dismissed H-1B Case: Advertising

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U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 04 260 5 1957 _ office: VERMONT - SERVICE CENTER Date: JUN 0 5 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(a)( 15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
, 
EAC 04 260 5 1957 
Page 2 
DISCUSSION: The service center director denied the nonimrnigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (h0). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a provider of productions services. It seeks to employ the beneficiary as an executive 
producer and classify him as a nonimmigrant worker in a specialty occupation pursuant to section 
101 (a)( 15)(H)(i)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 1 (a)( 15)(H)(i)(B). 
The director denied the petition on the grounds that the record failed to establish that the proffered 
position qualifies as a specialty occupation. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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. 
As provided in 8 C.F.R. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation the position must meet 
one of the following criteria: 
(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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
3 214.2(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 proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) 
director's decision; and (3) Form I-290B, an appeal brief, and supporting materials. The AAO reviewed 
the record in its entirety before issuing its decision. 
EAC 04 260 5 1957 
Page 3 
The petitioner describes itself as a production services provider that produces and directs advertising and 
editorial photo shoots. The petitioner also offers related production services including production 
management, casting, and location scouting, in addition to non-production related services such as studio 
coordinating, catering and craft services, and travel arrangements. The petitioner is a fledgling company 
that was apparently established shortly before the instant petition was filed. According to the petitioner, 
the company was incorporated in 2004, has a projected workforce of two employees, and projects its 
gross annual income at $200,000. The petitioner proposes to employ the beneficiary as an executive 
producer for three years, at an annual salary of $35,000. The duties of the position are listed as follows: 
Supervise all aspects of production projects for advertising shoots simultaneously including 
meetings, bidding, methodology, budget tracking, location scouting, filming, etc. 
Bid all productions to include: creative editorial through final color correction, conform, 
graphics and effects plus recording and mixing. 
Negotiate the award of jobs with agency producers. 
Perform actualization of all costs after completion of job. 
Schedule all editors with multiple overlapping jobs. 
Coordinate assistants, support staff and equipment with appropriate jobs. 
Supervise and coordinate entire production process for commercial shoots including casting, 
permits, catering services, location scouting, photography, etc. 
Maintain constant communication with clients, agency producers, directors and 
photographers on each job project concerning schedules, deadlines, overages reports and 
general progress. 
Maintain excellent business relations with and between producers, creatives, editors, talent, 
etc. 
On a daily basis work with senior client representatives, reporting on all progress of ongoing 
productions. 
According to the petitioner, the proffered position requires at least a bachelor of arts degree or the 
equivalent in film, photography, or advertising. The beneficiary is qualified for the proffered position, the 
petitioner declares, based on his previous experience in production consulting and coordination services, 
and as a photographer, as well as his bachelor of fine arts degree, with a major in professional 
photographic illustration (advertising photography), from the Rochester Institute of Technology, awarded 
on August 15,2003. 
In her decision the director stated that the duties of the proffered position are consistent with those of a 
producer, as described under the occupational category of actors, producers, and directors in the 
Department of Labor (D0L)'s Occupational Outlook Handbook (Handbook). The director quoted 
information in the Handbook indicating that baccalaureate level education in a specific specialty is not 
required for entry into such positions. Nor did the director find that the position involves a level of 
specialization or complexity that requires baccalaureate level education to perform. The director 
concluded that the proffered position does not qualify as specialty occupation under any of the criteria 
enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal counsel asserts that the director erred in analyzing the proffered position under the Handbook's 
occupational category of actors, producers, and directors. Those occupations are in the performing arts 
industry (theater, film, radio, television), counsel explains, whereas the petitioner specializes in 
EAC 04 260 5 1957 
Page 4 
advertising and editorial photo shoots. Counsel contends that the proffered position falls within the 
occupational category of advertising and public relations services, as described in the DOL's Career 
Guide to Industries (a companion resource to the DOL Handbook) and quotes information in this resource 
stating that "[mlost entry-level professional and managerial positions in advertising and public relations 
services require a bachelor's degree, preferably with broad liberal arts exposure." According to counsel, 
the duties of an executive producer in the advertising field are significantly different and more technical 
than those of executive producers in the field of performing arts. Counsel submits a series of internet job 
postings for advertising and public relations positions, all of which require a bachelor's degree. Based on 
the foregoing evidence, counsel asserts that the proffered position qualifies as a specialty occupation 
under all four criteria enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, 
CIS routinely consults the DOL Handbook as an authoritative source of information about the duties and 
educational requirements of particular occupations. Factors typically considered are whether the 
Handbook indicates a degree is required by the industry; whether the industry's professional association 
has made a degree a minimum entry requirement; and whether letters or affidavits from firms or 
individuals in the industry attest that such firms "routinely employ and recruit only degreed individuals." 
See Shanti, Znc. v. Reno, 36 F.Supp. 2d 1151, 1165 (D.Minn. 1999) (quoting HirdIBlaker Corp. v. Suva, 
764 F.Supp. 1095, 1102 (S.D.N.Y. 1989)). CIS also analyzes the specific duties and complexity of the 
position at issue, with the Handbook's occupational descriptions as a reference, as well as the petitioner's 
past hiring practices for the position. See Shanti, Inc. v. Reno, id., at 1165-66. 
The AAO agrees with counsel that the petitioner's business falls generally within the industry category of 
advertising and public relations services. The business also involves some elements of the performing 
arts, however, which are reflected in the title as well as the duties (such as casting, location scouting, 
filming supervision, and communication with clients, directors, and photographers) of the proffered 
position. The AAO determines that the duties of the proffered position combine two occupational 
categories in the Handbook - a producer and an advertising manager. Producers are described in the 
Handbook, 2006-07 edition, as follows: 
Producers are entrepreneurs, overseeing the business and financial decisions of a motion 
picture, made-for-television feature, or stage production. They select scripts, approve the 
development of ideas for the production, arrange financing, and determine the size and 
cost of the endeavor. Producers hire or approve the selection of directors, principal cast 
members, and key production staff members. They also negotiate contracts with artistic 
and design personnel in accordance with collective bargaining agreements and guarantee 
payment of salaries, rent, and other expenses . . . . Producers in any medium coordinate 
the activities of writers, directors, managers, and agents to ensure that each project stays 
on schedule and within budget. 
Advertising managers are a subcategory of the Handbook's broad occupational category of advertising, 
marketing, promotions, public relations, and sales managers. As described in the Handbook, 2006-07 
edition: 
Advertising managers oversee advertising and promotion staffs, which are usually small, 
except in the largest firms. In a small firm, managers may serve as liaisons between the 
EAC 04 260 5 1957 
Page 5 
firm and the advertising or promotion agency to which many advertising or promotional 
functions are contracted out. In larger firms, advertising managers oversee in-house 
account, creative, and media services departments . . . . 
.... 
[Albout one-fourth of advertising and promotions managers worked [in 20041 in the 
professional, scientific, and technical services industries, and the information industries, 
including advertising and related services, and publishing industries . . . . 
With respect to the educational requirements of the occupations, the Handbook, 2006-07 edition, states as 
follows: 
There are no specific training requirements for producers. They come from many 
different backgrounds. Talent, experience, and business acumen are important 
determinants of success for producers. Actors, writers, film editors, and business 
managers commonly enter the field . . . . Producers often start in a theatrical management 
office, working for a press agent, managing director, or business manager. Some start in 
a performing arts union or service organization. Others work behind the scenes with 
successful directors, serve on boards of directors, or promote their own projects. No 
formal training exists for producers; however, a growing number of colleges and 
universities now offer degree programs in arts management and in managing nonprofits. 
As for advertising managers, the Handbook, id., states as follows: 
A wide range of educational backgrounds is suitable for entry into advertising . . . 
managerial jobs, but many employers prefer those with experience in related occupations 
plus a broad liberal arts background. A bachelor's degree in sociology, psychology, 
literature, journalism, or philosophy, among other subjects, is acceptable. However, 
requirements vary, depending upon the particular job. 
The foregoing language is similar to that previously quoted from the DOL's Career Guide to Industries, 
2004-05 edition, which states that most entry-level professional and managerial positions in advertising 
services require "a bachelor's degree, preferably with broad liberal arts exposure." 
As clearly indicated in the Handbook (and the Career Guide to Industries), a baccalaureate or higher 
degree in a specific specialty is not the normal, industry-wide requirement for entry into a position as a 
producer or as an advertising manager. Employers give favorable consideration to a broad spectrum of 
degrees in hiring for advertising managers, and relevant work experience is perhaps the most important 
qualification for producers. Thus, the proffered position does not meet the first alternative criterion of a 
specialty occupation, at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(I), because a baccalaureate degree in a specific 
specialty is not the normal minimum requirement for entry into the position. 
As for the second alternative criterion of a specialty occupation, at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(2), the 
record contains ten internet job postings for producers - variously titled executive producer, technical 
producer, interactive producer, associate producer, senior producer, or simply producer - all of which 
state that a bachelor's degree and relevant work experience is required. None of the postings states that 
the bachelor's degree must be in a specific specialty. Specialized work experience, not a specialty degree, 
,$, 
EAC 04 260 5 1957 
Page 6 
appears to be the key qualification for the positions. Nor do the advertising companies appear to be 
similar to the petitioner in their line of business or scale of operations. Accordingly, the internet job 
postings do not establish that a degree requirement in a specific specialty is common to the petitioner's 
industry in parallel positions among similar organizations, as required for the proffered position to qualify 
as a specialty occupation under the first prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(Z). Nor does the record 
demonstrate that the proffered position is so complex or unique that a degree in a specific specialty is 
required to perform the job, as required for the position to qualify as a specialty occupation under the 
second prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
As for the third alternative criterion of a specialty occupation, the proffered position is newly created and 
the petitioner has no hiring history for it. Accordingly, the petitioner cannot demonstrate that it normally 
requires a bachelor's degree in a specific specialty or its equivalent for the position, as required for it to 
qualify as a specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
Finally, the record does not show that the duties of the proffered position are so specialized and complex 
that their performance requires baccalaureate level knowledge in a specific specialty. The record fails to 
establish that the duties of the position exceed the scope of those normally performed by a producer 
andlor an advertising manager, or that the duties of the position could not be performed by an individual 
with less than baccalaureate level knowledge in a specific specialty. Accordingly, the proffered position 
does not meet the fourth alternative criterion of a specialty occupation at 8 C.F.R 5 214.2(h)(4)(iii)(A)(4). 
For the reasons discussed above, the proffered position does not qualify as a specialty occupation under 
any of the criteria set forth in 8 C.F.R. 5 214.2(h)(4)(iii)(A). The petitioner has not established that the 
beneficiary will be coming temporarily to the United States to perform services in a specialty occupation, 
as required under section lOl(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: The appeal is dismissed. The petition is denied.