dismissed H-1B Case: Electronics

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
u. s. Citizenship 
and Immigration 
a"' 
- ki,;?> 
FILE: WAC 04 05 8 5 16 17 Office: CALlFORNlA SERVICE CENTER Date: 3 1 2005 
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 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 
WAC 04 058 51617 
Page 2 
DISCUSSION: The director of the service center 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 federal contractor. It seeks to hire the beneficiary as an electronics communications 
bidding analyst. The director denied the petition based on his determination that the petitioner had failed to 
establish that its proffered position was a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence; (3) counsel's response to the director's request for evidence; (3) the director's 
denial letter; and (4) Form I-290B, with counsel's brief and documentation. The AAO reviewed the record in 
its entirety before reaching its decision. 
The issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet its 
burden of proof in this regard, a petitioner must establish that the job it is offering to the beneficiary meets the 
following statutory and regulatory requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 11 84(i)(l) defines the term 
"specialty occupation" as one 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 hrther defined at 8 C.F.R. 5 214.2(h)(4)(ii) as: 
An 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; 
(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. 
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Citizenship and Immigration Services (CIS) interprets the term "degree" in the above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a 
position's title. The specific duties of the proffered 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 
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 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 petitioner states that it is seeking the beneficiary's services as an electronics and communications bidding 
analyst. Evidence of the beneficiary's duties includes: the Form 1-129; the petitioner's December 11, 2003 
letter of support and a May 24,2004 letter from the petitioner. 
At the time of filing, the petitioner stated that the beneficiary's duties entail: (1) determining the orders for 
electronic communications equipment from the weekly publications of CB Disk which publish all orders from 
the Federal Agencies during the week; participating in the formulation, development and recommendation to 
management of a system or program by which purchase requests, including requests for quotes, bids and 
proposals are coordinated and reviewed; receiving and evaluating proposals, quotations and components from 
manufacturers, suppliers and wholesalers (15% of time); (2) researching, analyzing, studying and being 
familiar with electronic communication equipment and spare parts to be procured by the petitioner through 
reading books, the Thomas register, journals, brochures, publications and attendance at trade fairs and 
seminars sponsored by the suppliers and wholesalers (10% of time); (3) conducting test product analysis of 
equipment and spare parts according to prescribed standards such as Military specifications; evaluating and 
reporting results of tests on samples submitted for quality assurance testing (20% of time); (4) researching, 
studying and assisting in the development and recommendation of the implementation of a program or policy 
involving the selection of cost effective shipping sources and identifying the most efficient modes of 
transportation; (5) ensuring that the petitioner is purchasing and buying electronic communications equipment 
and spare parts at the most competitive levels available; maintaining competitive bid or purchasing process to 
ensure most competitive pricing levels (10% of time); (6) participating in drafting, execution of contracts or 
agreements with respect to procurement and purchase of electronic communications equipment and spare 
parts; maintaining and reviewing contracts and agreements (20% of time); (7) performing final quality 
assurance tests on electronic communications equipment and spare parts purchased by petitioner by checking 
against invoice to verify conformity (5% of time); (8) and participating in the development of strategic plans 
in purchasing, budget, and forecast and anticipating price and quality changes in components and related 
products to be procured or purchased. The petitioner indicated that a bachelor's degree or equivalent and 
relevant work experience is required for the proffered position. 
The director requested additional evidence that the proffered position meets one of the above listed criteria. 
The director requested a more detailed description of the petitioner's business including copies of company 
brochures or any other printed work published by the petitioner which outlines, in detail, the products or 
services provided by its company. The director requested copies of the petitioner's signed income tax returns 
that have been certified by the IRS with all required schedules. The director requested an explanation from 
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the petitioner, which has filed over 35 H-1B petitions and indicated that it had 36 employees on the Form I- 
129. The director requested the current employment status and location for all previously approved and/or 
listed H-1B and locally hired employees. The director requested copies of the Form 941, quarterly wage 
reports for the last three quarters, Form DE-6, Quarterly Wage Report for the last 6 quarters, payroll 
summary, list of all employees including names, job titles and current immigration status, and the petitioner's 
organizational chart that includes the current names of all executives, managers, supervisors, and employees 
within each department or job title. The director requested specifically that the beneficiary's position be 
listed in the chart. The director requested a list of all employees by name and job title including a brief 
description of duties, educational level, annual salaries and immigration status for all employees in the 
organizational chart. The director requested copies of all Forms I-797A, notice of action, approval notices 
issued to the petitioner's H or L nonimmigrant employees and if these are not available, a list of the names of 
employees, the positions and CIS receipt numbers. The director requested photographs of the business 
premises, and copies of the business licenses. The director requested a complete copy of the lease that 
indicates total square footage, including all office, production, manufacturing, and/or warehouse space. The 
director requested a copy of the petitioner's floor plan(s) for all spaces including office, warehouse, and 
production spaces. The director requested a copy of the petitioner's telephone directory listing. 
Counsel responded to the director's request. The petitioner did not submit an explanation as to having filed 
35 H-1B petitions and having 36 employees listed on the Form 1-129. The petitioner did not indicate where 
its H-1B employees were worhng. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies \N111 not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The petitioner did submit its tax returns which indicated 
approximately 66 to 71 employees. 
Counsel responded to the director's request and the petitioner added to the job description. The petitioner 
submitted Form 941 quarterly federal tax returns for three quarters indicating approximately 71 employees. 
The petitioner submitted an organizational chart with fourteen job titles. The petitioner submitted a Form 
1065 U.S. Return of Partnership Income which indicated gross receipts or sales of $29,963,480 for tax year 
2003. The Form 1065 also indicated salaries and wages of $3,360,264. In response to the director's request 
for additional information about the petitioner such as printed materials and brochures, the petitioner 
submitted a statement indicating that it is licensed to sell goods and services to Federal Agencies of the 
United States government and provided an item code list of the goods and services. The petitioner provided a 
list of clients and contact information at different federal agencies. Additionally, the petitioner submitted a 
copy of its lease with an addendum indicating an office space of 425 square feet. 
The director referred to the Department of Labor's Occupational Outlook Handbook (the Handbook) and 
indicated that the duties of the position described by the petitioner appear to reflect many of those performed 
by market research analysts. The director stated that he was not convinced that the beneficiary would perform 
the claimed duties. The director found that the evidence failed to establish that the petitioner engages in the 
type of business for which a market research analyst would normally be required. The director found that 
many of the listed duties are performed by advertising, marketing, promotions, public relations, and sales 
managers and those occupations do not require a baccalaureate degree in specific specialty. Therefore the 
proffered position is not a specialty occupation. 
On appeal, counsel notes that the petitioner needs to expand its work force in order to work with more 
government agencies. Counsel explains that the petitioner needs to source quality materials or service 
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packages from suppliers and due to the complexity and highly technical nature of the tasks to be performed, 
the petitioner needs the beneficiary who has a background in electronics and communications engineering. 
The AAO notes that the petitioner indicated that it is a federal contractor. The petitioner submitted no 
evidence that it has contracts with the federal government. Going on 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 Dec. 190 (Reg. 
Comm. 1972)). 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 214.20(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO considers the criteria at 8 C.F.R. Cjfj 214.2(h)(4)(iii)(A)(l) 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 ~h'anti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 
(D.Minn. 1999)(quoting Hird/Blaker Corp. v. Sava, 8 12 F. Supp. 872, 1 102 (S.D.N.Y. 1989)). 
In determining whether a 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. 
Upon review of the record, the petitioner has failed to establish that the proffered position qualifies as a 
specialty occupation. The AAO routinely consults the Handbook for information about the duties and 
educational requirements of particular occupations. The duties of the proffered position resemble those of a 
purchasing agent as described in the Handbook. The Handbook indicates the following duties: 
Purchasing managers, buyers, and purchasing agents evaluate suppliers on the basis of price, 
quality, service support, availability, reliability, and selection. To assist them in 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. 
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Purchasing specialists employed by government agencies or manufacturing fhs usually are 
called purchasing directors, managers, or agents; buyers or industrial buyers; or contract 
specialists. These workers acquire materials, parts, machines, supplies, services, and other 
inputs to the production of a final product. Some purchasing managers specialize in 
negotiating and supervising supply contracts, and are called contract or supply managers. 
Purchasing agents and managers obtain items ranging fkom raw materials, fabricated parts, 
machinery, and office supplies to construction services and airline tickets. The flow of 
work--or even the entire production process--can be slowed or halted if the right materials, 
supplies, or equipment are not on hand when needed. To be effective, purchasing specialists 
must have a working technical knowledge of the goods or services to be purchased. 
According to the Handbook: 
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. 
Similarly, the beneficiary will participate in ensuring that the petitioner is purchasing and buying electronic 
communications equipment and spare parts at the most competitive levels available; and maintaining the 
competitive bid or purchasing process to ensue the most competitive pricing levels. 
The Handbook reports: 
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. 
The petitioner fails to establish the first criterion because the Handbook states that large stores and 
distributors prefer, but do not require, applicants with bachelor's degrees with a business emphasis and that 
retail and wholesale firms prefer, but do not require, applicants who have a college degree, though not 
necessarily in a specific specialty. The Handbook explains that a bachelor's degree is not required for a 
purchasing manager position. Accordingly, the petitioner cannot establish that a baccalaureate or higher 
degree or its equivalent in a specific specialty is the normal minimum requirement for entry into the proffered 
position. 
The petitioner has not provided evidence to established the second criterion - that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. 
No evidence is in the record that would show the proffered position is so complex or unique that it can be 
performed only by an individual with a degree. Again, the Handbook reveals that the duties of the proffered 
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position are performed by a purchasing manager, a position that does not require a bachelor's degree in a 
specific specialty. 
Nor is there evidence in the record to establish the third criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A): that the 
petitioner normally requires a degree or its equivalent for the position. 
The fourth criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is usually 
associated with the attainment of a baccalaureate or higher degree. The petitioner has not described the 
specific duties and responsibilities to be performed by the beneficiary in relation to its particular business 
interests. It has not provided evidence of government contracts or the complexity of the contracts. The 
petitioner indicated that the beneficiary would conduct test product analysis of equipment and spare parts 
according to prescribed standards such as Military specifications. The petitioner has not described how the 
beneficiary would perform this duty when the record indicates that the petitioner has an office space of 425 
square feet and employs approximately 70 persons. Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of 
the visa petition. Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988). 
It cannot be concluded that the nature ofthe specific duties is so specialized and complex that the knowledge 
required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. 
Once again, the Handbook reveals that the duties of the proffered position are performed by purchasing 
managers, an occupation not requiring a bachelor's degree in a specific specialty. 
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. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.