dismissed H-1B Case: Business Management

U.S. Department of Homeland Security 
20 Mass Ave., N.W.; Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services bIL 
FILE: EAC 04 032 50927 Office: VERMONT SERVICE CENTER Date: @$,@ f& ? ?glj6 
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. $ 1 lOl(a)(lS)(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, Director 
Administrative Appeals Office 
EAC 04 032 50927 
Page 2 
DISCUSSION: The director of the service center denied the nonirnrnigrant 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 convenience storelgas station that seeks to employ the beneficiary as a business manager. 
The petitioner, therefore, endeavors to classify the beneficiary as a nonirnmigrant 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. 
§ 1 lOl(a)(l5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, the 
petitioner submits additional evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. 4 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. 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 additional evidence; (3) the petitioner's response to the director's request; (4) the 
EAC 04 032 50927 
Page 3 
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 business manager. Evidence of the beneficiary's 
duties includes: the Fonn 1-129; the attachments accompanying the Form 1-129; the petitioner's support letter; 
and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary will oversee payroll, quarterly tax filings, inventory, accounts payable, accounts receivable, 
budgeting, and marketing; conduct price surveys and negotiate gasoline prices with vendors; and develop and 
implement marketing strategies and sales promotions based on market analysis. For the proposed position the 
petitioner requires a baccalaureate degree in business. 
The director stated that the submitted job postings were unpersuasive in establishing that the proposed 
position qualifies as a specialty occupation, and that the evidence failed to show a complexity and 
specialization of the day-to-day operations which would require a bachelor's degree in a specific specialty. 
According to the director, the petitioner also did not establish an industry requirement of a baccalaureate 
degree in a specific field of study for the proposed position. 
On appeal, the petitioner states that the proposed position involves complex duties that require advanced 
knowledge of finance, budgeting, marketing strategy, sales principles, and statistics and strategic planning; 
and that such knowledge is attained fi-om the completion of a bachelor's degree in business. Counsel submits 
tax records, stating that the petitioner had gross revenue of $123,000 in 2002; $360,000 in 2003; and even 
higher revenue in 2004. The petitioner's president stated that he previously performed the duties of the 
proposed position and that he holds the educational equivalent to a bachelor's degree in business. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
9 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO first considers the criteria at 8 C.F.R. $9 214.2(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 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 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 Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
In determining whether a 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. 
EAC 04 032 50927 
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The Department of Labor's (DOL) Occupational Outlook Handbook (the Handbook) is routinely consulted 
by the AAO for information about the duties and educational requirements of particular occupations. The 
Handbook reveals that the proposed duties are an amalgam of a marketing manager and a financial clerk, and 
that those occupations do not require a baccalaureate degree in a specific specialty. The Handbook describes 
a marketing manager as one who develops the detailed marketing strategy, determines the demand for a 
product or service, identifies potential markets, develops pricing strategy, monitors trends, and promotes 
products and services. These duties correspond to the beneficiary's duties involving marketing and 
promotions. 
According to the Handbook employers do not require a baccalaureate degree for a marketing manager; it 
states: 
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. . . . 
The record shows that the petitioner employs four persons and that its federal income tax return for the year 
2002 indicated gross revenue of $123,000, and $360,000 in 2003. The level of income generated by the 
petitioner, the AAO finds, has a direct and substantial bearing on the complexity, scope, and depth of the 
proposed duties as a financial clerk. Responsibility for income of $360,000 and $123,000 differs vastly from 
responsibility associated with a far larger income or for responsibility for many employees. Given the 
context of the petitioner's operations, the proposed duties concerning financial matters parallel those of 
bookkeeping, accounting, and auditing clerks. The Handbook depicts the occupations as follows: 
Bookkeeping, accounting, and auditing clerks are an organization's financial recordkeepers. 
They update and maintain one or more accounting records, including those that tabulate 
expenditures, receipts, accounts payable and receivable, and profit and loss. . . . post debits and 
credits, produce financial statements, and prepare reports and summaries for supervisors 
and managers. . . . handle the payroll, make purchases, prepare invoices, and keep track of 
overdue accounts. 
More advanced accounting clerks may total, balance, and reconcile billing vouchers; ensure 
completeness and accuracy of data on account. . . . They may also review invoices and 
statements to ensure that all information is accurate and complete. . . . Auditing clerks verify 
records of transactions posted by other workers. 
Financial clerks . . . record all amounts coming into or leaving an organization . . . keep track 
of a store's inventory. . . . 
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Auditing clerks verify records of transactions posted by other workers. They check figures, 
postings, and documents to ensure that they are correct, mathematically accurate, and properly 
coded. 
The Handbook states that employers require most financial clerks to have at least a high school diploma, and 
for bookkeepers and accounting clerks, they often require an associate's degree in business or accounting. 
Accordingly, based on the evidence in the record, the petitioner fails to establish the first criterion at 8 C.F.R. 
9 214,2(h)(4)(iii)(A): that a baccalaureate or higher degree or its equivalent is the normal minimum 
requirement for entry into the particular position. 
The petitioner submits job postings to establish the first alternative prong at 8 C.F.R. § 2 14.2(h)(4)(iii)(A)(2) - 
that a specific degree requirement is common to the industry in parallel positions among similar 
organizations. The postings do not establish this prong as the employers either differ in nature from the 
petitioner, a small convenience store/gas station, or their nature is not disclosed in the postmg. and 
- are not described; The. designs and manufactures 
packaging is in the music industry; Creative Financial Staffing represents itself 
as a staffing company in one posting and in another postlng it repr 
firm; the West Hartford Company provides delivery semce; and 
hc. provides consulting services. The job postings, therefore, do not establish that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. 
The petitioner has not established the second alternative prong at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(2) as no 
evidence in the record shows the proffered position as so complex or unique that it can be performed only by 
an individual with a degree. As discussed earlier, the proposed duties, in light of the evidence in the record, 
parallel those of a marketing manager and a financial clerk, which are occupations that the Handbook reveals 
do not require a baccalaureate degree in a specific specialty. 
No evidence in the record establishes the regulation at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(3): that the petitioner 
normally requires a degree or its equivalent for the position. 
To satisfy the regulation at 8 C.F.R. 214.2(h)(4)(iii)(A)(4) the petitioner must establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a baccalaureate or higher degree in a specific specialty. Again, based on the 
evidence in the record, the Handbook shows that the proposed duties correspond to those of a marketing 
manager and a financial clerk, which are occupations that do not require a baccalaureate degree in a specific 
specialty. Accordingly, the petitioner fails to establish this last criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A). 
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 on this 
ground. 
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The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.