U.S. Citizenship and Immigration Services

MATTER OF P-S-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: FEB. 27, 2017

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, a developer and manufacturer of memory storage devices, seeks to temporarily employ the Beneficiary as a "global marketing operations manager" un9er the H -1 B 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, California Service Center, denied the petition. The Director concluded that the Petitioner did not establish that: (1) the proffered position was a specialty occupation; or (2) the Beneficiary was qualified to perform the services of a specialty occupation.

On appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying the petition.

Upon de novo review, we will dismiss the appeal.

I. SPECIALTY OCCUPATION

The first issue before us is whether the proffered position is a specialty occupation.

A. 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.

Matter of P-S-, 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 profiered position must meet one of the following criteria to qualify as a specialty occupation:

(I) 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 have consistently interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Cherto.ff; 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"); Delensor v. A1eissner, 201 F.3d 384, 387 (5th Cir. 2000).

B. Proffered Position

On the Form I-129, Petition for a Nonimmigrant, the Petitioner described itself as a memory storage company. In its support letter, the Petitioner listed the duties of the proffered position as follows:

• Collaborating with senior management personnel of [the Petitioner's] Channel, Campaigns, Communications, Digital, Events, Field, and Creative teams to implement the necessary changes and manage the consolidation of the company's channel marketing practices;

• Building and managing campaigns ( emails, webinars, events, nurture programs) in Marketo and Salesforce.com;

• Overseeing the performance of campaigns and exercising managerial authority to make adjustments as necessary;

• Leading and driving the adoption of global marketing processes, systems and tools;

• Managing key initiatives such as: launches, web platform upgrades, events, branding updates, campaigns, geo expansion, budget changes, etc.;

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• Leading a forum for the exchange of best practices across [the Petitioner's] Marketing;

• Apply managerial discretion to determine specific marketing methods and best practices to increase the number of leads produced by Marketing and improving the rate at which those leads are converted into opportunities for Sales; and

• [I]nterfacing with peer managerial personnel, inside and outside the company, across functions and time zones, to implement and control channel marketing initiatives.

The Petitioner stated that the duties of the position are "so complex and specialized that the knowledge required to perform them is usually associated with the attainment of a Bachelor's degree in Marketing, Communications, or a related field, or the equivalent in experience and training."

C. 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 satisfies any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, qualifies as a specialty occupation. Specifically, the record does not establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation. 1

1. First.Criterion

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

1 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered position. While we may not discuss every document submitted, we have reviewed and considered each one. 2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 3 All of our references are to the 2016-17 edition of the Handbook, available at http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a protTered position, and USC IS regularly reviews the Handbook on the duties and educational requirements of the wide variety of occupations that it addresses. To satisfY the first criterion, however, 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.

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On the labor condition application (LCA)4 submitted in support of the H-lB petition, the Petitioner designated the proffered position under the occupational category "Marketing Managers" corresponding to the Standard Occupational Classification (SOC) code 11-2021 at a Level I wage. 5

The subchapter of the Handbook entitled "How to Become an Advertising; Promotions or Marketing Manager" states, in relevant part, the following:

Education A bachelor's degree is required for most advertising, promotions, and marketing management positions ....

Most marketing managers need a bachelor's degree. Courses in business law, management, economics, finance, computer science, mathematics, and statistics are advantageous. For example, courses in computer science are helpful in develop~ng an approach to maximize online traffic, by utilizing online search results, because maximizing such traffic is critical for digital advertisements and promotions. In addition, completing an internship while in school can be useful.

U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook. 2016-17 ed., "Advertising, Promotions, and Marketing Managers,"http://www.b1s.gov/ooh/management/advertis­ing-promotions-and-marketing-managers.htm#tab-4 (last visited Feb. 22, 2017).

The Handbook does not report that a bachelor's degree in a specific specialty, or the equivalent, is required to perform the duties of positions located within this occupational category. Rather, the Handbook notes that a variety of courses may be advantageous but does not specify that such positions require a bachelor's degree in a specific specialty. Further, given the Handbook's indication that typical positions located within this occupational category do not require a bachelor's

4 The Petitioner is required to submit a certified LCA to USCIS to demonstrate that it will pay an H-1 B worker the higher of either the prevailing wage for the occupational classification in the "area of employment" OIZ the actual wage paid by the employer to other employees with similar experience and qualifications who are performing the same services. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 5 We will consider the Petitioner's classification of the proffered position at a Levell wage (the lowest of four assignable wage levels) in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.com/download/NPWHC _Guidance_ Revised _I I_ 2009.pdf. A prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill requirements of the Petitioner's job opportunity. !d. A Level I wage should be considered for research fellows, workers in training, or internships. !d.

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degree in a specific specialty, or the equivalent, it is unclear how an entry-level position with the Level I characteristics discussed would require such a degree, or the equivalent.

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. There must be a close correlation between the required specialized studies and the position; thus, the mere requirement of a degree, without further specification, does not establish the position as a specialty occupation. Cf Matter (~l Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of a college degree for the sake of general education, or to obtain what an employer perceives to be a higher caliber employee, also does not establish eligibility."). Thus, while a general-purpose bachelor's degree may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify a finding that a particular position qualities for classification as a specialty occupation. Royal Siam, 484 F.3d at 147.

The Handbook does not support the assertion that a baccalaureate degree in a specific discipline is normally the minimum requirement for entry into positions located within this occupational category. Further, the Petitioner has not submitted other authoritative sources in suppmi of this criterion. Although the Petitioner's submission of various articles addressing the nature of "Marketing Operations" is noted, these articles simply provide an overview of the field and its role within organizations and their marketing cycles. The articles do not demonstrate that the proffered · position in this matter requires a baccalaureate or higher degree in a specific specialty, or its equivalent.

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

2. 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.P.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong concentrates upon the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific position.

a. First Prong

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

When determining whether there is such a common degree requirement, factors often considered by USCIS include: whether the Handbook reports that the industry requires a degree; whether the industry's professional association has made a degree a minimum entry requirement; and whether

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letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ and recruit only degreed individuals." See Shanli, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999)(quotingHird/BlakerCorp. v. Sava, 712F. Supp. 1095, ll02(S.D.N.Y.1989)).

Here and as already discussed, the Petitioner has not established that its proffered position is one. for which the Handbook (or other independent, authoritative sources) reports an industry-wide requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on the matter. Also, there are no submissions from the industry's professional association indicating that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did not submit any letters or affidavits from similar firms or individuals in the Petitioner's industry attesting that such firms "routinely employ and recruit only degreed individuals." Nor is there any other evidence for our consideration under this prong.

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

b. Second Prong

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

To begin with, the record does not credibly demonstrate exactly what the Beneficiary will do on a day-to-day basis such that complexity or uniqueness can even be determined. That is, the Petitioner does not demonstrate how the Beneficiary's duties described 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.

The evidence of record does not establish that this position is significantly different from other positions within the occupational category such that it refutes the Handbook's information to the effect that a few courses are advantageous to obtaining such a position, but not specifying that the degree must be in a specific specialty. In other words, the record lacks sutliciently detailed information to distinguish the proffered position as unique from or more complex than marketing managers, or other closely related positions, that can be performed by persons without at least a bachelor's degree in a specific specialty, or its equivalent. Although the Petitioner claims that the Beneficiary is well-qualified for the position, and references his qualifications; the test to establish a position as a specialty occupation is not the education or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's degree in a specific specialty, or its equivalent.

Moreover, the Petitioner's designation of this position as a Level I, entry-level position located within the "marketing manager" occupatiopal category fmiher undermines its claim that the position

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is particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not itself conclusive evidence that a proffered position meets the requirements of section 21 4(i)(l) of the Act.6

Here the Petitioner does not demonstrate how the proffered position of marketing manager is so complex or unique relative to other positions within the designated occupational category that do not require at least a baccalaureate degree in a specific specialty, or its equivalent, for entry into the occupation in the United States. Accordingly, it cannot be concluded that the Petitioner has satisfied the second alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

3. 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.

To merit approval of the petition under this criterion, the record must establish that a petitioner's imposition of a degree requirement is not a matter of preference for high-caliber candidates but is necessitated by performance requirements of the position. While a petitioner may assert that a proffered position requires a specific degree, that statement alone without corroborating evidence cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing 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, whereby all individuals employed in a particular position possessed a baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor, 201 F.3d at 388. Evidepce provided in support of this criterion may include, but is not limited to, documentation regarding the Petitioner's past recruiting and hiring practices, as well as information regarding employees who previously held the position.

6 The Petitioner's contention on appeal that its Level I designation "has no bearing on the specialized or complex nature" of the position is not persuasive. Again, in designating the position at a Level I wage the petitioner attests to DOL that the Beneficiary will (I) that the Beneficiary will perform routine tasks that require limited, if any, exercise of judgment; that he will be closely supervised and his work closely monitored and reviewed for accuracy; and that he will receive specific instructions on required tasks and expected results. In addition, the DOL guidance referenced above further indicates that Level I positions should be considered for research fellows, workers in training, or internships.

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The Petitioner stated in response to the request for evidence (RFE) that it "has not employed anyone else in this, position," and therefore could not demonstrate "a history of qualifications required for the role." Based on this statement, it appears that the Beneficiary is the first individual to be employed in the proffered position.

Although the Petitioner submits evidence in the form of resumes and Linkedln profiles pertaining to three other individuals it claims held marketing roles within its company, the Petitioner nevertheless confirms that no one has previously held the proffered position, which is the subject of this petition. Therefore, while the submission of the other employees' credentials is noted, this evidence is not sufficient to establish that it normally requires a specialty degree for the proffered position.

By its own acknowledgement, the Petitioner has not previously hired degreed individuals to fill the proffered position in the past. Therefore, the Petitioner has not satisfied the third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A).

4. 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.

The Petitioner repeatedly refers to the Beneficiary's experience, as well as ·two evaluation letters submitted, which claim that the Beneficiary's professional experience is equivalent to a bachelor's degree in marketing. However, the Beneficiary's qualifications do not establish a position as a specialty occupation. We again reference the Petitioner's designation of the position in the LCA as a Level I position (the lowest of four assignable wage-levels) relative to others within the same occupational category. Thus, while the Petitioner is claiming that the proffered position requires the performance of specialized and complex duties, it has identified the wage requirement for the position to be the lowest wage level available for positions located within the occupational category. Again, the Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is particularly complex, specialized, or unique compared to other positions within the same occupation.

Upon review of the totality of the record, we find that relative specialization and complexity have not been sufficiently developed by the Petitioner as an aspect of the proffered position. In other words, the proposed duties have not been described with sufficient specificity and consistency within the record to show that they are more specialized and complex than a marketing manager position that is not usually associated with at least a bachelor's degree in a specific specialty, or its equivalent. The Petitioner stresses that the Ben~ficiary, in performing the duties of the proffered position, will "improve marketing practices," "strengthen business relationships with our customers," "increase customer retention," and "drive growth." It is unclear, however, how these standard marketing-related duties would elevate the proffered position to one that is more

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specialized or complex than other similar positions within the occupational category. We find, therefore, that the Petitioner/has not demonstrated in the record that its proffered position is one with duties sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).

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

II. BENEFICIARY'S QUALIFICATIONS

The Director also found that the Beneficiary would not be qualified to perform the duties of the proffered position if the job had been determined to be a specialty occupation. However, a beneficiary's credentials to perform a particular job are relevant only when the job is found to be a specialty occupation. As discussed in this decision, the proffered position does not require a baccalaureate or higher degree in a specific specialty, or its equivalent. Nevertheless, for purposes of providing a thorough review of the record we will review the evidence of record under this additional basis.

A. Legal Framework

Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an individual applying for classification as an H -1 B nonimmigrant worker must possess: ,

(A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation,

(B) completion of the degree described in paragraph (1 )(B) for the occupation, or

(C) (i) experience in the specialty equivalent to the completion of such degree, and

(ii) recognition of expertise in the specialty through progressively respm;}sible positions relating to the specialty.

In implementing section 214(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C) states that a beneficiary must also meet one of the following criteria in order to qualify to perform services in a specialty occupation:

(I) Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

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(3) Hold an unrestricted State license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or

( 4) Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

In addition, 8 C.F.R. § 214.2(h)(4)(v)(A) states:

General. If an occupation requires a state or local license for an individual to fully perform the duties of the occupation, an alien (except an H -1 C nurse) seeking H classification in that occupation must have that license prior to approval of the petition to be found qualified to enter the United States and immediately engage in employment in the occupation.

B. Analysis

The Petitioner has not established that the Beneficiary is qualified to perform the services of a specialty occupation.

The Beneficiary does not hold a U.S. degree or its foreign-degree equivalent in the specialty, and the record does not demonstrate that a license is required. The Petitioner, therefore, must demonstrate that the Beneficiary possesses the equivalent of the required U.S. degree by virtue of both (1) education, specialized training, and/or progressively responsible experience in the pertinent specialty that is equivalent to completion of such d~gree, and (2) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

The Petitioner has not met this evidentiary requirement. As discussed in the Director's decision, in order to equate a beneficiary's credentials to a U.S. baccalaureate or higher degree, the provisions at 8 C.F.R. § 214.2(h)(4)(iii)(D) require one or more ofthe following:

( 1) An evaluation from an official who has authority to grant college-level credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit based on an individual's training and/or work experience;

(2) The results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI);

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(3) An evaluation of education by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials; 7

( 4) Evidence of certification or registration from a nationally-recognized professional association or society for the specialty that is known to grant certification or registration to persons in the occupational specialty who have achieved a certain level of competence in the specialty;

(5) A determination by the Service that the equivalent of the degree required by the specialty occupation has been acquired through a combination of education, specialized training, and/or work experience in areas related to the specialty and that the alien has achieved recognition of expertise in the specialty occupation as a result of such training and experience ....

The criteria at 8 C.F.R. §§ 214.2(h)(4)(iii)(D)(2) and (4) are not factors in this proceeding, as the record contains no evidence related to them.

The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(D)(3) is inapposite here, as the evaluations provided are of the Beneficiary's education considered together with her employment experience, whereas 8 C.F.R. § 214.2(h)(4)(iii)(D)(3) pertains to evaluations of education only.

The criterion at 8 C .. F.R. § 214.2(h)(4)(iii)(D)(J) pertains to evaluations of education together w·ith work experience. This record contains two such evaluations.

We concur with the Director's finding that the evaluation submitted by Associate Professor of Marketing at does not establish eligibility in this matter.

evaluation does not demonstrate that the Beneficiary is qualified to perform the duties of a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(D)(l), as the Petitioner did not demonstrate that possessed the authority to grant college-level credit for training and/or experience at an accredited college or university which had a program for granting such credit based on an individual's training and/or work experience at the time that she rendered her assessment. The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter l~( Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).

On appeal, the Petitioner submits a new evaluation from Professor at the Department of ~

This evaluation also falls short of meeting the requirements of 8 C.F.R. § 214.2(h)(4)(iii)(D)(l). Although evaluation is accompanied by a letter from Dean of the

at this letter merely states that has the authority "to make determinations with respect to

7 The Petitioner should note that, in accordance with this provision, we will accept a credential evaluation service's

evaluation of education only, not training and/or work experience.

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the award of credit for training and experience." According to the letter, it is unclear if has the inherent authority to grant credit, or whether he merely makes determinations to be examined by other members of the faculty. Moreover, the letter indicates that he is authorized to make determinations in the field of finance, business administration, and related fields, but not marketing, which is the field to which he equates the Beneficiary's experience. It is unclear, therefore, hO\v

is qualified to detem1ine that the Beneficiary's possesses the U.S. equivalent to a Bachelor's degree in marketing when such a field is not one in which he teaches or is otherwise

. authorized to make assessments.

We may, in our discretion, use advisory opinion statements submitted by the Petitioner as expert testimony. }dafter of Caron International, 19 I&N Dec. 791 (Comm'r 1988). However, where an opinion is not in accord with other information or is in any way questionable, we are not required to accept or may give less weight to that evidence. I d.

The remaining criterion for review is 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). It allows recognition of a beneficiary's qualification by USCIS determination that his or her training or work experience is equivalent to U.S. baccalaureate coursework in a specific specialty. It is always worth noting that, by its very terms, 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) is a matter strictly for USCIS application and determination, and that, also by the clear terms of the rule, experience will merit a positive determination only to the extent that the record of proceedings satisfies all of the qualifying elements at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), including the requirement for a type of recognition of expertise in the specialty occupation.)

This criterion provides:

[I]t must be clearly demonstrated [1] that the alien's training and/or work experience included the theoretical and practical application of specialized know·ledge required by the specialty occupation; [2] that the alien's experience was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; and [3] that the alien has recognition of expertise in the specialty evidenced by at least one type of documentation such as:

(i) Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation8

;

(ii) Membership in a recognized foreign or United States association or society in the specialty occupation;

8 Recognized authority means a person or organization with expertise in a particular field , special skills or knowledge in that field, and the expertise to render the type of opinion requested. A recognized authority 's opinion must state : (I) the writer ' s qualifications as an expert; (2) the writer ' s experience giying such opinions, citing specific instances where past opinions have been accepted as authoritative and by whom; (3) how the conclusions were reached; and (4) the basis for the conclusions supported by copies or citations of any research material used. 8 C.F.R. § 214 .2(h)(4Xii) .

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(iii) Published material by or about the alien in professional publications, trade journals, books, or major newspapers;

(iv) Licensure or .registration to practice the specialty occupation in a foreign country; or

(v) Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation.

The record of proceedings includes former employer letters and certificates. How·ever, the record does not contain sufficient information regarding the Beneficiary's work experience to meet the requirements under 8 C.F .E.. § 214.2(h)( 4)(iii){D)(5).

I

The Petitioner provided numerous employment verification letters tor the Beneficiary. In support of the petition, the Petitioner submitted three letters. The first, from at claims that the Beneficiary worked as a marketing operations manager under her supervision at

from April 2009 to May 2014. The second, from claims that the Beneficiary worked as a marketing data and systems executive from November 2007 to January 2009. The third, from claims that the Beneficiary V:·orked for via

as an internal trainer from 2002 to 2007. This letter is not on corporate letterhead nor does it identify the title or position of

In response to the RFE, the Petitioner submitted four new letters. The first, from verifies the prior statements in the letter from confirming the Beneficiary's

employment there from April 2009 to May 2014. The second, from states that the Beneficiary was employed there as a dialer analyst from January 2009 to June 2009. The third letter is an updated letter from confirming the statements set forth in the previous letter. The fourth letter is from confirming the Beneficiary's employment with

via from October 2002 to May 2006, and also vta from November 2006 to November 2007. This letter is not on corporate letterhead and does not identify the title or position of

The letters, at best, provide the Beneticiary's job titles and a list of duties associated ~with his assigned position. The letter from simply provides his job title and dates of employment, whereas the two letters from individuals presumed to be representatives of

provide overviews of third-party work assignments without specific details of the work performed. Moreover, the nature of his actual assignments for from 2002 to 2007 is unclear, as the documents identify his roles as internal trainer, technical support engineer, technical support, and field staff- job titles which, without additional information, suggest his professional focus was tailored to technical support. Specifically, we note the letter from states that he "provided web-based technical assistance," "handled technical requests,'' and performed "testing of new releases." This is particularly relevant, since the letter from Premier Farnell indicates that it

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hired the Beneficiary to serve as an "in-house expert" on marketing operations in November of 2007, immediately after his assignments with and its third-party clients ended.

The record demonstrates that the Beneficiary has no educational background in 'the field of marketing, and no employment history prior to his assignment with beginning in 2002. However, according to the letter from referenced above, the record suggests that the Beneficiary was a marketing "expert" after his 5 years of employment with

in various non-marketing, technical support positions. We find this implication to be questionable considering the Beneficiary has no documented educational background or training in the field of marketing, or prior experience in the field.

Therefore, while the record contains some information regarding the Beneficiary's work history, it does not establish what his actual work experience entails. The letters submitted do not establish that this work experience included the theoretical and practical application of specialized knowledge required by the proffered position; that it was gained while working with peers, supervisors, or subordinates who held a bachelor's degree or its equivalent in the field; and that the beneficiary achieved recognition of his expertise in the field as evidenced by at least one of the five types of documentation delineated in 8 C.F.R. §§ 214.2(h)(4)(iii)(D)(5)(i)-(v).

Accordingly, the Beneficiary does not qualify under any of the criteria set forth at 8 C.F.R. §§ 214.2(h)(4)(iii)(D)(5)(i)-(v), and therefore does not qualify to perform the duties of a specialty occupation under 8 C.F.R. § 214.2(h)( 4)(iii)(C)( 4). As such, the Petitioner has not established that the Beneficiary qualifies to perform the duties of a specialty occupation.

III. CONCLUSION

The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter of P-S-, Inc., ID# 187044 (AAO Feb. 27, 2017)

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