U.S. Citizenship and Immigration Services

MATTER OF H-C-M-1-

Non-Precedent Becision of the Administrative Appeals Office

DATE: JUNE 7, 2018

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a human resources consulting services company, seeks to temporarily employ the Beneficiary as a "human capital analytics research analyst" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section lOI(a)(IS)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(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 Petitioner had not established that the protTered position is a specialty occupation.

On appeal, the Petitioner asserts that the Director's decision was erroneous, and states that the Petitioner has established eligibility for the benefit sought.

Upon de novo review, we will dismiss the appeal.

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:

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(/) 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 J 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. Cherto!J, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a particular position").

II. PROFFERED POSITION

The Petitioner seeks to employ the Beneficiary as a "human capital analytics research analyst." In response to the Director's request for evidence, the Petitioner described the duties of the position as follows:

HR data integration, data mining and workforce segmentation, business intelligence database construction and analysis including reconciling global information to establish manual and automated controls to verity data accuracy and certify HR metrics. 20% Technical, statistical and financial analyses of workforce and talent data to research and develop custom and standardized reports, dashboards and materials projects under senior executive direction. Technical analysis using computer applications (e.g. SAS, SPSS, Stata, Microsoft Word, Excel, Access, Visio). 30% Creative research and analyses using statistical and financial modeling techniques such as multivariate regression analysis, cost benefits scenario based workforce cost modeling. Analysis focuses on all areas of talent management life cycle and talent pipeline and in the development I delivery of custom and standard reports, dashboards, and presentations using computer applications (SAS, SPSS, Stata, Microsoft Word, Excel, Access, Visio). 30%-40% Advanced capability in data mining, workforce segmentation and job profiling and benchmarking as well as Technical knowledge to perform complex analyses and discover insights, using computer applications (SAS, SPSS, Stata, SOLVE Pro™,

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Workforce ROI Calculator, Workforce Image Map (WIM™) Microsoft Power Bl, Excel, Access, Visio ). I 0%

Ill. ANALYSIS

Upon review of the record in its totality and for the reasons set out below, the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record does not establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation.

A. Variances in Minimum Requirements

In its letter of support, the Petitioner claimed that the position's duties require an "[ u ]ndergraduate degree in engineering, mathematics, economics or statistics with analytic focus." In response to the Director's RFE, the Petitioner stated that it requires at least a bachelor's degree in engineering, industrial/organizational psychology, economics, statistics with a masters in industrial/organizational psychology preferred, or a closely related field." The Petitioner does not provide an explanation for these variances.

On appeal, the Petitioner again revises its requirements for the position, and states that it does not accept an "array of degrees" for the proffered position, but rather requires an individual with at least a bachelor's degree in psychology or a related field. The Petitioner does not explain why the fields it previously deemed acceptable are no longer relevant. Even if the Petitioner amended its requirements to include a specific discipline directly related to the duties of the proffered position on appeal, and we accepted that amendment, 1 the Petitioner has not explained its reasoning for the initially stated academic requirements.

Moreover, the Petitioner does not establish the relevance of a degree in psychology to the proffered position. A petitioner must demonstrate that the proftered position requires a precise and specific course of study that relates directly to the duties of the position in question. The Petitioner does not establish how courses related to psychology relate to any of the duties described. The Petitioner's ultimate academic requirement of a bachelor's or higher degree-in psychology, without analysis of how such a degree relates to the proffered position, also raises questions regarding the nature of the work described here.

1 On appeal, the Petitioner cannot offer a new position to the Beneficiary, or materially change a position's title, its level of authority within the organizational hierarchy, the associated job responsibilities, or the requirements of the position. The Petitioner must establish that the position offered to the Beneticiary when the petition was tiled merits classitication for the benefit sought. See Mauer of Michelin Tire Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USC IS requirements. See Moller oflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm 'r 1998).

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Notwithstanding the above, we will analyze the position and the evidence of record to determine whether the position as described will qualify for classification as a specialty occupation. To that end and to make our determination as to whether the employment described above qualities as a specialty occupation, we turn to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)2

B. First Criterion

We turn tirst to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which requires that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses.3

On the labor condition application (LCA)4 submitted in support of the petition, the.Petitioner classified the proffered position under the category of "Market Research Analysts and Marketing Specialists," corresponding to Standard Occupational Classification (SOC) Code 13-1 161. Regarding this occupational category, the Handbook states, in pertinent part: "Market research analysts typically need a bachelor's degree in market research or a related tield. Many have degrees in fields such as statistics, math, or computer science. Others have backgrounds in business administration, the social sciences, or communications. '~5

Here, although the Handbook indicates that a bachelor's or higher degree is typically required, it also indicates that baccalaureate degrees in various fields are acceptable for entry into the occupation. We again refer to the Petitioner's varying educational requirements, which range from degrees in engineering, mathematics, economics, statistics, industrial/organizational psychology, and ultimately a general degree in psychology, and note that a degree in a specitic specialty does not appear to be the Petitioner's minimum entry requirement for the proffered position.

2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 3 We do not, however, maintain that the Handbook is the exclusive source of relevant 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 proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position would nonnally have a minimum, specialty degree requirement, or its equivalent, for entry. 4 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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 experience and qualifications who are performing the same services. See Matter ofSimeio Solutions, LLC. 26 l&N Dec. 542, 545-546 (AAO 20 15). ' Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Market Research Analysts (20 16-17 ed.) on the Internet at https:l/www.b1s.gov/ooh/business-and-financial/market-research-analysts.htm#tab-4 (last visited June 6. 20 18). '

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Moreover, in addition to the Handbook recognizing degrees in disparate fields, i.e., social science and computer science as acceptable for entry into this field, the Handbook also states that "[ o ]thers have backgrounds in business administration." 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.Jd at 14 7. The Handbook's report that a general, non-specialty "background" in business administration is sufticient for entry into the occupation strongly suggests that a bachelor's degree in a spec{fic specialty is not a standard, minimum entry requirement for this occupation. The Handbook's recognition that a variety of degrees, that do not require the same specialized body of knowledge leading to a specific degree, as acceptable further demonstrates that a bachelor's degree in a specific specialty is not a standard minimum entry requirement for a market research analyst. As the Handbook indicates that working as a generic market research analyst does not normally requi re at least a bachelor's degree in a specitic specialty or its equivalent for entry into the occupation, it does not support the position proffered here as being a specialty occupation.

In addition, we have reviewed the opinion prepared by a professor at , who repeats the Petitioner's description of duties and claims that the duties of the

proffered position can only be perfonned by someone having at least a bachelor's degree in marketing, psychology, or a related fi eld. indication that a degree in marketing is an acceptable prerequisite for the proffered position seems to contradict the Petitioner's statement on appeal , which indicates that only a psychology degree is acceptable. It also directly contradicts the Petitioner's original claim that the position requires an individual with a degree in engineering, mathematics, economics, or statistics. Nevertheless, given the Petitioner's limited requirement of a psychology degree on appeal, we note that does not provide a substantive foundation to support his conclusion that a degree in psychology is necessary for an individual to perfonn the duties of the proffered position. For example, does not indicate which courses in a psychology major are necessary to perform any of the duties described. We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Maller of Caron In/ '/, Inc., 19 I&N Dec. 79 1, 795 (Comm'r 1988). However, where an opinion is not in accord with other infonnation or_is in any way questionable, we are not required to accept or may give less weight to that evidence. !d. In thi s matter, does not offer a cogent analysis to support his conclusion that only an individual with a bachelor's degree in marketing (a field not required by the Petitioner), psychology, or a related field could perf01m the duties of the proffered position.

also claims to have consulted numerous employment websites when conducting his research, and refers to two advertisements for similar positions that he encountered. However, he does not provide copies of these advertisements. Rather, he claims that these postings are tor

. positions similar to the one proffered here, and that they both require a bachelor' s degree in a related field . The references to these advertisements do not support a conclusion that a degree in a specific specialty is an employer' s typical expectation for a human capital analyt ics research analyst position.

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In addition, the O*NET OnLine Summary Report, referenced by the Petitioner, is insufficient to establish that the proffered position qualifies as a specialty occupation normally requiring at least a bachelor's degree in a specific specialty, or its equivalent. Contrary to the Petitioner's assertions, the O*NET OnLine report relevant to 13-I 161.00 ~Market Research Analysts and Market Specialists does not state a requirement for a bachelor's degree for this occupation. Rather, it assigns this occupation a Job Zone "Four" rating, which groups it among occupations for which "most ... require a four-year bachelor's degree, but some do not." See O*NET OnLine Summary Report for "13-1161.00- Market Research Analysts and Marketing Specialists." Importantly, O*NET OnLine does not indicate that four-year bachelor's degrees required by Job Zone Four occupations must be in a specitic specialty directly related to the occupation.

Further, the summary report provides the educational requirements of "respondents," but the respondents' positions within the occupation are not distinguished by career level (e.g., entry-level, mid-level, senior-level) or other characteristics. Additionally, the graph in the summary report does not indicate that the "education level" for the respondents must be in a specific specialty. Thus, O*NET OnLine provides general information regarding the occupational category, but it does not corroborate the Petitioner's claims that the protfered position requires an educational background, or its equivalent, commensurate with a specialty occupation.

Finally, we note that the Petitioner cites to Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012), for the proposition that "[t]he knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors. What is required is an occupation that requires highly specialized knowledge and a prospective employee who has attained the credentialing indicating possession of that knowledge."

We agree with the aforementioned proposition that "[t]he knowledge and not the title of the degree is what is important." In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in the specific specialty (or its equivalent)" requirement of section 2 I 4(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 two 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 tield is directly related io 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)(l)(B) of the Act (emphasis added). For the aforementioned reasons, however, the Petitioner has not met its burden to establish that the particular position offered in this matter requires a bachelor's or higher degree in a specific specialty, or its equivalent, directly related to its duties in order to perform those tasks.

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In any event, the Petitioner has furnished no evidence to establish that the facts of the instant petition are analogous to those in Residential Finance.6 We also note that, in contrast to the broad precedential authority of the case law of a United States circuit court, we are not bound to follow the published decision of a United States district court in matters arising even within the same district. See Maller of K-S-, 20 I&N Dec. 715, 719-20 (BIA 1993). Although the reasoning underlying a district judge's decision will be given due consideration when it is properly before us, the analysis does not have to be followed as a matter oflaw. !d.

The Petitioner has not provided sufficient documentation from a probative source to substantiate its assertion regarding the minimum requirement for entry into this particular position. The Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(/).

C. Second Criterion

The second criterion presents two, alternative prongs: "The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong concentrates on the common industry practice, ~cYhile the alternative prong narrows the focus to the Petitioner's specific position.

I. First Prong

To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent) is common to the industry in parallel positions among similar organizations.

When determining whether there is such a common degree requirement, factors often considered by U.S. Citizenship and Immigration Services (USCJS) 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) (quoting Hird!Blaker Corp. v. Sm.-a, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)).

6 It is noted that the district judge's decision in that case appears to have been based largely on the many factual errors made by the Director in the decision denying the petition. eWe further note that the Director's decision was not appealed to us. Based on the district court's conclusions and description of the record, if that matter had first been appealed through the available administrative process, we may very well have remanded the matter to the service center for a new decision for many of the same reasons articulated by the district court if these errors could not have been remedied by us in our de novo review of the matter. '•

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Here and as already discussed, the Petitioner has. not established that its proffered position is one for which the Handbook (or other independent, authoritative sources) .reports an 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. Also, there are no submissions from the industry' s professional association indicating that it has made a degree a minimum entry requirement.

We again note reliance on two job advertisements he claims are similar to the proffered position. Absent copies of these job postings, we cannot detem1ine whether they demonstrate that a degree requirement is common to the Petitioner's industry in parallel positions among similar organizations. Moreover, indicated that both postings simply required a bachelor' s degree in a related tield. The advertisers' acceptance of a general degree, without more, is an acknowledgement that the position is not a specialty occupation. See Royal Siam Corp., 484 F.3d at 147. Cf Maller qf Michael Hertz Assocs.' , 19 l&N Dec. 558, 560 (Comm'r 1988).

The Petitioner has not sufficiently established that the proffered position qualities as a specialty occupation under the first prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

2. Second Prong

We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is satisfied if the Petitioner shows that its particular position is so complex or unique that it can be performed only by an individual with at least ;a bachelor' s degree in a specific specialty, or its equivalent.

The Director concluded that the Petitioner's descriptions of the proffered position's duties are too generic to determine whether the nature of the proffered position is sufficiently complex or unique, compared to similar positions within the same industry. On appeal, the Petitioner asserts that it submitted a detailed explanation of job duties in response to the RFE which confirms that at least a bachelor' s degree is req~ired to perform the duties of the position.

Although the description of duties submitted in response to the RFE elaborates on the initial description and provides a percentage breakdown of the time devoted to each task, we conclude that the Petitioner has not sufficiently developed relative complexity or uniqueness as an aspect of the proffered position. For example, although the Petitioner focuses on the technical and analytical requirements of the position, it does not establish how these duties are so complex or unique that they requires at least a bachelor's degree in a specific specialty or its equivalent. Moreover, the Petitioner designated the proffered position as an entry-level position within the occupational category (by selecting a Level I wage). This designation, when read in combination with the Handbook 's account of the requirements for this occupation and the record of proceedings, further suggests that this particular position is not so complex or unique relative to other positions classified under the market research analysts and marketing specialist classification that the duties can only be

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performed by an individual with a bachelor's degree or higher 111 a specific specialty, or its equivalent.

Although the Petitioner claims that the Beneficiary is well-qualified for the position, and references her qualifications, 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. The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks that are so complex or unique that only a specifically degreed individual could perform them.

Therefore, the Petitioner has not sufficiently established that the proffered position qualifies as a specialty occupation under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

D. Third Criterion

The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. The Petitioner does not include information of other individuals the Petitioner has employed in this position. Therefore, the Petitioner has not established its past hiring practices, satisfying the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J).

E. Fourth Criterion

The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature of the specific duties is so specialized and complex that the knowledge required to perform them is

. usually associated with the attainment of a baccalaureate or higher degree in a speci1ic specialty, or its equivalent.

Although the Petitioner stated that the duties of the proposed position are "complex," it emphasized in response to the RFE that this is an entry-level position. The Petitioner reiterates that the Level I wage level designated on the required LCA is correct based on the required mathematical calculations provided by DOL's wage level guidance. The Petitioner has not demonstrated in the record that its proffered position is one with duties sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).

Finally, we will briefly address the Petitioner's statements in response to the RFE distinguishing wage level from specialty occupation. We agree with the general statement that a Level I wage-designation, by itself~ does not preclude a proffered position from classification as a specialty occupation (just as a Level IV wage-designation does not definitively establish such a classification). In certain occupations (e.g., doctors or lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, tor entry.

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Nevertheless, although a position's wage level designation is not itself conclusive evidence, it is still a relevant factor in determining a position's qualification as a specialty occupation. Here, the Petitioner's designation of this position as a Level l, entry-level position undermines its claim that the position is particularly complex, unique, and specialized compared to other positions within the same occupation, for which the Handbook indicates does not normally require at least a bachelor's degree in a specific specialty or its equivalent.

The Petitioner's claims regarding the Beneficiary's academic and experience background also do not establish that the position itself qualifies as a specialty occupation. As noted above, a proposed beneficiary's background does not establish that a position is a specialty occupation; rather, the Petitioner must establish that the proffered position itself, without reference to the Beneficiary's credentials, qualifies as a specialty occupation. Here, the record lacks sufficiently detailed information to distinguish the proffered position as more specialized or more complex than a human capital analytics research analyst position, or other closely related positions, that can be performed by persons without at least a bachelor's degree in a specific specialty, or its equivalent. The record does not satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)( 4).

Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A), it has not demonstrated that the profTered position qualifies as a spe.cialty occupation.

IV. CONCLUSION

The Petitioner has not established the proffered position is a specialty occupation.

ORDER: The appeal is dismissed.

Cite as Maller ofH-C-M-1-, 10# 1320016 (AAO June 7, 2018)

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