U.S. Citizenship and Immigration Services

MATTER OF C-, INC.

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAY 30, 2019

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

The Petitioner, a full service digital communications agency, seeks to temporarily employ the Beneficiary as a "business analytics and data analyst" under the H-1B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and practical application of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position.

The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did not establish that the proffered position qualifies as a specialty occupation.

On appeal, the Petitioner submits a brief and additional evidence, contending that the proffered position qualifies as a specialty occupation.

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.

1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010).

Matter of C-, Inc.

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) 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000).

11. PROFFERED POSITION

On the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner indicated that the Beneficiary will serve as a "business analytics and data analyst" at itsl I location. In response to the Director's request for evidence (RFE), the Petitioner described the duties of the proffered position as follows:

Responsi bi I ities Perform algorithm implementation and evaluation for statistical machine learning based solutions for multiple business analytics use cases. This includes:

• Being responsible for requirements gathering and collecting, organizing and analyzing statistical data from a wide-range of consumer-generated media content and datasets.

• Prototyping analytical and machine learning classifiers through data testing, data validation, software data analysis, exploring NLP algorithms and deep neural networks.

• Creating scripts and automated algorithms for building complex data models on Python and VBA that wi 11 then allow [the

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Beneficiary] to manipulate "big data" and scalable "big data" platforms in order to perform simulations and automate processes that will help enhance both [the Petitioner] and his team's efficiency. These simulations shall farther assist our company and client's in developing practical solutions to business and operational problems using a data-heavy and analytical approach, and

• Ensuring that data preparation steps, system architecture, and relevant testing techniques are properly available and implemented to ensure successful collection of "Big Data" sets. This includes confirming that [ the Petitioner] maintains parallel software running on an abundant number of servers for "Big Data" capture, curation, storage, search, sharing, analysis, and data visualization issues.

Data Analysis: As our Business Analytics & Data Analyst, [the Beneficiary] will also be responsible for performing quantitative/qualitative analyses on social media data and metrics. This includes:

• Performing sentiment analysis in order to farther understand the conversations occurring on social media and isolating relevant social media conversations using Boolean keyword queries as well as social media listening tools, such as Crimson Hexagon, Brandwatch, Sysomos, etc.

• Developing and configuring detailed reports using data visualizations skills and SQL queries to determine key performance indicators and creating keyword strings and words for use for data mining. During this data mining process, [ the Beneficiary] will farther engage in specific keyword query designs, data cleaning and data refinement techniques as well as data enrichment and data visualization.

• Participating in a quality analysis assessment of the recorded data using social media analytical tools and research methodologies to perform a thorough and advanced measurement and quantitative analytics analysis regarding the social media interpretation and implications behind the collected numbers and statistics.

• Categorizing data analysis under specific social media metrics, such as volume, voice, sentiment, domain, venue, depth, authors, shared links, record content, client verticals, etc.

• Gathering and formulating this industry information and data sets into an operational data report that is charted and explained to [the Petitioner's] client's to improve their performance capabilities by breaking down the data into different dimensions

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50%

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and by rendering relevant business intelligence solutions based on their personalized business environments, and

• Searching for new social media metrics to track innovations and online content for operational research and analytical purposes.

Data Retrieval and Persistence Infrastructure: [The Beneficiary] will be responsible for [the Petitioner's] data retrieval and persistence infrastructure functions, including performing ETL (Extraction, Transformation, and Loading) development work for social data acquisition, processing and storage. This includes the following:

• Extracting and analyzing raw statistical data and datasets and, in tum, implementing statistical metrics like Time series, Social relevance score, Influence score, Tf-Idf and Taxonomy associations into reports for data modeling and for quantitative analytics analysis.

• Collaborating with our Engineering Team to bring analytical prototypes to production utilizing his familiarity with Big Data frameworks and data visualization tools, such as Tableau.

• Writing SDK and data pipelines and software for data collection, including merging data with external sources, cleansing data, and structuring data for downstream processing, and

• Implementing the infrastructure persistence layer within Entity Framework Core in order to permanently store data. This infrastructure persistence layer will regularly interact with the data access layers and will manage the queries written to interact with the data access layer throughout the systems and data architecture.

35%

The Petitioner initially stated that the skills required to perform the duties of the proffered position "could only be acquired through a structured university program, at a baccalaureate-level program or higher." On appeal, the Petitioner states that in its response to the RFE, it "made it clear that it required a quantitative-based degree," and states that it will accept bachelor's degrees in the quantitative fields of statistics, mathematics, analytics, or computer science for the proffered position.

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.

2 The Petitioner submitted documentation to support the H- IB 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.

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A. Minimum Position Requirements

Preliminarily, the Petitioner's claimed entry requirement of at least a bachelor's degree "in a quantitative field," such as statistics, mathematics, analytics, or computer science, does not denote a requirement in a specific specialty.

On appeal, the Petitioner references the definition of "quantitative" as observed by the Merriam-Webster dictionary as well as various universities, and points out that this term deals with both measurements of quantity as well as numerical/geometric or deductive/probabilistic reasoning, and suggests that degree programs in statistics, mathematics, analytics, or computer science meet these requirements. However, the Petitioner does not provide any documentation establishing that all of these degree programs are closely related so that the required "body of highly specialized knowledge" would essentially be the same. Specifically, while we note the Petitioner's reliance on the Simon Fraser University's definition of quantitative/analytic courses of study, the record does not establish that all of these degree programs have are composed of courses that have quantitative or formal reasoning as part of their primary subject matter, or that "make substantial use of such reasoning use of such reasoning in practical problem solving, critical evaluation, or analysis.

A petitioner must demonstrate that the proffered position requires a precise and specific course of study that relates directly and closely to the position in question. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). In this matter, the Petitioner's claim seems to demonstrate that the knowledge required to perform the proffered position does not require a precise and specific course of study, but rather requires concepts that are taught in various quantitative disciplines. 3 There are many disparate disciplines within the social and physical sciences that have quantitative underpinnings. Acceptance of degrees that appear related only through basic quantitative principles conflicts with the statutory definition of a specialty occupation, which requires a bachelor's degree in "the specific specialty."4 Section 2 l 4(i)(l) of the Act ( emphasis added).

In this matter, the Petitioner has not established that a degree in statistics, a degree in mathematics, a degree in analytics, and a degree in computer science are all closely related fields, such that the "body of highly specialized knowledge" would essentially be the same. The Petitioner also has not established that all quantitative disciplines would be directly related to the duties and responsibilities of the proffered position. Absent this evidence, we cannot conclude that the particular position proffered in this matter requires the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor's or higher degree in the specific specialty (or its

3 The Petitioner claims that the proffered position requires a bachelor's degree in a quantitative discipline and then provides examples of four broad and diverse fields: statistics, mathematics, analytics, and computer science. Again, however, the Petitioner does not establish how each of the sample degrees are directly related to the duties and responsibilities of the particular position. 4 Whether read with the statutory "the" or the regulatory "a," both readings denote a singular "specialty." Section 214(i)(l)(B) of the Act; 8 C.F.R. ~ 214.2(h)(4)(ii). Still, we do not so narrowly interpret these provisions to exclude positions from qualifying as specialty occupations if they permit, as a minimum entry requirement, degrees in more than one closely related specialty. This also includes even seemingly disparate specialties provided the evidence of record establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the particular position. The Petitioner has not provided this information here.

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equivalent) as a minimum for entry into the occupation in the United States. The Petitioner has not satisfied the definition of specialty occupation as set out in the Act. However, for thoroughness, we will now address the Petitioner's more specific assertions on appeal.

B. First Criterion

We tum next to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]), which requires that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses. 5

On the labor condition application (LCA) submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the occupational category "Operations Research Analysts" ( corresponding to the Standard Occupational Category code 15-2031 ). 6 The subchapter of the Handbook titled "How to Become an Operations Research Analyst" states, in relevant part, "although some employers prefer to hire applicants with a master's degree, many entry-level positions are available for those with a bachelor's degree."7 The Handbook farther states, that while "some schools offer bachelor's and advanced degree programs in operations research, some analysts have degrees in other technical or quantitative fields, such as engineering, computer science, analytics, or mathematics."8 The Handbook indicates farther that courses in various fields such as engineering, mathematics, computer science, economics, and political science are useful because "operations research is a multidisciplinary field with a wide variety of applications."9 Because the Handbook recognizes this occupation as multidisciplinary, and does not identify a specific discipline to perform the duties of the occupation, the Handbook does not support a conclusion that these positions comprise an occupational group for which normally the minimum requirement for entry is at least a bachelor's degree in a specific specialty, or its equivalent.

The Petitioner also references DOL's Occupational Information Network (O*NET) summary report for "Operations Research Analysts" listed under SOC 15-2031 for our consideration under this criterion. Though relevant, the information the Petitioner submits from the O*NET does not establish the Petitioner's eligibility under the first criterion, as it does not establish that a bachelor's degree in a specific specialty, or the equivalent, is normally required. The summary report provides general

5 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. To satisty the first criterion, however, the burden ofproofremains 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. 6 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-lB 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 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). 7 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Operations Research Analysts, https://www.bls.gov/ooh/math/operations-research-analysts.htm#tab-4 (last visited May 29, 2019). 8 Id. 9 Id.

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information regarding the occupation; however, it does not support the Petitioner's assertion regarding the educational requirements for these positions. For example, the Specific Vocational Preparation (SVP) rating, which is defined as "the amount oflapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation," cited within the O*NET's Job Zone designates this occupation as having an SVP of 8. 0 and above. 10 This indicates that the occupation requires "over 4 years up to and including 10 years" of training.

While the SVP rating provides the total number of years of vocational preparation required for a particular position, it is important to note that it does not describe how these years are to be divided among training, formal education, and experience - and it does not specify the particular type of degree, if any, that a position would require. 11 Further, the summary report provides the educational requirements of"respondents," but does not account for 100% of the "respondents." The respondents' positions within the occupation are not distinguished by career level (e.g., entry-level, mid-level, senior-level). Additionally, the graph in the summary report does not indicate that the "education level" for the respondents must be in a specific specialty.

The Petitioner cites to Residential Finance Corp. v. US. Citizenship and Immigration (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 214(i)(l )(B) of the Act. In such a case, the required "body of highly specialized knowledge" would essentially be the same. Since there must be a close correlation between the required "body of highly specialized knowledge" and the position, however, a minimum entry requirement of a degree in 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 field is directly related to the duties and responsibilities of the particular position such that the required body of highly specialized knowledge is essentially an amalgamation of these different specialties. Section 214(i)(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.

The Petitioner also cites Tapis Int'l v. Immigration and Naturalization Service, 94 F. Supp. 2d 172, 175-76 (D. Mass. 2000) to support the premise that the knowledge obtained while earning a degree, not the title of the degree, is the focus of the specialization requirement, particularly where a specific degree is not available in a particular field.

10 https://onetonline.org/link/summary/15-2031.00 (last visited May 29, 2019). 11 https://www.onetonline.org/help/online/svp (last visited May 29, 2019).

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In Tapis, the district court found that, although the former Immigration and Naturalization Service (INS) reasonably required a bachelor's degree in a specific field, it abused its discretion by ignoring the portion of the regulations that allows for the equivalent of a specialized baccalaureate degree. According to the district court, the INS' s interpretation was not reasonable because then H-1 B visas would only be available in fields where a specific degree was offered, ignoring the statutory definition allowing for "various combinations of academic and experience based training." Id. at 176. The court elaborated that "[i]n fields where no specifically tailored baccalaureate program exists, the only possible way to achieve something equivalent is by studying a related field (or fields) and then obtaining specialized experience." Id. at 177. Under Tapis, a petitioner could demonstrate the equivalent of a specialized bachelor's degree if "the employer can show that [it] requires a certain type of bachelor's degree ([ e.g.,] business or marketing) in addition to specialized experience or training ([e.g.,] design)." Id. at 176 (emphasis in the original).

The Petitioner does not establish that Tapis is applicable here, as it does not discuss how the varied minimum requirements for the instant position are analogous to the fact pattern presented in Tapis. Thus, we are not persuaded by the Petitioner's citation to Tapis.

We also do not conclude that the Tapis court states that any position can qualify as a specialty occupation based solely on the claimed requirements of a petitioner. Instead, we 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, 201 F.3d 384. The focus is neither the title of the position, the knowledge of the beneficiary, nor 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 a specific specialty as the minimum for entry into the occupation as required by the Act.

The Petitioner also cites to Raj and Co. v. USCIS, 85 F. Supp. 3d 1241, 1246 (W.D. Wash. 2015) for the proposition that "there is no mandate that a degree requirement be in a singular, specific field." Upon review, it appears that the Petitioner misinterprets Raj and confuses the issue of a beneficiary's qualifications with the issue of a proffered position's qualifications as a specialty occupation. 12 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.

In Raj, the court stated that a specialty occupation requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent. 13 The court confirmed that this issue is well-settled in

12 Again, the test to establish a position as a specialty occupation is not the skill set or education of a proposed beneficiary, but whether the position itself qualifies as a specialty occupation. Thus, whether or not the Beneficiary in this case has completed a specialized course of study directly related to the proffered position is irrelevant to the issue of whether the proffered position qualifies as a specialty occupation, i.e., whether the duties of the proffered position require the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent. Section 2 l 4(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4 )(ii). 13 The court in Raj determined that the evidence in the record demonstrated that the particular position proffered required a bachelor's degree in market research or its equivalent as a minimum for entry. Further, the court noted that "[t]he patently

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case law and with USCIS' reasonable interpretation of the regulatory framework. In the decision, the court noted that "permitting an occupation to qualify simply by requiring a generalized bachelor degree would run contrary to congressional intent to provide a visa program for specialized, as opposed to merely educated, workers." The court stated that the regulatory provisions do not restrict qualifying occupations to those for which there exists a single, specifically tailored and titled degree program; but rather, the statute and regulations contain an equivalency provision.

We agree with the court that a specialty occupation is one that requires the attainment of a bachelor's or higher degree in a specific specialty or its equivalent. The occupational category designated by a petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook on the duties and educational requirements of the wide variety of occupations that it addresses.

However, we again note that the degree requirement set by the statutory and regulatory framework of the H-1B program is not just a bachelor's or higher degree, but a bachelor's degree in a specific specialty that is directly related to the duties of the position. See section 2 l 4(i)(l )(b) of the Act, 8 C.F.R. § 214.2(h)(4)(ii). To be consistent with this statutory and regulatory framework, we construe the term "degree" in this and other criteria to mean not just any bachelor's or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal Siam Corp., 484 F.3d at 147.

In any event, the Petitioner has famished no evidence to establish that the facts of the instant petition are analogous to those in Residential Finance, Tapis, or Raj. 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 Matter 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. Id.

The Petitioner also references Next Generation Tech., Inc. v. Johnson, (S.D.N.Y. Sept. 29, 2017) as relevant here. We disagree. The court in Next Generation discussed our reading of the Handbook's discussion of the entry requirements for positions located within a different and separate occupational category "Computer Programmers" rather than the "Operations Research Analysts" category designated by the Petitioner in the LCA relating to this case. As noted above, the Handbook specifically states that "operations research is a multidisciplinary field with a wide variety of applications."

Moreover, the court in Next Generation relied in part on a USCIS policy memorandum regarding "Computer Programmers" indicating generally preferential treatment toward computer programmers,

specialized nature of the position sets it apaii from those that merely require a generic degree." The position in Raj can, therefore, be distinguished from the instant position. As we have found, here the duties and requirements of the position as described in the record of proceeding do not indicate that this particular position proffered by the petitioner is one for which a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry.

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Matter of C-, Inc.

and "especially" toward companies in that particular petitioner's industry. However, USCIS rescinded the policy memorandum cited by the court in Next Generation Tech. Inc. 14

The record lacks sufficient evidence to support a finding that the proffered position is one for which a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry. For the aforementioned reasons, 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. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I).

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).

1. First Prong

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)).

As previously discussed, the Petitioner has not established that its proffered position is one for which the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree in a specific specialty, or its equivalent. We incorporate by reference the previous discussion on the matter. Also, there are no submissions from the industry's professional association indicating that it has made a degree a minimum entry requirement.

In su[port of this prong of the criterion, the Petitioner submitted three o inion letters. The first letter, from_ I Director of Research and Co-Founder of states that his company is a direct competitor of the Petitioner. According to~---- it is an industry standard to require "at least a baccalaureate degree in a related specialty . . or an equivalent quantitative academic area." The second letter, from I I Chief Technology Officer of I I also

14 See USCIS Policy Memorandum PM-602-0142, Rescission of the December 22, 2000 ''Guidance memo on HJB computer related positions" (Mar. 31, 2017), https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H- l BComputerRelatedPositionsRecission.pdf.

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indicates that this company is a competitor of the Petitioner, and that "an undergraduate degree in specific quantitative fields ... is a necessary prerequisite for qualification into this occupation." We note several deficiencies with these claims.

First, the Petitioner has not demonstrated that these organizations are similar. 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). It is not sufficient for the Petitioner to claim that an organization is similar and conducts business in the same industry without providing a legitimate basis for such an assertion. Although we note the submission of website excerpts for each company, the vague information contained in each document is insufficient to establish that these organizations are similar to the Petitioner.

Second, neither company asserts that they currently employ business analytics and data analysts that hold the credentials they deem mandatory. They provide no evidence of their staffing or hiring history, nor do they submit evidence to establish that they routinely employ business analytics and data analysts that hold bachelor's degrees in specific quantitative fields. Moreover, we note that each writer indicates a willingness to accept degrees in unspecified quantitative fields, which runs contrary to the requirement of a bachelor's degree, or its equivalent, in a spec[fic specialty.

For these reasons, we find the letters from I I andl l insufficient to establish that a bachelor's or higher degree in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar organizations.

The Petitioner submitted a third o inion letter fro , Professor oflnformation Systems atl !University. L---r---,__ __ ...Jconcludes not that the proffered position is a specialty occupation, but rather that~--~University's business analytics program, from which the Beneficiary earned a degree, is sufficient to qualify the Beneficiary to perform the duties of the proffered position. We carefully evaluated the assertions of I I but, for the following reasons, determined his opinion lent little probative value.

First, he opines about the Beneficiary's specific coursework while enrolled atl I and not with regard to the duties of the proffered position or the occupation in general. He does not discuss the duties of the proffered position in any substantive detail. To the contrary, he simply listed various courses that he claims qualified the Beneficiary, and would qualify other individuals, to perform the duties of the business analytics and data analyst position proffered here. This opinion comments generally on the Beneficiary's academic qualifications, and not whether an industry standard for a degree in a specific specialty exists for this occupation.

The Petitioner therefore has not demonstrated that~-------~s letter supports its assertion that the proffered position qualifies as a specialty occupation. In other words, we find that he did not possess the requisite information to adequately assess the nature of the position. As such, we find that his letter lends little probative value. Matter of Caron Int'!, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not required to accept or may give less weight to an advisory opinion when it is "not in accord with other information or is in any way questionable."). For efficiency's sake, we hereby

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incorporate the above discussion regarding the letter into our analysis of each criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A).

The Petitioner also submitted copies of several job announcements placed by other employers. The Petitioner asserts that these job announcements demonstrate that a minimum of a bachelor's degree in a related quantitative qualifying discipline is standard in parallel positions among similar organizations. However, we find that the Petitioner's reliance on the job announcements is misplaced. To be relevant for this consideration, the job announcements must advertise "parallel positions" and the announcements must have been placed by organizations that (1) conduct business in the Petitioner's industry and (2) are also "similar" to the Petitioner. These job announcements do not satisfy that threshold.

We first consider whether the advertising organizations are similar to the Petitioner. As noted above, when determining whether the Petitioner and the organization making a job announcement share the same general characteristics, factors to be considered 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. The Petitioner states that it is a digital communications agency with 23 employees and a gross annual income of approximately $5 million. The job listings and supporting documentation submitted by the Petitioner are from multinational organizations such as Facebook, Amazon, and WB Digital Labs, a subsidiary of Warner Brothers, which are significantly more expansive than the Petitioner. Other advertising organizations, such as Oath's People Analytics, which employs 11,000 individuals, are also significantly larger than the Petitioner in size and scope. SheKnows Media does not include sufficient information regarding its operations, but its claim that it averages 60 million unique visitors per month suggests its operations are significantly more expansive than those of the Petitioner. Consequently, nearly all of the corporate entities the Petitioner relies upon are not sufficiently similar in size or operational scope to the petitioning organization.

Next, we consider whether the advertised job opportunities are for "parallel" positions. We find that several of the job listings are not for positions which are "parallel" to the proffered position in terms of seniority and required experience. For example, the Ascend Leaming position requires a degree plus 2-6 years of experience, and the posting by an undisclosed "fashion industry company" requires 2-3 years of experience in addition to a degree. Given the Petitioner's classification of the proffered position as a Level I, entry-level position, it appears that several of these postings are for higher-level positions than that of the one proffered here. Therefore, we do not find sufficient evidence substantiating that these advertised positions are "parallel" to the proffered position.

Further, the advertised positions do not indicate that a bachelor's degree in a specific specialty, or the equivalent, is common to the industry in parallel positions among similar organizations. The Petitioner states that its position requires a degree in "a quantitative field," such as statistics, mathematics, analytics, or computer science. Several advertisements generally stated they would accept degrees in "related fields" or a "quantitative field," but they do not specify what fields they deem "quantitative" or "related." It is farther noted that several advertisements stated that they would accept degrees in fields Petitioner did not specifically list, such as business, economics, marketing, management information systems, and finance. The Petitioner has not provided documentation specifically

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indicating that these fields are closely related to statistics, mathematics, analytics, or computer science, or that they are closely related to the duties of the proffered position.

The documentation does not establish that the Petitioner has met this prong of the regulations. Therefore, farther analysis regarding the specific information contained in each of the job postings is not necessary. 15

For the reasons outlined above, the Petitioner has not satisfied the first alternative prong of the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

2. Second Prong

We will now 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 record does not include sufficient information relevant to a detailed course of study leading to a specialty degree and the Petitioner has not established how such a curriculum is necessary to perform the duties it claims are so complex or unique. While we note~-------~ s opinion with regard to the business analytics program atl !University, we do not find that his letter, which generally comments on the courses associated with the degree program, sufficiently addresses the proffered position such that we can conclude that the 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.

Moreover, the Petitioner's job description lacks sufficient details establishing the complexity or uniqueness of the job duties, such that it can establish that it requires someone with a degree in statistics, mathematics, analytics, or computer science. For example, the Petitioner states that the Beneficiary will devote 50% of his time to performing quantitative/qualitative analyses on social media data and metrics, which includes tasks such as categorizing data analysis, gathering and formulating industry information and data sets into data reports, and "searching for new social media metrics to track innovations and online content for operational research." Absent more information, the level of complexity and uniqueness of these duties is unclear, and it is not readily apparent that the performance of these duties requires a degree in statistics, mathematics, analytics, or computer science.

The Petitioner claims that the Beneficiary is well qualified for the pos1t10n and references his qualifications. However, the test to establish a position as a specialty occupation is not the education or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's degree in a specific specialty, or its equivalent. Here, 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.

15 We also note that the Petitioner did not provide any independent evidence of how representative the job postings are of the particular advertising employers' recruiting history for the type of job advertised.

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Matter of C-, Inc.

Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. § 214.2(h)( 4)(i i i)(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 record must establish that a petitioner's stated degree requirement is not a matter of preference for high-caliber candidates but is necessitated instead by performance requirements of the position. See Defensor, 201 F.3d at 387-88. Were USCIS limited solely to reviewing the 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 created a token degree requirement. Id. Evidence provided in support of this criterion may include, but is not limited to, documentation regarding the Petitioner's past recruitment and hiring practices, as well as information regarding employees who previously held the position.

Here, the Petitioner provides a list of its full-time employees, along with their job titles and degree information, and asserts that "all of [its] full-time employees possess at least an undergraduate degree. The Petitioner concludes that this should act as "prima facie" evidence that it requires an undergraduate degree for its professional employment positions.

Under this criterion, the Petitioner must demonstrate that it normally requires at least a bachelor's degree in a specific specialty for the proffered position. The list provided does not identify any other business analytics and data analyst positions aside from the Beneficiary. There is no documentation of past workers, if any, that it has hired for the proffered position. While we acknowledge the Petitioner's claim that it requires all professional employees to have an undergraduate degree, the evidence of record does not support the assertion that it normally requires at least a bachelor's degree in a specific specialty, or its equivalent, directly related to the duties of the position. The Petitioner has not satisfied the third criterion of 8 C.F.R. 212.2(h)(4)(iii)(A).

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 specific specialty, or its equivalent.

Here, the Petitioner claims that its detailed description of the duties of the proffered position, combined with the opinion letters previously submitted and various university articles regarding the field of business analytics, satisfy the requirements of this criterion. We disagree. As previously discussed, we find the opinion letters lack substantial basis to adequately assess the nature of the position. The evidence, when considered in its totality, is insufficient to demonstrate that the position's nature and its specific duties are so specialized and complex that the knowledge required to perform them is

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Matter of C-, Inc.

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

The record does not include sufficient unambiguous evidence to establish that the proffered position is more complex and specialized than generic operations research analyst positions that can be performed by persons without at least a bachelor's degree in a specific specialty, or its equivalent. Specifically, even though the Petitioner claims that the proffered position's duties are so complex and specialized that a bachelor's degree in a quantitative field is required, the Petitioner does not demonstrate how the duties of the proffered position require the theoretical and practical application of a body of highly specialized knowledge such that a bachelor's or higher degree in a specific specialty, or its equivalent, is required to perform them.

For the same reasons we discussed under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), the record does not sufficiently demonstrate that the duties of the proffered position are more specialized and complex than other positions such 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.

Overall, the evidence ofrecord does not satisfy the fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A).

IV. CONCLUSION

The appeal will be dismissed for the above stated reasons, with each considered an independent and alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 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.

Cite as Matter of C-, Inc., ID# 3741273 (AAO May 30, 2019)

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