remanded H-1B Case: E-Commerce

MATTER OF T-1-C- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 5, 2015 
APPEAL OF VERMONT SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a nationally broadcast direct-sales television channel, seeks to employ the Beneficiary 
as an "eCommerce Product Specialist" and to classify her as a nonimmigrant worker in a specialty 
occupation. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101 ( a)(15)(H)(i)(b ). The Director, Vermont Service Center, denied the petition. The matter is 
now before us on appeal. The matter will be remanded to the Director for further proceedings 
consistent with the foregoing opinion and for the entry of a new decision. 
I. BENEFICIARY'S QUALIFICATIONS 
The Director denied the petition, concluding that the Petitioner did not establish that the Beneficiary 
is qualified to perform the services in a specialty occupation. A beneficiary's credentials to perform 
a particular job, however, are relevant only when the job is found to qualify as a specialty 
occupation. U.S. Citizenship and Immigration Services (USCIS) is required to follow long-standing 
legal standards and determine first, whether the proffered position qualifies as a specialty 
occupation, and second, whether a beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assoc., 19 I&N Dec. 558, 560 
(Comm'r 1988) ("The facts of a beneficiary's background only come at issue after it is found that 
the position in which the petitioner intends to employ him falls within [a specialty occupation]."). In 
the instant case, the record of proceeding does not establish that the proffered position qualifies as a 
specialty occupation. 
II. SPECIALITY OCCUPATION 
A. Legal Framework 
For an H -1 B petition to be granted, the Petitioner must provide sufficient evidence to establish that it 
will employ the Beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the Petitioner must establish that the employment it is offering to the Beneficiary meets the 
applicable statutory and regulatory requirements of a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
Matter ofT-J-C- Inc. 
(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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the mm1mum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) 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 preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter qf 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 
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Matter ojT-J-C- Inc. 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
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, USCIS regularly approves H-1B 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-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position 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. The Proffered Position 
The Petitioner described the position in its support letter dated March 18, 2014, as follows: 
The eCommerce Product Specialist will be responsible for developing and 
advancing our mobile strategy, establishing the mobile project roadmap, and 
identifying additional business growth opportunities. The eCommerce Product 
Specialist will work with global and cross functional teams to drive the business and 
ensure strategic objectives are met. In addition to defining strategy and prioritizing 
initiatives and business requirements for our mobile website and devices, the 
eCommerce Product Specialist will also define scope and maintain the project 
roadmap for implementation. 
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Matter ofT-J-C-Jnc. 
The eCommerce Product Specialist will work closely with Technology and 
Design Team to build mobile and tablet solutions for lOS and Android devices. She 
will optimize [the Petitioner's] website for various tablet and mobile devices and 
create the website for smartphones and semi-smartphones. The eCommerce Product 
Specialist will keep [the Petitioner's] app, mobile and tablet solutions updated as per 
current standards and will monitor current technology to ensure the company is in 
forefront of current developments. Furthermore, the eCommerce Product Specialist 
will define solutions for all mobile devices and platforms, and will research and 
manage the tools needed for mobile performance tracking. 
Finally, the eCommerce Product Specialist will develop mobile solutions on 
various platforms to optimize the end user experience. 
The efficient operation of the website for tablet and mobile devices is vital to 
our organization. The position of eCominerce Product Specialist is a professional one 
requiring at least a Bachelor's Degree in Media and Management, eCommerce or 
Digital media or related field. Further, knowledge of computer science and Web 
systems is essential to the success of our business. 
[Quoted verbatim.] 
The Petitioner submitted a Labor Condition Application (LCA) in support of the instant H -1 B. The 
Petitioner indicated that the proffered position corresponds to the occupational category "Computer 
Occupations, All Other" with SOC (ONET/OES) code 15-1199, at a Level I (entry level) wage. 
C. Analysis 
We will now discuss the proffered positiOn in relation 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. 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
USCIS recognizes the U.S. Department of Labor Occupational Outlook Handbook (Handbook) as an 
authoritative source on the duties and educational requirements of the wide variety of occupations 
that it addresses. 1 We reviewed the section of the Handbook covering "Computer Occupations, All 
Other." However, the Handbook does not provide a detailed narrative account nor does it provide 
summary data for this occupational category. More specifically, the Handbook does not provide the 
1 All references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/OCO/. The excerpts of the Handbook regarding the duties and requirements of the referenced 
occupational category are hereby incorporated into the record of proceeding. 
4 
Matter ofT-J-C- Inc. 
typical duties and responsibilities for "Computer Occupations, All Other." It also does not provide 
any information regarding the academic and/or professional requirements for these positions. Thus, 
the Handbook does not support the claim that the occupational category here is one for which 
normally the minimum requirement for entry is a baccalaureate degree (or higher) in a specific 
specialty, or its equivalent. 
We note that there are occupational categories which are not covered in detail by the Handbook, as 
well as occupations for which the Handbook does not provide any information. The Handbook 
states the following about these occupations: 
Although employment for hundreds of occupations are covered in detail in the 
Occupational Outlook Handbook, this page presents summary data on additional 
occupations for which employment projections are prepared but detailed occupational 
information is not developed. For each occupation, the Occupational Information 
Network (O*NET) code, the occupational definition, 2012 employment, the May 
2012 median annual wage, the projected employment change and growth rate from 
2012 to 2022, and education and training categories are presented. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Data for Occupations Not Covered in Detail," http://www.bls.gov/ooh/About/Data-for­
Occupations-Not-Covered-in-Detail.htm (last visited Oct. 28, 2015). 
Thus, the narrative of the Handbook indicates that there are many occupations for which only brief 
summaries are presented and that detailed occupational profiles for these occupations are not 
developed.2 The Handbook suggests that for at least some of the occupations, little meaningful 
information could be developed. 
Accordingly, in certain instances, the Handbook is not determinative. When the Handbook does not 
support the proposition that a proffered position is one that meets the statutory and regulatory 
provisions of a specialty occupation, it is incumbent upon the petitioner to provide persuasive 
evidence that the proffered position more likely than not satisfies the statutory and regulatory 
provisions, including this or one of the other three criteria, notwithstanding the absence of the 
Handbook's, support on the issue. In such case, it is the petitioner's responsibility to provide 
probative evidence (e.g., documentation from other objection, authoritative sources) that supports a 
finding that the particular position in question qualifies as a specialty occupation. Whenever more 
2 We note that occupational categories for which the Handbook only includes summary data includes a range of 
occupations, including for example, postmasters and mail superintendents; agents and business managers of artists, 
performers, and athletes; farm and home management advisors; audio visual and multimedia collections specialists; 
clergy; merchandise displayers and window trimmers; radio operators; first-line supervisors of police and detectives; 
crossing guards; travel guides; agricultural inspectors, as well as others. 
5 
(b)(6)
Matter ofT-J-C- Inc. 
than one authoritative source exists, an adjudicator will consider and weigh all of the evidence 
presented to determine whether the particular position qualifies as a specialty occupation. 
On appeal, the Petitioner indicates that according to the Occupational Information Network 
(O*NET), the occupational category "Computer Occupations, All Other" encompasses multiple 
occupations, including "Search Marketing Strategists." The Petitioner claims that "Search 
Marketing Strategists" is the most relevant occupational category for the proffered position. 
The Petitioner also claimed that a,ccording to O*NET, a Bachelor's degree is the standard minimum 
requirement for "Search Marketing Strategists" positions. However, under the subsection entitled 
"Education," O*NET states that "[ m ]ost of these occupations require a four-year bachelor's degree, 
but some do not." Moreover, O*NET does not state that a degree must be in a specific specialty. As 
noted previously, 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 proffered position. Although a general-purpose bachelor 's degree 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. Cherto.ff, 484 F.3d 139, 147 (1st Cir. 2007). 
The Petitioner also submitted an article titled ' from 
However, the article does not indicate that a bachelor's degree or its 
equivalent in a specific specialty is normally the minimum requirement for entry into the proffered 
position. While it states "a bachelor's 
degree is the minimum educational level required for this type 
of profession," it also states "[ c ]ommon majors are marketing , computer science, and business 
administration. " Again, USCIS has 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 finding that a particular position 
qualifies for classification as a specialty occupation. See Royal Siam Corp. v. Cherto.ff, 484 F.3d at 
147. Moreover, the Petitioner did not provide additional information regarding the article to 
establish that it is from anauthoritative source. 
In this case, the Petitioner has not established that the proffered position falls under an occupational 
category for which the Handbook, or other authoritative source, indicates that normally the 
minimum requirement for entry is at least a bachelor's degree in a specific specialty, or its 
equivalent. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions 
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(b)(6)
Matter ofT-J-C- Inc. 
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 1151, 1165 (D. Minn. 
1999) (quotingHird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook (or other independent, authoritative source) reports a standard industry-wide 
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. 
There are no submissions from the industry 's professional association indicating that it has made a 
degree a minimum entry requirement and no submission of letters or affidavits from firms or 
individuals that attest that such firms routinely employ only individuals with a degree in a specific 
specialty. 
In support of the assertion that the degree requirement is common to the Petitioner's industry in 
parallel positions among similar organizations, the Petitioner submitted copies of job advertisements. 
However, upon review of the documents, we find that the Petitioner 's reliance on the job 
announcements is misplaced. 
As noted, the Petitioner stated that it is a nationally broadcast direct-sales television channel 
established in with 7 50 employees and $104 million in gross income. The Petitioner 
designated its business operations under the N AICS code 448310. We note that this code is 
designated as "Jewelry Stores."3 The U.S. Department of Commerce, Census Bureau website 
describes this NAICS code by stating the following: 
This industry comprises establishments primarily engaged in retailing one or 
more of the following items: (1) new jewelry (except costume jewelry); (2) new 
sterling and 
plated silverware; and (3) new watches and clocks. Also included are establishments 
retailing these new products in combination with lapidary work and/or repair services. 
3 According to the U.S. Census Bureau , the North American Industry Classification System (NAICS) is used to classify 
business establishments according to type of economic activity and each establishment is classified to an industry 
according to the primary business activity taking place there. See http://www.census.gov /eos/www/naics/ (last visited 
Oct. 28, 20 15). 
(b)(6)
Matter ofT-J-C- Inc. 
See U.S. Dep't of Commerce, U.S Census Bureau, 2007 NAICS Definition, 448310-Jewelry Stores, 
on the Internet at http://www.census.gov/cgi-bin/sssd/naics/naicsrch 
(last viewed Oct. 28, 2015). 
For the Petitioner to establish that an organization is similar, it must demonstrate that it shares 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 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). Notably, it is not sufficient 
for the Petitioner to claim that an organization is similar and in the same industry without providing 
a legitimate basis for such an assertion. 
The Petitioner did not establish that the job postings are from organizations similar to the Petitioner. 
For instance, the advertisements include positions with 
and The Petitioner did not supplement the record of proceeding 
with additional information or state which aspects or traits it shares with the advertising 
organizations. Consequently, the record is devoid of sufficient information regarding the employers 
to conduct a legitimate comparison of the organizations to the Petitioner. The Petitioner did not 
supplement the record of proceeding to establish that these employers are similar to it. 
Moreover, for the advertisements submitted, including the two ads from the 
advertisements do not appear to be for parallel positions. More specifically, the job posting by 
for an eCommerce Analyst requires a general bachelor's degree and "at least 2-3 
years of business/financial analysis background ... as well as knowledge of direct 
marketing/merchandising and performance metrics." Further, the job positing for an eCommerce 
Site Operations Analyst requires a general bachelor's degree and "2-3 years in a Business to 
Consumer ecommerce environment." As previously discussed, the Petitioner designated the 
proffered position as an entry-level position on the LCA. The advertised positions appear to be for 
more senior positions and/or do not list the same requirements as the proffered position. Moreover, 
the Petitioner has not sufficiently established which 
primary duties of the advertised positions are 
parallel to the duties of the proffered position. 
Moreover, some job postings do not indicate that a bachelor's degree in a directly related specific 
specialty is required. For example, the job posting from requires a bachelor's degree, but it 
does not indicate a specific specialty. As discussed, the degree requirement set by the statutory and 
regulatory framework of the H -1 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, not every deficit of every job posting has been addressed. The evidence does not 
Matter ofT-J-C- Inc. 
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. 4 
Therefore, the Petitioner has not established that a requirement of a bachelor's or higher degree in a 
specific specialty, or its equivalent, is common to the Petitioner's industry in positions that are (1) in 
the Petitioner's industry, (2) parallel to the proffered position, and also (3) located in organizations 
that are similar to the Petitioner. For the reasons discussed above, the Petitioner has not satisfied the 
first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
The Petitioner has not explained how 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. This is further evidenced by the LCA submitted by the Petitioner in support of the 
instant petition. The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of 
four assignable wage levels. 5 Without further evidence, the record of proceeding does not indicate 
4 Although the size of the relevant study population is unknown, the Petitioner does not demonstrate what statistically 
valid inferences, if any, can be drawn from these advertisements with regard to determining the common educational 
requirements for entry into parallel positions in similar companies. 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.") 
As such, even if the job announcements supported the finding that the position of accountant for companies that are 
similar to the Petitioner requires a bachelor's or higher degree in a specific specialty, or its equivalent, it cannot be found 
that such a limited number ofpostings that appear to have been consciously selected could credibly refute the findings of 
the Handbook published by the Bureau of Labor Statistics that such a position does not require at least a baccalaureate 
degree in a specific specialty, or its equivalent, for entry into the occupation in the United States. 
5 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage rate is 
described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have 
only a basic understanding of the occupation. These employees perform routine tasks that require 
limited, if any, exercise of judgment. The tasks provide experience and familiarization with the 
employer's methods, practices, and programs. The employees may perform higher level work for 
training and developmental purposes. These employees work under close supervision and receive 
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Matter of T-J-C- Inc. 
that the proffered position is complex or unique as such a position falling under this occupational 
category would likely be classified at a higher-level, such as a Level III (experienced) or Level IV 
(fully competent) position, requiring a significantly higher prevailing wage.6 For example, a Level 
IV (fully competent) position is designated by DOL for employees who "use advanced skills and 
diversified knowledge to solve unusual and complex problems." 7 The evidence of record does not 
establish that this position is significantly different from other positions in the occupational category 
such that a bachelor's degree in a specific specialty or its equivalent is not required for the proffered 
position. 
Upon review, we find that the Petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. 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 did not establish that its particular position is so complex or unique that it can only be 
performed by an individual with at least a bachelor's degree in a specific specialty, or its equivalent. 
Therefore, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
specific instructions on required tasks and results expected. Their work is closely monitored and 
reviewed for accuracy. Statements that the job offer is for a research fellow, a worker in training, or an 
internship are indicators that a Level I wage should be considered. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_2009.pdf. 
Thus, in accordance with the relevant DOL explanatory information on wage levels, this wage rate indicates that the 
beneficiary is only required to have a basic understanding of the occupation and carries expectations that the beneficiary 
perform routine tasks that require limited, if any, exercise of judgment; that she would be closely supervised; that her 
work would be closely monitored and reviewed for accuracy; and that she would receive specific instructions on required 
tasks and expected results. DOL guidance indicates that a Level I designation should be considered for positions in 
which the employee will serve as a research fellow, worker in training, or an intern. 
6 The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its claim 
that the position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an entry-level 
position would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for 
entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty 
occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific 
specialty or its equivalent. That is, a position's wage level designation may be a consideration but is not a substitute for a 
determination of whether a proffered position meets the requirements of section 214(i)(l) of the Act. 
7 For additional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & Training 
Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available 
at http://www.tlcdatacenter.com/download/NPWHC _Guidance_ Revised_11_2009.pdf. 
10 
Matter ofT-J-C- Inc. 
The employer normally requires a baccalaureate or higher degree in a 
spec?fic specialty, or its equivalent, for the position 
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. To 
this end, we review the Petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the petitioner artificially 
created a token degree requirement, whereby all individuals employed in a particular position 
possessed a baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor 
v. Meissner, 201 F.3d at 388. In other words, if a petitioner's stated degree requirement is only 
designed to artificially meet the standards for an H-lB 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"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. USCIS must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the 
specific specialty as the minimum for entry into the occupation as required by the Act. 
While the Petitioner asserted that a bachelor's degree in Media and Management, eCommerce or 
Digital Media or related field is required for the proffered position, the Petitioner did not indicate 
that it has a history of recruiting and hiring only persons with at least a bachelor's degree in a 
specific specialty, or its equivalent. Therefore, the Petitioner has not established 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, and has not satisfied the third criterion of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
11 
Matter ofT-J-C- Inc. 
The nature of the specific duties is so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree in a specffic specialty, or its equivalent 
The fourth criterion at 8 C.P.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. 
Upon review of the record of the proceeding, we note that the Petitioner has not provided sufficient 
evidence to satisfy this criterion of the regulations. In the instant case, relative specialization and 
complexity have not been credibly developed by the Petitioner as an aspect of the proffered position. 
That is, the proposed duties have not been described with sufficient specificity to establish that they 
are more specialized and complex than positions that are not usually associated with at least a 
bachelor's degree in a specific specialty, or its equivalent. 
We further 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 (the lowest of 
four assignable wage-levels) relative to others within the occupational category. Without more, the 
position is one not likely distinguishable by relatively specialized and complex duties. That is, 
without further evidence, the Petitioner has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a substantially higher prevailing wage. 8 
The Petitioner has submitted insufficient evidence to satisfy this criterion of the regulations. We, 
therefore, conclude that the Petitioner did not satisfy the criterion at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.P.R. § 214.2(h)( 4 )(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. 
III. CONCLUSION AND ORDER 
As discussed, the evidence of record does not demonstrate that the proffered position is a specialty 
occupation. Consequently, the matter will be remanded to the Director for further review and 
issuance of a new decision. 
8 As previously discussed, 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. 
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Matter of T-J-C- Inc. 
ORDER: The matter is remanded to the Director for further proceedings consistent with the 
foregoing opinion and for the entry of a new decision. 
Cite as Matter ofT-J-C- Inc., ID# 15530 (AAO Nov. 5, 2015) 
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