dismissed H-1B Case: Computer Components Trade

U.S. Department of Homeland Security 
20 Mass. Ave., N .W ., Rm. A3042 
Washington, DC 20529 
rdentifving dam aehei.& U, 
prevat clearly unwarranQd 
;nvasion of oemm g8- 
U. S. Citizenship 
and Immigration 
FILE: WAC 03 258 53493 Office: CALIFORNIA SERVICE CENTER Date: MAR 1 6 111186 
rN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(l 5)(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. 
w 
Administrative Appeals Office 
WAC 03 258 53493 
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 engaged in the wholesale trade of computer components. It seeks to employ the beneficiary 
as a market research analyst/coordinator. The petitioner endeavors to classifjr the beneficiary as a nonimmigrant 
worker in a specialty occupation pursuant to 5 10l(a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1 10 l(a)(l S)(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. 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. 
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. 
5 214.2(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 
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 research analyst/coordinator. Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's August 14, 2003 letter in support of the 
WAC 03 258 53493 
Page 3 
petition; and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail: researching market conditions of computer media products, 
hardware, equipment, product availability, sourcing, production capacity, competitors, and changing 
technologies; analyzing new demands by American manufacturers, system integrators, wholesalers, and retail 
networks; analyzing fluctuation of market supply and demands; setting up computerized marketing data 
bases; gathering data and performing computer modeling of market trends; preparing analysis reports; 
predicting short-term and long-term market demands; gathering sales and sales network information; 
comparing conventional, direct sales with E-commerce, online order taking; studying problems in online 
sales, methods of improving after-sales services, and technical support; improving the petitioner's website; 
organizing and coordinating the petitioner's marketing operation; calculating and compiling the budget for 
participation in trade shows; and conducting a marketing campaign including advertising and the compilation 
of product catalogs. The petitioner indicated that a qualified candidate for the job would possess a master's 
degree in business administration. 
The director found that the proffered position was not a specialty occupation because the job is not a market 
research analyst position; it is similar to a sales representative position, or a marketing, advertising, or 
promotions manager position. Citing to the Department of Labor's Occupational Outlook Handbook 
(Handbook), 2004-2005 edition, the director noted that the minimum requirement for entry into the position 
was not a baccalaureate degree or its equivalent in a specific specialty. The director found hrther that the 
petitioner failed to establish any of the criteria found at 8 C.F.R. fj 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the proffered position is that of a market research analyst. Counsel 
states further that the director disregarded the information reflected on the petitioner's organizational chart, 
namely, that the petitioner has a sales and marketing department with one sales and marketing director, one 
sales manager, and six staff performing marketing and sales functions. Counsel also states that the eight job 
postings in the record demonstrate that market research analysts "are not limited to any particular industry, or 
type of business, or size of company, or particular merchandise a company carries." 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
fj 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. fj 214.2(h)(4)(iii)(A)(I) 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 HirdIBlaker Corp. v. Suva, 712 F. Supp. 1095, 1 102 (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 is that of a market 
research analyst. Counsel's statement on appeal that market research analysts "are not limited to any particular 
industry, or type of business, or size of company, or particular merchandise a company carries" is noted. A 
WAC 03 258 53493 
Page 4 
review of the Handbook, 2006-2007 edition, however, finds that market research analysts are found mainly in 
professional, scientific, and technical services firms, especially in market research and public opinion polling, 
scientific research and development services, and management, scientific, and technical consulting services. In 
this case, information on the petition that was signed by the petitioner's chief executive officer on August 15, 
2003, reflects that the petitioner is engaged in the retail trade of computer components, and has 20 employees 
and a gross annual income of $10 million. The petitioner, however, has provided no evidence that it generates 
this level of income. The petitioner's federal tax return for the period from April 8, 2002 through March 3 1, 
2003, reflects the petitioner's gross receipts or sales as only $4,560,042. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SofJici, 22 I&N Dec. 15 8, 165 (Comm. 1998) (citing Matter of Treasure Craft of Calgornia, 14 
I&N Dec. 190 (Reg. Comm. 1972)). A further review of the Handbook finds that the proffered position 
combines the duties of a public relations specialist and a marketingladvertising manager. No evidence in the 
Handbook indicates that a baccalaureate or higher degree in a specific specialty is required for these positions. 
The record contains evidence that CIS has approved other petitions previously filed on behalf of market 
research analysts. The director's decision does not indicate whether he reviewed the prior approvals of the 
other nonimmigrant petitions. If the previous nonimmigrant petitions were approved based on the same 
unsupported assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the director. The AAO 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 AAO'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 had approved the nonimmigrant petitions on 
behalf of the beneficiary, 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.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
Regarding parallel positions in the petitioner's industry, the petitioner submitted Internet job postings for 
market research analysts. 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. Thus, the 
advertisements have no relevance. 
The record also does not include any evidence from 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. 9 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. As counsel does not address this issue on appeal, it will not be discussed 
further. 
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. 
WAC 03 258 53493 
Page 5 
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. § 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. 9 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.