dismissed H-1B Case: Advertising And Promotions

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U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
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SEP 052007
FILE: WAC 0522051687 Office: CALIFORNIA SERVICE CENTER Date:
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents 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
www.uscis.gov
WAC 05 220 51687
Page 2
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now
before the AdministrativeAppeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be
.denied.
The petitioner operates a retail strip center and a travel agency, and provides money remittance and business
rental services. It seeks to employ the beneficiary as a part-time advertising and promotions analyst. The
petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation
pursuant to section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C.
§ 1l01(a)(15)(H)(i)(b). The director denied the petition because the proffered position is not a specialty
occupation.
The record of proceeding before the AAO contains: (I) the Form 1-129 and supporting documentation; (2) the
director's request for evidence (RFE); (3) the petitioner's response to the director's request; (4) the director's
denial letter; and (5) the Form 1-290B, with the petitioner's statement and additional evidence. The AAO
reviewed the record in its entirety before reaching its decision.
The issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet its
burden of proof in this regard, the petitioner must establish that the job it is offering to the beneficiary meets
the following statutory and regulatory requirements.
Section 214(i)(I) of the Act, 8 U.S.C. § 1I84(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.
The term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as:
An occupation which requires theoretical and practical application of a body of highly
specialized knowledge in fields of human endeavor including, but not limited to, architecture,
engineering, mathematics, physical sciences, social sciences, medicine and health, education,
business specialties, accounting, law, theology, and the arts, and which requires the
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a
minimum for entry into the occupation in the United States.
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of
the following criteria:
(1) A baccalaureate or higher degree or its equivalent is normally the minimum
requirement for entry into the particular position;
WAC 0522051687
Page 3
(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) consistently interprets the term "degree" in the above criteria to
mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the
proffered position.
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a
position's title. The specific duties of the proffered position, combined with the nature of the petitioning
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the
alien, and determine whether the position qualifies as a specialty occupation. Cf Defensor v. Meissner, 201 F.
3d 384 (5 th Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed
standards, but whether the position actually requires the theoretical and practical application of a body of
highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty
as the minimum for entry into the occupation, as required by the Act.
The petitioner seeks the beneficiary's services as a part-time advertising and promotions analyst. Evidence of
the beneficiary's duties includes: the petitioner's June 20, 2005 letter in support of the petition and the
petitioner's December 12, 2005 response to the director's RFE. As stated by the petitioner, the proposed
duties are as'follows:
Assess the characteristics of products and services to be promoted and advise management on the
advertising needs. Develop and implement advertising campaigns appropriate for printing or
electronic media. Develop marketing strategies to promote sales and customer volume. Oversee
development of marketing communications, programs and materials for external promotion of
service activities. Serve as Team Leader in implementing promotions and monitoring their success.
Provide information and recommendation to management on promotional details and approaches.
Plan and work hand-in-hand with the petitioner's fmancial officer, accountant, and operations
manager regarding operational budget and cost control on advertising campaigns. Prepare
management report to include strategies, progress of promotion and the result of advertising.
The director found that the proposed advertising and promotions analyst duties do not require a bachelor's
degree. Citing the Department of Labor's (DOL) Occupational Outlook Handbook (Handbook), the director
WAC 0522051687
Page 4
noted that the minimum requirement for entry into the position was not a baccalaureate degree or its
equivalent in a specific specialty. The director concluded that the petitioner failed to establish any of the
criteria found at 8 C.F.R. § 214.2(h)(4)(iii)(A).
On appeal, the petitioner asserts, in part, that the director erred in determining that a promotions specialist
position is not a specialty occupation. The petitioner also asserts that the denial is inconsistent with a previous
decision by the director. The petitioner submits Internet job postings as supporting documentation.
Upon review of the record, the petitioner has established none of the four criteria outlined in
8 C.F.R. § 2l4.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation.
The AAO turns first to the criteria at 8 C.F.R. §§ 2l4.2(h)(4)(iii)(A)(1) and (2): a baccalaureate or higher
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree
requirement is common to the industry in parallel positions among similar organizations; or a particular
position is so complex or unique that it can be performed only by an individual with a degree. Factors often
considered by CIS when determining these criteria 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 letters or affidavits from fmns or individuals in the industry attest that such firms
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.
Minn. 1999)(quotingHird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989».
The AAO routinely consults the Handbook for its information about the duties and educational requirements of
particular occupations. The AAO does not concur with the petitioner that the proffered advertising and
promotions analyst position is a specialty occupation. No evidence in the Handbook, 2006-07 edition, under
the category of Advertising, Marketing, Promotions, Public Relations, and Sales Managers, indicates that a
baccalaureate or higher degree in a specific specialty is required for an advertising and promotions
manager/analyst position. A wide range of educational backgrounds is suitable for entry into advertising and
promotions manager/analyst jobs, but many employers prefer individuals with related experience and a broad
liberal arts background. Further, although information on the petition reflects that the petitioner was
established in 1999, employs ten contractors, and has a gross annual income of $450,000.00, the record
contains no evidence in support of the petitioner's claims, such as federal income tax returns and quarterly
wage reports. Simply going on record without supporting documentary evidence is not sufficient for the
purpose of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165
(Cornm. 1998) (citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Cornm. 1972». In view
of the foregoing, the position does not satisfy the regulatory requirement for eligibility as a specialty
occupation under the first criterion.
The petitioner asserts on appeal that CIS has already determined that the proffered position is a specialty
occupation since CIS has approved another, similar petition in the past. This record of proceeding does not,
however, contain all of the supporting evidence submitted to CIS in the prior case. In the absence of all of the
corroborating evidence contained in other record of proceeding, the information .submitted by the petitioner is
WAC 05 220 51687
Page 5
not sufficient to enable the AAO to determine whether the position offered in the prior case is similar to the
position in the instant petition.
Each nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. § 103.8(d). In
making a determination of statutory eligibility, CIS is limited to the information contained in the record of
proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). Although the AAO may attempt to hypothesize as to whether the
prior case was similar to the proffered position or was approved in error, no such determination may be made
without review of the original record in its entirety. If the prior petition was approved based on evidence that
was substantially similar to the evidence contained in this record of proceeding, however, the approval of the
prior petition would have been erroneous. CIS is not required to approve petitions where eligibility has not
been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). Neither CIS nor any other agency
must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery 825 F.2d 1084, 1090
(6th Cir. 1987), cert denied, 485 U.S. 1008 (1988).
Regarding parallel positions in the petitioner's industry, the petitioner submits Internet job postings for sales,
marketing, and trade promotions positions for a variety of businesses, including
of New Jersey, and . The listings provided either fail to offer meaningful-descriptions of the
positions advertised or rely on duties unlikethe duties listed by the petitioner. None of the businesses is similar to
the petitioner's business. Neither do these listings indicate that the businesses publishing the advertisements are
similar to the petitioner in size, numberof employees, or level of revenue. It is also noted that none of the listings
stipulates the requirement of a bachelor's degree in a specific specialty, thus supporting the fmding from the
Handbook that there is no specific degree requirement for the positions of advertising, marketing, promotions,
public relations, and sales managers. The record also does not include any evidence from individuals, firms, or
professional associations regarding an industry standard. Accordingly the petitioner has not established that the
degree requirement is commonto the industry in parallel positions among similar organizations.
In the alternative, the petitioner may show that the proffered position is so complex or unique that only an
individual with a degree can perform the work associated with the position. In the instant petition, the
petitioner has not submitted sufficient documentation to establish that the duties of the proffered position
involve 'duties that are complex or unique; rather the petitioner has provided a general description of the
occupation without identifying any complex or unique tasks pertinent only to the petitioner's business that
would elevate the position to one that requires the knowledge associated with a bachelor's degree in a specific
discipline. The petitioner has failed to establish the proffered position as a specialty occupation under either
prong of the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
The AAO now turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3) - the employer normally requires a
degree or its equivalent for the position. As the petitioner does not address this issue on appeal, it will not be
discussed further. The evidenceofrecord does not establish this criterion.
WAC 0522051687
Page 6
Finally, the AAO turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(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.
The petitioner does not address this issue on appeal; however , the record does not contain sufficient
documentary evidence that the duties of the proffered position differ from those duties of advertising,
marketing, promotions, public relations, and sales managers, positions for which the Handbook reports no
specific degree requirement. To the extent that they are depicted in the record, the duties do not appear so
specialized and complex as to require the highly specialized knowledge associated with a baccalaureate or
higher degree in a specific specialty. Therefore, the evidence does not establish that the proffered position is a
specialty occupation under 8 C.F.R. § 214.2(hX4)(iii)(A)(4).
As related in the discussion above , the petitioner has failed to establish that the proffered position is a
specialty occupation.
The burden of proof in these proceedings rests solely with the petitioner. Section 291of the Act, 8 U.S.C. § 1361.
The petitioner has not sustainedthat burden.
ORDER: The appeal is dismissed.The petition is denied.