dismissed H-1B Case: Fashion

identifying data deleted to 
prevent clearly unwmted 
invasion of persolyl privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 076 53097 Office: CALIFORNIA SERVICE CENTER Date: 0 1 
- IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 lOl(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, Chief 
Administrative Appeals Office 
WAC 04 076 53097 
Page 2 
DISCUSSION: The service center director denied the nonimrnigrant 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 designer and manufacturer of ready-to-wear clothing that seeks to employ the beneficiary 
as a market research analyst. The petitioner endeavors to classify the beneficiary as a nonirnmigrant 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. 9 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
Section 214(i)(l) of 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. 
Pursuant to 8 C.F.R. 8 214.2(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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
9 214.20(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) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence (RFE); (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
WAC 04 076 53097 
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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, the petitioner's January 5,2004 letter of support, and the 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: undertalung market research and analysis of product positions, product 
development, pricing, advertising, end-user wantslneeds and competitive activities; analyzing and interpreting 
past and present sales to make a determination on future marketing trends and consumer demands for the 
petitioner's products; conducting opinion research to determine public attitudes and acceptance of the 
petitioner's products; designing and setting up methods of data collection, processing, analysis, interpretation, 
reporting and client liaison; planning and conducting research that answers marketing questions; analyzing 
the meaning of the data gathered and writing a report for the company, including a recommendation on the 
appropriate course of action to be taken by the company; designing telephone, personal or mail interview 
surveys to assess consumer preferences and formulating recommendations for maintaining product quality; 
gathering vital data regarding the petitioner's competitors; analyzing the competitors' service methods and 
conducting an evaluation of their techniques in marketing, promotion and distribution; studying research 
results, putting them into numerical form, comparing them to statistical models, determining their relevance 
and predicting trends and results; assisting management in the research and creation of periodic market 
analysis reports, including primary and secondary research and market and competitive analyses; handling 
daily contact with clients regarding requests for information and analysis; organizing and maintaining data 
collected through his research; and contributing to the creation of the petitioner's intellectual capital and 
industry expertise. The petitioner indicated that a qualified candidate for the job would possess a bachelor's 
degree in marketing, economics, or a related field. 
The director found that the proffered position was not a specialty occupation. The director stated that market 
research analysts are not typically employed by businesses such as the petitioner's. The director also stated 
that the petitioner's business does not have the organizational complexity to support a market research 
analyst. The director found further that the petitioner failed to establish any of the criteria found at 8 C.F.R. 
9 214.2(h)(4)(iii)(A). 
On appeal, counsel states that the petitioner has a need for a market research analyst and that the AAO has 
determined in previous decisions that market research analysts are employed by a range of companies. 
Counsel further states that the director was incorrect in determining that the position is a marketing manager, 
rather than a market research analyst. Counsel asserts that the Department of Labor's Occupational Outlook 
Handbook (Handbook) indicates that a bachelor's degree is the minimum requirement for entry into a position 
as a market research analyst. Counsel also states that the duties as listed in the response to the director's 
request for evidence are so complex and sophisticated that an individual would have to have a bachelor's 
degree to perform them. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 2 14.2@)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 9 214.2 (h)(4)(iii)(A)(I) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
WAC 04 076 53097 
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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 Shanti, Inc. v. Reno, 36 F. Supp. 2d 115 1, 1165 
(D. Minn. 1999) (quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The MO turns first to the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) 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. 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The Handbook states: 
A bachelor's degree is the minimum educational requirement for many market and survey 
research jobs. However, a master's degree may be required, especially for technical positions, 
and increases opportunities for advancement to more responsible positions. Also, continuing 
education is important in order to keep current with the latest methods of developing, 
conducting, and analyzing surveys and other data. Market and survey researchers may earn 
advanced degrees in business administration, marketing, statistics, comn~unications, or some 
closely related discipline. . . . 
In addition to completing courses in business, marketing, and consumer behavior, prospective 
market and survey researchers should take other liberal arts and social science courses, 
including economics, psychology, English, and sociology. Because of the importance of 
quantitative skills to market and survey researchers, courses in mathematics, statistics, 
sampling theory and survey design, and computer science are extremely helpful. 
Despite counsel's assertions, while the Handbook does indicate that a bachelor's degree is normally required 
for a market research analyst, it does not specify that the degree must be in a specific specialty. 
The petitioner did not submit evidence regarding parallel positions in the petitioner's industry. The record 
also does not include any evidence fiom professional associations regarding an industry standard or 
documentation to support the complexity or uniqueness of the proffered position. The petitioner has, thus, not 
established the criteria set forth at 8 C.F.R. $214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. It appears that this is a new position, and the petitioner is not able to 
meet this criterion. 
WAC 04 076 53097 
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Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(h)(iii)(A)(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. 
To the extent that they are depicted in the record, the duties do not appear to be 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. Therefore, the evidence does not establish that the proffered position is a 
specialty occupation under 8 C.F.R. fj 214.2(h)(4)(iii)(A)(4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the MO 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. $ 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.