dismissed H-1B Case: Construction Materials Distribution

110entifag data 
PUBLIC 6QPX 
LLS. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
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. § 1 10 1 (a)(lS)(H)(i)(b) 
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 
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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 an importer and distributor of ceramic tiles and general construction materials that seeks to 
employ the beneficiary as a market research analyst. The petitioner endeavors to classify the beneficiary as a 
nonimrnigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 10 l(a)(l 5)(H)(i)(b). 
The director denied the petition because the proffered position does not qualify as a specialty occupation. On 
appeal, the petitioner submits a brief stating that the offered position qualifies as a specialty occupation. 
The issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty 
occupation. 
Section 10 l(a)(l S)(H)(i)(b) of the Act, 8 U.S.C. 5 1 10 l(a)(l 5)(H)(i)(b), provides, in part, for the 
classification of qualified nonimmigrant 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. 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. 
The term "specialty occupation" is further defined at 8 C.F.R. fj 214.2(h)(4)(ii) as: 
[A]n occupation which 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, law, theology, and the arts, and which 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. 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; 
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(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties are 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) the 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) the Form I-290B with 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. Evidence of the 
beneficiary's duties includes the Form 1-129 petition with attachment and the petitioner's response to the 
director's request for evidence. According to this evidence the beneficiary would: 
Research market conditions in the local, regional, or national area to determine how the petitioner 
would realize potential sales of its products; 
Establish the research methodology and design format for data gathering, such as surveys, opinion 
polls, or questionnaires; 
Examine and analyze statistical data to forecast future marketing trends for potential sales of services; 
Analyze business trends and develop strategies that will help the petitioner project future revenues; 
Gather data on competitors and analyze process, marketing and customer's service preferences; 
Compile and analyze the petitioner's existing financial records and factors such as income levels for 
the past five years, growth quality of management, and potential financial risks the business may face; 
Prepare a comprehensive market study of local, national and international industries and competitors 
in similar industries; 
Tap new markets and introduce innovative product packages and special promotions; 
Inform management of the current financial standing and availability of funds for expenses; and 
Determine the advisability of adding new lines of service, opening new branches, or otherwise 
diversifying operations. 
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The petitioner requires a minimum of a bachelor's degree in business administration, marketing, economics or 
a related field for entry into the proffered position. 
Upon review of the record, the petitioner has failed to establish that a baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry into the offered position, or that a degree 
requirement is common to the industry in parallel positions among similar organizations, as asserted by the 
petitioner. 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 
an industry professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits fiom 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 115 1, 1165 (D. Minn. 1999) (quoting 
Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for information about the duties and educational requirements of 
particular occupations. Most of the duties of the proffered position refer to those normally performed by 
market research analysts. The occupation of market research analyst is a specialty occupation, with most 
private sector market and survey research jobs requiring a master's degree in business administration, 
marketing, statistics, communications or some closely related field. However, while the petitioner has 
identified its position as that of a market research analyst, its description of the beneficiary's duties lacks the 
specificity and detail necessary to support the petitioner's contention. A petitioner cannot establish its 
employment as a specialty occupation b.y describing the duties of that employment in the same general terms 
as those used in the Handbook in discussing an occupation title, e.g., a market research analyst establishes 
research methodology and design format for data gathering, such as surveys, opinion polls, or questionnaires; 
examines and analyzes statistical data to forecast future marketing trends to predict future sales; and gathers 
data on competitors and analyzes process, marketing and customer service preferences. This type of 
generalized description is necessary when defining the range of duties that may be performed within an 
occupation, but cannot be relied upon by a petitioner when discussing the duties attached to specific 
employment. In establishing a position as a specialty occupation, a petitioner must describe the specific 
duties and responsibilities to be performed by a beneficiary in relation to its particular business interests. 
In the instant case, the petitioner has offered no description of the market research duties beyond the 
generalized terms describing the position in the Handbook. For example, the petitioner has not described 
what tasks the beneficiary would perform in examining and analyzing statistical data to forecast future 
marketing trends to predict future sales, what type of data would be analyzed, how the data would be 
obtained, or how the data would relate to the forecasting of future marketing trends or forecasting of sales. 
The petitioner states that the beneficiary would gather data through surveys, opinion polls or questionnaires, 
but does not state what type of data would be obtained or the purpose of that data which would permit an 
analysis of the complexity of the research to be completed and analyzed. It cannot, therefore, establish that 
the position meets any of the requirements for a specialty occupation set forth in 8 C.F.R. 
8 214.2(h)(4)(iii)(A). As previously noted, CIS must examine the actual employment of the alien, i.e., the 
specific tasks to be performed by that alien, to determine whether a position qualifies as a specialty 
occupation. The petitioner's description of the duties of the proffered position, however, is so generic that it 
is not possible to identify those tasks and, therefore, whether the position is truly that of a market research 
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analyst. Further, without a reliable description of the position's duties, the AAO is unable to determine 
whether the performance of those duties meets the statutory definition of a specialty occupation - 
employment requiring the theoretical and practical application of a body of highly specialized knowledge and 
the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for 
entry into the occupation. As a result, the AAO finds the petitioner has failed to establish that it has a 
specialty occupation for which it is seeking the beneficiary's services. 
The AAO notes the following duties of the position which are in addition to those typically performed by 
market research analysts: compile and analyze the petitioner's financial records and factors such as income 
levels for the past five years, growth quality of management, and potential financial risks the business may 
face; and inform management of financial standing and availability of funds for expenses. These are not 
market research functions, but rather ones that would generally be performed by general or operations 
managers, who are not required to have a minimum of a baccalaureate degree in a specific specialty to 
perform those duties. The additional duties, without further explanation of the duties in relation to the 
petitioner's business, undermine the petitioner's contention that the position is that of a market research 
analyst. 
The proffered position does not meet any of the requirements of 8 C.F.R. 5 214.2(h)(4)(iii)(A). Accordingly, 
the director's denial of the 1-129 petition 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. 5 1361. 
The petitioner has failed to sustain that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.