dismissed H-1B Case: Dietary Supplements

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 03 240 5 1022 Office: CALIFORNIA SERVICE CENTER Date: OCT 1 7 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 10 1 (a)(l S)(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 
WAC 03 240 51022 
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 distributor of dietary supplements and seeks to employ the beneficiary as a customer service 
supervisor. The petitioner 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 1 (a)(l 5)(H)(i)(b). 
The director denied the petition because the position did not qualify as a specialty occupation. On appeal, counsel 
submits a brief asserting that the proffered position is a specialty occupation. 
The issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty 
occupation. 
Section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 5 1 101 (a)(] 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. tj 11 84(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; 
WAC 03 240 5 1022 
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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. 
3 214.2(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 its customer service supervisor. 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: 
Review and analyze product composition, effect and benefit; 
Prepare a products brochure highlighting the nature of the petitioner's products, their benefits and 
intended users; 
Research articles and publications in related subjects; 
Monitor scientific discoveries and research reports related to products marketed by the company; 
Coordinate, study and evaluate company products; 
Respond to inquiries, comments or complaints by consumers; 
Conduct training sessions to educate distributors and end-users; 
Recommend procedures and guidelines on storage and distribution to avoid adverse effect on 
company products; 
Prepare summary reports for management in formulating and/or enhancing product development, 
marketing and distribution; and 
Supervise the staff in achieving stated goals. 
WAC 03 240 5 1022 
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The petitioner requires a minimum of a bachelor's degree with a major or emphasis in biological science, 
physical science and management 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 
counsel. 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 from firms or individuals in the industry attest that such firms "routinely employ and recruit only 
degreed individuals." Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 (D. Minn. 1999) (quoting Hird/Blaker 
Corp. v. Suva, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for information about the duties and educational requirements of 
particular occupations. The duties of the proffered position are varied and include duties normally performed 
by generalloperations managers, with some additional marketing responsibilities. Generalloperations 
managers plan, direct, or coordinate the operations of companies or public and private sector organizations. 
They formulate policies, manage daily operations, and plan the use of materials and human resources. The 
petitioner would also prepare product brochures and news letters, and perform other tasks marketing the 
petitioner's products. The petitioner has not met any of the above requirements to qualify the offered position 
as a specialty occupation. The proffered position requires general managerial skills, and those skills do not 
arise from any particular specialty. Indeed, many management or top executive positions are filled by 
promoting experienced, lower level managers from within an organization. Other top executives/managers 
hold degrees in business administration or a liberal arts degree. A college degree in a specific specialty is not 
a minimum requirement for entry into the field of management. Likewise, the duties of marketing managers 
do not require a degree in a specific specialty. The Handbook states that degrees in a wide range of 
educational disciplines prepare individuals for marketing management positions. Again, many employers 
prefer managers with experience and a broad liberal arts background. A degree in a wide range of disciplines 
will suffice for positions that do require a college education. The petitioner has, therefore, failed to establish 
the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(I). 
The petitioner asserts that a degree requirement is common to the industry in parallel positions among similar 
organizations, and in support of this assertion submits a copy of job listings from an Internet web cite. Those 
listings, however, are not from companies similar to that of the petitioner, and do not advertise positions 
similar to that of the proffered position. Further, the jobs advertised are in the field of nutritionldiet and the 
majority require degrees in nutrition or a closely related field. The advertisements presented are of little 
evidentiary value and the petitioner has failed to establish the referenced criterion at 8 C.F.R. 
2 1 4.2(h)(4)(i i i)(A)(2). 
The petitioner states that it normally requires a degree for entry into the offered position. The petitioner has 
not, however, provided evidence in support of that assertion. Simply going on the record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N 190 (Reg. Comm. 1972)). Further, CIS must examine the ultimate employment of the alien, and 
WAC 03 240 5 1022 
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determine whether the position qualifies as a specialty occupation. Cf. Defensor v. Meissner, 201 F. 3d 384 
(5ith Cir. 2000). The critical element is not the title of the position or 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 ~ct.' To interpret the regulations any other way would lead to 
absurd results: if CIS were limited to reviewing a petitioner's self-imposed employment requirements, then 
any alien with a bachelor's degree could be brought into the United States to perform menial, non- 
professional, or an otherwise non-specialty occupation, so long as the employer required all such employees 
to have baccalaureate or higher degrees. See id at 388. The petitioner has failed to establish the criterion at 
8 C.F.R. 9 214.2(h)(4)(iii)(A)(3). 
The petitioner has not established that the duties of the proffered position are so complex or unique that they 
can be performed only by an individual with a degree in a specific specialty, or that they are so specialized or 
complex that knowledge required to perform them is usually associated with the attainment of a baccalaureate 
or higher degree in a specific specialty. The duties of the position are those that would be routinely 
performed by general or operations managers in the petitioner's industry, with some additional marketing 
responsibilities, and are routinely performed both by individuals with less than a baccalaureate level 
education, and those who hold degrees in a wide range of educational disciplines. The petitioner states that 
the beneficiary would be required to run tests and analysis on new and current products to ensure product 
quality and handling. On appeal, the petitioner indicates for the first time that the beneficiary would be 
required to operate such machines as: a High Performance Liquid Chromatography; an Infrared 
Spectrophotometer; a Gas Chromatography; and a UV-vis Spectrophotometer. The petitioner may not 
materially alter a job description or offer a new position to the beneficiary in order to make a deficient 
petition conform to CIS requirements. See Matter of Zzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
A visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under 
a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The petitioner is a 
distributor of dietary supplements, not a manufacturer of these products, and it has not established that it has a 
laboratory, the above listed machinery, or a program for performing product testing and analysis. The 
petitioner has not established the referenced criteria at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(2) or (4). 
The petitioner has failed to establish that the offered position meets any of the criteria listed at 8 C.F.R. 
9 214.2(h)(4)(iii)(A). 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. 
5 1361. The petitioner has not sustained that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied. 
1 
The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387.