U.S. Citizenship and Immigration Services

In Re: 9163716

Appeal of California Service Center Decision

Form 1-129, Petition for Nonimmigrant Worker (H-1B)

Non-Precedent Decision of the Administrative Appeals Office

Date: SEPT. 3, 2020

The Petitioner, a clinical research company, seeks to temporarily employ the Beneficiary as an "associate consultant" under the H-1B nonimmigrant classification for specialty occupations. Immigration and Nationality Act (the Act) section 10l(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 California Service Center Director denied the petition, concluding that the Petitioner did not establish that the proffered position is a specialty occupation. In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a preponderance of the evidence. 1 We review the questions in this matter de novo. 2

Upon de nova review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), 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 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 2 See Matter of Christa's Inc. , 26 l&N Dec. 537, 537 n.2 (AAO 2015).

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)(ii i)(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").

11. PROFFERED POSITION

The Petitioner stated that the Beneficiary will be employed as an "associate consultant" and provided the following job duties for the position: 3

I Conduct primary and secondary marketing research to assist in the identification of client issues and the development of client specific solutions. (5%)

I Perform quantitative or qualitative analyses to assist in the identification of client issues and the development of client specific solutions. (5%)

I In collaboration with the Supervisor, act as a thought partner to clients to assist in their development of commercialization and marketing plans. (5%)

I Work closely with senior management to select appropriate market research methodologies, design market research, conduct insightful analysis, and deliver strategic insights to inform our clients' commercialization plans. (5%)

I Lead and execute custom, primary market research studies from inception to conclusion. (10%)

I Design effective questionnaires based on client objectives and market knowledge. (8%)

I Process and analyze raw data to identify key findings and learnings. (15%)

3 While we will not quote the entire description for the sake of brevity, we have reviewed and considered it.

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I Produce charts and graphs that clearly depict results. (5%) I Manage domestic and international vendors to ensure efficient project execution.

(3%) I Create reports and final presentations with insights, analyses, and

recommendations, under guidance from supervisor. (15%) I Present or communicate findings and recommendations effectively. (3%) I Deliver timely, error-free and high-quality projects. (10%) I Supervise a more junior project team and manage other partners on projects by

guiding them on technical aspects of the research study. (5%) I Lead, develop, and mentor analysts on team. (5%) I Participate in/lead internal firm building/process development projects. (1%)

According to the Petitioner, the position requires at least a baccalaureate degree, or its equivalent, in management, healthcare management, information systems, engineering or a related field. 4

111. 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. Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does not establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation.

A. First Criterion

We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1), 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 will consider the information contained in the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the duties and educational requirements of the wide variety of occupations it addresses. 5

On the labor condition application (LCA) submitted in support of the H-1B petition, the Petitioner designated the proffered position under the occupational category "Operations Research Analysts" corresponding to the Standard Occupational Classification code 15-2031. 6

4 The Petitioner submitted documentation to support the H-lB 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. 5 We do not 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 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

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We reviewed the information in the Handbook regarding this occupational category and conclude that the Handbook does not establish that a bachelor's degree in a specific specialty is required for "operations research analysts." The subchapter of the Handbook entitled "How to Become an Operations Research Analyst" states "[m]any entry-level positions are available for those with a bachelor's degree" and "some employers may prefer to hire applicants with a master's degree. "7 The Handbook also states that although "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 also states that "[c]ourses in other areas, such as engineering, economics, and political science, are useful because operations research is a multidisciplinary field with a wide variety of applications." 9 While the Handbook indicates that a bachelor's or higher degree is required, by recognizing this occupation as multidisciplinary, the Handbook also strongly indicates that a bachelor's degree in a specific specialty is not a normal, minimum entry requirement for this occupation. 10

The Petitioner disagrees with this interpretation of the Handbook, citing to Raj and Co. v. USCIS, 85 F. Supp. 3d 1241 (:N.D. Wash. 2015), Tapis lnt'I v. INS, 94 F. Supp. 2d 172 (D. Mass. 2000), among other cases, to support its claim that the first regulatory criterion does not restrict the finding of a specialty occupation position to those that have a single, specifically tailored and titled degree program. The court in Raj specifically stated that a specialty occupation requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent. 11 The court confirmed that this issue is well-settled in case law and within the agency's reasonable interpretation of the legal framework. 12 The court also observed 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."13 The Tapis court similarly confirmed that the agency is "not unreasonable in interpreting the guidelines to demand that an employer require a degree in a specific field. Otherwise a position would qualify if any bachelor's degree were

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)(1) of the Act; 20 C.F.R. § 655.731(a). 7 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Operations Research Analyst, https://www.bls.gov/ooh/math/operations-research-analysts.htm (last visited Aug. 27, 2020). 8 Id. 9 Id. 10 On appeal, the Petitioner interprets the Handbook's statements as "requi r[ing] a wide variety of education" however the Handbook's acknowledgement of the multidisciplinary nature of this occupation is not equivalent to "requiring" education in a number of academic fields. lnapposite to this assertion, the Petitioner then states the Handbook also requires a degree from a limited number of academic fields, citing Tapis lnt'I v. INS, 94 F. Supp. 2d 172 (D. Mass. 2000). According to the court in Tapis, the employer "submitted undisputed evidence that it requires a bachelors degree from a limited number of academic fields (marketing or business) in addition to specialized design experience." Tap is, 94 F. Supp. 2d at 176. Here, the Petitioner does not present a limited number of academic fields but asserts that the Handbook itself limits the number of academic fields to "degrees in other technical or quantitative fields." To clarify, the Handbook lists the technical or quantitative fields that some analysts "have," such as engineering, computer science, analytics, or mathematics, but does not state that the fields are required for entry. This mass grouping of degree-fields would simply be too broad to support a conclusion that the occupation meets the definition of a "specialty occupation." Moreover, the minimum requirements for the Petitioner's proffered position is not limited to "technical or quantitative fields" as it allows for degrees in "management, healthcare management. .. or a related field" for its "associate consultant" position. 11 Raj, 85 F. Supp.3d at 1246. 12 Id. 13 Id.

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required." 14 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)(1)(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, 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. 15 Although we agree that the bachelor's degree does not have to be a degree in a single specific specialty, this agreement is predicated upon the fields of study including a "body of specialized knowledge" and attainment of a bachelor's or higher degree in the specific specialty that is directly related to the position.

The Petitioner's requirements for the proffered position are identified as management, healthcare management, information systems, engineering or a related field. However, the Petitioner does not sufficiently explain how an academic field, such as engineering, is directly related to the duties and responsibilities of the "associate consultant" position. For example, the Petitioner provides a chart of the job duties with the relevant coursework that would assist in performing the proffered duties. The courses listed are in marketing, economics and management, not in engineering. Moreover, the Petitioner does not explain how any of its acceptable degrees is directly related to the duties of the proposed position. On appeal, the Petitioner asserts that the courses themselves show the complex nature and academic prerequisites for the proffered position. However, the titles of these courses, without more, do not explain their relevance to the job duties or specify the necessary knowledge and skills they impart to perform the position's tasks. Moreover, the Petitioner does not explain how the knowledge obtained from these courses correlate to its acceptable degrees in healthcare management, information systems, or engineering to perform the duties of the position.

Although the Handbook's report is insufficient to establish that this multidisciplinary occupation is categorically a specialty occupation, it does not preclude the Petitioner from establishing its particular position is a specialty occupation with other authoritative sources or under one of the other regulatory criteria. As an alternate authoritative source, the Petitioner refers to the Occupational Information Network (O*NET) for the proffered position's educational requirements. More particularly, the Petitioner quotes O*NET's "Job Zone Five" description for "operations research analysts," which states, "[e]xtensive skill, knowledge, and experience are needed for these occupations. "16 A designation of "Job Zone Five" indicates that a position requires "extensive preparation." 17 It does not, however, demonstrate that at least a bachelor's degree in a specific specialty or its equivalent is required, and does not, therefore, demonstrate that a position so designated is a specialty occupation as defined in section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii).

14 Tapis, 94 F. Supp. 2d at 175. 15 Section 214(i)(1)(B) of the Act (emphasis added). 16 O*NET Online Summary Report for "15-2031.00 Operations Research Analysts," http://www.onetonline.org/link/summary/15-2031.00 (last visited Aug. 27, 2020). 17 O*NET Online Help, Job Zones, available on the Internet at https://www.onetonline.org/help/online/zones#zone5 (last visited Aug. 27, 2020).

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Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).

B. Second Criterion

The second criterion presents two, alternative prongs: "The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong contemplates common industry practice, while the alternative prong narrows its focus to the Petitioner's specific position. 18

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 fol lowing 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." 19

As previously discussed, the Petitioner has not established that an authoritative source reports at least a bachelor's degree in a specific specialty, or its equivalent, is required for the proffered position, and we incorporate our previous discussion on this matter. The Petitioner did not submit evidence from an industry professional association or from firms in the industry indicating such a degree is a minimum requirement for entry into the position.

The Petitioner submitted copies of seven job advertisements as evidence that its degree requirement is standard among its peer organizations for parallel positions to the proffered position. However, for the petitioner to establish that an advertising organization is similar, it must demonstrate that the petitioner and the organization share the same general characteristics. Without such evidence, postings submitted by a petitioner are generally outside the scope of consideration for this criterion, which encompasses only organizations that are similar to the petitioner. When determining whether the petitioner and the advertising organization share the same general characteristics, such factors may include information regarding the nature or type of organization, and, when pertinent, the particular scope of operations, as well as the level of revenue and staffing (to list just a few elements that may be considered).

The Petitioner submitted a chart providing information on the seven companies advertising for associate consultants. Of these seven companies, only one is similar in size, none are similar in revenue, and it is unclear from the brief description in the chart which are in the Petitioner's industry. The Petitioner lists itself as a clinical research company but categorizes these other companies under

18 As there are several arguments and documents submitted in support of the second prong of the second criterion that also overlap with criterion four, we will analyze these two criteria together. 19 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)).

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consulting, healthcare services & hospitals, and biotech & pharmaceuticals. While the job advertisements contain a brief description of the companies, these descriptions lack enough detail to determine whether the companies are similar to the Petitioner. No further analysis or supporting documentation was provided to establish these companies share the same general characteristics as the Petitioner. In addition, five of the seven advertisements also had vague job descriptions making it difficult to ascertain whether the jobs would be parallel positions. The job advertisements have little probative value in establishing a common industry standard for parallel positions within similar companies.

Moreover, the job advertisements either state a general requirement for a bachelor's degree without specialization or provide a list of numerous disparate fields that would be acceptable for entry into the position. 20 Three of the job advertisements require a bachelor's degree in any field or a related field, two require a degree in life-sciences or a quantitative field, another requires a bachelor's degree in quantitative, business, or healthcare, and another requires a bachelor or master's degree in any discipline with strong academic performance in analytic and quantitative coursework. None of these job advertisements require a bachelor's degree in the fields of study the Petitioner lists as minimum requirements for entry into its proffered position, i.e. management, health care management, engineering, information systems, or a related field. The advertisements establish, at best, that a bachelor's degree is generally required, but not at least a bachelor's degree in a specific specialty, or its equivalent, as common to the industry. In addition, even if all of the job postings indicated that a bachelor's or higher degree in a specific specialty, or its equivalent, were required, the Petitioner has not established that the submitted advertisements are relevant in that the posted job announcements are for parallel positions in similar organizations in the industry.

The Petitioner asserts on appeal that by requiring the job postings to meet a social research statistics validation standard, citing Earl Babbie, The Practice of Social Research 186-228 (7th ed. 1995), the Petitioner was improperly held to a higher standard of proof than "preponderance of the evidence" and relying on this standard is "mere speculation and subjective belief. ,,21 However, the Director's request for evidence (RFE) provided the Petitioner with several non-exhaustive examples of how it could establish the "degree requirement" is common to the industry in parallel positions among similar organizations. The Petitioner has the burden to provide relevant, probative and credible evidence to establish that the claim is "more likely than not" or "probably" true. Evidence of random sampling

20 With respect to the submitted job advertisements, the Petitioner asserts that "[t]here is no requirement in the statute that only one type of degree be accepted for a position to be specialized," citing RELX, Inc. v. Baran, 397 F. Supp. 3d 41, 54 (D.D.C. 2019). We incorporate our previous discussion on this matter and add, 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 l&N Dec. 715, 719-20 (BIA 1993). Although the reasoning underlying a district judge's decision wi II be given due consideration when it is properly before us, the analysis does not have to be followed as a matter of law. Id. 21 The Petitioner cites two cases to support its assertion, Blue Cross & Blue Shield of New Jersey, Inc. v. Philip Morris, Inc., 113 F. Supp. 2d 345, 374 (E.D.N.Y. 2000), where the court allowed the use of statistical evidence and methods to establish liability and damages, and the criminal case United States v. Perrone, 936 F.2d 1403, 1419 (2d Cir.), where the court explains that speculating on the amount of cocaine violates due process where the difference in quantity can have enormous impact on the sentence. These cases do not discuss Earl Babbie's publication or support the Petitioner's assertion regarding speculative use of statistical evidence. Moreover, the record is absent of any explanation of why the Petitioner believes the use of independent evidence is speculative or subjective.

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would add to the credibility of submitted evidence and is one factor weighed within the context of the totality of the evidence to decide if the Petitioner has met the preponderance of the evidence standard. Here, the job advertisements not only lacked the sufficient detail requested by the Director's RFE, they also appear to undermine the Petitioner's claim that a bachelor's degree in a specific specialty, or its equivalent, is commonly required for an operations research analyst occupation. The job advertisements do not establish the proffered position requires a bachelor's or higher degree in a specific specialty, or its equivalent, which is common to the industry in parallel positions among similar organizations.

The Petitioner also submitted an opinion letter from~---=---,--=-----:' au !college, New York, as evidence of an individual from the industry attesting that firms routinely employ and recruit only degreed individuals. 22 Within I ~s thirteen-page opinion letter, he allots five paragraphs for an industry analysis. 1 ·s letter defines the industry as "companies engaged in quantitative marketing data analysis, marketing research, and predictive business analytics." Other than the Petitioner, I I does not reference any other companies or organizations in his analysis. For this reason, the record Is unclear as to whether! I when describing the industry, is referring to companies with the same general characteristics such as size, revenue, and/or companies that categorize themselves as clinical research companies similar to the Petitioner. Similarly, I I does not analyze how the proffered position is parallel to other positions in similar organizations in the industry.

Furthermore.I Is letter does not establish that there is a specialized de~ree requirement common to the industry in parallel positions among similar organizations. Although I states repeatedly in his short analysis that "it is widely recognized that individuals holding positions such as that of the Associate Consultant herein must have at least a bachelor's-level degree in Management, Health Care Management, Engineering, Information Systems, or a related specialized field," he does not analyze the commonality of these specific degrees in the industry or establish that the industry routinely seeks individuals with specialized knowledge obtained from these specific degrees. He states he bases his opinion on "his vast experience in reviewing positions of employment and in the areas of management, marketing, economics, marketing communications, and business administration." However, an opinion that bases its conclusions on general hiring practices within a field is insufficient to satisfy the H-1B regulatory requirements. 23 While he also states "hiring data from publicly available resources serve to support this overall trend and the industry-standard approach to hiring for such positions" he does not specify the "publicly available resources" he references and the record does not support his conclusions. As described above, the job advertisements

22 We hereby incorporate our discussion otl i's opinion into our discussion of the other 8 C.F.R. § 214.2(h)(4)(iii)(A) criteria. 23 See Xiaotong Liu v. Baran, No. SACV1800376JVSKESX, 2018 WL 7348851, at *10 (C.D. Cal. Dec. 21, 2018) (finding USCIS acted properly when it determined that such generalizations do not explain how the author came to their conclusion, which is insufficient to meet the regulatory requirements).

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provided by the Petitioner require degrees in e.g. any field, life-sciences, quantitative analysis, business, or healthcare. 24

As the record contradicts l's statements and his opinion letter lacks sufficient detail to support a common degree requirement in the industry, we conclude thatl Is letter lends little probative value towards satisfying 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 25

C. Third Criterion

The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 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.

In support of this criterion, the Petitioner submitted job resumes, payroll information, and two of the Petitioner's job postings. A review of the six resumes and payroll information provided by the Petitioner demonstrates that these individuals are employed by the Petitioner and have the job title "associate consultant" or "consultant." However, the Petitioner did not provide the job duties and responsibilities for these individuals and only two of the resumes list some detail regarding the job duties. Accordingly, the record does not establish whether the duties and responsibilities of these individuals are the same or similar to the proffered position. Moreover, the individuals possess degrees in a range of disciplines, specifically, biochemistry, business administration and marketing, microbial biotechnology, bioscience, management information systems, business analytics, and information management. These resumes do not establish that the Petitioner normally requires a degree in a specific specialty, or its equivalent. Also, of significance, these degrees are not the degrees the Petitioner states as the minimum required for the proffered position. The Petitioner does not explain this disparity.

With respect to the job postings, the Petitioner provided an on line generated, undated "market research analyst" advertisement, which is not the proffered position in the instant petition. The posting appears to be for a more junior level employee based on the few listed job descriptors. The Petitioner also submitted a copy of its online job posting for the proffered position posted on its website on June 18, 2019. The posting states "a degree in engineering/science and master's preferred." It does not state that such degrees are required, and the job posting was posted after the Director's RFE and does not

24 The Petitioner asserts on appeal that the Director failed to give this letter due weight, which it believes is a violation of due process. The Petitioner then cites to a number of Circuit Court cases. The only case involving administrative proceedings for a visa application referenced by the Petitioner is Matter of Skirball Cultural Ctr., 25 I. & N. Dec. 799, 806 (2012), citing to Matter of Caron lnt'I, Inc., 19 l&N Dec. 791 (Comm'r 1988). Matter of Caron lnt'I, Inc., does not support Petitioner's assertions regarding due process violations. Rather, it states we may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Id. at 795. To the extent the Petitioner contends that its rights to procedural due process were violated, it has not alleged, much less established, that any violation of the statute or the regulations resulted in "substantial prejudice" to it. See De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004) (holding that an individual "must make an initial showing of substantial prejudice" to prevail on a due process challenge). 25 See Matter of Caron lnt'I, 19 l&N Dec. at 795 (finding 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.")

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pre-date the filing of the petition. The Petitioner must establish eligibility at the time of filing for the nonimmigrant visa petition. 8 C.F.R. § 103.2(b)(1). Necessarily, evidence must be contemporaneous with the event to be proven and existent at the time of filing. Therefore, this posting also holds little probative value. Further, even if the job posting pre-dated the filing, the Petitioner stated that it has been in business since 1982 and it has 50,000 employees. One job posting over almost twenty years of business does not adequately establish the Petitioner's past recruitment and hiring practices and does not demonstrate that the employer normally requires a degree in a specific specialty or its equivalent for the proffered position.

Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3).

D. Second Prong of Second Criterion and Fourth Criterion

The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) 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 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.

When determining whether a position is a specialty occupation, we look at whether the position actually requires the theoretical and practical application of a body of highly specialized knowledge attained through at least a baccalaureate degree in a specific discipline. Upon review of the totality of the record, the Petitioner has not sufficiently explained or documented why the proffered position is so complex or unique or specialized and complex that a bachelor's degree in a specific specialty is required.

We first look to the duties of the position. One of the duties that would require most of the beneficiary's time is "creat[ing] reports and final presentations with insights, analyses, and recommendations, under the guidance of a supervisor." This duty is explained as, "[t]aking the individual slides, design and create a cohesive report[,]" "[u]sing results from team discussions, generate draft insights (headers, subtitles, parts of executive summaries)[,]" and "[u]sing knowledge of the marketing concepts ... generate insights and recommendations that are actionable to our clients." The explanation of the duty does not clarify how designing slides would be specialized and complex or unique or what specialized knowledge is used to generate insights and create "headers, subtitles, [and] parts of executive summaries." The Petitioner does not explain how obtaining knowledge of the client's marketing concepts requires a specialized and complex or unique skillset. The Petitioner associates this duty with courses in marketing theory, strategic marketing, marketing management and strategy and psychological aspects of consumer behavior. However, an explanation of what specialized knowledge is imparted by taking these courses was not provided. Nor did the Petitioner associate how these courses apply to the detailed tasks of the duty.

Other duties include "delivering timely, error-free and high-quality projects." The explanation stresses being proactive in managing tasks, planning to meet internal milestones, monitoring project schedules to update team members on progress and communicating to cross-functional teams necessary specs

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for analysis. These details explain the Petitioner is looking for someone with time management, teamwork, and good communication skills. If these skills are made specialized and complex based on additional factors, it was not clarified in the record. Another duty is described as ensuring data accuracy using Excel and SPSS, but the Petitioner does not detail how using these products is specialized and complex or unique. Two other duties include "process[ing] and analyz[ing] raw data to identify key findings" and "lead[ing] and execut[ing] custom, primary market research studies from inception to conclusion." These duties include "propos[ing] and follow[ing] project milestones to execute the study." An explanation was not provided on how the designing, planning, and execution phases are specialized and complex or unique or why they can be performed only by an individual with at least a bachelor's degree in a specific specialty or its equivalent.

The Petitioner provided copies of presentation slides, however, the record is absent of detai Is on how these slides relate to the proffered position. Without context for or an explanation on the relevance of these slides and topics within them, the slides themselves do not independently explain how the proffered position is specialized and complex or unique, what role the Beneficiary will have with the tools described, or how these tools apply to the proffered position.

The supporting letter provided by the Petitioner states that through the Beneficiary's coursework, she gained advanced knowledge of various subjects that allow her to perform the duties of an "associate consultant." To the extent the Petitioner is asserting here that the Beneficiary's experience and qualifications provide her with the background to perform these duties, it should be clarified that 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. 26 In addition, the Petitioner describes the Beneficiary as being "required to utilize strong domain knowledge related to clinical trials, pharmacovigilance, drug and device development, good practice guidelines, and understanding of various health authority regulations (e.g. FDA, EMA, MHRA, PMDA etc.)." This "required" knowledge in health, pharma and regulatory authorities is not mentioned elsewhere in the record as a prerequisite for the "associate consultant" position.

To establish the specialized natur[ of the oraffernd position's duties, the Petitioner also relies on the opinion letter byl I ]states that he is "fully familiar with [the Petitioner] as a company, as well as its competitors and the industry sector," and "as an industry expert ... he does not require any further in-depth knowledge of the business of [the Petitioner] to provide this letter." However, based on our review ofl ts letter, we find that the letter contains several inconsistencies that raises issue with how familiar he is with Petitioner's company and the proffered position. For example, in his analysis.I I does not refer to the "Operations Research Analyst" occupational category but focuses on how the position relates to a "market analyst." In his analysis he states, "technical marketing analysts, such as the Associate Consultant herein, handle highly quantitative job duties in the areas of marketing research, marketing analysis ... (emphasis added)." As a result,I I only focuses on the marketing related duties, explaining the marketing-based knowledge that would be required for the position. 27 However, nowhere in the record

26 See Cf. Matter of Michael Hertz Assocs., at 560 ("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].") 27 Examples include the following statements: "[l]t would be impossible to handle the required job duties of the Associate

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does the Petitioner assert that a degree in marketing is a minimum degree requirement or would create specialized knowledge for the position. While the proffered position's duties do appear to require marketing knowledge, the level of marketing analysis thatl I mentions in his opinion letter is not supported by the chart of detailed duties, in the Petitioner's supporting letters or in other supporting documents. Moreover, many of the key findings inl l's letter is recognized in the Handbook under the occupation "market research analysts," not the occupation petitioned for here. 28 I I c=J·s analysis therefore raises issue with whether he was fully informed on the occupational category of the Petitioner's "associate consultant" position. As a result, it is unclear whether I I is accurately describing the skillsets necessary to perform the proffered position or whether he is providing an analysis of "market research analysts" when he makes statements such as, i.e. "[i]n performing market analytics, [the Beneficiary] would be required to conduct statistical modeling and analysis, customer segmentation, and stochastic analyses to project variables of product, price, market growth, price fluctuations, economic factors, and supply costs." Of note, these elaborated duties do not appear to align with the duties presented by the Petitioner for the proffered position.

As discussed herein, the Petitioner has the burden to provide relevant, probative, and credible evidence to establish that its claim is "more likely than not" or "probably" true. For much of his analysis,

,___ ____ _.did not qualify his declarations with sufficiently detailed and qualified analysis. His summary statements are unsupported by explanations, references to the record, or citations to studies, surveys, industry publications, authoritative publications, or other sources of empirical information. The conclusion the Petitioner requests us to draw from I l's opinion is not self-evident, and we are not required to accept cursory or primarily conclusory statements as demonstrating eligibility.29

I Is conclusory statements, coupled with the number of contradictions to his statements found in the record, 30 is insufficient to assist the Petitioner in satisfying its burden of proof.31

We are unable to determine if I I was aware of these inconsistencies or if he possessed the requisite information to adequately assess the proffered position. I I states he reviewed a letter from the Petitioner outlining the job duties of the position, the required educational background for the position, the Beneficiary's academic documentation, and relies on his research regarding the issues he discusses, and his vast experience. Assuming.__ ____ _. possesses expertise on the degree requirements for the position, his letter does not substantiate the conclusions,

Consultant ... without at least a bachelor's degree ... related to Marketing ... [T]he subject position is a highly quantitative position characterized by ... quantitative analytics studied in bachelor's programs in Marketing ... [T]he Associate Consultant ... would have to apply highly specialized concepts of marketing, market research, marketing management, internet marketing ... " 28 Bureau of Labor Statistics, U.S. Dep 't of Labor, Occupational Outlook Handbook, Market Research Analyst, https://www.bls.gov/OO H/business-and-financial/market-research-analysts.htm (I ast visited Aug. 27, 2020). 29 lnnova Sols., Inc. v. Baran, 338 F. Supp. 3d 1009, 1023 (N.D. Cal. 2018); see also 1756, Inc. v. Att'y Gen, 745 F. Supp. 9, 17 (D.D.C. 1990) (finding USCIS acted properly in not crediting petitioner's conclusory assertions). 3° For example.I I declares the duties for the proffered position "could not be performed by an individual who has a bachelor's degree in a field other than Management, Health Care Management, Engineering, or a closely related specialized field (emphasis added)." However, both the job advertisements provided in support of the second criterion and resumes for current employees of the Petitioner, provided in support of the third criterion, evidence that degrees in biochemistry, microbial biotechnology, bioscience, management information systems, business analytics, etc. would be acceptable to perform the duties of the proffered position. 31 Matter of Caron lnt'I, 19 l&N Dec. at 795(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.").

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such that we can conclude that the Petitioner has met its burden of proof. For the reasons discussed, we conclude that the opinion letter froml lis insufficient to establish that the proffered position is a specialty occupation.

The Petitioner did not sufficiently develop relative specialization and complexity or uniqueness as an aspect of the duties of the position, and it did not identify tasks that are sufficiently specialized and complex to satisfy the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) or of (4).

IV. CONCLUSION

Upon review of the totality of the evidence submitted, the Petitioner has not established that more likely than not, the proffered position is a specialty occupation under any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). Moreover, the record does not establish that the Petitioner satisfied the statutory and regulatory definitions of specialty occupation.

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.

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