dismissed H-1B Case: Wholesale Trade

U.S. Citizenship 
and Immigration 
Services 
In Re: 4944475 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 19, 2020 
The Petitioner , a wholesaler of imported electronic cigarette products, seeks to temporarily employ the 
Beneficiary as a "purchasing agent" under the H-lB nonimmigrant classification for specialty 
occupations . See Immigration and Nationality Act (the Act) section 101(a)(l5)(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 California Service Center denied the petition, concluding that the proffered 
position does not qualify as a specialty occupation. On appeal, the Petitioner submits additional 
evidence and asserts that the Director erred. 
Upon de nova review , we will dismiss the appeal. 1 
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: 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(]) 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 described the duties of the proffered "purchasing agent" position, and the percentage 
of the Beneficiary's time required to perform them, as follows: 
• Negotiated [sic] contracts, prepared purchasing orders and maintained 
computerized procurement records using specialized software programs to monitor 
quantity of items purchased, costs, delivery, product quality and performance and 
inventories. Maintain [ w ]ebsite, organize and modify information from front end. 
(30%); 
• Research market conditions information to determine potential sales of products. 
Gather sales information and pricing on competitions. Process invoices from 
purchase orders. Analyze and maintain reports on status of active orders to 
maximize quality and reduce financial risks. Analyze the data to forecast of [sic] 
sales in the future, and processing the reorder volume of products. According to 
the results of data analyzed, determine the reorder volume of different products by 
week, by months, or by season. (30%); 
• Gather the information of products from vendors about the feedback from 
customers, make decision [sic] about the volume of preordered product and new 
potential products. Select products by testing, operations or examining. Estimate 
potential sales volume according to knowledge obtained from data gathered and 
analyzed. (15%); 
• Determine products to be ordered and take into consideration of [sic] profit margin 
and potential volume. Confer with vendors to obtain product information such as 
price, availability and delivery schedule. (15%); and 
2 
• Compare with competitors' products information, adjust price and find competitive 
products. Find more methods to improve the sales of unpopular sales and keep the 
position of hot sales. (10%). 
According to the Petitioner, the position requires "the theoretical and practical application of an 
advanced highly specialized body of knowledge in the field of Business Administration and related 
fields, which requires the attainment of at least a Bachelor's degree or its equivalent." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 2 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 3 
On appeal, the Petitioner does not assert, and the record does not support the conclusion, that the 
position qualifies as a specialty occupation under the second prong of the second criterion or under 
the fourth criterion. Accordingly, we limit our analysis to the first criterion, the first prong of the 
second criterion, and the third criterion. 
A. First Criterion 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]) 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. 4 
On the labor condition application (LCA)5 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Purchasing Agents, Except 
Wholesale, Retail, and Farm Products" corresponding to the Standard Occupational Classification 
(SOC) code 13-1023. 6 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
4 We do not maintain that the Handbook is the exclusive source ofrelevant information. That is, the occupational category 
designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered 
position, and we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. Nevertheless, to satisfy the first criterion, the burden of proofremains on the Petitioner to 
submit sufficient evidence to support a finding that its particular position would normally have a minimum, specialty 
degree requirement or its equivalent, for entry. 
5 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-IB worker 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 duties. experience, and qualifications. Section 2 l 2(n)(l) of the Act; 20 C.F.R. § 655.731 (a). 
6 We note that there is a similar occupational category, "Wholesale and Retail Buyers, Except Farm Products," 
corresponding to the SOC code 13-1022. The record does not reconcile why the Petitioner, a wholesaler, selected the 
3 
The subchapter of the Handbook titled "How to Become a Purchasing Manager, Buyer, or Purchasing 
Agent" states, in relevant part, that "[ e ]ducational requirements for buyers and purchasing agents 
usually vary with the size of the organization. Although a high school diploma may be enough at 
some organizations, many businesses require applicants to have a bachelor's degree. For many 
positions, a degree in business, finance, or supply management is sufficient." Bureau of Labor 
Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Purchasing Managers, Buyers, and 
Purchasing Agents, https: //ww. bls. gov/ ooh/business-and- financial/purchasing-managers-buyers-and­
purchasing-agents .htm#tab-4 (last visited Feb. 19, 2020). 
The Handbook does not clarify the circumstances in which "a high school diploma may be enough," 
a bachelor's degree "in business, finance, or supply management is sufficient," or when some other 
academic qualifications are required for entry into a given position in the "Purchasing Agent" 
occupational category. Although the Handbook notes that the educational requirements "usually vary 
with the size of the organization," it does not elaborate on the size of organizations in which, generally, 
"a high school diploma may be enough." Moreover, even when "a degree in business, finance, or 
supply management is sufficient," we have consistently stated that, 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 conclusion that a particular 
position qualifies for classification as a specialty occupation. Royal Siam Corp., 484 F.3d at 147. 
Therefore, the Handbook does not establish that a bachelor's or higher degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into the particular position. 
On appeal, the Petitioner asserts that, "[a]lthough [the Handbook] is not required [sic] a degree, [the] 
AAO had ruled that Purchasing Agent [sic] is Specialty Occupation [sic]," referencing a non-precedent 
decision from 2008. The decision referenced by the Petitioner was not published as a precedent and 
therefore does not bind U.S. Citizenship and Immigration Services officers in future adjudications. 
See 8 C.F.R. § 103.3(c). Non-precedent decisions apply existing law and policy to the specific facts of 
an individual case, and may be distinguishable based on the evidence in the record of proceedings, the 
issues considered, and applicable law and policy. The Petitioner does not assert how the reasoning in the 
non-precedent decision from 2008 apply to this matter. In the 2008 decision, relating to a purchasing 
agent for a supplier of pipe and piping components for construction projects, we concluded that the record 
established that the duties of the particular position were sufficiently specialized and complex to qualify 
the position as a specialty occupation under the fourth criterion. However, as noted above, the Petitioner 
does not assert on appeal, and the record does not support the conclusion, that the particular position in 
this matter satisfies the fourth criterion. Therefore, we are unpersuaded that the 2008 decision is relevant 
to an analysis of the first criterion. 
The Petitioner also asserts on appeal that the opjnjon ofl l a professor emeritus of 
accounting and operations management from I !university, satisfies the first criterion. 
As a matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. Matter 
of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we may give an opinion less 
weight if it is not in accord with other information in the record or if it is in any way questionable. 
occupational category excluding wholesale and retail operations, rather than the occupational category specifically for 
"Wholesale and Retail Buyers." 
4 
Id. We are ultimately responsible for making the final determination regarding an individual's 
eligibility for the benefit sought; the submission of expert opinion letters is not presumptive evidence 
of eligibility. Id.; see also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion 
testimony, while undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but 
rather is admissible only if 'it will assist the trier of fact to understand the evidence or to determine a 
fact in issue.'"). 
~-----~I states that his "evaluation relies upon copies of the original documents provided by 
[the Beneficiary] and represented by [the Beneficiary] to be authentic and true copies of those 
documents." The opinion letter does not further specify the documents that I I 
reviewed in order to form his opinion. However, we note that the opinion letter contains passages of 
text that reproduce language from a letter in the record from the Petitioner, verbatim, including several 
typographical errors. For example, both the Petitioner's letter andl ~s letter contain 
the following paragraph: 
Established in 2000, [the Petitioner] is engaged in the field of import wholesale 
business inl I TX. Currently, [the Petitioner] hires [sic] eleven (13) [sic] 
employees and derives approximately a gross annual income of $3.8 million and a net 
annual income of $136,000. 7 
In addition to the verbatim nature of language in I I's letter in general, the identical 
typographical error of "eleven ( 13 )" raises questions regarding whether the opinion letter reflectsO 
I ts opinion, given that he is a professor emeritus of accounting from I I 
University. Doubt cast on any aspect of a petitioner's proof may undermine the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N 
Dec. 582,591 (BIA 1988). 
Additionally, there is no evidence that I I has conducted any research or studies 
pertinent to the educational requirements for such positions, and no indication of recognition~ 
nrofessiona) rganizations that he is an authority on those specific requirements. Instead, LJ 
I .generalizes, based on his review of unspecified documents provided by the Beneficiary, 
that "[ c ]ompanies seeking to employ a Purchasing Agent require prospective candidates to have a 
strong foundation in the field of Business Administration and related fields which can only be obtained 
through a Bachelor's degree or progressively responsible experience in the field of Business 
Administration and related fields." However, as noted above, the Handbook observes that, depending 
on the size of an organization, "a high school diploma may be enough."! I does not 
elaborate on whether the Petitioner's "eleven (13)"-employee organization is of the size in which "a 
high school diploma may be enough." Given thatl ts opinion is not based on research 
pertinent to the educational requirements for "Purchasing Agent" positions, and based on the extent to 
which his letter contains verbatim language with conspicuous typographical errors from other 
documents in the record, and based on the extent to which his opinion is not in accord with other 
information in the record, I I's opinion bears minimal probative value. See Matter of 
Caron Int'!, Inc., 19 I&N Dec. at 795. 
7 In the petition, the Petitioner asserts that its current number of employees in the United States is 13. Given that the 
Petitioner also asserts that its net annual income is $136,000, the statement that the Petitioner "hires" either 11 or 13 
additional employees, which would double its workforce, appears to be a typographical error. 
5 
In summation, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
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). The first prong contemplates common industry 
practice, while the alternative prong narrows its focus to the Petitioner's specific position. 
To satisfy the 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." 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)). 
Here, however, the Handbook does not indicate that a bachelor's degree in a specific specialty is a 
common requirement within the industry for parallel positions among similar organizations. Also, the 
Petitioner did not submit evidence from an industry professional association or from firms or 
individuals in the industry indicating such a degree is a minimum requirement for entry into the 
position. Instead, the Petitioner asserts on appeal that "randomly selected internet printout [sic] of 
advertisement [sic] from various wholesalers, distributors and manufactures [sic] / wholesalers" 
satisfy the first prong of the second criterion. 
The Petitioner submits job postings from the following: 
• A "wholesale distributor of irrigation and plumbing supplies"; 
• A "wholesale distributor of [t]hin [v]eneer [m]asony products"; 
• A "distributor of high-quality valves and actuators ... for the oil & gas, refining, 
chemical, petrochemical, power, pulp & paper and water treatment industries"; 
• A knife manufacturer; 
• A flange manufacturer; 
• A recruitment organization placing buyers for a "well-known specialty retailer ... 
in [ c ]ostume/[ f]ashion [j]ewelry and [ a ]ccessories"; 
• A "wholesale/distributor servicing the pet industry with natural/holistic pet foods 
along with high quality pet supplies"; 
• A "global leader in household appliances and appliances for professional use"; 
• A wholesaler in the "[b]uilding [m]aterials and [m]illwork [i]ndustry"; and 
• A "general supply distributor specializing in servicing the industrial, 
manufacturing, fleet and automotive aftermarkets." 
6 
Therefore, none of the employers whose job postings the Petitioner submits on appeal are in the 
Petitioner's industry of distributing electronic cigarette products. 8 Furthermore, even if the other 
employers were in the Petitioner's industry, the job postings do not contain sufficient information to 
determine the extent to which the organizations are similar to the Petitioner. 
Even if the job postings were for positions parallel to the proffered position, in the Petitioner's 
industry, among organizations similar to the Petitioner-which they are not-the job postings do not 
establish that a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, 
is common. The job postings provide degree requirements as follows: 
• "A bachelor's degree"; 
• "Bachelor's"; 
• "Bachelor's [d]egree in [i]ndustrial [d]istribution"; 
• "Bachelor's"; 
• "Bachelor's [d]egree"; 
• "Bachelor's [d]egree"; 
• "Bachelor's degree in accounting, business, or finance"; 
• "BS degree in [b ]usiness or [ e ]ngineering"; 
• "Bachelor's [d]egree"; and 
• "B.S. degree in a related field." 
Although all 10 employers state that prospective purchasing agents must have a bachelor's degree, 
most ( 60%) do not indicate that the degree must have a specialty. 9 The other 40% of employers permit 
degrees in disparate fields such as industrial distribution, accounting, business, finance, engineering, 
or "a related field [for the] industrial, manufacturing, fleet and automotive aftermarkets." Therefore, 
even when a degree specialty is identified, the job postings do not demonstrate a common requirement 
of a bachelor's or higher degree in a spec[fic specialty. 
Even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty 
is common to the industry in parallel positions among similar organizations (which they do not), the 
Petitioner has not demonstrated what statistically valid inferences, if any, can be drawn from the 
advertisements with regard to determining the common educational requirements for entry into 
parallel positions in similar organizations. See generally Earl Babbie, The Practice of Social Research 
186-228 (1995). Moreover, given that there is no indication that the advertisements were randomly 
selected, the validity of any such inferences could not be accurately determined even if the sampling 
unit were sufficiently large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] 
process [ of probability sampling]" and that "random selection offers access to the body of probability 
theory, which provides the basis for estimates of population parameters and estimates of error"). 
8 We note that the Petitioner submitted a group ofjob postings in response to the Director's request for evidence (RFE) 
that included some of the job postings resubmitted on appeal, but also included a distributor "in the HV AC industry" and 
a staffing company placing a purchasing agent for an "[a]irline - [a]viation" employer. Therefore, none of the employers 
whose job postings the Petitioner submitted in response to the RFE are in the Petitioner's industry. 
9 The two job postings submitted in response to the RFE but omitted on appeal require "Bachelor's" and a "Bachelor's 
degree," respectively. Therefore, eight of the 12 job postings in the record (66.66%) do not indicate that the degree must 
have a specialty. 
7 
In summation, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
Additionally, as noted above, the Petitioner does not assert on appeal, and the record does not support 
the conclusion, that the position qualifies as a specialty occupation under the second alternative prong 
of 8 C.F .R. § 214.2(h)( 4 )(iii)(A)(2). 
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. 
On appeal, the Petitioner asserts that information in the record about three "[p ]resent and past 
employees for the positon of a Purchasing Agent" satisfies the third criterion. That information 
includes copies of Internal Revenue Service Forms W-2 for the employees dated 2010, 2012, and 2013 
through 2015, respectively; for the individual identified in the 2010 Form W-2, a copy of a resume; 
for the individual identified in the 2012 Form W-2, a copy of a resume, and a degree; and for the 
individual identified in the 2013 through 2015 Forms W-2, information corresponding to an approved 
H-lB petition filed by the Petitioner. Neither the Forms W-2 nor the resumes establish that the 
Petitioner employed the individuals in positions similar to the proffered position. Accordingly, they 
bear minimal probative value for the third criterion. 1° Further, we are not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See Matter of Church Scientology Int'!, 19 I&N Dec. 593, 
597 (Comm'r 1988); see also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). 
The Petitioner also reiterates, verbatim, the duties of the proffered position quoted above-reorganized 
in a different sequence-and asserts that those duties "describe[] former Purchasing Agent of the 
company." However, as noted above, on appeal the Petitioner does not assert, and the record does not 
support the conclusion, that those duties are either so complex or unique that they can be performed 
only by an individual with a bachelor's or higher degree in a specific specialty, or its equivalent, or 
that the nature of the duties is so specialized and complex that the knowledge required to perform the 
duties is usually associated with a qualifying degree. The record must establish that a petitioner's 
stated degree requirement is not a matter of preference for candidates with a given degree but is 
necessitated instead by performance requirements of the position. See Defensor v. Meissner, 201 F .3d 
384, 387-88 (5th Cir. 2000). Ifwe were 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. 
Furthermore, even if the information about three "[p ]resent and past employees" established that their 
positions were similar to the proffered position and that the duties of those positions necessitated a 
bachelor's or higher degree in a specific specialty, or its equivalent, which it does not, the record does 
not establish that the Petitioner normally requires such a degree. The Petitioner asserts that it was 
10 We further note that the record does not contain a Form W-2 for any of the referenced individuals dated after 2015. 
raising questions regarding whether any of them is a ·'[p ]resent" employee. The Petitioner specifically states that the 
individual identified in the Form W-2 dated 2010 ·'has left." 
8 
established in 2000; however, the record does not contain information about the Petitioner's degree 
requirement-if any-for positions similar to the proffered position before 2010, raising questions 
regarding the Petitioner's normal degree requirements during half of its existence. 
The Petitioner also asserts on appeal that~-----~ s opinion letter, discussed above, satisfies 
the third criterion because it concludes that "many specialized courses ... provide [the Beneficiary] 
with the theoretical and practical application of a body and [sic] of highly specialized knowledge to 
perform the duties." However,! Is opinion about the knowledge the Beneficiary may 
have developed during his bachelor's degree program does not address the Petitioner's normal degree 
requirements. The opinion letter does not state thatl !studied the Petitioner's hiring 
practices for positions similar to the proffered position and, even if it did, I I does not 
opine that the Petitioner normally requires a bachelor's degree in a specific specialty, or its equivalent, 
for the position. Furthermore, even if the opinion letter included such an opinion, the record would 
not support it. In addition, 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. Accordingly, the opinion letter bears minimal 
probative value for the third criterion. 
In summation, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
IV. CONCLUSION 
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. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
9