dismissed H-1B Case: Taekwondo

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-K-M-A- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 23,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a taekwondo academy, seeks to temporarily employ the Beneficiary as a 
"taekwondo coach" under the H -1 B nonimmigrant classification. 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. 
1 
Upon de novo 
review, we will dismiss the appeal. 
I. ISSUE 
The issue before us is whether the proffered position qualifies as a specialty occupation m 
accordance with the applicable statutory and regulatory provisions. 2 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
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. 
1 We had summarily dismissed the appeal on the ground that the Petitioner did not submit a brief or evidence 
explaining the basis ofthe appeal, but later reopened the matter sua sponte. 
2 We reviewed the record in its entirety before issuing our decision. We follow the preponderance of the evidence 
standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
Matter of M-K-M-A- Inc. 
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: 
(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. See K 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. Fed. Sav. and Loan Ins. Corp., 489 U.S. 
561 (1989); Matter ofW-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 must be met in accordance with, and not 
as alternatives to, the statutory and regulatory definitions of specialty occupation. 
2 
Matter of M-K-M-A-lnc. 
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. 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"). Applying this standard, USCIS regularly approves H-1B petitions for qualified 
individuals 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-IB 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 individual, 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 or 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 Proffered Position 
In its support letter, the Petitioner provided the following information regarding the duties of the 
proffered position (verbatim): 
1. Select students to participate local, state, national and international 
championships and demonstration events; Coach Taekwondo athletes as they 
complete a rigorous training regimen in preparation for the Taekwondo 
tournaments and competitions; Plan, organize, and conduct practice sessions. 
(20% of time) 
2. Teach students various techniques in the sport of Taekwondo, as well as hone 
their skills and prepare them for different competitions; Instruct athletes on 
proper techniques, game strategies sportsmanship, and the rules of the sport. 
(20% of time) 
3. Evaluate individual student's mental and physical fitness to develop suitable 
training program and to ensure proper implantation of educational programs; 
3 
Matter of M-K-M-A- Inc. 
Assess students-athletes' individual abilities to assign them to appropriate 
programs and class ability groupings, according to their mental readiness, 
human body structure, body weight, speed and power. (20% of time) 
4. Participate in preparation of instructional planning and materials to benefit new 
and existing students; Plan, develop, review and modify martial arts training 
curriculum and educational programs to ensure effectiveness. (1 0% of time) 
5. Plan strategies and choose team members for individual Taekwondo matches 
and events; Plan and review yearly/monthly/weekly/daily schedules and events 
to establish and develop Taekwondo class programs. (10% of time) 
6. Participate in decision-making for junior instructors to provide instructions to 
specific students or class group; Partake in the hiring and training process for 
junior instructors. (5% of time) 
7. Adjust coaching techniques based on the strengths and weaknesses of athletes; 
Provide direction, encouragement, and motivation to prepare athletes for 
games. (5% of time) 
8. Assist management in communicating with Taekwondo governing bodies and 
authorities, and contacting with championship sponsors in preparation and 
planning various championships and events. (5% of time) 
9. Confer with junior instructors, students and parents of younger students to 
discuss and determine progress and performance levels, targets and goals. (5% 
of time) 
The Petitioner stated that it requires "a Bachelor's degree in Physical Education as a prerequisite 
to employment to perform the assigned specialized and complex duties." In its response to request 
for evidence (RFE), the Petitioner expanded the duties of the proffered position as follows 
(verbatim) (duties added in this RFE response letter are italicized): 
• Select students to participate local, state, national and international 
championships and demonstration events; Coach Taekwondo athletes as they 
complete a rigorous training regimen in preparation for the Taekwondo 
tournaments and competitions; Plan, organize, and conduct practice sessions; 
Keep records of athletes; and opponents' performance. (20% of time) 
• Teach students various techniques in the sport of Taekwondo, as well as hone 
their skills and prepare them for different competitions; Instruct athletes on 
proper techniques, game strategies sportsmanship, and the rules of the sport. 
4 
Matter of M-K-M-A-Inc. 
Teach students Taekwondo theory, ranks, common phrases, skills and 
techniques including forms, sparring, breaking and self-defense; Explain and 
enforce safety rules and the use of equipments; Monitor each student's body 
movements and postures and instruct corrective measures; Observe students 
and inform corrective measures necessary for technique improvements; Assist 
students in meeting their particular goals and achieving maximum proficiency. 
(20% of time) 
• Evaluate individual student's mental and physical fitness to develop suitable 
training program and to ensure proper implantation of educational programs; 
Assess students-athletes' individual abilities to assign them to appropriate 
programs and class ability groupings, according to their mental readiness, 
human body structure, body weight, speed and power; Plan and direct physical 
conditioning programs that enable athletes to achieve maximum performance; 
Analyze the strengths and weaknesses of individual athletes; Coach Taekwondo 
athletes for the belt promotion test and completions, championships and other 
Taekwondo events. (20% oftime) 
• Participate in preparation of instructional planning and materials to benefit new 
and existing students; Plan, develop, review and modify martial arts training 
curriculum and educational programs to ensure effectiveness. (1 0% of time) 
• Plan strategies and choose team members for individual Taekwondo matches 
and events; Plan and review yearly/monthly/weekly/daily schedules and events 
to establish and develop Taekwondo class programs. (10% oftime) 
• Participate in decision-making for junior instructors to provide instructions to 
specific students or class group; Partake in the hiring and training process for 
junior instructors; Manage junior instructors for effective teaching of 
curriculum and other educational programs; Assess and evaluate the mental 
and physical fitness of junior instructors to ensure proper implementation of 
educational programs; Instruct and educate junior instructors Taekwondo and 
martial arts theory and techniques. (5% of time) 
• Adjust coaching techniques based on the strengths and weaknesses of athletes; 
Provide direction, encouragement, and motivation to prepare athletes for 
games; Confer with parents to discuss training progress, education objectives 
and performing levels and goals for individual students. (5% of time) 
• Assist management in communicating with Taekwondo governing bodies and 
authorities, and contacting with championship sponsors in preparation and 
planning various championships and events. (5% oftime) 
Matter of M-K-M-A- Inc. 
• Confer with junior instructors, students and parents of younger students to 
discuss and determine progress and performance levels, targets and goals. (5% 
of time) 
The labor condition application (LCA) submitted by the Petitioner in support of the petition was 
certified for use with a job prospect within the "Coaches and Scouts" occupational classification, 
SOC (O*NET/OES) Code 27-2022, at a Level I (entry-level) prevailing wage rate, the lowest of 
the four assignable wage-levels. 
C. Analysis 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
USCIS recognizes of the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook 
(the Handbook) as an authoritative source on the duties and educational requirements of the wide 
variety of occupations that it addresses.3 The Petitioner asserted in the LCA that the proffered 
position is located within the occupational category "Coaches and Scouts." 
The Handbook states, in part, the following with regard to the educational requirements necessary 
for entrance into this field: 
Coaches and scouts typically need a bachelor's degree. They must also have 
extensive knowledge of the sport. Coaches typically gain this knowledge through 
their own experiences playing the sport at some level. Although previous playing 
experience may be beneficial, it is not required for most scouting jobs. 
Education 
College and professional coaches must usually have a bachelor's degree. This 
degree can typically be in any subject. However, some coaches may decide to study 
exercise and sports science, physiology, kinesiology, nutrition and fitness, physical 
education, and sports medicine. 
High schools typically hire teachers or administrators at the school for most 
coaching jobs. If no suitable teacher is found, schools hire a qualified candidate 
from outside the school. For more information on education requirements for 
teachers, see the profile on high school teachers. 
3 All of the references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. The excerpts of the Handbook regarding the duties and requirements of the referenced 
occupational category are hereby incorporated into the record of proceeding. 
6 
Matter of M-K-M-A- Inc. 
Scouts must also typically have a bachelor's degree. Some scouts decide to get a 
degree in business, marketing, sales, or sports management. 
Other Experience 
College and professional coaching jobs also typically require experience playing 
the sport at some level. 
Scouting jobs typically do not require experience playing a sport at the college or 
professional level, but it can be beneficial. Employers look for applicants with a 
passion for sports and an ability to spot young players who have exceptional 
athletic ability and skills. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Coaches and Scouts," available at http://www.bls.gov/ooh/entertainment-and-sports/coaches­
and-scouts.htm#tab-4 (last visited Feb. 19, 2016). 
The Handbook does not support the assertion that at least a bachelor's degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for entry into this occupational 
category. The Handbook states that while coaches and scouts typically need a bachelor's degree, 
it does not state that they are required to possess a bachelor's degree in a specific specialty, or the 
equivalent. 4 Although the Handbook does make provision for work experience, it does not state 
that such experience must be equivalent to a bachelor's degree in a specific specialty. 
Furthermore, the Handbook states that positions in smaller facilities (such as the Petitioner, which 
claims to have four employees) are less likely to need formal education or training and may not 
need certification. 
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 supports a finding that the particular position in 
question qualifies as a specialty occupation. 
4 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty 
occupation. In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher 
degree in a specific specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 484 
F.3d at 147. 
7 
Matter of M-K-M-A-Inc. 
The Occupational Information Network (O*NET) summary report, referenced by the Petitioner, is 
insufficient to 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. The pertinent section 
of the O*NET Internet site relevant to 27-2022.00- Coaches and Scouts 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 does not indicate that the four-year bachelor's 
degree required for Job Zone Four occupations must be in a specific specialty directly related to 
the occupation. Therefore, O*NET information is not probative of the proffered position being a 
specialty occupation. 
In addition, the Petitioner noted that USCIS approved other petitions that had been previously 
filed on behalf of other taekwondo coaches. The Director's decision does not indicate whether the 
prior approvals of the other nonimmigrant petitions were reviewed. If the previous nonimmigrant 
petitions were approved based on the same unsupported and contradictory assertions that are 
contained in the current record, the approvals would constitute material and gross error on the part 
of the Director. We are not required to approve petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See Matter of 
Church Scientology Int 'l, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be "absurd to suggest 
that [USCIS] or any agency must treat acknowledged errors as binding precedent." Sussex Eng'g, 
Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). 
A prior approval does not compel the approval of a subsequent petition or relieve the Petitioner of 
its burden to provide sufficient documentation to establish current eligibility for the benefit 
sought. Temporary Alien Workers Seeking Classification Under the Immigration and Nationality 
Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) (to be codified at 8 C.F.R. pt. 214). A prior 
approval also does not preclude users from denying an extension of an original visa petition 
based on a reassessment of eligibility for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 
F. App'x 556 (5th Cir. 2004). Furthermore, our authority over the service centers is comparable to 
the relationship between a court of appeals and a district court. Even if a service center director 
had approved the nonimmigrant petitions on behalf of a beneficiary, we would not be bound to 
follow the contradictory decision of a service center. See La. Philharmonic Orchestra v. INS, 44 
F. Supp. 2d 800, 803 (E.D. La. 1999). 
The Petitioner further refers to a list of certified LCAs for taekwondo coach positions. First, we 
note that the Petitioner submitted no evidence demonstrating the duties of the positions for which 
these LCAs were certified are the same as, or similar to, those of the proffered position. 
Furthermore, while DOL is the agency that certifies LCA applications before they are submitted to 
USCIS, DOL regulations note that the Department of Homeland Security (DHS) (i.e., its 
immigration benefits branch, USCIS) is the department responsible for determining whether the 
content of an LCA filed for a particular Form I-129 actually supports that petition. See 20 C.F.R. 
§ 655.705(b), which states, in pertinent part (emphasis added): 
(b)(6)
Matter of M-K-M-A- Inc. 
For H-lB visas ... DHS accepts the employer's petition (DHS Form I-129) with 
the DOL certified LCA attached. In doing so, the DHS determines whether the 
petition is supported by an LCA which corresponds with the petition , whether the 
occupation named in the [LCA] is a specialty occupation or whether the individual 
is a fashion model of distinguished merit and ability, and whether the qualifications 
ofthe nonimmigrant meet the statutory requirements ofH-lB visa classification. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually 
supports the H-lB petition filed on behalf of the Beneficiary. The Petitioner did not provide 
evidence demonstrating that these LCAs supported the H-lB petitions filed. Nor did it provide 
evidence demonstrating that the positions for which the LCAs were certified are in fact the same 
or similar to the proffered position. Therefore , we find the list of certified LCAs insufficient to 
demonstrate that the proffered position is a specialty occupation. 
Upon review of the totality of the evidence in the entire record of proceedings, we conclude that the 
Petitioner has not established that the proffered position falls within an occupational category for 
which the Handbook , or other authoritative source, indicates that a requirement for at least a 
bachelor's degree in a specific specialty, or its equivalent, is normally required for entry into the 
occupation. Thus, the Petitioner has not satisfied the first criterion at 8 C.F.R . 
§ 214.2(h)( 4)(iii)(A). 
The requirement of a baccalaureat e or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parall el 
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. 
The Petitioner provided letters from several taekwondo schools in which the authors asserted that 
their companies require a bachelor's degree in physical education or its equivalent for taekwondo 
instructor positions. However , the letters are not sufficiently corroborated and do not contain 
enough information regarding the day-to-day duties , complexity of the job duties, supervisory 
duties (if any), independent judgment required , or the employers' business operations to make a 
legitimate comparison of the positions to the proffered position. 
For example, from stated that "[b]ased on 
my close to thirty years of experience in the field of martial arts," "a bachelor's degree in Physical 
Education in Taekwondo or a related field has been a standard minimum requirement for a 
Taekwondo Coach." provided copies of foreign diploma accompanied by translation; 
9 
(b)(6)
Matter of M-K-M-A- Inc. 
however, there is no evidence that these foreign degrees are equivalent to U. S. bachelor's degrees in 
a specific specialty. Further, there is no documentary evidence such as tax records to establish that 
these individuals were employed by and performed similar duties in parallel positions. 
Moreover, the Petitioner did not provide additional information regarding business 
operations to establish that it is similar to the Petitioner's business. 
While other letters from provides some 
supporting documents including wage and tax statements and copies of foreign degrees, there is 
insufficient evidence demonstrating that the duties of the positions discussed in these letters are 
parallel to the proffered position. 5 For example, the wage and tax statement submitted by 
indicates that the individual received $43,499.36 in 2012, which is higher than 
the proffered wage for this case, suggesting that the position was not parallel to the proffered position. 
Notably, all three above-mentioned letters state, [position] is advanced and 
sophisticated in nature customarily associated with attainment of a baccalaureate degree in specific 
field of studies such as Physical Education. "6 However, the Petitioner characterized the proffered 
position as an entry-level position on the LCA, for a beginning level employee who has only a 
basic understanding of the occupation. It appears that the writers would have found this 
information relevant for their opinion letter. Moreover, without this information, the Petitioner 
has not demonstrated that the writers possessed the requisite information 
necessary to adequately 
assess the nature of the Petitioner's position and appropriately analyze similar or parallel positions. 
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 
5 These companies' websites do not support their assertions that a bachelor's degree in a specific specialty is required 
for taekwondo coach positions. For example, lists five instructors, but indicates that only two of 
them possess a degree. See (last visited Feb. 19, 2016). Similarly, the website of 
does not provide information for all of its instructors. See 
(last visited Feb. 19, 20 16). 
The websites of the other schools from whom the Petitioner submitted letters provide little or no information 
regarding 
their instructors' educational background. See 
(last visited Feb. 19, 2016). 
6 When letters are worded the same, it suggests that the words are not necessarily those of the writer and may cast 
some doubt on the validity of the letters. 
10 
Matter of M-K-M-A- Inc. 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In the instant case, the Petitioner did not sufficiently develop relative complexity or uniqueness as 
an aspect of the proffered position of taekwondo coach. Specifically, the record does not 
demonstrate how the taekwondo coach position described requires 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. While a few related courses may 
be beneficial in performing certain duties oLthe position, the Petitioner has not demonstrated how 
an established curriculum of courses leading to a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is required to perform the duties of the proffered position. 
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. Without further evidence, the evidence does not demonstrate that the proffered 
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.7 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." 8 The evidence ofrecord does not 
establish that this position is significantly different from other positions in the occupational 
category such that it refutes the Handbook's information that a bachelor's degree in a specific 
specialty, or its equivalent is not required for the proffered position. 
The Petitioner claims that the Beneficiary is well qualified for the position, and references his 
qualifications. However, the test to establish a position as a specialty occupation is not the 
education or experience of a proposed beneficiary, but whether the position itself requires at least 
a bachelor's degree in a specific specialty, or its equivalent. The Petitioner has not satisfied the 
second alternative prong of8 C.P.R.§ 214.2(h)(4)(iii)(A)(2). 
7 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 214(i)(l) of the Act. 
8 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 _11_ 2009.pdf 
11 
Matter of M-K-M-A- Inc. 
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.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, 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 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. 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. USC IS 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 stated that it "formerly employed" two individuals with a bachelor's degree in 
physical education, and submitted copies of their degree credentials. The Petitioner also submitted 
a 2010 Form W-2 it issued to one of them. However, we note first that the record does not contain 
sufficient evidence demonstrating that the duties of these individuals are also those of the 
proffered position. Furthermore, although the Petitioner was established in 2002, it submitted 
only one Form W-2. The record of proceeding does not contain evidence that the Petitioner ever 
employed the second "former" employee to whom it refers. The Petitioner did not provide 
sufficient independent evidence of how representative of the two former employees are of its 
recruiting history for the type of job it proffers to the Beneficiary. As such, the record contains 
insufficient evidence of the Petitioner's recruiting and hiring history. Therefore, we find that the 
record of proceeding does not demonstrate that the Petitioner normally requires at least a 
12 
Matter of M-K-M-A- Inc. 
bachelor's degree in a specific specialty or its equivalent for the proffered position, and that it 
therefore does not satisfy 8 C.F.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 
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. 
The Petitioner claims that the nature of the specific duties of the position in the context of its 
business operations 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. We reviewed the Petitioner's statements regarding the proffered position and its 
business operations. However, relative specialization and complexity have not been sufficiently 
developed by the Petitioner as an aspect of the proffered position. 
Specifically, we incorporate our earlier discussion and analysis regarding the designation of the 
proffered position in the LCA as a Level I position (of the lowest of four assignable wage-levels) 
relative to others within the occupational category. Without more, the position is one not likely 
distinguishable by relatively specialized and complex duties. That is, without further evidence, the 
Petitioner has not demonstrated that its proffered position is one with specialized and complex 
duties as such a position would likely be classified at a higher-level, such as a Level II 
(experienced) or Level IV (fully competent) position, requiring a substantially higher prevailing 
wage.9 
Although the Petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the Petitioner has submitted 
inadequate probative evidence to satisfy the criterion of the regulations at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any ofthe criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed. 10 
9 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. 
10 As the grounds discussed above are dispositive of the Petitioner's eligibility for the benefit sought in this matter, we 
will not address and will instead reserve our determination on the additional issues and deficiencies that we observe in 
the record of proceeding with regard to the approval ofthe H-lB petition. 
13 
Matter of M-K-M-A- Inc. 
III. 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. 
ORDER: The appeal is dismissed. 
Cite as Matter ofM-K-M-A- Inc., ID# 13589 (AAO Feb. 23, 2016) 
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