dismissed H-1B Case: Apparel Wholesale

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
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U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: WAC 04 141 50948 Office: CALIFORNIA SERVICE CENTER Date: APR 0 3 200F 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 lOI(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
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. 
6 Bui<+ Robert P. Wiemann, ector 
Administrative ~~~4s Office 
WAC 04 141 50948 
Page 2 
DISCUSSION: The director denied the nonimmigrant visa petition and the matter is now before the 
Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a wholesaler and trader of quality apparel accessory items that seeks to continue its 
employment of the beneficiary as a business development specialist. The petitioner, therefore, endeavors 
to extend the beneficiary's classification as a nonirnrnigrant worker in a specialty occupation pursuant to 
section 101 (a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 lOl(a)(l5)(H)(i)(b). 
The director denied the petition on the basis that the petitioner had failed to prove that the proposed position 
qualifies for classification as a specialty occupation. On appeal, counsel contends that the position qualifies 
for classification as a specialty occupation. Counsel contends that the director's denial of the petition was 
arbitrary, capricious, an abuse of discretion, and not in accordance with the law. 
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's RFE response and supporting documentation; 
(4) the director's denial letter; and (5) the Form I-290B and supporting documentation. The AAO reviewed 
the record in its entirety before issuing its decision. 
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. 
The term "specialty occupation" is further defined at 8 C.F.R. 5 214.2(h)(4)(ii) as: 
[A]n 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 hgher 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@)(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; 
WAC 04 141 50948 
Page 3 
(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. 
fj 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. 
The petitioner's April 12,2004 letter of support stated that the duties of the proposed position would include 
gathering and analyzing financial data to determine business opportunities for the petitioner domestically, 
abroad, and online; conducting research on product development and market conditions while implementing 
financial analysis and strategic planning; marketing products internationally to meet the petitioner's rapidly 
growing global demand; adrmnistering contracts and generating new accounts; researching, developing, and 
marketing new and existing products to establish an advantage in e-commerce-based sales; interpreting data 
concerning price, stability, future trends, and economic influences pertinent to the sales of accessories; using 
computer programs to prepare reports and draw charts and graphs illustrating profit and cost analysis; and 
analyzing records of present and past operations, costs, estimated and realized revenues, administrative 
commitments, and obligations incurred to project future revenues and expenses. 
In determining whether a proposed position qualifies as a specialty occupation, CIS looks beyond the title 
of the position and determines, from a review of the duties of the position and any supporting evidence, 
whether the position actually requires the theoretical and practical application of a body of highly 
specialized knowledge, and the attainment of a baccalaureate degree in a specific specialty, as the 
minimum for entry into the occupation as required by the Act. The AAO routinely consults the 
Department of Labor's Occupational Outlook Handbook (the Handbook) for its information about the 
duties and educational requirements of particular occupations. 
The petitioner's August 24, 2004 response to the director's request stated that the duties of the proposed 
position were similar to those of budget analysts, market research analysts, and public relations 
specialists, as those positions are described in the Handbook. In his denial, the director found the duties 
of the proposed position similar to those of budget analysts, market research analysts, and marketing 
managers, as those positions are described in the Handbook. 
The AAO agrees with counsel and the director that the duties of the proposed position are an amalgam of 
the duties of budget analysts, market research analysts, public relations specialists, and marketing 
managers and will adjudicate the petition accordingly. 
As such, for the reasons discussed below, the proposed position does not qualify for classification as a 
specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(I), that a baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry into the position. 
The Handbook states that private and governmental firms generally require candidates for budget analyst 
positions to hold a bachelor's degree, but that many prefer or require a master's degree. Within the 
Federal Government, a bachelor's degree in any field is sufficient for an entry-level position. State and 
local governments have varying requirements, but a bachelor's degree in one of many areas - accounting, 
finance, business or public administration, economics, political science, statistics, or a social science such 
WAC 04 14 1 50948 
Page 4 
as sociology may qualify for entry into the occupation. Other employers may prefer a degree in a field 
closely related to that of the employing industry or organization, such as engineering or business. Many 
government employers may prefer candidates with strong analytical and policy analysis backgrounds that 
may be obtained through such majors as political science, economics, public administration, or public 
finance. Occasionally, budget-related or finance-related work experience can be substituted for formal 
education. The Handbook is clear, however, that a degree in a specific specialty is not normally required 
for entry into an occupation as a budget analyst, as degrees in a wide range of educational disciplines will 
suffice for positions requiring a college education. 
As conveyed earlier in this decision, CIS interprets 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. 
When a range of degrees, e.g., the liberal arts, or a degree of generalized title without further 
specialization, e.g., business administration, can perform the duties, the position does not qualify as a 
specialty occupation. See Matter of Michael Hertz Associates, 19 I&N Dec. 558 (Comm. 1988). To 
prove that a job requires the theoretical and practical application of a body of specialized knowledge as 
required by Section 214(i)(l) of the Act, a petitioner must establish that the position requires the 
attainment of a bachelor's or higher degree in a specific course of study. 
The Handbook states the following with regard to the educational qualifications necessary for entry-level 
positions as market research analysts: 
A bachelor's degree is the minimum educational requirement for many market and 
survey research jobs. However, a master's degree may be required, especially for 
technical positions, and increases opportunities for advancement to more responsible 
positions. Also, continuing education is important in order to keep current with the latest 
methods of developing, conducting, and analyzing surveys and other data. Market and 
survey researchers may earn advanced degrees in business administration, marketing, 
statistics, communications, or some closely related discipline. Some schools help 
graduate students find internships or part-time employment in government agencies, 
consulting firms, financial institutions, or marketing research firms prior to graduation. 
In addition to completing courses in business, marketing, and consumer behavior, 
prospective market and survey researchers should take other liberal arts and social 
science courses, including economics, psychology, English, and sociology. Because of 
the importance of quantitative skills to market and survey researchers, courses in 
mathematics, statistics, sampling theory and survey design, and computer science are 
extremely helpful. Many corporation and government executives have a strong 
background in marketing. 
As the Handbook finds that market research analyst positions impose no specific degree requirement on 
individuals seeking employment in the field, the petitioner cannot establish that its proposed market 
research analyst position requires the beneficiary to hold a baccalaureate or higher degree, or its 
equivalent, in a specific specialty. The petitioner has not indicated that the position is a technical position 
WAC 04 14 1 50948 
Page 5 
requiring an advanced degree.' When a range of baccalaureate degrees can perform the duties of a 
position, it cannot qualify as a specialty occupation under 8 C.F.R. $214.2(h)(4)(iii)(A)(l), 
The Handbook states the following with regard to the educational qualifications required for advertising, 
marketing, promotions, public relations, and sales managers: 
A wide range of educational backgrounds is suitable for entry into advertising, marketing, 
promotions, public relations, and sales 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. 
For marketing, sales, and promotions management positions, some employers prefer a 
bachelor's or master's degree in business administration with an emphasis on marketing. 
Courses in business law, economics, accounting, finance, mathematics, and statistics are 
advantageous. . . . 
Most advertising, marketing, promotions, public relations, and sales management 
positions are filled by promoting experienced staff or related professional personnel. For 
example, many managers are former sales representatives, purchasing agents, buyers, or 
product, advertising, promotions, or public relations specialists. In small firms, where the 
number of positions is limited, advancement to a management position usually comes 
slowly. In large firms, promotion may occur more quickly. 
Thus, a position as a marketing manager does not qualify for classification as a specialty occupation 
under 8 C.F.R. $ 214.2(h)(4)(iii)(A)(l). The Handbook indicates that most marketing manager positions are 
filled on the basis of experience (most positions "are filled by promoting experienced staff or related 
professional personnel"). Moreover, the fact that some employers "prefer" a degree or that individuals 
possessing degrees "should have the best job opportunities" does not rise to this criterion's standard of 
employers normally requiring at least a bachelor's degree or its equivalent in a specific specialty. As such, 
marketing managers do not qualify as a specialty occupation under the first criterion. 
Finally, the Handbook states that there are no defined standards for entry into a public relations career, but 
that a college degree combined with experience such as an internslup is considered excellent preparation. 
Many entry-level public relations specialists have a college major in public relations, journalism, advertising, 
or communications. Other employers, however, seek applicants with demonstrated communications slulls 
and training or experience in a field related the firm's business-science, engneering, sales, or finance, for 
example. The Handbook is clear, however, that a degree in a specific specialty is not normally required 
for entry into an occupation as a public relations specialist, as degrees in a wide range of educational 
disciplines will suffice for positions requiring a college education. 
1 
 The record indicates that the beneficiary received a master's degree in business administration from 
Central State University in Oklahoma. 
 The letter of support does not indicate that the petitioner, 
however, requires a master's degree for the position. The AAO notes that the master's degree is not 
recognized by CIS, as it was received from a non-accredited institution. 8 C.F.R. 5 214.2(h)(4)(iii)(C)(l). 
See http://ope.ed.gov/accreditation. 
WAC 04 141 50948 
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Accordingly, the petitioner has not established its proposed position as a specialty occupation under the first 
criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A). 
Nor does the proposed position qualify as a specialty occupation under either prong of 8 C.F.R. 
5 214.2(h)(4)(iii)(A)(2). The first prong of this regulation requires a showing that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. 
The AAO has reviewed the job postings submitted by counsel. Counsel, however, has failed to consider the 
specific requirements at 8 C.F.R. 9 214.2@)(4)(iii)(A)(2) for establishing a baccalaureate or higher degree as 
an industry norm. In order to meet the burden of proof imposed by the regulatory language, a petitioner must 
establish that its degree requirement exists in parallel positions among similar organizations. 
There is no evidence in the record to demonstrate that any of these postings come from companies similar in 
size or scope of business operations to the petitioner, a wholesaler and trader of quality apparel accessory 
items with fifteen employees. According to their postings, eNewLife is engaged in health food product 
research and Core Business Solutions, Inc. provides document management software. No information was 
submitted regarding the unnamed company advertising its vacancy through Careerbuilder.com. No 
information has been submitted that would demonstrate that these companies are "similar" to the petitioner as 
required by the regulation. 
The second prong of 8 C.F.R. 9 214.2(h)(4)(iii)(A)(2) requires the petitioner to prove that the duties of the 
proposed position are so complex or unique that only an individual with a degree can perform them. The 
nature of the duties of the proposed position as set forth in the petition does not support such a finding, as 
they are similar to those of budget analysts, market research analysts, public relations specialists, and 
marketing managers, as those positions are discussed in the Handbook, none of which require a 
baccalaureate degree in a specific specialty. The record contains no documentation to support a finding that 
the proposed position is so complex or unique that, in contrast to similar positions with no specific degree 
requirement, it can only be performed by an individual with at least a bachelor's degree, or its equivalent, in a 
specific specialty. 
Therefore, the petitioner has not established that the proposed position qualifies as a specialty occupation 
under either prong of 8 C.F.R. 3 214.2(h)(4)(iii)(A)(2). 
Nor does the proposed position qualifL as a specialty occupation under 8 C.F.R. 9 214.2(h)(4)(iii)(A)(3), 
which requires a showing that the petitioner normally requires a degree or its equivalent for the proposed 
position. To determine a petitioner's ability to meet this criterion, the AAO normally reviews the petitioner's 
past employment practices, as well as the histories, including names and dates of employment, of those 
employees with degrees who previously held the position, and copies of those employees' diplomas. 
However, no such evidence has been submitted. 
Accordingly, the proposed position does not qualify as a specialty occupation under 8 C.F.R. 
9 214.2@)(4)(iii)(A)(3). 
The AAO next turns to the criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A)(4), which requires a demonstration 
that 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. 
WAC 04 141 50948 
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To the extent that they are depicted in the record, the duties of the proposed position do not appear so 
specialized and complex as to require the highly specialized knowledge associated with a baccalaureate or 
higher degree, or its equivalent, in a specific specialty. There is no information in the record to support a 
finding that the proposed position is more specialized and complex than the general range of budget analyst, 
market research analyst, public relations specialist, and marketing manager positions for which the 
Handbook indicates no requirement for the highly specialized knowledge associated with at least a bachelor's 
degree in a specific specialty. Therefore, the evidence does not establish that the proposed position is a 
specialty occupation under 8 C.F.R. 9 2 14.2(h)(4)(iii)(A)(4). 
Previous counsel submitted information from the Dictionary of Occupational Title S (DOT) Standard 
Vocational Preparation (SVP) rating. The DOT is not persuasive sources of information regarding 
whether a particular job requires the attainment of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, as a minimum for entry into the occupation. Its assessment (the SVP rating) is meant 
only to indicate the total number of years of vocational preparation required for a particular position. It 
does not describe how those years are to be divided among training, formal education, and experience, 
and does not specify the particular type of degree, if any, that a position would require. 
Finally, the MO turns to the issue of the beneficiary's previous H-1B approval. 
 Each nonimmigrant 
petition is a separate proceeding with a separate record. See 8 C.F.R. 9 103.2(b)(16)(ii). If the previous 
petition was approved based upon the same evidence contained in this record, that approval would 
constitute material and gross error on the part of the director. The MO is not required to approve 
applications or 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). It would be absurd to suggest that CIS or any 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). 
Furthermore, the MO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director did approve a nonimmigrant petition 
similar to the one at issue here, the AAO would not be bound to follow the contradictory decision of a 
service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 
1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
The petitioner has failed to establish that the position qualifies for classification as a specialty occupation 
under any of the criteria set forth at 8 C.F.R. $9 214.2(h)(4)(iii)(A)(I), (2), (3), and (4), and the petitioner 
was properly denied. As the proposed position is not a specialty occupation, the beneficiary's 
qualifications to perform its duties are immaterial. Accordingly, the MO will not disturb the director's 
denial of the petition. 
Beyond the decision of the director, the record does not reflect that the beneficiary is qualified to perform 
the duties of a specialty occupation. As noted in footnote 1, the beneficiary obtained a master's degree in 
business administration from Central State University in Edmunton, Oklahoma. That institution is not 
accredited, as required by 8 C.F.R. 4 214.20(4)(iii)(C)(I). See http://ope.ed.gov/accreditation. The 
record does not reflect the beneficiary's undergraduate education. Thus, the record does not establish that 
the beneficiary has a baccalaureate degree or its equivalent. For this additional reason, the petition may 
not be approved. 
WAC 04 141 50948 
Page 8 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
4 136 1. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.