dismissed H-1B Case: Clinical Laboratory

, \
identifyingdatadeletedto
pNYentclearlYWlw~ed,'
...... ofpelSOlll1pnVSC)
'0,,
..";
••••••~. ",.:,f, ", ,
1..' ,
U.S. Departmentof Homeland Security
20 Mass. Ave. N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
FILE:
INRE:
WAC 05 12452095
Petitioner: .
Beneficiary:
Office: CALIFORNIA SERVICE CENTER Date: , .11\ A 2006DEC u 't '
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. § 11 Ol(a)(l5)(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, Chief
Administrative Appeals Office
www.uscis.gov
WAC 05 12452095
Page 2
DISCUSSION: The service center 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 clinical laboratory. In order to employ the beneficiary in a position that it has designated
market research analyst, the petitioner endeavors to classify the beneficiary as a temporary nonimmigrant
worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b)of the Immigration and Nationality Act
(the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b).
In denying the petition, the director determined that ''the duties described by the petitioner are more similar to
those of a marketing manager" and that the evidence of record did not establish that they comprised a specialty
occupation under any criterion of the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A). On appeal, the petitioner
contends that the evidence of record establishes that the position in question is a market research analyst
specialty-occupation position.
As will be discussed below, the AAO finds that the petitioner has not established that the proffered position is a
specialty occupation. Accordingly, the director's decision to deny the petition shall not be disturbed.
The AAO bases its decision upon its consideration of the entire record of proceeding before it, which
includes: (1) the petitio~er's Form 1-129 and the supporting documentation filed with it; (2) the service
center's request for additional evidence (RFE); (3) the matters submitted in response to the RFE; (4) the
director's denial letter; (5) the Form 1-290B and the petitioner's September 19, 2005 letter submitted on
appeal.
Section 101(a)(15)(H)(i)(b) of the Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b), provides a nonimmigrant
classification for aliens who are coming temporarily to the United States to perform services in a specialty
occupation.
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.
Thus, it is clear that Congress intended this visa classification only for aliens who are to be employed in an
occupation that requires the theoretical and practical application of a body of highly specialized knowledge
that is conveyed by at least-a baccalaureate or higher degree in a specific specialty.
Consistent with section 214(i)(1) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(ii) states that a specialty
occupation means an occupation "which [1] 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,
WAC 05 12452095
Page 3
law, theology, and the arts, and which [2] 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. § 2l42(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;
(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.
Consonant with section 2l4(i)(l) of the Act and the regulation at8 C.F.R. § 2l4.2(h)(4)(ii),CIS consistently
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. Applying this
standard, CIS regularly approves H-1B petitions for qualified aliens who are to be employed as engineers,
computer scientists, certified public accountants, college professors, and other such professions. These
occupations all require a baccalaureate degree in the specific specialty as 'a minimum for entry into the
occupation and fairly represent the types of professions that Congress contemplated when it created the H-1B
visa category.
Preliminary to its discussion of the application of the criteria at 8 C.F.R. § 2l42(h)(4)(iii)(A) to the evidence
in this case, the AAO will explain why it accords no significant weight to the AAO decisions and the "wage
library of the U.S. Department of Labor (DOL)" information cited by the petitioner.
The AAO decisions referenced by the petitioner are neither binding nor persuasive. They are not precedent
decisions, that is, AAO decisions that have been designated and published as precedents in accordance with
8 c.P.R. §§ 103.3(c) and 103.9(a). While 8 C.P.R. 103.3(c) provides that CIS precedent decisions are binding
on all CIS employees in the administration of the. Act, unpublished decisions are not similarly binding.
Furthermore, 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.P.R. § 103.2(b)(16)(ii), and the record presently before the AAO does not
establish the proffered position as a specialty occupation. Further, the DOL's description of Job Zone 4 at its
O*NET (Occupational Information Network) Internet site contradicts the petitioner, stating;'
Excerpt from the Internet at http://online.onetcenter.org/help/online/zones.
WAC 05 12452095
Page 4
Job Zone Four: Considerable Preparation Needed
Overall Experience A minimum of two to four years of work-related skill , knowledge , or experience i s
needed for these o ccupations. For example, an accoun tant must c omp lete four years of
college and work for several years in accountin g to be considered qualified .
Job Training Employees in these occupations u sually need several years of work-rela ted exp erience,
on-the-job training , and/or voca tional training .
. Job Zone Examples Many of these occupations involve coordinating, supervising , managing, or trainin g
others. Examples include accountants, human resource managers, computer
programmers, teachers , chemist s, and police detectives.
SVP Range (7.0 to < 8.0)
Education Most of these occupation s require a four - year bache lor's degree, b ut some do no t.
As evident above , accord ing to the O*NETsite , DOL 's Job Zone Four category includes occupations that do
not require at least a bachelor's degree, and a Job Zone Four designation does not indicate the requirement for
studies in a specific specialty.
The petitioner describes itself as "a growing clinical laboratory in Southern California that performs complex
chemical , biological , hematolo gical , and pathological testing , such as blood testing , mammograms , STD
testing, AIDS testing, and others ," serving "individuals, hospitals , and other medical facilities. "
On appeal , the pet itioner defines the beneficiary 's duties and responsibilities as follows :
Market Research - 40% of official time/level of responsibility: full
. (1) She will undertake market research and analysis on the following key areas:
service positioning; service development; pricing; advertising; customer
wants/needs ; competitive activit ies;
(2) She will analyze and interpret past, presen t, and future marketing trends and
consumer demands for [the petit ioner 's] services ;
(3) She will , conduct opinion research to determine public attitude and acceptance
of [the petitioner 's] services . The results of these surveys and opinion
researches are important in creating a marketing campaign based on the clients '
preferences and orientation ;
Research Design - 20% of official time/level of responsibility: full
(4) She will des ign and set up methods of data collection , processing , analysis ,
interpretat ion, reporting and client liaison;
WAC 05 12452095
Page 5
(5) She will plan and conduct research that answers marketing questions. After the
data is gathered, the beneficiary will determine what-it means and then write a
report for the company recommending courses of action;
(6) She will design telephone, personal, or mail interview surveys to assess
clientele preferences and formulate recommendation for maintaining service
quality appreciation [of] clients;
Data Gathering - 20% of official time/level of responsibility: full
(7) She will gather vital data respecting [the] petitioner's competitors, analyze
their service methods, and conduct evaluation of their techniques in marketing
promotion and distribution, all of which shall be used for determining the
advisability of utilizing new approaches in [the] petitioner's desired markets;
Implementation and Analysis - 20% of official time/level of responsibility: full
(8) She will work with numbers and statistics;
(9) She will also ha~dle daily telephone contact with client[s] regarding requests
for information and analysis.
Under the relevant statutory' and regulatory standards, outlined earlier, specialty occupation status is
determined by what the evidence of record conveys about the level of knowledge in a specific specialty that
the beneficiary must theoretically and practically apply in order to perform the particular job that is the
subject of the H-IB petition under review. Therefore, to determine whether a particular job qualifies as a
specialty occupation, CIS does not simply rely on a position's title. Nor does CIS rely on generalized'
descriptions of duties that do not relate actual performance that is indicative of the theoretical and practical
application of at least bachelor's degree level of knowledge in a particular specialty. CIS must focus on the
actual employment of the alien, Cf Defensor v. Meissner, 201 F. 3d 384 (5 th Cir. 2000). The critical element
is not the title of the position, an employer's standards that are not dictated by actual performance
requirements of the position, or the extent to which the record's duty descriptions mirror those that the
Handbook uses for an occupational category. Rather, the decisive issue is whether the evidence of record
establishes that, as required by the Act, the particular position that is the subject of the petition actually
requires the theoretical and practical application of a body of highly specialized knowledge in a specific
specialty, and the attainment of a baccalaureate or higher degree in that specialty.
As evident in the duty descriptions above, the petitioner describes the position exclusively by generalized
statements of broad functions. These statements do not relate what the functions would entail when actually
operating in the context of the petitioner's business. For example: the petitioner does not identify the
analytical methods that the) beneficiary would employ in analyzing market trends and consumer demands;
does not convey the level of specialized knowledge that would be employed to "design and set up methods of
WAC 0512452095
Page 6
data collection"; and there is no information about the work involved in the petitioner's gathering of "vital
data" about its competitors.
The AAO notes that the generic statements about the proffered position and its duties are sufficient to align
the position with the broad occupational category of market research analysts as discussed in the Department
of Labor's (DOL) Occupational Outlook Handbook (Handbook). However, these generalized statements are
not sufficiently specific to distinguish the proffered position as a unique, complex, or specialized market
research analyst position.
The petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1), which assigns specialty
occupation status to a position for which the normal minimum entry requirement is a baccalaureate or higher
degree, or the equivalent, in a specific specialty closely related to the position's duties.
The 2006-2007 Handbook indicates that employers of entry-level market research analysts do not normally
require at least a bachelor's degree, or its equivalent, in a specific specialty. The 2006-2007 Handbook's
section on "Training, Other Qualifications, and Advancement" indicates that a major or concentration in a
specific specialty is not a normal aspect of the baccalaureate threshold for entry into the market research
analyst occupation:
A bachelor's degree is the' minimum educational requirement for many market and survey
research jobs. However, a master's degree maybe 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 indicates that entry into the position may occur with a degree with coursework in the listed
subjects but without a specific course of study leading to a specific degree in the field, market research
analyst positions do not qualify under the first criterion Of 8 C.F.R. § 214.2(h)(4)(iii)(A). As the record of
proceeding contains no evidence establishing that the proffered position is one that normally requires at least
a bachelor's degree, or the equivalent, in a specific specialty, the petitioner has not satisfied 8 C.F.R.
§ 214.2(h)(4)(iii)(A)(l).
WAC 05 124 52095
Page 7
Next, the director was correct in determining that the petitioner has not satisfied the first of the two alternative
prongs of8 C.F.R. § 2l4.2(h)(4)(iii)(A)(2).
The first alternative prong assigns specialty occupation status to a proffered position with a requirement for at
least a bachelor's degree, in a specific specialty, that is common to the petitioner's industry in positions that
are both (1) parallel to the proffered position and (2) located in organizations that are similar to the petitioner.
In determining whether there is such a common degree requirement, factors often considered by CIS 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. Sava, 712 F. Supp. 1095, 1102
(S.D.N.¥. 1989».
As already discussed, the petitioner has not established that its proffered position is one for which the Handbook
reports an industry-wide requirement for a bachelor's degree in a specific specialty. Also, there are no
submissions from professional associations, individuals, or firms in the petitioner's industry. The job
advertisements that the petitioner submitted into the record have no significant evidentiary weight. The
advertisers include firms that are outside the petitioner's industry and therefore outside this criterion's scope
of consideration. All of the advertisements are from organizations of different .types than the petitioner, a
clinical laboratory: they include healthcare insurers; a student association, a chemical company, a global
supplier of healthcare equipment, a dental benefits carrier, the American Red Cross, and a brand-identity
company. Contrary to the.purpose for which they were submitted, the job advertisements demonstrate that the
advertising employers do not all require a degree in a specific specialty. The evidence of record does not
establish that the work performed at the advertised jobs is substantially similar to the work to be performed in the
proffered position.
The petitioner has not satisfied the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which
provides that "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." The evidence of record does not refute the Handbook's
information to the effect that there is a spectrum of degrees acceptable for market research analyst positions,
including degrees not in a specific specialty related to market research analysis. As evident in the earlier
discussion about the generalized descriptions of the proffered position and its duties, the record lacks
sufficiently detailed information to distinguish the proffered position as unique from or more complex than
market research analyst positions' that can be performed by persons without a specialty degree or its
.equivalent. '
As the record has not established a prior history of hiring for the proffered position only persons with at least
a bachelor's degree/ in a specific specialty, the petitioner has not satisfied the third criterion of 8 C.F.R.
§ 214.2(h)(4)(iii)(A).
Finally, the petitioner has not satisfied the fourth criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A), which is reserved
for positions with specific duties so specialized and complex that their performance requires knowledge that
WAC 05 124 52095
Page 8
is usually associated with the attainment of a baccalaureate or higher degree ill a specific specialty. As
reflected in the earlier discussion of the limited information about the proffered duties, the proposed duties
have not been described with sufficient specificity to show that they are more specialized and complex than
market research analyst positions that are not usually associated with a degree in a specific specialty.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises. Inc . v. United States, 229 F . Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis).
As the petitioner has failed to establish that the proffered position qualifies as a specialty occupation under any
criterion of8 C.F.R. § 2l4.2(h)(4)(iii)(A) , the director 's decision shall not be disturbed.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U .S.C.
§ 1361. The petitioner has not sustained that burden . .
ORDER: The appeal is dismissed. The petition is denied.