guidance_Revised_11_2009.pdf. Therefore, it does not appear 
that, relative to other positions located within the occupational category, this is one with specialized and complex, or unique 
duties, as such a higher-level position would be classified as a Level 111 or Level IV position, requiring a significantly 
higher prevailing wage. While not dispositive, a salary that is beneath the median wage for the occupational category in 
the area of intended employment (which is the case with a Level 11 wage) is certainly not evidence that the position is 
particularly specialized, complex, or unique relative to other positions within the occupational category. 
44 Id. 
13 
its equivalent, is required to perform the duties of the proffered position, it also cannot be determined 
whether the Beneficiary possesses that degree, or its equivalent. Therefore, we need not and will not 
address the Beneficiary's qualifications further, except to note that the combined evaluation of the 
Beneficiary's education and work experience submitted by the Petitioner is insufficient to establish 
that the Beneficiary possesses the equivalent of a U.S. bachelor's degree in any specific specialty. 
Specifically, the Petitioner provided an educational equivalency opinion which claimed equivalency 
was based on the Beneficiary's three-year foreign degree and six years and nine months of experience. 
The opinion is based on support letters that do not include detailed job duties throughout the 
Beneficiary's previous positions. Without an understanding of the Beneficiary's previous positions, 
the opinion cannot illustrate that the Beneficiary has recognition of expertise in the specialty through 
progressively responsible positions directly related to the specialty. 45 In addition, the letters do not 
provide sufficient evidence that the Beneficiary's experience was gained while working with peers, 
supervisors, or subordinates who have a degree or its equivalent in the specialty occupation. 46 As 
such, since evidence was not presented that the Beneficiary has at least a U.S. bachelor's degree in 
any specific specialty, or its equivalent, the petition could not be approved even if eligibility for the 
benefit sought had been otherwise established. 
V. CONCLUSION 
As set forth above, we conclude that the evidence of record does not establish, more likely than not, 
that the proffered position qualifies for classification as a specialty occupation. Accordingly, the 
appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the petitioner's 
burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
45 See 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) and (D)(l). 
46 See 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) and (0)(5). 
14