dismissed H-1B Case: Wholesale Distribution

U.S. Citizenship 
and Immigration 
Services 
In Re: 5359517 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 20, 2020 
The Petitioner, a wholesale distributor of general merchandise to convenience stores , seeks to 
temporarily employ the Beneficiary as a "purchasing manager" under the H-lB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 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 Vermont Service Center denied the petition, concluding that the evidence of record 
does not establish that the proffered position qualifies as a specialty occupation. 
Upon de novo review , we will dismiss the appeal. We follow the preponderance of the evidence 
standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). 
I. 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 proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(]) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). 
II. PROFFERED POSITION 
The Petitioner seeks to employ the Beneficiary as "purchasing manager." In response to a request for 
evidence (RFE) issued by the Director, the Petitioner provided a detailed description of the 
Beneficiary's duties in the proffered position and the percentage of time to be spent performing such 
duties, which we have fully considered but will not completely copy verbatim here. Rather, we 
provide a summary overview of the position duties below. 
• Using knowledge of inventory and sales to select various products for resale to our company's 
customers and administer purchasing of selected products. 30% 
• Estimating market value of the products and negotiating favorable contracts with the vendors. 
30% 
• Coordinating logistical processes for receiving goods and inventory. 15% 
• Maintaining records of tobacco purchases and resales in order to comply with applicable state 
and federal law. 15% 
• Developing company records of purchases for financial reasons as well as to use for future 
analysis, comparison, and purchasing decisions. 10% 
The Petitioner contends that these duties require an individual with a bachelor's degree in marketing, 
or the equivalent, and three years of work experience. 
2 
III. ANALYSIS 
For the reasons discussed below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. 1 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. 2 
A. First Criterion 
We first tum to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we 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. 3 
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 "Purchasing Managers," corresponding to the Standard Occupational 
Classification (SOC) code 11-3061. 4 According to the portion of the Handbook titled How to Become 
a Purchasing Manager, Buyer, or Purchasing Agent, although "[p ]urchasing managers usually have at 
least a bachelor's degree and some work experience in procurement," "a high school diploma may be 
enough at some organizations." The Handbook continues by stating that for some positions, an 
unspecified "degree" (i.e., associate's, bachelor's, etc.) in business, 5 finance, or supply management 
would suffice. 6 The Handbook therefore 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 these 
positions. 
In the instant matter, the Petitioner has not provided sufficient documentation from a probative, 
authoritative source to substantiate its assertion regarding the minimum requirement for entry into this 
particular position. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
2 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. 
3 We do not however. maintain that the Handbook is the exclusive source of relevant information. To satisfy the first 
criterion, the Petitioner bears the burden to submit sufficient evidence to support a determination that its particular position 
will normally have at its minimum, a bachelor's degree requirement in a particular specialty, or its equivalent, for entry at 
any level - be it at the entry level (Level I), or at the fully competent level (Level IV). 
4 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services 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) of the Act; 20 C.F.R. § 655.73 l(a). 
5 Tfan individual with a bachelor's degree in business, with no further specialization, can perform the duties of the position 
then it is not a specialty occupation. Royal Siam, 484 F.3d at 147. See also Irish Help at Home LLC v. Melville, No. 13-
cv-00943-MEJ, 2015 WL 848977 (N.D. Cal., Feb. 24, 2015), aff'd 679 Fed. App'x 634 (9th Cir. 2017). 
6 Bureau of Labor Statistics, DOL, Handbook, Purchasing Managers, Buyers, and Purchasing Agents, 
https: / /www.bls.gov/ ooh/business-and- financial/purchasing-managers-buyers-and-purchasing-agents.htm#tab-4 (last 
visited Feb. 19, 2020). 
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B. Second Criterion 
The second criterion presents two, alternative prongs: 'The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may show 
that its particular position is so complex or unique that it can be performed only by an individual with 
a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong contemplates the 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 
1. 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 attest that such firms "routinely employ and recruit 
only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) 
(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989) (considering these 
"factors" to inform the commonality of a degree requirement)). 
As previously discussed, the Petitioner has not established that its proffered position of a purchasing 
manager is one for which the Handbook, or other authoritative source, reports a requirement for at 
least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by reference 
the previous discussion on the matter. 
In support of this criterion, the Petitioner submitted letters from other professionals in the wholesale 
distribution industry attesting to the Beneficiary's qualifications and claiming that the Beneficiary is 
well-qualified for the position as he "holds a Bachelor's Degree in Business which I think is required" 
( emphasis added). These letters carry little evidentiary value toward satisfying this prong. The test to 
establish a position as a specialty occupation is not the education or experience of a proposed 
beneficiary, but whether the position itselfrequires at least a bachelor's degree in a specific specialty, 
or its equivalent. Here, these letters do not establish that a bachelor's degree in a specific specialty, 
or its equivalent, is required for entry into this occupation. 
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. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
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The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) is satisfied if the Petitioner shows 
that its particular position is so complex or unique that it can be performed only by an individual with 
at least a bachelor's degree in a specific specialty, or its equivalent. On appeal, the Petitioner states 
that it provided ample evidence of how the job duties of its purchasing manager are so complex and 
unique that it requires an individual with at least a bachelor's degree in marketing or a highly related 
field, or the equivalent of such a degree. The Petitioner further states that its purchasing manager must 
have the equivalent of a bachelor's degree in marketing due to the necessity of college-level 
knowledge in marketing concepts, distribution, and management. The Petitioner emphasizes that the 
position is unique within the occupational category because the occupational category encompasses 
purchasing agents and buyers as well as purchasing managers, and states that the Beneficiary will 
perform more than routine tasks within the organization which require the exercise of independent 
judgment and the supervision of others as well. 
The Petitioner's arguments on appeal, though noted for the record, are simply not persuasive. We 
have thoroughly examined the evidence provided regarding the responsibilities of the position with 
regard to inventory management, processes, the Petitioner's company organizational chart, and the 
detailed description of the duties of the proffered position, and are not convinced that this 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. Rather, and consistent with the Handbook as we have noted 
previously, it appears that a general purpose degree would suffice for effective performance in this 
purchasing manager position, or perhaps even no degree at all. The Petitioner has not satisfied the 
second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
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. As discussed in this decision, the Petitioner has not 
demonstrated that the proffered position requires a baccalaureate or higher degree in a specific 
specialty, or its equivalent. 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally 
requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 
See Defensor v Meissner, 201 F.3d at 387-88. Were we limited solely to reviewing a petitioner's 
claimed self-imposed requirements, an organization could bring any individual with a bachelor's 
degree to the United States to perform any occupation as long as the petitioning entity created a token 
degree requirement. Id. Evidence provided in support of this 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. 
The Petitioner has submitted no independent, objective evidence to demonstrate that it normally 
requires at least a bachelor's degree in a specific specialty, or its equivalent, for the position, and on 
5 
appeal it does not contest this portion of the Director's decision. Therefore, it has not satisfied the 
third criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
D. 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. 
While the Petitioner provided additional information regarding the duties of the position, this 
information does not sufficiently establish how macro-level tasks such as: 
• Using knowledge of inventory and sales to select various products for resale to company 
customers and administer purchasing of selected products 
• Estimating market value of the products and negotiating favorable contracts with vendors 
• Coordinating logistical processes for receiving goods and inventory 
• Maintaining records of tobacco purchases and resales in order to comply with applicable state 
and federal law 
• Developing company records of purchases for financial reasons as well as to use for future 
analysis, comparison, and purchasing decisions 
require the theoretical and practical application of a body of highly specialized knowledge. While a 
few related academic courses may be beneficial in performing certain duties of the position, the 
Petitioner has not sufficiently 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. Even if a bachelor's degree is required, we question whether an 
individual with a general-purpose degree, such as a bachelor's degree in business, would be able to 
perform these duties. 7 
Without further evidence, the Petitioner has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position within this occupational category would likely be 
classified at a higher level, requiring a substantially higher prevailing wage. Therefore, the Petitioner 
has submitted insufficient evidence to satisfy the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)( 4). 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
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 the petitioner's burden to establish 
7 As noted, the Handbook specifically states that a "degree" in business is sufficient for some positions located within this 
occupational category. 
6 
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. 
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