dismissed H-1B Case: Sports Equipment

MATTER OF R-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 21,2015 
APPEAL OF VERMONT SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a manufacturer of sports equipment, seeks to employ the Beneficiary as a market 
research analyst and to classify her as a nonimmigrant worker in a specialty occupation. See 
Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The Director, Vermont Service Center, denied the petition. The matter is 
now before us on appeal. The appeal will be dismissed. 
I. PROCEDURALBACKGROUND 
The Director denied the petition determining that the record of evidence did not establish that the 
proffered position qualifies for classification as a specialty occupation. On appeal, the Petitioner 
asserts that the Director's basis for denial of the petition was erroneous and contends that it satisfied 
all evidentiary requirements. 
The record of proceeding includes: (1) the Petitioner's Form 1-129 and supporting documentation; 
(2) the service center's Request for Evidence (RFE); (3) the Petitioner's response to the RFE; (4) the 
notice of decision; and (5) the Form I-290B, Notice of Appeal or Motion, a brief and previously 
submitted documentation. We reviewed the record in its entirety before issuing our decision. 1 
For the reasons that will be discussed below, we agree with the Director's decision that the Petitioner 
has not established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. THE PROFFERED POSITION 
The Petitioner identified the proffered position as a "Market Research Analyst" on the Form 1-129, 
and attested on the required Labor Condition Application (LCA) that the occupational classification 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
(b)(6)
Matter of R-, LLC 
for the position is "Market Research Analysts and Marketing Specialists," SOC (ONET/OES) Code 
13-1161, at a Level I wage. 
In the Petitioner's letter submitted in support of the petition, dated March 24, 2014, the Petitioner 
stated that it "is a wholesale manufacturer of outdoor sports equipment" and that it produces 
"specialty sports equipment such as golf practice nets, driving practice mats, and pop-up net goals as 
well as a clothing line." The Petitioner described the proffered position as follows: 
The Market Research Analyst for [the Petitioner] will be responsible for 
creating an annual marketing proposal and budget based on market research and other 
collected data. She will also be responsible for helping to develop the company's 
marketing and advertising strategy at the level of print, internet, television and radio 
and evaluating it effectiveness. The Marketing Research Analyst will work with 
and on-line retail teams as well as with . and internal warehousing to 
ensure the effectiveness of marketing and distribution methods. She will provide 
marketing support to [the Petitioner's] trade show team and marketing assistance to 
vendors and consultants. The Marketing Research Analyst will gather data through 
the customer service department to measure and assess customer satisfaction as well 
as customer demographics and needs. She will gather data on and analyze competing 
products and pricing as well as monitor trade literature and provide feedback. 
In order to perform these duties, a qualified applicant must have at least a 
Bachelor's degree in Marketing, Business, or a related field. 
In response to the RFE, the Petitioner allocated the time spent on the duties of the proffered position 
as ten percent developing the Petitioner's marketing and adverting strategy in print, Internet, Social 
Media, television, radio and tradeshows; ten percent developing tradeshow exhibitions, promotional 
and display materials; ten percent interfacing with and internal warehousing; ten percent 
planning events; ten percent marketing assistance to vendors and consultants; five percent preparing 
annual marketing proposal; five percent preparing annual marketing budget ; five percent evaluating 
effectiveness of marketing and advertising strategy; five percent interfacing with and other 
online retail teams; five percent analyzing and evaluating distribution methods; and 24 percent of 
time on various other described duties. 2 
III. SPECIALTY OCCUPATION 
A. Legal Framework 
To meet its burden of proof, the Petitioner must establish that the employment it is offering to the 
Beneficiary meets the following statutory and regulatory requirements. 
2 The Petitioner did not include an allocation for one percent of the Beneficiary ' s time . 
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Matter of R-, LLC 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.P.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: 
(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. 
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) 
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Matter of R-, LLC 
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.P.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.P.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
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)( 1) 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.P.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, USC IS 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-lB 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. users 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. Analysis 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement/or entry into the particular position 
We will first address the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(l). This criterion 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 Department of Labor's (DOL) 
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Matter ofR-, LLC 
Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses.3 The Petitioner asserts on the Form 
I -129 that the proffered position is a market research analyst and attests on the LCA that the 
proffered position corresponds to SOC code and title 13-1161, Market Research Analysts and 
Marketing Specialists. 
We reviewed the section of the Handbook regarding the occupational category "Market Research 
Analysts," including the section entitled "How to Become a Market Research Analyst," which 
describes the following preparation for the occupation, in pertinent part: 
Most market research analysts need at least a bachelor's degree. Top research positions often 
require a master's degree. Strong math and analytical skills are essential. 
Education 
Market research analysts typically need a bachelor's degree in market research or a related 
field. Many have degrees in fields such as statistics, math, and computer science. Others 
have backgrounds in business administration, the social sciences, or communications. 
Courses in statistics, research methods, and marketing are essential for these workers. 
Courses in communications and social sciences, such as economics, psychology, and 
sociology, are also important. 
Some market research analyst jobs require a master's degree. Several schools offer graduate 
programs in marketing research, but many analysts complete degrees in other fields, such as 
statistics and marketing, and/or earn a Master of Business Administration (MBA). A 
master's degree is often required for leadership positions or positions that perform more 
technical research. 
Other Experience 
Most market research analysts can benefit from internships or work experience in business, 
marketing, or sales. Work experience in other positions that require analyzing data, writing 
reports, or surveying or collecting data can also be helpful in finding a market research 
position. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Market Research Analysts," http://www. bls.gov I oohlbusiness-and- financial/market- research­
analysts.htm#tab-4 (last visited Aug. 31, 2015). 
3 All of the 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. 
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Matter of R-, LLC 
The Handbook does not state that a baccalaureate or higher degree in a specific specialty, or its 
equivalent is normally the minimum requirement for entry into the occupation. This passage of the 
Handbook reports that market research analysts have degrees and backgrounds in a wide-variety of 
disparate fields. The Handbook states that employees typically need a bachelor's degree in market 
research or a related field, but the Handbook continues by indicating that many market research 
analysts have degrees in fields such as statistics, math, or computer science. According to the 
Handbook, other market research analysts have a background in fields such as business 
administration, one of the social sciences, or communications. The Handbook notes that various 
courses are essential to this occupation, including statistics, research methods, and marketing. The 
Handbook states that courses in communications and social sciences (such as economics, 
psychology, and sociology) are also important. 
In response to the RFE, the Petitioner asserts that its proffered position could not be performed 
effectively or adequately by an individual with a degree in statistics, math, computer science, social 
sciences or communications, and reiterates that the proffered position requires a degree in Marketing 
or Business. On appeal, the Petitioner asserts that the Handbook's statement that "[ m ]arket research 
analysts typically need a bachelor's degree in market research or a related field," while leaving open 
alternative avenues of entry into the profession by people with degree in allied disciplines, "does not 
undermine the proffered position's status as a 'specialty occupation'." 
We find that it is the acknowledgement in the Handbook that there are a variety of fields of study in 
disparate disciplines that enable an individual to perform the duties of a market research analyst that 
demonstrates that a market research analyst position does not normally require at least a bachelor's 
degree in a specific specialty, or its equivalent, for entry into the occupation. In general, provided 
the specialties are closely related, e.g., chemistry and biochemistry, a minimum requirement of a 
bachelor's of higher degree in more than one specialty is recognized as satisfying the "degree in the 
specific specialty (or its equivalent)" requirement of section 214(i)(l )(B) of the Act. In such a case, 
the required "body of highly specialized knowledge" would essentially be the same. Since there 
must be a close correlation between the required "body of highly specialized knowledge" and the 
position, however, a minimum entry requirement of a degree in disparate fields, such as sociology 
and math, for example, would not meet the statutory requirement that the degree be "in the specific 
specialty (or its equivalent)," unless the Petitioner establishes how each field is directly related to the 
duties and responsibilities of the particular position such that the required body of highly specialized 
knowledge is essentially an amalgamation of these different specialties. Section 214(i)( 1 )(B) of the 
Act (emphasis added). Here, the Petitioner emphasizes that its proffered position requires a degree 
in either Marketing or Business to effectively perform the duties of the position. While this may be 
the case for the Petitioner's position, the Handbook is not determinative in establishing that the 
occupational category of a market research analyst meets the statutory and regulatory provisions of a 
specialty occupation. 
Moreover, the Petitioner's emphasis that its proffered position requires a degree in either Marketing 
or Business suggests that a bachelor's degree in a specific specialty is not normally the minimum 
entry requirement for this occupation. Although a general-purpose bachelor's degree, such as a 
Matter of R-, LLC 
degree in business, may be a legitimate prerequisite for a particular position, requiring such a degree, 
without more, will not justify a finding that a particular position qualifies for classification as a 
specialty occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d at 147. 
Here, the Petitioner appears to rely on the Beneficiary's credentials, a bachelor's degree in marketing 
and a master's degree in business administration in marketing management, to perform the proffered 
position. However, a Beneficiary's credentials to perform a particular job are relevant only when the 
job is first found to qualify as a specialty occupation. USCIS is required to follow long-standing 
legal standards and determine first, whether the proffered position qualifies as a specialty 
occupation, and second, whether an alien Beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 
(Comm'r 1988) ("The facts of a beneficiary's background only come at issue after it is found that 
the position in which the petitioner intends to employ him falls within [a specialty occupation]."). 
When reviewing the Handbook, it also must be noted that the Petitioner designated the proffered 
position as a Level I (entry level) position on the LCA. The wage levels are defined in DOL's 
"Prevailing Wage Determination Policy Guidance." A Level I 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 
I wage should be considered. 
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. 
Thus, in designating the proffered position at a Level I wage, the Petitioner has indicated that the 
proffered position is a comparatively low, entry-level position relative to others within the 
occupation of a market research analyst. That is, 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, if any, exercise of judgment; that she would be closely supervised; that her 
work would be closely monitored and reviewed for accuracy; and that she would receive specific 
instructions on required tasks and expected results. As noted above, according to DOL guidance, a 
statement that the job offer is for a research fellow, worker in training or an internship is indicative 
that a Level I wage should be considered. 
Matter of R-, LLC 
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. 
As the Handbook reports that the knowledge required to perform the duties of a market research 
analyst may be attained with a bachelor's degree in a number of different fields of study, it does not 
support the proffered position as qualifying as a specialty occupation. Even if it did (which it does 
not), the record lacks sufficient evidence to support a finding that the particular position proffered 
here, an entry-level market research analyst position (as indicated on the LCA), would normally 
have such a minimum, specialty degree requirement or its equivalent. The duties and requirements 
of the position as described in the record of proceeding do not indicate that this particular position 
proffered by the Petitioner is one for which a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry. Thus, the Petitioner has not 
satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
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 of proceeding 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 at 1165 
(D.Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook, or other authoritative source, reports a standard, industry-wide requirement of 
at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. Also, there are no submissions from the industry's 
professional association indicating that it has made a degree a minimum entry requirement. 
Matter of R-, LLC 
The record does not include other authoritative evidence refuting the Handbook's report that an 
industry-wide standard of a bachelor's or higher degree in a specific specialty, or its equivalent, is 
standard for parallel positions. Upon a complete review of the record of proceeding, the record does 
not establish that a requirement for at least a bachelor's degree in a specific specialty, or its 
equivalent, is (1) common to the Petitioner's industry (2) in parallel positions (3) among 
organizations similar to the Petitioner. Thus, for the reasons discussed above, the Petitioner has not 
satisfied the first alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
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 
specific 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. For 
example, the Petitioner submitted its 2013 federal tax return, product brochures, and brief synopses 
of its company's products. However, upon review of the record of proceeding, the evidence does 
not credibly demonstrate that the duties the Beneficiary will be responsible for or perform on a 
day-to-day basis constitute a position so complex or unique that it can only be performed by a person 
with at least a bachelor's degree in a specific specialty, or its equivalent. 
Specifically, the evidence does not demonstrate how the duties that collectively constitute the 
proffered position 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. 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 of the proffered position.4 While a few related courses may be 
beneficial, or even required, in performing certain duties of the proffered position, the Petitioner has 
not demonstrated how an established curriculum of such courses leading to a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is required to perform the duties of the particular 
position here. Although the Petitioner offers a conclusory opinion that the "level of product 
comprehension combined with the ability to gather, analyze and integrate customer feedback, to 
research sector opportunities and potential clients, to review and analyze industry data, to create 
Website content and monitor data" are associated with at least a bachelor's degree and specialized 
4 The Petitioner when discussing the courses and educational background required to perfonn the duties of the proffered 
position, references the Beneficiary's credentials. Again, we point out that a Beneficiary's credentials do not establish a 
proffered position as a specialty occupation. 
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Matter of R-, LLC 
knowledge associated with a specialty in marketing, the Petitioner does not provide analysis of how 
these duties differ from those of any market research analyst, who has only a general bachelor's 
degree. That is, the Petitioner here does not discuss or offer any probative analysis of what 
particular aspects of its company products elevate the proffered position to one that is complex or 
umque. 
Further, as was also noted above, the LCA submitted in support of the visa petition is approved for a 
wage Level I employee, an indication that the proffered position is an entry-level position for an 
employee who has only a basic understanding of the occupation. 5 This does not support the 
proposition that the proffered position is so complex or unique relative to other positions in the same 
occupation that it can only be performed by a person with a specific bachelor's degree, especially as 
the Handbook suggests that some market research analyst positions do not require such a degree.6 
Upon review of the totality of the record, the evidence does not establish that this position is 
significantly different from other positions in the occupation such that it refutes the Handbook's 
information to the effect that there is a spectrum of degrees acceptable for such positions, including 
degrees not in a specific specialty. In other words, the record lacks sufficiently detailed information 
to distinguish the proffered position as unique from or more complex than positions that can be 
performed by persons without at least a bachelor's degree in a specific specialty, or its 
equivalent. As the evidence of record does not demonstrate how the proffered position is so 
complex or unique relative to other positions within the same occupational category that do not 
require at least a baccalaureate degree in a specific specialty or its equivalent for entry into the 
occupation in the United States, it cannot be concluded that the Petitioner has 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 
spec?fic specialty, or its equivalent, for the position 
The third criterion of 8 C.P.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, USCIS reviews the Petitioner's past recruiting and hiring practices, information regarding 
5 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 
6 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 detennination of whether a proffered position meets the requirements of section 214(i)(l) of the Act. 
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Matter of R-, LLC 
employees who previously held the position, as well as any other documentation submitted by a 
Petitioner in support of this criterion of the regulations. The Petitioner noted in response to the RFE 
that this is a newly created position. Accordingly, USCIS cannot examine the Petitioner's past 
recruiting and hiring practices. 
Nevertheless, we note that 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. A 
Petitioner's perfunctory declaration of a particular educational requirement will not mask the fact 
that the position is not a specialty occupation. Again, 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. According to the Court in Defensor, "To interpret the regulations any other 
way would lead to an absurd result." !d. at 388. If USCIS were constrained to recognize a specialty 
occupation merely because the Petitioner has an established practice of demanding certain 
educational requirements for the proffered position - and without consideration of how a 
bBeneficiary is to be specifically employed - then any alien with a bachelor's degree in specific 
specialty could be brought into the United States to perform non-specialty occupations, so long as 
the employer required all such employees to have baccalaureate or higher degrees. See id. 
As the record of proceeding does not include probative evidence of the Petitioner's past recruiting 
and hiring practices for the proffered position, the Petitioner's normal practice regarding its 
requirements for the proffered position cannot be established. The record does not include evidence 
satisfying 8 C.P.R.§ 214.2(h)(4)(iii)(A)(3). 
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 in a specific specialty, or its equivalent 
Finally, the Petitioner has not satisfied the fourth criterion of 8 C.P.R.§ 214.2(h)(4)(iii)(A), which is 
reserved for positions with specific duties so specialized and complex that their performance 
requires knowledge that is usually associated with the attainment of a baccalaureate or higher degree 
in a specific specialty or its equivalent. Again, relative specialization and complexity have not been 
sufficiently developed by the Petitioner as an aspect of the proffered position. In other words, the 
proposed duties have not been described with sufficient specificity to show that they are more 
specialized and complex than market research analyst positions that are not usually associated with 
at least a bachelor's degree in a specific specialty or its equivalent. 
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Matter of R-, LLC 
We have considered the Petitioner's information on its products and its indication that the 
Beneficiary's "degrees in Marketing and Business make her a perfect fit for this position." 
However, we do not find that the Petitioner has demonstrated with probative evidence that the 
proffered position requires a precise and specific course of study that relates directly and closely to 
the position in question. Rather, as observed above, the Petitioner has not submitted probative 
evidence or analysis of why its products require a bachelor's degree in a specific specialty. 
Upon review of the totality of the record, the Petitioner here has not met its burden and established 
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 the duties it describes in order to perform those duties. 
We recognize that the Petitioner here desires an employee with a marketing or business background. 
However, the Petitioner does not substantiate that only a bachelor's degree in a specific specialty 
would provide the specialized knowledge to perform the duties it ascribes to the proffered position. 
We again refer to our earlier comments and findings with regard to the implication of the Petitioner's 
designation of the proffered position in the LCA as a Level I (the lowest of four assignable levels) 
wage. That is, the Level I wage designation is indicative of a low, entry-level position relative to 
others within the occupational category, and hence one not likely distinguishable by relatively 
specialized and complex duties. Thus, it does not appear that the position is one with specialized 
and complex duties, as such a higher-level position would more likely or not, be classified as a Level 
III or Level IV position, requiring a significantly higher prevailing wage. Fundamentally, it appears 
that (1) the Petitioner previously claimed to DOL that the proffered position is a Level I, entry-level 
position to obtain a lower required wage; and (2) the Petitioner is now claiming to USCIS that the 
position is a higher-level and more complex position in order to support its claim that the position 
qualifies as a specialty occupation. The Petitioner cannot have it both ways. Either the position is 
more senior and complex (based on a comparison of the employer's job requirements to the standard 
occupational requirements) and thereby necessitates a higher required wage or it is an entry-level 
position for which the lower wage offered to the Beneficiary in this petition is acceptable. To permit 
otherwise would be directly contrary to the U.S. worker protection provisions contained in section 
212(n)(l)(A) ofthe Act and its implementing regulations. 
Upon review of the totality of the record, the Petitioner has not established that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. For the reasons discussed above, the evidence of record does not satisfy the fourth 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
The evidence of record does not satisfy 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 for classification as a specialty 
occupation. The appeal will be dismissed and the petition denied for this reason. 
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Matter of R-, LLC 
IV. CONCLUSION 
As set forth above, we find that the evidence of record does not sufficiently establish that the 
proffered position qualifies for classification as a specialty occupation. Accordingly, the appeal will 
be dismissed and the petition denied. 
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. 
ORDER: The appeal is dismissed. 
Cite as Matter of R-, LLC, ID# 13638 (AAO Sept. 21, 2015) 
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