dismissed H-1B Case: Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6627144 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 22, 2020 
The Petitioner, a technology solutions firm, seeks to employ the Beneficiary temporarily as a "vice 
president - strategy and business" under the H-lB nonimmigrant classification for specialty 
occupations . 1 The H-lB 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 Form I-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish that the proffered position qualified as a specialty 
occupation . On appeal, the Petitioner asserts that the Director erred in denying the petition. Upon de 
nova review, we will dismiss the appeal. 
I. 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. 
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 offered position 
must meet one of the following criteria to qualify as a specialty occupation : 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
(]) 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. 2 
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. 3 
B. Analysis 
The Petitioner provided the position's description, and added the percentage of time the Beneficiary 
would spend on each duty in response to the Director's requests for evidence (RFE). For the sake of 
brevity, we will not quote the most recent version; however, we note that we have closely reviewed 
and considered the duties. For the reasons discussed below, we have determined that the Petitioner 
has not demonstrated that the proffered position qualifies as a specialty occupation. 4 Specifically, we 
conclude that the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 5 
1. Degree Requirements 
We note that the Petitioner's degree requirements are insufficient to qualify under the H-lB program. 
In general, provided the specialties are closely related, a minimum of a bachelor's or higher degree in 
more than one specialty is recognized as satisfying the "degree in the specific specialty ( or its equivalent)" 
requirement of section 214(i)(l)(B) of the Act. In such a case, the required "body of highly specialized 
knowledge" would essentially be the same. A minimum entry requirement of degrees in disparate fields, 
however, 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. 6 In such a case, the organization must establish that the required 
2 8 C.F.R. § 214.2(h)(4)(iii)(A). 
3 See Royal Siam COip. v. Chertof(, 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"); Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). 
4 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
5 The Petitioner submitted documentation to support the petition, including evidence regarding the position and its business 
operations. While we may not discuss every document submitted, we have reviewed and considered each one. 
6 Section 214(i)(l)(B) of the Act (emphasis added). 
2 
"body of highly specialized knowledge" is essentially an amalgamation of these different specialties. 7 
The Petitioner has not made this showing. One particular shortcoming, is each one of the degree fields 
the Petitioner specified, are not all individually considered to be within a specific specialty. For instance, 
a bachelor's degree in general business. 
We observe other issues within the Petitioner's degree requirements. Within the RFE response, the 
Petitioner stated that the position required "a Bachelor's degree or equivalent in the field of Business, 
Management, Economics, Accounting, Finance, Marketing or a closely related field .... " In addition 
to the problem created by the wide range of degrees that the Petitioner would accept, its claim that a 
bachelor's degree in business, with no further specialization, would adequately prepare a candidate to 
perform the duties of the proffered position is also problematic. 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 finding that a particular position qualifies for classification 
as a specialty occupation. 8 
These requirements do not satisfy the statutory and regulatory framework of the H-lB program. The 
requirement is not just a bachelor's or higher degree, but a bachelor's degree in a specific specialty 
that directly relates to the position duties. 9 A lack of a specific degree requirement-which we have 
in this case-precludes the Petitioner from demonstrating that the position qualifies as a specialty 
occupation. 
2. Additional Discrepancies 
Additionally, we observe other issues within the record that cause us to question whether the petition 
is approvable. First, multiple duties the Petitioner initially submitted were copied from the 
Occupational Information Network (O*NET) Summary Report for Management Analysts. Then when 
the Petitioner responded to the Director's RFE, it eliminated half of the initially submitted 
responsibilities without explaining the change; to include some of the duties it copied from O*NET. 
To illustrate the disconnect between a number of the initially offered duties and the actual work the 
Beneficiary would perform, one function that the Petitioner eliminated from the RFE response was to 
perform the following work: "Interview personnel and conduct on-site observation to ascertain unit 
functions, work performed, and methods, equipment, and personnel used." This duty related to 
interviewing personnel and conducting onsite observation of a company's existing employees. 
However, the Petitioner indicated on the petition that it did not have any United States employees, and 
it stated the Beneficiary would be its first employee in the country. As a result, it is unclear who the 
Beneficiary would be interviewing or why the Petitioner would include an inapplicable duty that it 
subsequently removed without an explanation. 
7 While the statutory "the" and the regulatory "a" both denote a singular "specialty," we do not so narrowly interpret these 
provisions to exclude positions from qualifying as specialty occupations if they permit, as a minimum entry requirement 
degrees in more than one closely related specialty. See section 214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). This 
also includes even seemingly disparate specialties providing, again, the evidence ofrecord establishes how each acceptable, 
specific field of study is directly related to the duties and responsibilities of the particular position. 
8 Royal Siam, 484 F.3d at 147. 
9 See section 214(i)(l)(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
3 
Moreover, the degree fields the Petitioner listed as acceptable closely mirror the Handbook for this 
occupational classification, which normally may not be an issue. However, because of the other issues 
we note within this decision, this has a tendency to increase the Petitioner's burden of proof These 
factors further call the reliability of the Petitioner's claims into question as well as the substantive 
nature of the position. 
3. First Criterion 
Moving to the regulatory criteria, 8 C.F.R. § 214.2(h)(4)(iii)(A)(I) 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 recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses. 10 The Petitioner 
submitted the required DOL ETA Form 9035 & 9035E, Labor Condition Application for 
Nonimmigrant Workers (LCA) with this petition, where it classified the proffered position under the 
occupational title "Management Analysts," corresponding to the Standard Occupational Classification 
code 13-1111. 11 
Although the Handbook states that "[a] bachelor's degree is the typical entry-level requirement for 
management analysts," it also states that "common fields of study include business, management, 
economics, accounting, finance, marketing, psychology, and computer and information sciences." 12 
Based on the wide range of degrees the Handbook indicates is acceptable for entry into this occupation, 
the Handbook does not support the conclusion that a bachelor's or higher degree in a spec[fic specialty, 
or its equivalent, is normally the minimum requirement for entry into a management analyst position. 
In addition, the Handbook confirms that a general-purpose bachelor's degree ( e.g., a bachelor's degree 
in business, with no further specialization) would adequately prepare an individual to perform the 
duties of these positions. As discussed, 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 finding that a particular position qualifies for classification as a specialty 
occupation. 13 Therefore, the Handbook's recognition that a general, non-specialty field of study in 
business is sufficient for positions located within this occupational category strongly suggests that a 
bachelor's degree in a spec[fic specialty is not normally the minimum entry requirement for this 
occupation. 
On appeal, the Petitioner disagrees with the proposition that the Handbook describes a wide range of 
degrees, and consider it a mischaracterization of this DOL resource. The Petitioner offers what it 
would consider to be a wide range of degrees as "something like art history, biology, and gender 
10 We do not, however, maintain that the Handbook is the exclusive source ofrelevant information. 
11 The Petitioner is required to submit a certified LCA to USCTS to demonstrate that it will pay the Beneficiary 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 experience and qualifications who are performing the same services. Section 
212(n)(l) ofthe Act; 20 C.F.R. ~ 655.73l(a). 
12 Bureau of Labor Statistics, DOL, Handbook, Management Analysts, https://www.bls.gov/ooh/business-and­
financial/management-analysts.htm (accessed on Sept. 18, 2019). 
13 See Royal Siam COip., 484 F.3d at 147. 
4 
studies." While the Petitioner has offered a more obvious wide spectrum of degree concentrations, 
that does not temper the fact that the fields listed in the Handbook cover a wide range of disciplines. 
And the petitioning organization does not offer any explanation that would persuade us otherwise. 
The Petitioner's appellate brief presents new claims relating to evidence that existed within the record 
before the Director. The evidence is a letter from an organization within its industry. As the Petitioner 
did not describe to the Director how that material related to this criterion, we will not consider it here. 
We will however discuss it under the appropriate provisions below. 
The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Therefore, it has not 
satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
4. 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 .... " 14 The first prong concentrates on the common industry practice, while the alternative 
prong narrows its focus to the Petitioner's specific position. 
a. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 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." 15 
As previously discussed, the Petitioner has not established that an authoritative source reports at least 
a bachelor's degree in a specific specialty, or its equivalent is required for the proffered position, and 
we incorporate our previous discussion on this matter. In addition, there are no submissions from the 
industry's professional association indicating that it has made a degree a minimum entry requirement. 
In support of this prong, the Petitioner submitted three job advertisements from other organizations 
and a letter from another organization operating in its industry. The Petitioner asserts that all the 
advertisements satisfy the three main elements that the degree requirement is common: (1) to the 
industry, (2) among similar organizations, and (3) in parallel positions. When determining whether 
the Petitioner and other organizations share the same general characteristics, such factors may include 
14 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). 
15 See Shanti. Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Co1p. v. Sava, 712 F. Supp. 
1095, 1102 (S.D.N.Y. 1989)). 
5 
information regarding the nature or type of organization, and, when pertinent, the size, scope, or scale 
of operations, expenditures, as well as the level of revenue and staffing (to list just a few elements that 
may be considered). It is not sufficient for the Petitioner to claim that an organization is similar and 
in the same industry without providing a legitimate basis for such an assertion. 
The Director noted a deficiency with each of the job postings: (1) the acceptance of any engineering 
degree was too broad to demonstrate the degree requirements were in a specific specialty; (2) a degree 
preference in certain fields is not evidence of actual position requirements; (3) acceptance of 
experience in lieu of a degree did not demonstrate eligibility; and ( 4) the evidence did not show the 
other employers were sufficiently similar to the petitioning organization. On appeal the Petitioner 
argues several points contesting the Director's determination. 
We find it is unnecessary to weigh in on all the Petitioner's appellate claims under this criterion as 
none of the job postings are for positions that are sufficiently similar to the one offered in the petition. 
Each of the positions work primarily within those company's structure relating to information 
technology analysis for outside customers. However, the proffered position would not operate within 
any internal organization as none exists (e.g., the Beneficiary would be the organization's only U.S. 
employee). Moreover, the job postings did not include several of the functions of the offered position, 
such as those relating to budgeting, cultivating customer relationships, or building and leading a 
technical sales team. Additionally, each of the job postings appear to be for more senior-level positions 
than the proffered position as each required work experience varying from more than three years to 
more than five years; the Petitioner did not express any such experiential requirement for the proffered 
position. 
Next, the Director addressed the "expert letter" from~~-----~' the CEO of another companl 
operating within the Petitioner's industry. The Director concluded that although! 
discussed that the positions similar to the one offered in the petition required a degree in one of several 
fields, the Petitioner did not offer probative material to corroborate his claims. The Director further 
noted that the record lacked evidence that I I organization was similar to the Petitioner, 
that his company has actually hired workers for similar positions, or that his organization required any 
particular degrees for such similar positions. 
On appeal, the Petitioner indicates that I I' letter was intended to demonstrate his 
expertise relating to the industry's hiring practices for similar positions, not that his company had 
traditionally hired candidates with any particular set of degrees. The Petitioner also refutes the 
applicability of the Director's citation to Matter of Treasure Craft of Cal[fornia, 14 I&N Dec. 190 
(Reg'l Comm'r 1972). 
A review ofl I letter reveals that it lacks important content to sufficiently support the 
Petitioner's claims under this criterion. I • 0 lstated that several functions such as analyzing 
financial, revenue, and expenditure data, developing procedures for organizational efficiency, or 
building revenues by targeting and acquiring new customers and managing client engagement would 
be impossible without the type of knowledge acquired through attaining a bachelor's degree in 
business, management, economics, accounting finance, or marketing. 
6 
We begin noting that USCIS is not required to accept primarily conclusory assertions, even from a 
purported expert.16 USCIS may, in its discretion, use as advisory opinions submitted as expert 
testimony. 17 However, we are ultimately responsible for making the final determination regarding 
eligibility for the benefit sought.18 The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; USCIS may, as this decision has done above, evaluate the content of 
those letters as to whether they support the Petitioner's eligibility claims. 19 USCIS may ascribe less 
weight to an opinion that is not corroborated, in accord with other information, or is in any way 
questionable. 20 It is not arbitrary or capricious to accord limited weight to opinion letters provided the 
agency considers them. It is unnecessary that the degree of the agency's weight accorded correlates 
with the weight in which the Petitioner bestows upon the letters, provided the agency considers the 
content and grants an appropriate value. 21 Finally, even when written by industry experts, letters 
solicited by the Petitioner in support of a petition carry less evidentiary weight than preexisting, 
independent evidence. 
Without more, the Petitioner has not provided sufficient 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. Consequently, the Petitioner has not satisfied the first prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
b. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
The Director concluded the Petitioner's revised job description was not sufficient to demonstrate that 
it was any more complex or unique than similar positions within the same industry (some of which do 
not require a bachelor's degree in a specific specialty). On appeal, the Petitioner points out that it 
provided a lengthy and detailed job description utilizing clear and non-technical language, which 
should have met this criterion's requirements. The Petitioner's appeal restates the previous duties it 
offered in the RFE response and identifies the letter froml I as farther evidence under 
this criterion. 
Under this prong, the Petitioner's claims relate to the complexities of the proffered position's individual 
duties. However, the regulations contain a separate criterion regarding the nature of the specific duties at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(4). Individual duties will not normally be sufficient under 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2) absent evidence that they sufficiently embody the position in a comprehensive 
manner. The Petitioner has not demonstrated that the proffered position's duties comprise a position that 
16 1756, Inc. v. Atty Gen, 745 F. Supp. 9, 17 (D.D.C. 1990). 
17 See Matter of Caron International, 19 T&N Dec. 791, 795 (Comm'r 1988). 
18 Id. 
19 See id. at 795; see also Matter of V-K-, 24 T&N Dec. 500, n.2 (BIA 2008) (noting that expelt opinion testimony does not 
purport to be evidence as to "fact"). 
2° Caron International, 19 l&N Dec. at 795. 
21 Visinscaia v. Beers, 4 F. Supp. 3d 126, at 134 (D.D.C. Dec. 16, 2013). 
7 
is sufficiently complex or unique. Many positions may contain some complexities or umque 
elements. However, to demonstrate eligibility under this regulatory provision, the Petitioner must 
illustrate how the overall "particular position is so complex or unique that it can be performed only by an 
individual with a [qualifying] degree." 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). While the Petitioner's claims 
relating to individual duties are insufficient under this prong, we will consider such claims under the 
proper criterion, 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
A review of the overall position does not establish that it has satisfied the second prong of this criterion. 
The Petitioner does not, for example, explain how "developing relationships with Enterprise clients in 
order to better understand their macro environment" requires a bachelor's degree in a specific 
specialty. While the Petitioner generally associates the Beneficiary's coursework and experience to 
concepts he may encounter performing the proffered position, it has not sufficiently developed relative 
complexity or uniqueness as a broad aspect of the position. More importantly, 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. 
In this matter, the Petitioner did not submit sufficient information relevant to a detailed course of study 
leading to a specialty degree to establish how such a curriculum would be necessary to carry out the 
complexities or uniqueness of the position. A few related courses may be beneficial, or even required, 
in performing certain elements of the position. Nevertheless, we conclude that the Petitioner has not 
demonstrated how an established program of such courses leading to a baccalaureate or higher degree 
in a specific specialty, or its equivalent, is required to successfully execute in the proffered position.22 
The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the 
position. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
5. 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. 
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.23 
Were USCIS limited ·solely to reviewing the Petitioner's claimed self-imposed requirements, then any 
individual with a bachelor's degree could be brought to the United States to perform any occupation 
as long as the Petitioner created a token degree requirement. 24 Evidence provided in support of this 
22 Xiaotong Liu v. Baran, No. SACV1800376JVSKESX, 2018 WL 7348851, at *12 (C.D. Cal. Dec. 21, 2018) (finding 
that although some coursework may be helpful preparation for a job, that does not necessarily lead to the conclusion that 
those courses are required for the position). 
23 See Defensor, 201 F.3d at 387-88. A petitioner must demonstrate that its imposed requirements are genuine. Sagarwala 
v. Cissna, 387 F. Supp. 3d 56, 69 (D.D.C. 2019). Cf Matter of Michael Hertz Assocs., 19 T&N Dec. 558,560 (BIA 1988) 
(finding: (1) the requirement of a degree for the sake of general education, or to obtain what an employer perceives to be 
a higher caliber employee, does not establish eligibility; and (2) an analysis of eligibility includes not only the actual 
requirements specified by the petitioner but also those required by the specific industry in question, to determine, in pmi, 
the validity of a petitioner's requirements). 
24 Defensor, 201 F.3d at 387-88. 
8 
criterion may include, but is not limited to, documentation regarding the Petitioner's past recruitment 
and hiring practices, as well as information regarding employees who previously held the position. 
Within the denial decision, the Director noted that the Beneficiary is the organization's only employee 
to hold the proffered position. The Director forth er discussed the Petitioner's argument that because 
the four professionals the Beneficiary would supervise must have a bachelor's degree in order to 
perform their jobs, it follows that the candidate occupying the offered position should also possess 
such a degree. 
We are not persuaded by the Petitioner's arguments, and it does not offer any supporting arguments 
or material on appeal. The Petitioner merely restates that "where an organization consistently hires 
individuals with at least a bachelor's degree to perform job duties supporting the [offered position], it 
surely follows that the organization requires at least a bachelor's degree in order for the [ occupant of 
the offered position] to oversee the successful completion of his or her subordinates' job duties as well 
as his own." The Petitioner did not sufficiently support this statement with a reasoned analysis 
pertaining to this particular position, and there may be many explanations why a manager of personnel 
does not require the same type of degree as their subordinates in order to supervise them. 
Without more, the Petitioner has not provided sufficient evidence to establish that it normally requires 
at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered position. 
Therefore, it has not satisfied the third criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
6. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and 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. 
Within the appeal brief: the Petitioner claims the Director summarily dismissed the industry letter from 
I I Above we addressed the evidentiary shortcomings associated withl I 
letter and we do not consider the Petitioner's citation to Matter of rrhall Cultural Ctr r5 I&N Dec. 
799, 806 (AAO 2012) to be applicable following our discussion of~------~ Within that 
precedent decision, our office found the expert letter to be reliable, relevant, and probative as to~ 
specific facts at issue. That is not the scenario we find ourselves in as it relates to the letter froml_J 
I I Consequently, his letter will not gamer sufficient weight to support the Petitioner's claims 
under this criterion. 
The Petitioner does not offer any farther rebuttal of the Director's other conclusions under this 
criterion. And as we previously stated, it has not shown a requirement of a bachelor's degree in a 
specific specialty through requirements that include a wide range of seemingly unrelated fields, or a 
general business degree. While the Petitioner provided a more detailed job description in response to 
the RFE, the description does not establish that the duties are more specialized and complex than 
similar positions that are not usually associated with at least a bachelor's degree in a specific specialty, 
or its equivalent. 
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. Therefore, the Petitioner has submitted 
insufficient evidence to satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
7. Definitional Requirement 
The process of demonstrating that a proffered position is sufficient to meet the requirements under the 
H-lB program includes more than satisfying one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). The 
regulation also requires a petitioner to demonstrate that a petition "involves a specialty occupation as 
defined in section 214(i)(l) of the Act." 25 This statutory definition states: "the term 'specialty 
occupation' means an occupation that requires ... [a] theoretical and practical application of a body 
of highly specialized knowledge, and ... 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." 
From this, we reason that the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) should be read logically as being 
necessary-but not necessarily sufficient-to meet the statutory and regulatory definition of a 
specialty occupation. To otherwise interpret the regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 
as stating the necessary, but not necessarily sufficient conditions as being adequate to qualify would 
result in some positions meeting a condition under the criteria, but not under the statutory definition. 26 
To avoid this erroneous 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 
definition of a specialty occupation. This results in a multi-part analysis to determine whether a 
particular position qualifies as a specialty occupation. As a result, an H-1 B petition cannot be 
approved unless a petitioner demonstrates that a proffered position satisfies this statutory definition; 
not even if it demonstrates it has satisfied one of the four regulatory criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A). 
Accordingly, were a petitioner to submit sufficient evidence to satisfy one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), we would then evaluate whether it had also satisfied the statutory definition. We 
conclude that in addition to not meeting any of the regulatory criteria, the Petitioner has not 
demonstrated the position in this petition qualifies as a specialty occupation under the statutory 
definition. 
II. LCA WAGE LEVEL/SOC CODE 
As an additional issue, we question whether the position's duties might require an increase in the wage 
level on the LCA. While DOL certifies the LCA, USCIS determines whether the LCA's attestations 
and content corresponds with and supports the H-1 B petition. 27 An employer "reaffirms its acceptance 
of all of the attestation obligations by submitting the LCA to [USCIS] in support of the Petition for 
Nonimmigrant Worker, Form I-129, for an H-lB nonimmigrant." 28 
25 8 C.F.R. § 214.2(h)(4)(i)(B)(2); see also 8 C.F.R. § 214.2(h)(l)(ii)(B)(I). 
26 See Defensor, 201 F.3d at 387; Sagarwala v. Cissna, 387 F. Supp. 3d at 64. 
27 See 20 C.F.R. § 655.705(b) ("DHS determines whether the petition is supported by an LCA which corresponds with the 
petition .... "). See also Matter of Simeio Solutions, 26 I&N Dec. 542,546 n.6 (AAO 2015). 
28 20 C.F.R. § 655.705. 
10 
Throughout this proceeding, the Petitioner listed duties that would partly align with those found under 
the Management Analysts occupation, but it also included functions that may either exceed those skill 
sets or that are atypical for that occupational category. See the following examples: 
• The duty within the RFE response under the Petitioner's "ii" designation appears to fall under 
13-2031.00 - Budget Analysts occupational category; 
• The duty within the RFE response under the Petitioner's "iii" designation appears to fall under 
one ofthe following occupations: 41-3011.00 -Advertising Sales Agents, 41-4011.00 - Sales 
Representatives, Wholesale and Manufacturing, Technical and Scientific Products; or 
41-3031.02 Sales Agents, Financial Services; 
• The duty within the RFE response under the Petitioner's "iv" designation appears to include 
supervisory functions that are not a customary duty for the Marketing Analysts occupation. 
Step four of the DOL guidance states that "if it is determined that the requirements are indicators of 
skills that are beyond those of an entry level worker, consider whether a point should be entered on 
the worksheet in the Wage Level Column." 29 When skill sets cross disciplines, the result is a 
combination of occupations and one point is added on the worksheet raising the wage level by one 
level. 30 Alternatively, the Office of Foreign Labor Certification's Frequently Asked Questions and 
Answers under question nine provide additional guidance associated with skills that are atypical to an 
occupation stating: "Any required skills in addition to those listed in O*NET are considered atypical 
for the occupation and ... will raise the wage level by one level either because it contains a 
combination of occupations or because it contains job requirements not normal to the occupation." 31 
The result would total a Level IV wage rate for the proffered position's responsibilities. Such an 
increase in the wage level would increase the offered position's annual pay from $100,000 to 
$147,430. 32 Therefore, the petition does not appear to be approvable for this additional reason, as the 
wage level the Petitioner designated on the LCA does not appear to correspond with and support the 
petition. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a 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. 
29 DOL, Emp't & Training Admin .. Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009) (DOL guidance), available at 
http://www.foreignlaborceit.doleta.gov/pdti'NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
30 Office of Foreign Labor Certification Frequent(v Asked Questions and Answers, Foreign Labor Ceitification (Dec. 31, 
2019), https://www.foreignlaborceit.doleta.gov/faqsanswers. cfm. 
31 Id. 
32 For additional information, see the Online Wage Librmy - FLC Wage Search Wizard, Foreign Labor Certification Data 
Center (Jan. 22, 2020), http://www.flcdatacenter.com/OESWizardStart.aspx. 
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