dismissed H-1B Case: Business

identifLing data deleted to 
prevent clearly unwarranted 
invasion of penonsl pivacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 04 06 1 52206 Office: VERMONT SERVICE CENTER Date: AUG 0 2 2006 
PETITION: Petition for a Nonimrnigrant Worker .Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(lS)(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. 
Mdrninisgtive Appeals Office 
EAC 04 06 1 52206 
Page 2 
DISCUSSION: The service center diitor denied the nonimmigrant visa petition. The matter is now on appeal 
before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be denied. 
The petitioner is a jewelry distributor and seller. It seeks to employ the beneficiary as a management analyst 
and to extend his classification as a nonimmigrant worker in a specialty occupation pursuant to section 
10 l(a)( lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the ground that the record failed to establish that the proffered position 
qualifies as a specialty occupation. 
Section 214(i)(l) of 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. 
§ 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) the 
director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's decision; and 
(5) Form I-290B and an appeal brief. The AAO reviewed the record in its entirety before issuing its decision. 
In a letter accompanying the Form 1-129 the petitioner describes itself as a seller and distributor of jewelry, in 
business since 1996, with 47 employees and gross annual revenues of $43,626,491. The petitioner states that 
it draws on the inventory of the company's manufacturing plants in India and Thailand and that it houses the 
EAC 04 061 52206 
Page 3 
company's marketing, customer relations, and inventory management at its U.S. facilities. The petitioner 
proposes to hire the beneficiary as a management analyst for three years, at an annual salary of $65,000, and 
provides the following description of the job: 
[Tlhe beneficiary will conduct organizational studies and evaluations, design systems and 
procedures, conduct work simplification and measurement studies, and prepare operations 
and procedures manuals to assist management in operating more efficiently and effectively. 
He will operate on the frontiers of new ideas, new modes of analysis and new modes of 
organization. He will provide honest feedback to clients and colleagues alike and also accept 
such feedback from them. 
The beneficiary is qualified for the job, the petitioner declares, by virtue of his bachelor's degree in 
economics from the College of William and Mary in Williamsburg, Virginia, granted on May 19, 1997, along 
with ten years of work experience in the field. 
In the RFE the director requested the petitioner to submit a more detailed description of the proffered 
position's duties, including the percentage of time the beneficiary would spend on each duty. The petitioner 
was also asked to specify the number of management analysts employed by the company past and present, 
and their respective educational degrees. None of the foregoing evidence was furnished by the petitioner in 
its response to the RFE. Instead, the petitioner submitted a series of internet job advertisements for 
management analysts, each of which indicated that a bachelor's degree was required, and information on the 
work and educational requirements of management analysts from the Department of Labor (D0L)'s 
Occupational Outlook Handbook (Handbook). The petitioner also submitted evidence of the beneficiary's 
previous employment in H-1B status as a "manager" for Carlson Restaurants Worldwide. 
In her decision the director noted the petitioner's failure to submit specific evidence and information 
requested in the RFE. The director determined that the record did not establish that the beneficiary would be 
performing the duties of a specialty occupation in the proffered position, or that the petitioner had ever 
employed a management analyst and required a specialty degree for the position. The internet job postings 
for management analyst positions did not establish that a degree requirement in a specific field of study is 
common to the petitioner's industry in parallel positions among similar organizations, the director stated, and 
the record did not establish that the proffered position is so complex or unique that it could only be performed 
by an individual with a degree in a specific specialty. Furthermore, in the director's view the DOL Handbook 
did not indicate that management analysts require a degree in a specific specialty. The director concluded that 
the proffered position does not qualify as a specialty occupation under any of the criteria enumerated at 
8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal counsel emphasizes that the petitioner's jewelry business is part of an international enterprise that 
includes infrastructure in India, Thailand, Hong Kong, and New York, and has a total of 1,800 employees 
worldwide. As a management analyst located at the New York operation, the beneficiary would have the 
following duties: 
Independently handle business development for the company in the United States, form alliances with 
a variety of national and international firms, and facilitate contracts to be developed either in the 
United States or overseas in India. 
EAC 04 06 1 52206 
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Launch new "independent" division selling jewelry line to retail stores. Coordinate merchandizing 
and designing of jewelry based on business drivers and price points specific to clients (Macy's, 
Tiffany, Star Cruise, Shop NBC, QVC, Home Shopping Network, Zales, Sterling Jewelers, 
Hannoush) based on their clientele's profile. 
Research market conditions in local, regional or national area to determine potential sales of service. 
Design and implement marketing campaign to penetrate new market segments and countries in Asia, 
the Americas, and Europe. Analyze and gather market trends and economic data for jewelry exports 
to Central America and Asian countries. Establish research methodology and design formats for data 
gathering on competitors and analyze prices, sales and methods of marketing and distribution. 
Plan business development strategies, prepare sales projections based on macro and micro country 
specific, industry specific, and company specific data. Devise an entry strategy for introducing the 
petitioner's jewelry under its own brand name (Rhapsody) in the United States and Central American 
countries. 
Identify and obtain alliance projects between United States and Indian jewelry industries that will 
necessitate multilingual skills to promote services and technology interchange. Apply technical and 
business skills for consulting services. Examine and analyze statistical data to forecast market trends. 
Formulate and articulate viable strategies to achieve targets in line with company's overall objective 
of growth and profitability. 
Analyze business needs and market opportunities in specific strength areas including training and 
client base enhancement. 
Establish short, medium and long-term objectives and growth targets for achieving desired sales. 
Coordinate business development efforts between the company and other national and international 
business houses with emphasis on global marketing strategy. 
Develop customer/client base for the company's product sales spread over predetermined set of 
geographical markets and customer segments. 
Implement the petitioner's global expansion strategy targeting local and international market 
penetration. Establish revenue generating operational clients in the United States and Asia. Lead and 
implement large-scale change initiatives as determined by the corporate office across the region. 
Manage quantitative market research studies from start to finish, including identifying project 
objectives, recommending research vendors, managing vendors and projects, and presenting findings. 
Manage the analysis of quantitative market data using appropriate statistical methodologies. Generate 
insights which are accurate, timely, and actionable. Produce revenue-generating insights. Manage 
secondary research data collection and library. Monitor competitive and category trends and generate 
reports. 
Counsel reiterates the petitioner's contention that the proffered position requires the services of an individual 
with a bachelor's degree, like the beneficiary's in the field of economics, and relevant experience. 
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, Inc. v. 
Reno, 36 F.Supp. 2d 1151, 1165 (D.Minn. 1999) (quoting HircPBlaker 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 
EAC 04 06 1 52206 
Page 5 
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 petitioner claims that the duties of the proffered position are those of a management analyst. That 
occupation is described as follows in the DOL Handbook, 2006-07 edition, at 92-93: 
Management analysts, often referred to as management consultants in private industry, 
analyze and propose ways to improve an organization's structure, efficiency, or profits. For 
example, a small but rapidly growing company that needs help improving the system of 
control over inventories and expenses may decide to employ a consultant who is an expert in 
just-in-time inventory management. In another case, a large company that has recently 
acquired a new division may hire management analysts to help reorganize the corporate 
structure and eliminate duplicate or nonessential jobs. In recent years, information 
technology and electronic commerce have provided new opportunities for management 
analysts. Companies hire consultants to develop strategies for entering and remaining 
competitive in the new electronic marketplace. 
[Slome analysts and consultants specialize in a specific industry, such as healthcare or 
telecommunications, while others specialize by type of business functions, such as human 
resources, marketing, logistics, or information systems . . . . Some projects require a team of 
consultants, each specializing in one area. In other projects, consultants work independently 
with the organization's managers. In all cases, analysts and consultants collect, review, and 
analyze information in order to make recommendations to managers . . . . 
Both public and private organizations use consultants for a variety of reasons. Some lack the 
internal resources needed to handle a project, while others need a consultant's expertise to 
determine what resources will be required and what problems may be encountered if they 
pursue a particular opportunity . . . . 
After obtaining an assignment or contract, management analysts first define the nature and 
extent of the problem. During this phase, they analyze relevant data - which may include 
annual revenues, employment, or expenditures - and interview managers and employees 
while observing their operations. The analyst or consultant then develops solutions to the 
problem . . . tak[ing] into account the nature of the organization, the relationship it has with 
others in the industry, and its internal organization and culture. Insight into the problem often 
is gained by building and solving mathematical models. 
Once they have decided on a course of action, consultants report their findings and 
recommendations to the client . . . . 
The job duties listed by counsel in the appeal brief do not accord with the foregoing description of a 
management analyst. The job duties listed on appeal reflect a combination of two other occupations 
discussed in the Handbook - marketing manager and market research analyst. As described in the Handbook, 
2006-07 edition, at 27: 
EAC 04 06 1 52206 
Page 6 
Marketing managers develop the firm's marketing strategy in detail. [Tlhey estimate the 
demand for products and services offered by the firm and its competitors. In addition, they 
identify potential markets - for example, business firms, wholesalers, retailers, government, 
or the general public. Marketing managers develop pricing strategy to help firms maximize 
profits and market share while ensuring that the firm's customers are satisfied. . . . [Tlhey 
monitor trends that indicate the need for new products and services and they oversee product 
development. . . . 
As described in the Handbook, id., at 175: 
Market, or marketing, research analysts are concerned with the potential sales of a product or 
service. Gathering statistical data on competitors and examining prices, sales, and methods 
of marketing and distribution, they analyze statistical data on past sales to predict future sales. 
Market research analysts devise methods and procedures for obtaining the data they need . . . 
After compiling and evaluating the data, market research analysts make recommendations to 
their client or employer on the basis of their findings. They provide a company's 
management with information needed to make decisions on the promotion, distribution, 
design, and pricing of products or services. The information also may be used to determine 
the advisability of adding new lines of merchandise, opening new branches, or otherwise 
diversifying the company's operations. Market research analysts might also develop 
advertising brochures and commercials, sales plans, and product promotions such as rebates 
and giveaways. 
Thus, the nature of the job duties described in the petition has been changed on appeal. The duties described 
by the petitioner in its initial letter to the service center focus on analyzing and improving the company's 
operating efficiency, whereas the duties described by counsel in the appeal brief involve marketing and 
market research activities focused on improving on the company's business results. A petitioner cannot offer 
a new position to the beneficiary on appeal, or materially change the position's job responsibilities and 
associated level of authority within the organization, in an effort to make a deficient petition conform to legal 
requirements. See Matter of lzummi, 22 I&N Dec. 169 (Assoc. Comm. 1998). CIS regulations require a 
petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. 
Q 103.2(b)(12); Matter ofMichelin Tire Corporation, 17 I&N Dec. 248,249 (Reg Comm. 1978). "The AAO 
cannot consider facts that come into being only subsequently to the filing of the petition." Matter of lzummi, 
id., at 176. Accordingly, the new position description submitted on appeal will not be considered by the AAO 
in adjudicating the appeal. 
In determining the nature of a particular position, and whether it qualifies as a specialty occupation, the duties 
that will actually be performed are crucial, not the title of the position. The petitioner must show that the 
performance demands of the position require a specialty degree. The critical issue is not the employer's self- 
imposed standard, 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 a minimum for entry into the occupation. C$ Defensor v. Meissner, 201 F.3d 384, 387-88 (5th 
Cir. 2000). 
EAC 04 06 1 52206 
Page 7 
Though the petitioner claims that the proffered position is that of a management analyst, the evidence of 
record does not demonstrate that the beneficiary will actually be performing such duties. In its initial letter to 
the service center the petitioner described the duties of the position in broad, general language - i.e., "conduct 
organizational studies and evaluations, design systems and procedures, conduct work simplification and 
measurement studies, and prepare operations and procedures manuals" - which provided no substantive 
details about those tasks. In the RFT the director requested additional details about the duties of the position, 
the percentage of time required by each duty, and how the beneficiary's economics degree relates thereto - 
asking for "specifics, not generalities" - but the petitioner's response to the RFT did not provide any of the 
requested evidence. Simply going on record without supporting documentation does not satisfy the 
petitioner's burden of proof. See 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)). Without specific evidence about the 
tasks the beneficiary would perform in the context of the petitioner's business, the AAO is not persuaded that 
the beneficiary would be performing the duties of a management analyst, or that the position requires the 
employee to have a baccalaureate or higher degree in economics or any other specific specialty. The 
proffered position does not meet the first alternative criterion of a specialty occupation at 8 C.F.R. 
5 214.2(h)(4)(iii)(A)(I), therefore, because the evidence of record does not demonstrate that a baccalaureate 
or higher degree in a specific specialty is the normal minimum requirement for entry into the position. 
As for the second alternative criterion of a specialty occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2), the 
record includes four internet job advertisements for management analysts, all of which require a baccalaureate 
degree. None of the advertising companies is in the same line of business as the petitioner, however, and the 
advertisements do not show whether the companies are similar to the petitioner in their scale of operations. 
Moreover, since the record does not establish that the proffered position is actually that of a management 
analyst, it is not clear that the duties of the advertised positions are parallel to those of the proffered position. 
Thus, the internet job announcements 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)(2). Nor does the evidence of 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. § 214.2(h)(4)(iii)(A)(2). The 
broad, general description of the job duties is insufficient to establish the position as either complex or 
unique. 
With regard to the third alternative criterion of a specialty occupation, the record does not show that the 
petitioner has ever hired a management analyst in the past and required a specialty degree for the position. 
Accordingly, the petitioner has not demonstrated that it normally requires a baccalaureate or higher degree in 
a specific specialty or its equivalent for the proffered position, as required for the position to qualify as a 
specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
Finally, the documentation of record does not show that the duties of the proffered position are so specialized 
and complex that the knowledge required to perform them is usually associated with a baccalaureate or higher 
degree in a specific specialty. As previously discussed, the petitioner did not furnish sufficient information 
about the job duties to establish that the beneficiary would perform specialized and complex management 
analyst duties. The record does not establish that the duties of the position could not be performed by an 
individual with less than baccalaureate level knowledge in a specialty field. Therefore, the 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). 
EAC 04 06 1 52206 
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For the reasons discussed above, the proffered position does not qualify as a specialty occupation under any 
of the criteria enumerated at 8 C.F.R. 3 214.2(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 101 (a)(lS)(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.