dismissed H-1B Case: Electrical And Lighting Supplies

U.S. Department of Homelal~d Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigratio~l 
FILE: 
%/ 
WAC 03 234 501 16 Office: CALIFORNIA SERVICE CENTER Date: OCT 0 5 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 I Ol(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 ofice. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 234 501 16 
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 pelition will 
be denied. 
The petitioner is a wholesaler and retailer of electrical and lighting supplies. It seeks to employ the beneficiary as 
an account manager and endeavors to classify her as a nonimmigrant worker in a specialty occupation pursuant to 
section 1 Ol(a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 10 1 (a)(l SXHXiXb). 
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 I0 l(a)(l S)(H)(i)(b) of the Act, 8 U.S.C. 5 1 10 1 (a)(] S)(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. 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. 9 214.2(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; 
WAC03 23450116 
Page 3 
(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. 
8 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specia.lty 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 an account manager. 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: 
Develop a work plan to conduct planning assignments; 
Evaluate markets and perform industry competitor analysis; 
Identify prospective markets and develop strategies to maximize penetration; 
Oversee product development or monitor trends that indicate the need for new products/serviices; 
Analyze sales statistics to determine sales potential requirements and monitor the preferences of 
clients/customers; 
Implement strategies decided upon by management; and 
Develop strategic partnerships. 
The petitioner requires a minimum of a bachelor's degree in business administration, marketing 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 from firms or individuals in the industry attest that such firms "routinely employ and recruit only 
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degreed individuals." See 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, 1102 (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 fall within those noted for advertising, marketing, 
promotions, public relations, and sales managers. The Handbook notes that a wide range of educational 
backgrounds is suitable for entry into the aforementioned positions, but that many employers prefer related 
experience plus a broad liberal arts background. Bachelor's degrees in sociology, psychology, literature, 
journalism, philosophy, or other subjects are suitable. Requirements will vary, however, depending on the 
duties of a particular position. For example, some employers prefer a bachelor's or master's degree in 
business administration with an emphasis in marketing, for marketing, sales, and promotion management 
positions. In highly technical industries such as computer and electronics manufacturing a degree in 
engineering or science combined with a business degree may be preferred. In public relations management 
positions some employers prefer a bachelor's or master's degree in public relations or journalism. The 
Handbook further notes that most advertising, marketing, promotions, public relations, and sales management 
positions are filled by promoting experienced staff or related professional or technical personnel. Many 
managers are former sales representatives, purchasing agents, or promotions specialists. A baccalaureate or 
higher degree in a specific specialty or its equivalent is not, therefore, the minimum requirement for entry into 
the position. A degree in a wide range of disciplines will suffice. The petitioner has, accordingly, failed to 
establish the first criterion of 8 C.F.R. fj 214.2(h)(4)(iii)(A). 
The petitioner has also failed to establish that a degree requirement, in a specific specialty, is common to the 
industry in parallel positions among similar organizations. In support of this assertion the petitioner 
submitted copies of several job advertisements for positions it deemed similar to the proffered position. Of 
the advertisements submitted, however, only one noted that degrees were required in any particular 
educational discipline, and the degrees deemed acceptable were not related to each other. That position was 
for an account manager and required a degree in the physical or life sciences, engineering, or business. The 
remaining advertisements noted that a degree was required, but did not state that the degree need be in any 
particular field of study. The advertisements do, in fact, confirm the educational requirements noted in the 
Handbook for the proffered position, that degrees in a wide range of educational disciplines will qualify 
applicants for the position. The petitioner has failed to establish the referenced criterion at 8 C.F.R. 
fj 2 I 4.2(h)(4)(i ii)(A)(2). 
The petitioner asserts that it normally requires a college degree for similar positions in the company, but does 
not state that the degree need be in any particular discipline. In support of that assertion the petitioner 
provided a listing of its employees with their level of education indicated, but it did not provide corroborating 
proof of any degree obtained. 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 SofJici 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N 190 (Reg. Comrn. 1972)). 
Further, CIS must examine the ultimate employment of the alien, and determine whether the position qualifies 
as a specialty occupation. Cj Defensor v. Meissner, 201 F. 3d 384 (5" 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 
WAC 03 234 501 16 
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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 not established the criterion at 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A)(3). 
Finally, the duties to be performed by the beneficiary are not 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. Nor are the duties so complex or unique that they can be performed only by an nndividual 
with a degree in a specific specialty. The duties as defined, appear to be routine for the position in the 
industry and are regularly performed by individuals with degrees in a wide range of educational disciplines. 
The petitioner has, therefore, failed to establish the referenced criteria at 8 C.F.R. $5 2 14.2(h)(4)(iii)(A)(2) or 
(4)- 
The proffered position does not meet any of the requirements of 8 C.F.R. § 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 ofthe 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. 
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.