MATTER OF XYZF- LLC

Non-Precedent Decision of the Administrative Appeals Office

DATE: AUG. 8, 2018

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, a media company, seeks to temporarily employ the Beneficiary as a "communications specialist" under the H-1B nonimmigrant classification for specialty occupations. Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § l 101(a)(15)(H)(i)(b). The H-18 program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and practical application of a body of highly specialized knowledge ·and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position.

The Director of the California Service Center denied the petition, concluding that the record does not establish the proffered position qualifies as a specialty occupation.

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

Upon de nova review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an occupation that requires:

(A) theoretical and practical application of a body of highly specialized knowledge, and

(B) attainment of a bachelor's or higher degree in the specific· specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­exhaustive 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:

(J) A baccalaureate or higher degree ot its equivalent is normally the minimum requirement for entry into the particular position;

Matter of XYZF- LLC

(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 d4ties [is] so specialized and complex that knowledge r~quired 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 ~y baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Chertojf, 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).

II. PROFFERED POSITION

ln the H-lB petition, the Petitioner stated that the Beneficiary will serve as a "communications specialist." The Petitioner provided three materially different versions of the proffered position's duties. Initially, in support of the petition, the Petitioner described the job duties for the proffered position as follows (reformatted):

• [The Beneficiary] will be responsible for analyzing the logistics of the film market, and coordinate with other organizations within that market on our behalf.

• She will be the administrator and developer of our communications with international contracts with those organizations, and will analyze those contracts to seek the best benefit for our company and our clients.

• She will develop all internal and external communication· policies, and liaison with global clients.

• [The Beneficiary] will manage the accounts of our international distribution services, and will analyze clients' accounts for accuracy and efficiency.

• She will coordinate with international clients on efficient distribution methods and procedures, with a focus on content and rights management.

• She will review and edit international press and communications, particularly those that increase our distribution potential.

In response to the Director's request for evidence (RFE), the Petitioner described the job duties for the proffered position, and the percentage of the Beneficiary's time necessary to perform those duties, as follows:

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• She will utilize her expertise in [ c ]ommunications to review incoming submissions and conduct due diligence with international distributors to recommend to acquire or pass for [the Petitioner] for 25% of the time.

• She will identify local distribution partners for acquired con~ent, arrange and attend meetings with them and [the Petitioner's] partners, and solicit and negotiate license terms for approximately 25% of the time.

• She will work with our international distributors to generate press and marketing assets, and present to the film's financiers and intellectual property-holders for approval (or approximately 25% of the time.

• She will review performance reports from local territories and prepare presentations for [the Petitioner] as to why a project resonated or did not resonate with a local audience, and input all findings into [the Petitioner's] rights management system. She will present reports on a weekly basis. Approximately 25% of the time.

In support of the appeal, the Petitioner submits a third version of the job duties for the proffered position, and the percentage of the Beneficiary's time necessary to perform those duties, as follows:

Responsible for implementing and managing [the Petitioner's] internal communications systems. (20% of time, 8 [h]ours per week);

• Install and customize a cloud-based content and rights management portal that each department will contribute to ·o. e., sales, acquisitions, marketing, finance) and to which'all departments will have access.

• Write the agenda for and preside over multi-department staff meetings designed to coordinate efforts from various departments on single projects.

Administer and develop [the Petitioner's]· communications protocols and media strategy with international distributor clients. (20% of time, 8 [h]ours per week);

• Develop and maintain a cloud-based asset-management system to deliver visual and audio-visual content ( e.g., trailers, TV commercials, DVD artwork, movie posters) to international distribution partners.

• Select appropriate media for exhibition of company content in foreign territories (e.g. digital platforms, VOD services, TV channels, theaters, etc.) and for promotion of that content ( e.g., web advertising, promotional videos, television or in-person appearances, press junkets).

Draft, administer and oversee fulfillment of international distribution contracts. (20% of time, 8 [h]ours per week);

• Draft international distribution deal memos and contracts compliant with Independent Film and Television Association standards, as amended.

• Negotiate modifications to contracts with distribution partners and write in specific communications policies and content delivery protocols (including schedules of marketing and publicity assets to be delivered).

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• Lead calls twice a month with each international distribution partner to ensure they are fulfilling the agreed upon services, and review their performance reports for each piece of narrative content in the relevant market.

Oversee the drafting and dissemination of communications, press releases, and promotional materials and advertising to the general public .. in various territories around the world. (20% of time, 8 [h]ours per week);

• Draft press releases and announcements pertaining to film and television projects the company produces or acquires.

• Select media partners for the release of press announcements, whether exclusively with a trade publication or a wider release among multiple vertic;ds.

• Prepare and quality check promotional and advertising content, both audio­visual and written, for distribution to public-facing websites and portals.

Analyze performance data in each country across di°fferent media and present reports to the partners. (20% of time, 8 [h]ours per week).

•

•

•

Analyze performance data for box office, digital Video on Demand (VOD), cable VOD, DVD, television viewership for each film, in each country of release. Analyze the marketing strategy and overall penetration of the campaign, and hypothesize how it affected the film's performance (e.g., was the trailer successful, was the advertising effective). Prepare a recommendation for the partners for future content in this territory, including what media are the most effective and profitable, and what media channels are the most effective promotional tools.

The record does not reconcile why the Petitioner materially changed the duty descriptions twice after filing the petition, notably expanding to include tasks unrelated to communications, such as drafting, negotiating, and overseeing fulfillment of international media distribution contracts, presenting information to financiers and intellectual property-holders, and analyzing business performance. According to the Petitioner, the position requires "a minimum of a Bachelor's degree or its foreign equivalent in Communications, Entertainment Business Management, or a related field."

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.'

1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually.

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Matter of XYZF- LLC

Specifically, the record does not establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupa:tion.2

A. First Criterion

The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) 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. 3

On the labor condition application (LCA)4 submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the occupational category "Public Relations Specialists" corresponding to the Standard Occupational Classification (SOC) code 27-3031 from the Occupational Information Network (O*NET). The subchapter of the Handbook titled "How to Become a Public Relations Specialist" states, in relevant part, "[p]ublic relations specialists typically need a bachelor's degree. Employers prefer candidates who have studied public relations, journalism, communications, English, or business." Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Ou/look Handbook, Public Relations Specialists, https://www.bls.gov/ooh/media-and­communication/public-relations-specialists.htm#tab-4 (last visited Aug. 7, 2018).

The Director concluded that, although the Handbook states that public relations specialists typically need a bachelor's degree in ·general, ''the position of public relations specialist is an occupation that does not require a baccalaureate level of education in a specific specially as a normal, minimum [requirement] for entry into the occupation" (emphasis original). The Director further o~served that "[t]he requirements appear to vary by employer as to what course of study might be appropriate or preferred." On appeal, the Petitioner asserts that the Director erred in the analysis of the Handbook's statements by "focus[ing] strictly on the minority of Public Relations Specialist [sic] who do not possess a Bachelor's degree or possess a Bachelor's degree in a non-computer-related field." The Petitioner also asserts that the O*NET summary report for Public Relations Specialists establishes eligibility under the first criterion. We disagree.

2 The Petitioner submitted documentation to support the H-18 petition, including evidence regarding the proffered position and its business operations. Although we may not discuss every document submitted, we have reviewed and considered each one. 3 We do not maintain that the Handbook is the exclusive source of relevant information. The occupational category designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities ofa 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. 4 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the employer to other employees with similar experience and qualifications who are performing the same services. See Mauer of Simeio Solutions, llC, 26 l&N Dec. 542, 545-46 (AAO 2015).

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We note first that the Petitioner's reference to "the minority of Public Relations Specialist [sic] who ... possess a Bachelor's degree in a non-computer-related field" is confusing. Public relations, journalism, communications, English, and business are generally not computer-related fields. Accordingly, the Director appropriately focused on the Handbook's statements regarding public relations specialists who "possess a Bachelor's degree in a non-computer-related field."

Moreover, the Handbook states that "[p]ublic relations specialists typically need a bachelor's degree in public relations, journalism, communications, English, or business." Although the fields of public relations, journalism, communications, and English may share common elements, they are all dissimilar to the general field of business. Therefore, the Director correctly concluded that the Handbook indicates that the public relations specialist occupation does not require a bachelor's degree in a specific specialty as the normal, minimum requirement for entry, and that the requirements appear to vary by employer.

The Petitioner's reference to the O*NET summary report for public relations specialists is similarly unpersuasive. The O*NET Summary Report for public relations specialists assigns this occupation a Job Zone "Four" rating, which groups it among occupations for which "most ... require a four-year bachelor's degree, but some do not." O*NET OnLine Summary Report for "27-3031.00 - Public Relations Specialists," http://www.onetonline.org/link/summary/27-3031.00 (last visited Aug. 7, 2018); O*NET OnLine Help - Job Zones, http://www.onetonline.org/help/online/zones (last visited Aug. 7, 2018). Further, O*NET does not indicate that four-year bachelor's degrees required by Job Zone Four occupations must be in a specific specialty directly related to the occupation. Therefore, O*NEJ' information is not sufficiently probative of the proffered position being a specialty occupation.

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

8. Second Criterion

The secorid 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). The first prong addresses the common industry practice, while the alternative prong focuses on the Petitioner's specific position.

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.

The Director concluded that letters from representatives of three businesses the Petitioner submitted in response to the RFE do not specify that a bachelor's or higher degree in a specific specialty, or its

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Matter of XYZF- LLC

equivalent, is required. On appeal, the Petitioner asserts that the record establishes eligibility under the first prong of the second criterion because "[a]ll of these letters from individual [sic] in the industry attest that a Bachelor's degree or its equivalent in Communications or a related and relevant field such as Media and Advertising or Business Management is the minimum requirement for entry into the position of Communications Specialist." We disagree. Although the fields of communications, media, and advertising may share common elements, they are all dissimilar to the general field of business management. Accordingly, the Director correctly concluded that the letters do not specify that a bachelor's or higher degree in a specific specialty, or its equivalent, is required. Moreover, regardless of the disparate specialties discussed in the letters, they do not contain sufficient information to determine whether the referenced communications specialist positions are parallel to the proffered position and whether the other organizations are similar to the Petitioner in terms of workforce size, revenue, years of doing business, or other material factors. Therefore, the letters bear rriinimal probative value for determining eligibility under the first prong of the second criterion.

On appeal, the Petitioner also submits job postings from two employers in the media industry. The first employer states simply, "BA required," and elaborates that a focus "in Marketing, Business, Communications or related area [is] preferred." As discussed above, the general field of business or business management is disparate from marketing and communications; therefore, marketing, business, and communications do not form a specific specialty. Moreover, even if marketing, business, and communications form a specific specialty, the ·first employer states simply that it prefers but does not require employees to possess a bachelor's or higher degree in any of those specialties.

Similarly, the second employer states simply that an applicant "[ m Just have a relevant degree from a top tier university" and elaborates that a focus in "Communications/New Media [is} preferred." Beyond stating that it prefers (but does not require) employees to possess a bachelor's or higher degree in communications or new media, the position is not parallel to the proffered position because it requires "1-2 years [of] experience at a PR agency" in addition to the requirement of a degree from a top tier university. Moreover, even if the second position were parallel to the proffered position, the second job posting does not contain sufficient information to determine whether the employer is similar to the Petitioner in terms of workforce size, revenue, scope of business, and other material factors. Instead, the second job posting indicates that the company is a "global media company" with "l,200 channels [that] drive more than 8 billion monthly views and offer four times the average channel engagement." Therefore, the two job postings do not establish that a bachelor's or higher degree in a specific specialty, or its equivalent, is a common requirement for entry into positions similar to the proffered position among organizations similar to the Petitioner, in the Petitioner's industry.

The Petitioner further asserts:

While every single company in the industry does not limit the degree requirement to only one, singular field of study, the degree requirement itself is unanimous and may

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Matter of XYZF- LLC

XXX [sic] from a singular field of study to a closely related field. To expect every company in the industry to XXX [sic] a solitary education requirement for almost any company in the industry is unreasonable and impossible standard [sic].

We generally do not understand the Petitioner's assertion because it appears to be incomplete. However, to the extent that the Petitioner asserts that the advertising employers require a bachelor's or higher degree in general but prefer specializations in public relations, journalism, communications, English, or business, for the reasons discussed above a general degree requirement does not establish that a bachelor's or higher degree in a specific specialty, or its equivalent, is a common requirement for entry into positions similar to the proffered position among organizations similar to the Petitioner, in the Petitioner's industry. We further observe that the requirement of a. bachelor's or higher degree in a specific specialty, or its equivalent, is neither unreasonable nor impossible for specialty occupations, such as physicians and surgeons.

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

2. Second Prong :,

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 Director concluded that the Petitioner did not satisfy the second prong of the second criterion because its description of the proffered position's duties "is generic in nature and provides no further detail as to the unique or complex nature of the proffered position." On appeal, the Petitioner does not assert that it has satisfied the second prong of the second criterion. Instead, it asserts that it satisfied the similar, but distinct, fourth prong, discussed below.

We have reviewed the record and affirm the Director's conclusion that the Petitioner has not satisfied the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

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.

The Director concluded that the Petitioner did not satisfy the third criterion because the record "had no evidence to present on this issue." On appeal, the Petitioner submits a letter written by one of its partners. The Petitioner specifically directs our attention to the partner's statement that "[t]he position of Communications Specialist is a particular one for which we require a bachelor's degree or its equivalent in Communications, Entertainment Business Management, or a related field, with a coursework specific to the entertainment industry." We are unpersuaded.

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The record must establish that a petitioner's stated degree requirement is not a matter of preference for certain candidates but is necessitated instead by performance requirements of the position. See Defensor, 201 F.3d at 387-88. If we were limited solely to reviewing a petitioner's claimed self­imposed requirements, an organization could bring any individual with a bachelor's degree to the United States to perform any .occupation as long as the petitioning entity 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.

In this case, the record contains insufficient documentary evidence of the Petitioner's past recruitment and hiring practices for the ''communications specialist" position and information regarding employees who previously held the position, despite having conducted business since 2008. Therefore, the Petitioner has not· satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). ·

D. 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 has does not sufficiently developed _relative specialization and complexity as an aspect of the proffered position, because it has not consistently explained what exactly the Beneficiary will be doing in the proffered "communications specialist" position. As discussed above, we find that the Petitioner submitted three materially different job descriptions without explaining the changes.

The Director considered the second version of the proffered position's duty descriptions that the Petitioner submitted in response to the RFE to be a "clarification," rather than a material change to the evidence. The Director concluded that the record does not satisfy the fourth criterion because, although the Petitioner's "clarification of duties does indicate that the proffered position requires a certain amount of skill, training, and attention to detail, they do not establish that the proffered position is any more specialized or complex than any other communications specialist job." We disagree with the Director that the Petitioner's second version of the proffered position's duty descriptions, submitted in response to the Director's RFE, was simply a "clarification" of the first version. Instead, the second and third versions substantially expanded the proffered position's duties beyond both the extent of the duties in the first version and also beyond the scope of a public relations specialist.

A petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied at the time of filing. 8 C.F.R. § 103.2(b)(l ). A visa petition may not be approved based on speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 l&N Dec. 248 (Reg') Comm'r 1978). Although a

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Matter of XYZF- LLC

petitioner may clarify ambiguities in the record in response to an RFE, it may not establish eligibility based on duties created after the petition filing date, particularly as in this case where the new duties expand to include tasks unrelated to the proffered "communications specialist" position, such as drafting, negotiating, and overseeing fulfillment of international media distribution contracts, presenting information to financiers and intellectual property-holders, and analyzing business performance.

The subchapter of the Handbook titled "What Public Relations Specialists Do" states, in relevant part, that public relations specialists typically do the following:

• Write press releases and prepare information for the media; • Respond to information requests from the media; • Help clients communicate effectively with the public; • Help maintain their organization's corporate image and identity; • Draft speeches and arrange interviews for an organization's top executives; • Evaluate advertising and promotion programs to determine whether they are

compatible with their organization's public relations efforts; [and] • Evaluate public opinion of clients through social media.

Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Public Relations Specialists, https://www.bls.gov/ooh/media-and-communication/public-relations-specialists.htm #tab-3 (last visited Aug. 7, 2018).

Initially, in support of the petition, the Petitioner stated that the Beneficiary would "be the administrator and developer of our communications with international contracts with those organizations, and will analyze those contracts to seek the best benefit for our company and our clients." In contrast, in the second version of the proffered position's duty descriptions, the Petitioner stated that the proffered position's duties would not be limited to developing communications related to international contracts, consistent with a public relations specialist's duty of writing press releases and preparing information. Instead, in the second version of the duty descriptions, the Petitioner stated that the Beneficiary "will identify local distribution partners for acquired content" and "solicit and negotiate license terms" with them. The change from developing communications that are related to international contracts to soliciting and negotiating actual contractual terms expands, rather than clarifies, the duty and, moreover, renders it inconsistent with a public relations specialist's duties.

The Petitioner materially changed the duty even further on appeal, stating that 20% of the Beneficiary's time would consist of "[d]raft[ing], administer[ing] and oversee[ing] fulfillment of international distribution contracts," including "[n]egotiat[ing] modifications to contracts with distribution partners and write in specific communications policies and content delivery protocols (including schedules of marketing and publicity assets to be delivered)." Drafting and modifying

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international media distribution contracts for 20% of a workweek is inconsistent with both the initial duty descriptions and a public relations specialist's duties in general. 5

Additionally, in the second version of the proffered position's duty descriptions, the Petitioner stated that the Beneficiary would "present to the film's financiers and intellectual property-holders for approval." The record does not establish which of the six original duties "present[ing] to the film's financiers and intellectual property-holders for approval" clarifies, as the Director concluded. Instead, the duty of presenting information to film financiers and intellectual property-holders appears to be an entirely new duty created after the Petitioner filed the petition. Moreover, even if presenting information to film financiers and intellectual property-holders for approval was, as of the petition filing date, a duty of the proffered position, it is inconsistent with a public relations specialist's duties of communicating with the media and the public, preparing statements• for executives, and helping clients communicate.

The third version of the proffered position's duty descriptions expands its scope even more. On appeal, the Petitioner stated that, for 20% of the time ( or one full workday out of a five-day workweek), the Beneficiary would "[a]nalyze performance data in each country across different media and present reports to the partners, which includes "[a]nalyzing performance data for box office, digital Video on Demand (VOD), cable VOD, DVD, [and] television viewership for each film, in each country of release." Although a public relations specialist's duties include "[ e ]valuat[ing] advertising and promotion programs to determine whether they are compatible with [an] organization's public relations efforts" and "[ e ]valuat[ing] public opinion of clients through social media," they exclude analyzing performance data for five media formats in every country of a film' s release.

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).

E. Opinion Letter

The Petitioner asserts on appeal that an opinion letter written by , a professor and chairperson of a business school, which the Petitioner submits for the first time on appeal, establishes eligibility under the first and fourth criterion. concludes that the proffered position qualifies as a specialty occupation based on "a description of the position of Communications Specialist [for the Petitioner] ." However, letter bears minimal probative value because he based his opinion on the Petitioner's third version of the proffered

5 Even if we accepted the second and third versions of the proffered position's duty descriptions as "clarifications" rather than material changes to the duties, requiring the Beneficiary to draft, oversee fulfillment of, and negotiate modifications to international media distribution contracts would appear to constitute a special skill requirement, resulting in a one-step increase in the proffered position's wage level. See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). Thus, the Petitioner's Level I wage designation for the proffered position would be incorrect and the petition not approvable.

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position's duties, which he quoted verbatim. As discussed above, this version of the proffered position includes new, expanded duties to include tasks unrelated to the proffered "communications specialist" position, such as drafting, negotiating, and overseeing fulfillment of international media distribution contracts, presenting infonnation to financiers and intellectual property-holders, and analyzing business perfonnance. Although a petitioner may clarify ambiguities in the record in response to an RFE or on appeal, it may not establish eligibility based on materially different duties created after the petition filing date. 8 C.F.R. § 103.2(b)(l); See Matter of Michelin Tire Corp.

We may, in our d,iscretion, use an advisory opinion or statement submitted as expert testimony. However, where an opinion is not in accord with other infonnation or is in any way questionable, we not required to accept or may give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm'r 1988). For the reasons above, we find Dr. Queneau's letter insufficient to establish eligibility under any criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A).

IV. CONCLUSION

As the Petitioner has not demonstrated eligibility under any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not demonstrated that the proffered position qualifies as a specialty occupation.

ORDER: The appeal is dismissed.

Cite as Matter of XYZF- LLC, ID# 1394292 (AAO Aug. 8, 2018)

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