dismissed H-1B Case: Wholesale Trade

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service5 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: MAR 2 6 2015 OFFICE: VERMONT SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)( 15 )(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101 (a)( IS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed ple ase find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non- prece dent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-pre cedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion 
(Form 1-2908) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other· requirements. 
See also 8 C.F.R. § 1 03 .5 . Do not file a motion directly with the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The service center director denied the nonimmigrant visa petition, and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The 
petition will be denied. 
I. FACTUAL AND PROCEDURAL HISTORY 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner states it is a "wholesale and 
incentives" business established in with 35 employees, and an annual income of $102 million. 
The petitioner seeks to hire the beneficiary as a nonimmigrant "wholesale purchasing agent" and 
classify that position as a specialty occupation pursuant to section 101(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)( l5 )(H)(i)(b). 
The director denied the petition, concluding that the petitioner failed to demonstrate that the 
proffered position qualifies as a specialty occupation. On appeal, the petitioner asserts that the 
director's basis for denial of the petition was erroneous and contends that it satisfied all evidentiary 
requirements. 
The record of proceeding contains the following: (1) the Form I-129 and supporting documentation; 
(2) the director's request for evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the notice 
of decision; and (5) the Notice of Appeal or Motion (Form I-290B) and supporting materials. We 
reviewed the record in its entirety before issuing our decision. 2 
Upon review of the entire record of proceeding, we find that the evidence of record supports the 
director's decision to deny the petition for its failure to establish the proffered position as a specialty 
occupation. Accordingly, the appeal will be dismissed, and the petition will be denied. 
II. SPECIALTY OCCUPATION 
A. The Law 
To meet its burden of proof in establishing the proffered position as a specialty occupation, the 
petitioner must establish that the employment that it is offering to the beneficiary meets the 
following statutory and regulatory requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(l ) defines the 
term "specialty occupation" as one 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. 
2 We conduct appellate review 011 a de novo basis. See Soltane v. DOJ, 381 F.3 d 143 , 145 (3 d Cir. 20 04). 
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The term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as: 
An occupation which requires [(1)] 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 requires [(2)] 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, the position must 
also 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 pos1t10ns 
among similar organizations or, in the alternative, an employer may show 
that its particular position is so complex or unique that it can be performed 
only by an individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together with 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory language 
must be construed in harmony with the thrust of the related provisions and with the statute as a 
whole. SeeK Mart Corp. v. Cartier Inc., 486 U.S. 281, 291 (1988) (holding that construction of 
language which takes into account the design of the statute as a whole is prefened); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of 
W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) 
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 Def ensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid 
this illogical and absurd 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. 
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As such and consonant with section 214(i)( 1) of the Act and the regulation at 
8 C.F.R. § 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently 
interprets the term "degree" in the criteria at 8 C.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, US CIS regularly approves H-1 B petitions for 
qualified aliens who are to be employed as engineers, computer scientists, certified public 
accountants, college professors, and other such occupations. These professions, for which 
petitioners have regularly been able to establish a minimum entry requirement in the United States 
of a baccalaureate or higher degree in a specific specialty or its equivalent directly related to the 
duties and responsibilities of the particular position, fairly represent the types of specialty 
occupations that Congress contemplated when it created the H -1 B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not rely 
simply upon a proffered position's title. The specific duties of the position, combined with the 
nature of the petitioning entity's business operations, are factors to be considered. USCIS must 
examine the ultimate employment of the beneficiary, and determine whether the position qualifies 
as a specialty occupation. See generally Defensor v. Meissner, 201 F. 3d at 384. The critical 
element is not the title of the position nor an employer's self-imposed standards, but whether the 
position actually requires the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty as the 
minimum for entry into the occupation, as required by the Act. 
B. Analysis 
As noted above, the petitioner stated that it is a "wholesale and incentives" business. In its July 22, 
2014 RFE response, the petitioner states that the position will include the following duties: 
• Contacting U.S. suppliers & manufacturers and identifying products to purchase. 
10% 
• Negotiating with suppliers and manufacturers. 15% 
• Finding and contacting overseas wholesalers and distributors. 10% 
• Negotiating with overseas wholesalers & distributors. 15% 
• Investigate and assess cost of U.S. products to purchase. 15% 
• Analyze and assess logistics and exchange rate costs. 20% 
• Identify and assess the viability and financial solvency of overseas distributors & 
wholesalers. 15% 
In the letter of support provided with the Form I-129, the petitioner states that the position requires 
an employee with a bachelor's degree in accounting or banking and finance. The petitioner also 
provided a Labor Condition Application (LCA), which indicates that the proffered position 
corresponds to the occupational classification "Wholesale and Retail Buyers, Except Farm 
Products" - SOC (ONET/OES) code at a Level I (entry level) wage. 
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We will now discuss the application of each supplemental, alternative criterion at 8 C.F.R. § 
214.2(h)(4)(iii)(A) to the evidence in this record of proceeding. 
We will first discuss the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which is satisfied by establishing 
that a baccalaureate or higher degree, or its equivalent, in a specific specialty is normally the minimum 
requirement for entry into the particular position. As noted, we interpret 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 proposed position. 
USCIS recognizes 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 As discussed, the petitioner provided an LCA that indicates that the 
proffered position falls under the occupational category "Wholesale and Retail Buyers, Except Farm 
Products," which i� discussed under the Handbook's section on "Purchasing Managers, Buyers, and 
Purchasing Agents." The section regarding the duties of these occupations states the following 
regarding wholesale and retail buyers: 
Wholesale and retail buyers purchase goods for resale to consumers. Examples of 
these goods are clothing and electronics. Purchasing specialists who buy finished 
goods for resale are commonly known as buyers or merchandise managers. Buyers 
who work for large organizations usually specialize in one or two lines of 
merchandise (for example, men's clothing or women's shoes or children's toys). 
Buyers who work for small stores may be responsible for buying everything the store 
sells. 
In regards to the educational requirements, the Handbook states: 
Although educational requirements for buyers and purchasing agents may vary by 
the size of the organization and the type of product, extensive on-the-job training is 
typically provided. Purchasing managers need a bachelor's degree and work 
experience as a buyer or purchasing agent. 
Education 
Educational requirements usually vary with the size of the organization. A high 
school diploma is enough at many organizations for entry into the purchasing agent 
occupation, although large stores and distributors may prefer applicants who have 
completed a bachelor's degree program and have taken some business or accounting 
classes. Many manufacturing firms put an even greater emphasis on formal training, 
3 All references are to the 20 14-2 015 edition of the Handbook, which may be accessed at the Internet site 
http://w ww .bls.gov/OCO/. Excerpts of the Handbook regarding the duties and requirements of the 
referenced occupational category are hereby incorporated into the re cord of proceeding. 
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NON-PRECEDENT DECISION 
preferring applicants who have a bachelor's or master's degree m engmeenng, 
business, economics, or one of the applied sciences. 
Purchasing managers usually have at least a bachelor's degree and some work 
experience in the field. A master's degree may be required for advancement to some 
top-level purchasing manager jobs. 
Training 
Buyers and purchasing agents typically get on-the-job training for more than 1 year. 
During this time, they learn how to perform their basic duties, including monitoring 
inventory levels and negotiating with suppliers. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Purchasing Managers, Buyers, and Purchasing Agents on the Internet at 
http://www . bls. gov I ooh/business-and-financial/purchasing-managers-buyers-and-purchasing­
agents.htm#tab-4 (last visited March 24, 20 15). 
When reviewing the Handbook, we must note that the petitioner designated the proffered position 
under this occupational category at a Level I on the LCA. This designation is indicative of a 
comparatively low, entry-level position relative to others within the occupation and signifies that 
the beneficiary is only expected to possess a basic understanding of the occupation and will perform 
routine tasks that require limited, if any, exercise of judgment. In accordance with the relevant 
DOL explanatory information on wage levels, the beneficiary will be closely supervised and his 
work closely monitored and reviewed for accuracy. Furthermore, he will receive specific 
instructions on required tasks and expected results. DOL guidance indicates that a Level I 
designation is appropriate for a research fellow, a worker in training, or an internship. This 
designation suggests that the beneficiary will not serve in a high-level or leadership position relative 
to others within the occupational category. 
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 occupation. Rather, the 
Handbook states that educational requirements usually vary with the size of the organization and 
extensive on-the-job training is typically provided. It further states that purchasing agents may be 
employed with a high school diploma but large stores and distributors prefer applicants with a 
bachelor's degree who have taken some business or accounting classes. We note that a preference 
for a particular type of preparation is not a requirement for the same. Further, the Handbook does 
not indicate that a degree in a specific specialty is required. 
Further, the petitioner provided a printout from http://www .ehow.com that provides a job 
description for purchasing agents. According to this website "most employers require their 
purchasing agents to have a degree in business, economics, engineering, or a related field." The 
petitioner provides no explanation of the methodology or data relied upon by this website in making 
this determination, or why it is more authoritative than the Handbook. That said, even if this 
website was accurate and authoritative, it does not establish that a particular course of study is the 
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minimum educational requirement for entry into the occupation in the petitioner's industry. In 
general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
requirement of a bachelor's of higher degree in more than one specialty is recognized as satisfying 
the "degree in the specific specialty (or its equivalent)" requirement of section 214(i)(l )(B) of the 
Act. In such a case, the required "body of highly specialized knowledge" would essentially be the 
same. Since there must be a close correlation between the required "body of highly specialized 
knowledge" and the position, however, a minimum entry requirement of a degree in disparate fields, 
such as philosophy and engineering, would not meet the statutory requirement that the degree be "in 
the specific specialty (or its equivalent)," unless the petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required body of 
highly specialized knowledge is essentially an amalgamation of these different specialties. Section 
214(i)(1 )(B) of the Act (emphasis added). This website supports the view that a wide and unrelated 
variety of degrees prepare an employee for entry into this occupation. 
The petitioner also provided a printout from another website called http://www .jobdescriptions.net. 
Here again, the petitioner provides no explanation of the methodology or data relied upon by this 
website in making this determination, or why it is more authoritative than the Handbook. We note 
that the job description for purchasing agent duties and responsibilities is very brief and generalized. 
According to this website, an aspiring purchasing agent must have at least a bachelor's degree in 
business administration. Since there must be a close correlation between the required specialized 
studies and the position, the requirement of a general-purpose degree (or a degree with a 
generalized title such as business or business administration, without further specification) does not 
establish the position as a specialty occupation. Cf Matter of Michael Hertz Associates, 19 I&N 
Dec. 558 (Comm'r 1988). USCIS interprets the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) 
to require a degree in a specific specialty that is directly related to the proposed position. Although 
a general-purpose degree (including a degree in business administration) may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a 
finding that a particular position qualifies for classification as a specialty occupation. See Royal 
Siam Corp. v. Chertoff, 484 F.3d at 147. 4 For the above reasons, we decline to rely on the printout 
from this website. 
4 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
· [t]he courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate prerequisite 
for a pa1ticular position, requiring such a degree, without more, will not justify the granting 
of a petition for an H-1 B specialty occupation visa. See, e.g., Tapis Int'l v. INS, 94 
F.Supp.2d 172, 175-76 (D.Mass.2000); Shanti, 36 F. Supp.2d at 1164-66; cf Matter of 
Michael Hertz Assocs., 19 I & N Dec. 558, 560 ([Comm'r] 1988) (providing frequently cited 
analysis in connection with a conceptually similar provision). This is as it should be: 
elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
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On appeal, the petltwner asserts that the director erred by relying solely on the Handbook's 
description of the occupational category "purchasing agents." The petitioner claims that while "the 
proffered position carries the title of Wholesaler Purchasing Agent, the duties outlined in [its] 
documents are not those of the average purchasing agent as described in the [Handbook]." The 
petitioner further claims that some of the beneficiaries' duties closely relate to the positions of 
"market research analyst" and "contractors administrator."5 
We note that on appeal, a petitioner cannot offer a new position to the beneficiary, or materially 
change a position's title, its level of authority within the organizational hierarchy, or the associated 
job responsibilities. The petitioner must establish that the position offered to the beneficiary when 
the petition was filed merits classification for the benefit sought. Matter of Michelin Tire Corp., 17 
I&N Dec. 248, 249 (Reg. Comm'r 1978). A petitioner may not make material changes to a petition 
in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 
I&N Dec. 169, 176 (Assoc. Cornm'r 1998). 
However, assuming arguendo, that the proffered position is that of a "market research analyst" and 
"contracts administrator," we find that the Handbook does not establish that at least a bachelor's 
degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry for 
both occupational categories. 
!d. 
5 Notably, DOL's "Prevailing Wage Determination Policy Guidance" states that "[i]f the employer's job 
opportunity has worker requirements described in a combination of O*NET occupations, the [determiner] 
should default directly to the relevant O*NET-SOC occupational code for the highest paying occupation." 
For this matter, if the proffered position is a combination of occupational categories purchasing agent, market 
research analyst, and administrative services manager (or contracts administrator), then the petitioner should 
have selected the occupational category for the highest paying occupational here; which, in this case, is 
administrative services managers. Specifically, a search of the Foreign Labor Certification Data Center 
Online Wage Library reveals that the prevailing wage for "Administrative Services Managers" SOC 
(O*NET/OES) Code for NJ) at a Level I is $71, 718, which is higher 
than the beneficiary's proffered wage of $43,000 per year. 
Under the H-1 8 program, a petitioner must offer a beneficiary wages that are at least the actual wage level 
paid by the petitioner to all other individuals with similar experience and qualifications for the specific 
employment in question, or the prevailing wage level for the occupational classification in the area of 
employment, whichever is greater, based on the best information available as of the time of filing the LCA.5 
See section 212(n)(I)(A) of the Act, 8 U.S.C. § 1182(n)(I)(A); Patel v. Boghra, 369 Fed. Appx. 722, 723 
(7th Cir. 201 0). The LCA serves as the critical mechanism for enforcing section 212(n)( I) of the Act, 8 
U.S.C. § 1182(n)(l). See 65 Fed. Reg. 80110, 80110-80111 (indicating that the wage protections in the Act 
seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring temporary 
foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] with 
[DOL]"). 
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The subchapter of the Handbook entitled "How to Become a Market Research Analyst" states the 
following about this occupational category: 
Most market research analysts need at least a bachelor's degree. Top research 
positions often require a master's degree. Strong math and analytical skills are 
essential. 
Education 
Market research analysts typically need a bachelor's degree in market research or a 
related field. Many have degrees in fields such as statistics, math, and computer 
science. Others have backgrounds in business administration, the social sciences, or 
communications. 
Courses in statistics, research methods, and marketing are essential for these 
workers. Courses in communications and social sciences, such as econom1cs, 
psychology, and sociology, are also important. 
Some market research analyst jobs require a master's degree. Several schools offer 
graduate programs in marketing research, but many analysts complete degrees in 
other fields, such as statistics and marketing, and/or earn a Master of Business 
Administration (MBA). A master's degree is often required for leadership positions 
or positions that perform more technical research. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Market Research Analysts, on the Internet at http://www .bls.gov/ooh/business-and­
financial/market-research-ana1ysts.htm#tab-4 (last visited March 24, 20 15). 
The Handbook does not state that a baccalaureate or higher degree in a specific specialty, or its 
equivalent is normally the minimum requirement for entry into the occupation. This passage of the 
Handbook reports that market research analysts have degrees and backgrounds in a wide-variety of 
disparate fields. The Handbook states that employees typically need a bachelor's degree in market 
research or a related field, but the Handbook continues by indicating that many market research 
analysts have degrees in fields such as statistics, math, or computer science. According to the 
Handbook, other market research analysts have a background in fields such as business 
administration, one of the social sciences, or communications. The Handbook notes that various 
courses are essential to this occupation, including statistics, research methods, and marketing. The 
Handbook states that courses in communications and social sciences (such as economics, 
psychology, and sociology) are also important. As discussed, since there must be a close correlation 
between the required "body of highly specialized knowledge" and the position, however, a 
minimum entry requirement of a degree in disparate fields, such as philosophy and engineering, 
would not meet the statutory requirement that the degree be "in the specific specialty (or its 
equivalent)," unless the petitioner establishes how each field is directly related to the duties and 
responsibilities of the particular position such that the required body of highly specialized 
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knowledge is essentially an amalgamation of these different specialties. Section 214(i)(l)(B) of the 
Act (emphasis added). 
Here, although the Handbook indicates that an advanced degree is typically needed for these 
positions, it also indicates that baccalaureate degrees in various fields are acceptable for entry into 
the occupation. In addition to recognizing degrees in disparate fields and backgrounds (i.e., social 
science and computer science) as acceptable for entry into this occupation, the Handbook also states 
that "others have a background in business administration." Again, although a general-purpose 
bachelor's degree, such as a degree in business administration, may be a legitimate prerequisite for a 
particular position, requiring such a degree, without more, will not justify a finding that a particular 
position qualifies for classification as a specialty occupation. See Royal Siam Corp. v. Chertoff, 484 
F.3d at 147. Therefore, the Handbook's recognition that a general, non-specialty "background" in 
business administration is sufficient for entry into the occupation strongly suggests that a bachelor's 
degree in a specific specialty is not normally the minimum entry requirement for this occupation. 
Accordingly, as the Handbook indicates that working as a market research analyst does not 
normally require at least a bachelor's degree in a specific specialty, or its equivalent, for entry into 
the occupation, it does not support the proffered position as qualifying as a specialty occupation. 
Likewise, we find that the Handbook also does not indicate that "contracts administrators" comprise 
an occupational group for which at least a bachelor's degree in a specific specialty, or its equivalent, 
is normally the minimum requirement for entry into the occupation. The occupational category 
"contracts administers" is described in the section of the Handbook regarding the occupational 
category "Administrative Service Managers," which states that this position "handle[s] buying, 
storing, and distribution equipment and supplies" and that "[t]hey also oversee getting rid of surplus 
or unclaimed property." 
The subchapter of the Handbook entitled "How to Become an Administrative Services Manager" 
states, in part: 
Educational requirements vary by the type of organization and the work they do. 
They must have related work experience. 
Education 
A high school diploma or a General Educational Development (GED) diploma is 
typically required for someone to become an administrative services manager. 
However, some administrative services managers need at least a bachelor's degree. 
Those with a bachelor's degree typically study business, engineering, or facility 
management. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Administrative Services Managers, on the Internet at 
http://www . b Is. gov I ooh/management/ administrative-services-managers .htm#tab-4 (last visited 
March 24, 2015). 
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Page II 
The Handbook does not indicate that at least a bachelor's degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into this occupation. The Handbook 
indicates that the educational requirements for the occupational category vary by the type of 
organization and the work performed. According to this passage of the Handbook, employees in 
this occupation must have related work experience. 
Furthermore, the Handbook states that a high school diploma or a General Educational 
Development (GED) diploma is typically required for this occupation. Thus, the Handbook 
indicates that less than a bachelor's degree is acceptable for entry into this occupation. Moreover, 
the Handbook indicates that while some administrative services managers need at least a bachelor's 
degree, it continues by stating that employees study subjects in a range of fields-typically business, 
engineering, or facility management. The fact that only some employees in this occupation need a 
bachelor's degree (and that a range of disparate disciplines is acceptable) is not sufficient to 
establish that a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. 
As the evidence in the record of proceeding does not establish that at least a baccalaureate degree, 
or its equivalent, in a specific specialty is normally the minimum requirement for entry into the 
particular position that is the subject of this petition, the petitioner has not satisfied the criterion at 
8 C.F.R. § 214. 2(h)(4)(iii)(A)(l ). 
Next, we find that the petitioner has not satisfied the first of the two alternative prongs of 
8 C.F.R. § 21 4.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for 
positions that are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d at 1165 
(D.Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As already discussed, the petitioner has not established that its proffered position is one for which 
the Handbook, or any other authoritative resource, reports an industry-wide requirement of at least a 
bachelor's degree in a specific specialty or its equivalent. Thus, we incorporate by reference the 
previous discussion on the matter. Also, there are no submissions from the industry's professional 
association indicating that it has made a degree a minimum entry requirement. 
In support of its assertion that the degree requirement is common to the petitioner's industry in 
parallel positions among similar organization, the petitioner provided several job advertisements. 
However, upon review of the evidence, we find that the petitioner's reliance on the job announcements 
is misplaced. 
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For the petitioner to establish that an organization is similar, it must demonstrate that the petitioner 
and the organization share the same general characteristics. Without such evidence, documentation 
submitted by a petitioner is generally outside the scope of consideration for this criterion, which 
encompasses only organizations that are similar to the petitioner. When determining whether the 
petitioner and the advertising organization share the same general characteristics, such factors may 
include information regarding the nature or type of organization, and, when pertinent, the particular 
scope of operations, 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. 
In the Form 1-129 and supporting documentation, the petitioner stated that it is a "wholesale and 
incentives" business established in , with 35 employees. The petitioner stated its gross annual 
income is $102 million and net annual income is $575,000. 
Upon review of the documents, we find that the advertisements do not establish that a requirement 
for a bachelor's degree in a specific specialty, or its equivalent, is common to the petitioner's 
industry in similar organizations for parallel positions to the proffered position.6 For example, the 
petitioner has submitted advertisements for organizations that do not appear to be similar to the 
petitioner. More specifically, the advertisements include positions with the following employers: 
• (glass and glazing systems supplier); 
• (development and manufacturing of computer-based 
automotive service equipment); 
• (consumer packaged goods manufacturing); 
• (information technology); and 
• (manufacturer of home improvements products and 
services). 
The record also contains advertisements from staffing compames, 
and also from ; however, the advertisements do not 
provide information regarding the employers. The petitioner did not supplement the record of 
proceeding with additional information or state which aspects or traits (if any) it shares with the 
advertising organizations. Without further information, the advertisements appear to be for 
organizations that are not similar to the petitioner. 
Further, the petitioner has not established that the advertisements are for parallel positions. On 
appeal, the petitioner asserts that the duties of some advertised positions are similar to the proffered 
position. In support, the petitioner discusses some of the duties of certain selected positions to state 
6 Moreover, the petitioner did not provide any independent evidence of how representative the job postings 
are of the particular advertising employers' recruiting history for the type of job advertised. As the 
advertisements are only solicitations for hire, they are not evidence of the actual hiring practices of these 
employers. 
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that the duties are similar. However, we find that the petitioner did not sufficiently establish that the 
primary duties and responsibilities of the advertised positions are parallel to the proffered position. 
Specifically, the advertisements generally lack information to establish that the selected duties being 
discussed are the primary duties and responsibilities of the advertised positions. Moreover, based 
upon the information provided in the job postings, the advertised positions appear to be for more 
senior positions than the proffered position. For example, the position with requires "2+ 
to 5 years" of experience, and requires "5+ to 7+ years" of experience. As previously 
discussed, the petitioner designated the proffered position on the LCA through the wage level as a 
Level I (entry level) position relative to others within the occupation. 
In addition, contrary to the purpose for which the advertisements were submitted, some job postings 
do not indicate that a bachelor's degree in a directly related specific specialty is required. For 
example,. and require a 4-year degree, but do not indicate 
a specific specialty. As discussed, the degree requirement set by the statutory and regulatory 
framework of the H-l B program is not just a bachelor's or higher degree, but such a degree in a 
specific specialty that is directly related to the specialty occupation claimed in the petition. 
As the documentation does not establish that the petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. That is, as the evidence does not establish that similar organizations in the same industry 
routinely require at least a bachelor's degree in a specific specialty, or its equivalent, for parallel 
positions, not every deficit of every job posting has been addressed. 
Therefore, the petitioner has not satisfied the first of the two alternative prongs described at 
8 C.F.R. § 214.2( h)(4)(iii)(A)(2), as the evidence of record does not establish a requirement for at 
least 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. 
Next, we find that the petitioner did not satisfy the second alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which provides that "an employer may show that its particular 
position is so complex or unique that it can be perfonned only by an individual with a degree." 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
petitioner submitted various documents, including evidence regarding its business operations such 
as its brochures, incentive programs, wire transfer receipts from clients, and more. We reviewed the 
record in its entirety and find that the petitioner has not provided sufficient documentation to 
support a claim that its particular position is so complex or unique that it can only be performed by 
an individual with a baccalaureate or higher degree in a specific specialty, or its equivalent. 
Specifically, we incorporate by reference and reiterate our earlier discussion that the LCA indicates 
that the position is a low-level, entry position relative to others within the occupation. Based upon 
the Level I wage rate, the beneficiary is only required to have a basic understanding of the 
occupation. Moreover, the wage rate indicates that the beneficiary will perform routine tasks that 
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require limited, if any, exercise of independent judgment; his work will be closely supervised and 
monitored; he will receive specific instructions on required tasks and expected results; and his work 
will be reviewed for accuracy. Without further evidence, it is not credible that the petitioner's 
proffered position is complex or unique as such a position 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. 
The petitioner failed to demonstrate how the duties of the proffered position as described in the 
record require the theoretical and practical application of a body of highly specialized knowledge 
such that a bachelor's or higher degree in a specific specialty, or its equivalent, is required to 
perform them. For instance, the petitioner did not submit information relevant to a detailed course 
of study leading to a specialty degree and did not establish how such a curriculum is necessary to 
perform the duties it may believe are so complex and unique. While a few related courses may be 
beneficial, or even required, in performing certain duties of the position, the petitioner has failed to 
demonstrate how an established curriculum of such courses leading to a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is required to perform the duties of the proffered 
position. The description of the duties does not specifically identify any tasks that are so complex 
or unique that only a specifically degreed individual could perform them. The record lacks 
sufficiently detailed information to distinguish the proffered position as more complex or unique 
from other positions that can be performed by persons without at least a bachelor's degree in a 
specific specialty, or its equivalent. 
The petitioner has indicated that the beneficiary's educational background and work experience will 
assist him in carrying out the duties of the proffered position. On appeal, the petitioner asse11s that 
the beneficiary's "broad range of experience with the global cosmetics industry coupled with his 
cross-cultural education in business and finance .. . has uniquely equipped him to fulfill the proffered 
position." However, the test to establish a position as a specialty occupation is not the skill set or 
education of a proposed beneficiary, but whether the position itself qualifies as a specialty 
occupation. The petitioner fails to demonstrate 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. Consequently, as it has not been shown that the particular position for 
which this petition was filed is so complex or unique that it can only be performed by a person with 
at least a bachelor's degree, or the equivalent, in a specific specialty, the petitioner has not satisfied 
the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
We tum next to the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(3), which entails an employer 
demonstrating that it normally requires a bachelor's degree, or the equivalent, in a specific specialty 
for the position. 
To satisfy 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. In the instant case, the record does not establish a prior history of 
recruiting and hiring for the proffered position only persons with at least a bachelor's degree in a 
specific specialty, or its equivalent. 
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While a petitioner may assert that a proffered position requires a specific degree that opinion alone 
without corroborating evidence cannot establish the position qualifies 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.Jd at 388. In other words, if a 
petitioner's stated degree requirement is only designed to artificially meet the standards for an H -1 B 
visa and/or to underemploy an individual in a position for which he or she is overqualified and if the 
proffered position does not in fact require such a specialty degree or its equivalent to perform its 
duties, the occupation would not meet the statutory or regulatory definition of a specialty 
occupation. See § 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty 
occupation"). 
In response to the RFE and also on appeal, the petitioner states that it has three employees working 
in this occupation and also an independent contractor. The petitioner asserts that one holds a 
master's degree, and the other three hold bachelor's degrees. In support, the petitioner submitted a 
Master of Arts degree in social sciences and W-2 Form for its signatory, The 
petitioner also submitted a Bachelor of Arts degree for and W-2 Form for _ 
However, the degrees do not indicate the specific field of study completed, and the 
petitioner did not provide a job description for these individuals to establish that their positions are 
the same or similar to the proffered position 
As the record of proceeding does not present a history of recruiting and hiring only individuals with 
a bachelor's degree, or the equivalent, in a specific specialty for the proffered position, it does not 
satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
Next, we find that the petitioner has not satisfied the criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A)( 4), which requires the petitioner to establish that the nature of the 
proffered position's 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 the specialty. 
The petitioner provided information regarding the proffered position and its business operations. 
While the evidence provides some insights into the petitioner's business activities, the documents do 
not establish that the nature of the specific duties of the proffered position 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. 
In the instant case, we note that relative specialization and complexity have not been sufficiently 
developed by the petitioner as an aspect of the proffered position. We incorporate our earlier 
discussion and analysis regarding the duties of the proffered position, and the designation of the 
proffered position in the LCA as a Level I position (out of four assignable wage-levels) relative to 
others within the occupational category, and hence one not likely distinguishable by relatively 
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specialized and complex duties. Without further evidence, the petitioner has not established that the 
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 III (experienced) or Level IV (fully competent) position, 
requiring a substantially higher prevailing wage. As previously noted, 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. 
For these reasons, the evidence in the record of proceeding fails to establish that the proposed duties 
meet the specialization and complexity threshold at 8 C.F.R. § 214. 2(h)(4)(iii)(A)(4). 
As the petitioner has not satisfied at least one of the criteria at 8 C.F.R. § 214.2 (h)(4)(iii)(A), it 
cannot be found that the proffered position is a specialty occupation. Accordingly, the appeal will 
be dismissed and the petition will be denied on this basis. 
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 13 61; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied.