dismissed H-1B Case: Diamond Wholesale

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
FILE: EAC 03 229 50834 Office: VERMONT SERVICE CENTER Date: OCT 1 7 2005 
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. 5 1 10 l(a)(lS)(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, Director 
Administrative Appeals Office 
EAC 03 229 50834 
Page 2 
DISCUSSION: The 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 diamond wholesaler that seeks to employ the beneficiary as a buyer. The petitioner, 
therefore, endeavors to classify the beneficiary as a nonimmigrant 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. 
§ 1 10 l(a)( 1 f9(H)(i)(b). 
The director denied the petition on the basis that the petitioner had failed to establish that the proposed 
position qualifies for classification as a specialty occupation. 
On appeal, counsel contends that the proposed position qualifies as a specialty occupation, and that the 
director erred in denying the petition. Counsel asserts that in denying the petition, the director acted in an 
arbitrary and capricious manner, and that his decision "totally goes against the spirit of the applicable law and 
regulations." 
Section 2 14(i)(l) of the Immigration and Nationality Act (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. 
The term "specialty occupation" is further defined at 8 C.F.R. 5 2 14.2(h)(4)(ii) as: 
An occupation which requires theoretical and practical application of a body of hghly 
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: 
(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 
EAC 03 229 50834 
Page 3 
(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 proposed position. 
In determining whether a proposed position qualifies as a specialty occupation, CIS does not rely simply 
upon the position's title. The specific duties of the proposed position, combined with the nature of the 
petitioning entity's business operations, are factors to be considered. CIS must examine the ultimate 
employment of the beneficiary and make a determination as to whether the proposed position in fact 
qualifies for classification as a specialty occupation. Cf Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 
2000). The critical element is not the title of the position nor an employer's self-imposed standards, 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 
the minimum for entry into the occupation, as required by the Act. 
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation; (2) the 
director's denial letter; (3) the director's request for evidence (RFE); (4) the RFE response and supporting 
documentation; and (5) the Form I-290B and supporting documentation. The AAO reviewed the record in its 
entirety before issuing its decision. 
In the petitioner's letter of support, the duties of the proposed position were set forth as follows: 
Coordinate activities involved with procuring goods and services, such as raw materials, 
equipment, tools parts, and advertising, for establishment; reviews requisition; 
Confer with vendors to obtain product or service information, such as price, availability, 
and delivery schedule; 
Select products for purchase by testing, observing, or examin[ing] items; 
Estimate values according to knowledge [of] market price; 
Determine methods of procurement, such as direct purchase or bid; 
Prepare purchase orders or bid request; 
Review bid proposals and negotiate contracts with budgetary limitations and scope of 
authority; 
Maintain manual or computerized procurement records, such as items or services 
purchased costs, delivery, product quality or performance and inventories [sic]; 
Discuss defective or unacceptable goods or services with inspection or quality control 
personnel, users, vendors, and other to determine source of trouble and take corrective 
action: 
Previous counsel offered an expanded listing of duties in response to the director's request for evidence. 
However, on appeal newly-retained counsel states that prior counsel submitted this response without 
consulting with the petitioner. Newly-retained counsel states that previous counsel's response was 
incomplete and unauthorized. As such, the AAO will not consider the RFE response submitted by previous 
counsel. 
EAC 03 229 50834 
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On appeal, both the petitioner and newly-retained counsel restate the duties listed above and attempt to add 
more responsibilities to the proposed position. For example, counsel states that the duties of the proposed 
position are two-fold: purchasing and marketing. However, marketing functions were not reflected in the job 
description that was provided in the initial filing or the RFE response. In the appellate brief, counsel labels 
the first portion of the duties as those of a "buyer," and the second portion of the duties as those of a 
"business analyst." 
On appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, 
its level of authority within the organizational hierarchy, or the associated job responsibilities. The petitioner 
must establish that the position offered to the beneficiary when the petition was field merits approval. Matter 
of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to CIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
If significant changes are made to the initial request for approval, the petitioner must file a new petition rather 
than seek approval of a petition that is not supported by the facts in the record. The information provided by 
the petitioner and counsel on appeal does not clarify or provide more specificity to the original duties of the 
petition, but rather adds new duties to the job description. Therefore, the analysis of the first criterion set 
forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A) will be based on the job description submitted with the initial petition. 
In determining whether a proposed 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. The AAO routinely consults the 
Department of Labor's Occupational Outlook Handbook (the Handbook) for its information about the 
duties and educational requirements of particular occupations. 
A review of the duties of the proposed position finds them closely aligned to the responsibilities of 
purchasing managers, buyers, and purchasing agents'. As discussed in the Handbook: 
Purchasing managers, buyers, and purchasing agents seek to obtain the highest quality 
merchandise at the lowest possible purchase cost for their employers. In general, 
purchasers buy goods and services for use by their company or organization, whereas 
buyers typically buy items for resale. Purchasers and buyers determine which 
commodities or services are best, choose the suppliers of the product or service, negotiate 
the lowest price, and award contracts that ensure that the correct amount of the product or 
service is received at the appropriate time. In order to accomplish these tasks 
successfully, purchasing managers, buyers, and purchasing agents study sales records and 
inventory levels of current stock, identify foreign and domestic suppliers, and keep 
abreast of changes affecting both the supply of, and demand for, needed products and 
materials. 
Purchasing managers, buyers, and purchasing agents evaluate suppliers on the basis of 
price, quality, service support, availability, reliability, and selection. To assist them in 
I The AAO notes that counsel also drew a parallel between the proposed position and those of purchasing managers, 
buyers, and purchasing agents, as discussed in the Handbook. 
EAC 03 229 50834 
Page 5 
their search for the right suppliers, they review catalogs, industry and company 
publications, directories, and trade journals. Much of this information is now available on 
the Internet. They research the reputation and history of the suppliers and may advertise 
anticipated purchase actions in order to solicit bids. At meetings, trade shows, 
conferences, and suppliers' plants and distribution centers, they examine products and 
services, assess a supplier's production and distribution capabilities, and discuss other 
technical and business considerations that influence the purchasing decision. Once all of 
the necessary information on suppliers is gathered, orders are placed and contracts are 
awarded to those suppliers who meet the purchaser's needs. Contracts often are for 
several years and may stipulate the price or a narrow range of prices, allowing purchasers 
to reorder as necessary. Other specific job duties and responsibilities of purchasing 
managers, buyers, and purchasing agents vary by employer and by the type of 
commodities or services to be purchased. 
The Handbook reports the following educational requirement for individuals seeking employment in this 
field: 
Qualified persons may begin as trainees, purchasing clerks, expediters, junior buyers, or 
assistant buyers. Retail and wholesale firms prefer to hire applicants who have a college 
degree and who are familiar with the merchandise they sell and with wholesaling and 
retailing practices. Some retail firms promote qualified employees to assistant buyer 
positions; others recruit and train college graduates as assistant buyers. Most employers 
use a combination of methods. 
Educational requirements tend to vary with the size of the organization. Large stores and 
distributors, especially those in wholesale and retail trade, prefer applicants who have 
completed a bachelor's degree program with a business emphasis. Many manufacturing 
firms put yet a greater emphasis on formal training, prefemng applicants with a 
bachelor's or master's degree in engineering, business, economics, or one of the appIied 
sciences. A master's degree is essential for advancement to many top-level purchasing 
manager jobs. 
These findings do not support counsel's contention that a bachelor's degree is required for entry into this 
occupation. The Handbook states that educational requirements vary, and that most employers use a 
combination of internal promotion and hiring individuals with bachelor's degrees in order to fill these 
positions. Moreover, the fact that many employers "prefer" a degree is not synonymous with the 
"normally required" standard imposed by the regulation. 
The AAO will accord no weight to the information counsel submits from the Dictionary of Occupational 
Titles (DOT). The DOT is not a persuasive source of information regarding whether a particular job 
requires the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent, as a 
minimum for entry into the occupation. It provides an assessment (the S.V.P. rating) that is meant to 
indicate only the total number of years of vocational preparation required for a particular position. It does 
not describe how those years are to be divided among training, formal education, and experience, and it 
does not specify the particular type of degree, if any, that a position would require. 
Accordingly, the proposed position does not qualify for classification as a specialty occupation under 
8 C.F.R. 3 2 14.2(h)(4)(iii)(A)(I). 
EAC 03 229 50834 
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Nor does the proposed position qualify as a specialty occupation under either prong of 8 C.F.R. 
5 214.2(h)(4)(iii)(A)(2). The first prong of this regulation requires a showing that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. 
The AAO has reviewed the job postings submitted by counsel. Counsel, however, has failed to consider the 
specific requirements at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) for establishng a baccalaureate or higher degree as 
an industry norm. To meet the burden of proof imposed by the regulatory language, a petitioner must 
establish that its degree requirement exists in parallel positions among similar organizations. 
No evidence has been submitted to establish that any of these postings are from organizations similar in size 
or scope of operations to the petitioner, a diamond wholesaler with five employees. No information is 
submitted regarding Endevco, except that it is involved in "manufacturing and production." Eclipsys is a 
healthcare information technology company. The unnamed company advertising its vacancy through 
Monster.com is a real estate investment company. Fluke Corporation is a manufacturer of test and 
measurement equipment. The Wilmington Group is a pharmaceutical company. No information is 
submitted regarding ITW MagnafluxlRocol, except that it is involved in "manufacturing and production." 
No information is submitted regarding the unnamed company advertising its vacancy through 
BrilliantPeople.com, except that it is involved in "personal care and service" (two copies of this job 
posting were submitted). Western Brass Industries is a manufacturing and distribution company. No 
evidence regarding Adecco Technical is submitted. Thus, there is no evidence to suggest that any of 
these organizations are in fact "similar" to the petitioner. 
The AAO is also unable to verify whether these positions are in fact parallel to the proffered position in 
terms of their basic qualification requirements. For example, the unnamed company advertising through 
BrilliantPeople.com requires a degree in chemistry. Also, the postings from Endevco, Eclipsys, the 
unnamed real estate investment company, The Wilmington Group, ITW Magnafluz/Rocol, and Western 
Brass Industries do not require a degree in a specific field. As noted previously, CIS interprets the term 
"degree" to mean not just any in any field, but one in a specific specialty that is directly related to the 
proposed position. 
The postings are too few in number to be indicative of an industry-wide standard, and they do not indicate 
a common requirement for a degree in a specific specialty. 
The record also contains letters attesting to a common degree requirement in the petitioner's industry. 
The petitioner states on appeal that these companies are of "similar size and annual revenues" to the 
petitioner. However, no evidence is submitted to document this assertion. Simply going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure 
Cra$ of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Further, none of the letter writers cites an 
industry survey or other market data in support of his or her opinion. As the personal opinions of the 
professionals conflict with the industry-wide data contained in the Handbook, the weight of their 
testimony will be discounted. See Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). 
'The AAO notes that the wording of the letters from is identical. This 
raises the question as to whether these letters were in fact written by the persons signing them, or whether the 
petitioner provided the signers with "templates" which were simply on letterhead and signed. As 
such, the evidentiary weight of these two letters is diminished. 
EAC 03 229 50834 
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Accordingly, the proposed position does not qualify as a specialty occupation under the first prong of 
8 C.F.R. $ 2 14,2(h)(4)(iii)(A)(2). 
The second prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2) requires the petitioner to prove that the duties of the 
proposed position are so complex or unique that only an individual with a degree can perform them. The 
nature of the duties of the proposed position as set forth in the petition does not support such a finding, as 
they are similar to those set forth in the Handbook, which does not state that a degree is required. The record 
contains no evidence that would support a finding that the position proposed here is more complex or unique 
than such positions at organizations similar to the petitioner. 
Therefore, the petitioner cannot establish that the proposed position qualifies as a specialty occupation under 
either prong of 8 C.F. R. $2 14.2(h)(4)(iii)(A)(2). 
The proposed position does not qualify as a specialty occupation under 8 C.F.R. $ 214.2(h)(4)(iii)(A)(3), 
which requires a showing that the petitioner normally requires a degree or its equivalent for the position. To 
determine a petitioner's ability to meet this criterion, the AAO normally reviews the petitioner's past 
employment practices, as well as the histories, including names and dates of employment, of those employees 
with degrees who previously held the position, and copies of those employees' diplomas. 
In order to establish eligibility under this criterion, the petitioner must demonstrate that it normally hires 
individuals with a bachelor's degree or equivalent for the position. If the petitioner has never before filled the 
position, then it cannot qualify the position as a specialty occupation under this criterion. 
On appeal, counsel asserts the following with regard to this criterion: 
[The petitioner] consistently requires that the Buyer delegated to the undertaking of 
Purchasinglmarketing activities possess a Baccalaureate Degree in the related field. Our 
degree requirement emanates from the fundamentally professional nature of the work. The 
Buyer assigned to these tasks will be manipulating academic knowledge and 
purchasinglmarketing techniques, normally acquired only through achievement of a 
bachelor's degree or its equivalent in a business related discipline. 
The imposition of degree requirements [sic] as a prerequisite for employment in the offered 
positions, such as the above described, is, in fact, nearly universal among most of the 
reputed diamond companies. Indeed, our company has imposed such a requirements since 
its inception [sic]. 
In contrast, the petitioner states on appeal that this will be the first time it has employed a buyer. 
Without documentary evidence to support his claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. Mutter of' 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter 
ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Since there is no evidence to support counsel's 
assertion that the petitioner normally requires candidates for the proposed position to possess a bachelor's 
degree, and the petitioner claims that it has never before employed an individual in the proposed position, 
the AAO concludes that the proposed position does not qualify as a specialty occupation under this 
criterion. 
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Thus, the proposed position does not qualify as a specialty occupation under 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A)(3). 
Finally, the AAO turns to the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(#), which requires a 
demonstration that 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. 
To the extent that they are depicted in the record, the duties of the proposed position 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. Again, there is no information in the record to 
support a finding that the proposed position is more complex or unique than similar positions in other, 
similar organizations. As the Handbook reveals, such organizations do not normally impose a bachelor's 
degree requirement. Therefore, the evidence does not establish that the proposed position is a specialty 
occupation under 8 C.F.R. 3 2 14.2(h)(4)(iii)(A)(4). 
The proposed position does not qualify for classification as a specialty occupation under any of the four 
criteria set forth at 8 C.F.R. 55 214.2(h)(4)(iii)(A)(I), (2), (3), and (4), and the petition was properly 
denied. 
As the position in this petition is not a specialty occupation, the beneficiary's qualifications to perform the 
duties of a specialty occupation are inconsequential. Accordingly, the AAO will 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. 
# 136 1. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.