dismissed H-1B Case: Business

U.S. Department of Homeland Security 
20 Mass. Ave., N W , Rm. A3042 
I Washington, DC 20529 
U. S. Citizenship 
invasion of personal privacy 
 and Immigration 
Services 
PUBLIC COPY 
FILE: LIN 02 267 5 1826 . Office: NEBRASKA SERVICE CENTER Date: HAR 3 0 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
-. 
LIN 02 267 5 1826. 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the director and subsequently dismissed by the 
\ 
 Administrative Appeals Office (AAO) for failing to provide any additional evidence on appeal to overcome the 
decision of the director. Upon receipt of additional information, it appears that counsel for the petitioner did 
submit additional evidence timely. Therefore, the matter will be reopened on CIS motion pursuant to 8 C.F.R. 
103.5(a)(5)(i). The appeal will be dismissed. 
The petitioner is an office supply retail business that seeks to employ the beneficiary as a "market retention 
cost administrator." The petitioner endeavors to classifj the beneficiary as a nonimmigrant worker in a specialty 
occupation pursuant to lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 10 1 (a)( 15)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
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. 
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: 
(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. 
2 14.2(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) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a "market retention cost administrator." Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's August 14, 2002 letter in support of the 
petition; and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would duties that entail: examining and analyzing the petitioner's budget to improve 
. 
 efficiency and increase profits; formulating merchandising policies and coordinating merchandising activities; 
identifying the demand for products and identifying potential markets; monitoring sales trends to determine 
the need for new products and services; and assisting with' the management of the petitioner's daily 
operations. The petitioner indicated that a qualified candidate for the job would possess a bachelor's degree in 
business, economics, administration, accounting, marketing, statistics, or a related field. 
The director found that the proffered position was not a specialty occupation because the proposed duties are 
not so complex as to require a bachelor's, degree. The director found further that the petitioner failed to 
establish any of the criteria found at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the petitioner has satisfied all four criteria of 8 C.F.R. 
5 214.2(h)(4)(iii)(A). Counsel states further that the proffered position encompasses .the duties of budget 
analysts, purchasing managers, marketing managers, and sales worker supervisors. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 214.2(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. 5 214.2(h)(4)(iii)(A)(l) 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 Department of Labor's 
Occupational Outlook Handbook (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 
fms or individuals in the industry attest that such fvms "routinely employ and recruit only degreed individuals." 
See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999)(quoting HirdIBlaker COT. 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 counsel that the proffered position qualifies as a 
specialty occupation. Counsel's assertion that the proffered position encompasses the duties of budget 
analysts, purchasing managers, marketing managers, and sales worker supervisors is noted. No evidence in 
the Handbook, 2006-2007 edition, indicates that a baccalaureate or higher degree in a specialty is required for 
these positions. A wide range of educational backgrounds is suitable for entry into budget analyst, purchasing 
manager, marketing manager, and sales worker supervisor jobs. Further, the petitioner's October 9, 2002 
letter indicates that the petitioner has a total of 12 employees, including two employees with "marketing" 
duties, an accounting manager, a distribution manager, an administrative manager, and a general manager. 
Upon review of the petitioner's organizational chart and the proposed duties of the proffered position, it is not 
clear how the beneficiary's marketing-related duties differ from the duties of the petitioner's other two 
:'marketingM employees. Accordingly, the petitioner's organizational hierarchy is unclear. 
LIN 02 267 5 1826 
 . . 
Page 4 
On appeal, counsel submits letters from six businesses and asserts that these letters establish the proffered 
position as a specialty occupation under the first of the second criterion at 8 C.F.R. 
5 214.2(h)(4)(iii)(A) - the degree requirement is common to the industry in parallel positions among similar 
organizations. The AAO does not agree. 
One of the letters is from the president and CEO of ho states, in part, that he 
looks for a bachelor's or master's degree in business, marketing, ergonomics, economics, accounting & 
finance, statistics, and computer-related fields, but a course of study with some related coursework can be 
substituted. He goes on to say that 50 percent of his staff has a college degree and 70 percent of his staff has 
at least some college courses. This does not prove that the petitioner's degree requirement is the norm within 
its industry. 
Another letter is from the president of 
 who states, in part, that he has an advanced 
degree and performs the sales and 
 The president of the organization would 
presumably have increased responsibilities in running the organization in addition to performing the duties 
described in the proffered position. The record does not establish that position of president of this business is 
similar to that of the proffered position. Again, this does not prove that the petitioner's degree requirement is the 
norm within its industry. 
Another letter is from the president o-who states, in part, that his retail manager 
holds a bachelor's degree in business. He does not state, however, that any of his positions require a 
bachelor's degree. Again, this does not prove that the petitioner's degree requirement is the norm within its 
industry. 
The writers of the remaining letters 'all assert, in part, that the positions such as the proffered position require a 
related bachelor's degree. The writers, however, do not provide any evidence in support of their assertions. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofSici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Regarding parallel positions in the petitioner's industry, the petitioner submitted Internet job postings for a 
variety of positions including, in part, budget analysts, purchasing and logistics managers, marketing 
managers, account managers, and research and development project coordinators in nu'merous industries. 
There is no evidence, however, to show that the employers issuing those postings are similar to the petitioner, 
or that the advertised positions are parallel to the instant position. In addition, the petitioner has not 
demonstrated that the proposed duties of the proffered position are as complex as the duties described for the 
advertised positions. Thus, the advertisements have no relevance. 
The record also does not include any evidence from firms, individuals, or professional associations regarding 
an industry standard, or documentation to support the complexity or uniqueness of the proffered position. The 
petitioner, therefore, has not established the criteria set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l) or (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. On appeal, counsel states that, although the proffered position is a new 
position, the petitioner's employees "currently in any decision-making type position all have degrees." A review 
of the evidence of record, which includes copies of resumes and degrees, reflects that the petitioner's employees 
LIN 02 267 5 1826 
 . 
Page 5 
hold degrees in a variety of fields, including biology and physical education, thereby confirming the position of 
the DOL in its Handbook, namely that a wide range of educational backgrounds is suitable for entry into 
budget analyst, purchasing manager, marketing manager, and sales worker supervisor jobs. The evidence of 
record, therefore, does not establish this criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. 3 214.2(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. 
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, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. 3 214.2(h)(4)(iii)(A)(4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. 
The petitioner has not sustained that burden. 
OR~ER: 
 The appeal is dismissed. The petition is denied.