dismissed H-1B Case: Fashion Design

*." 
idRnifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: SRC 04 23 1 503 10 Office: TEXAS SERVICE CENTER Date: AUG 18 2006 
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. 8 1 101 (a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
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 
SRC 04 231 50310 
Page 2 
DISCUSSION: The director of the Texas Service Center denied the nonimmigrant Gisa 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 retail designer clothing company, was established in 2000, has 4 :n.ny%oysr,s, m:: ~~oss 
annual income of $250,000. It seeks to employ the beneficiary as a fashion designer pursuant to section 
lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 4 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition based on his determination that the proffered position was not 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 (RFE); (3) the petitioner's response to the director's RFE, dated 
September 17, 2004; (4) the director's denial letter; and (5) Form I-290B, with the petitioner's appeal 
brief. 
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. 1184(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 further defined at 8 C.F.R. fj 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. 8 214.2(h)(4)(iii)(A), to qualifL 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; 
SRC 04 23 1 503 10 
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(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 compler 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 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. 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 petitioner states that it is seeking the beneficiary's services as a fashion designer. 
At the time of filing, and in response to the WE, the petitioner stated that the duties of the proffered 
position would require the beneficiary to ensure garment development, execution and fit, along with 
detailed construction development. The petitioner specified the job duties as follows: 
Develop, design, and merchandise new line of vintage reconstructed softgoods line for both men 
and women; 
Responsible for research of current trends, concepts and styling; 
Develop first and second samples and patterns; 
Establish quality standards; 
Follow through on all technical aspects and production; 
Ensure designs meet merchant line plans, price points, and overall trend and creative direction set 
for season; and 
Approve fabrics, trim, fit and finish of garments. 
The petitioner stated that it required a bachelor's degree. 
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The director found that the proffered position was not a specialty occupation because the duties are not so 
specialized and complex as to require a bachelor's degree in a specific field of study. The director noted 
th3; 2h1- petitioner submitted no evidence to establish that a baccalaureate degree or its equivalent is 
 or^. ly the minimum requirement for entry into the position. The director found further that the 
petiti; ;.er failed to establish any of the criteria found at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal, counsel references the Department of Labor's (DOL) Occupational Outlook Handbook 
(Handbook). In the response to the RFE, the petitioner submitted Internet job advertisements from design 
and retail companies to demonstrate the industry requirement for a related bachelor's degree. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO first turns to a consideration of the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I), that a 
baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the 
particular position. The AAO agrees that the position duties are those of a fashion designer, based on the 
discussion of that occupational title in the 2006-2007 edition of the Handbook. 
The 2006-2007 Handbook's description of the employment of fashion designers states: 
Fashion designers help create the billions of clothing articles, shoes, and 
accessories purchased every year by consumers: Designers study fashion 
trends, sketch designs of clothing and accessories, select colors and 
fabrics, and oversee the final production of their designs. Clothing 
designers create and help produce men's, women's, and children's 
apparel, including casual wear, suits, sportswear, formalwear, outerwear, 
maternity, and intimate apparel. . . . Some fashion designers specialize in 
clothing, footwear, or accessory design, while others create designs in all 
three fashion categories. 
The design process fiom initial design inception to final production takes 
between 18 and 24 months. The first step in creating a design is 
researching fashion trends and making predictions of hture trends. Some 
designers conduct their own research, while others rely on trend reports 
published by fashion industry trade groups. Trend reports indicate what 
styles, colors, and fabrics will be popular for a particular season in the 
future. Textile manufacturers use these trend reports to begin designing 
fabrics and patterns while fashion designers begin to sketch preliminary 
designs. Designers will then visit manufacturers or ti-ade shows to 
procure samples of fabrics and decide which fabrics to use with which 
designs. 
Once designs and fabrics are chosen, a prototype of the article using 
cheaper materials is created and then worn by a model to see what 
adjustments to the design need to be made. During this time, designers 
usually will narrow down their choices of which designs to offer for sale. 
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After the final adjustments and selections have been made, samples of 
the article using the actual materials are sewn, and then marketed to 
clothing retailers. Many designs are shown at fashion and trade shows a 
few times a year. Retailers will then place ord :rs for certain items, which 
are then manufactured and distributed to stores. 
Depending on the size of the design firm and level of experience, 
fashion designers may have varying levels of involvement in different 
aspects of design and production. In large design firms, fashion designers 
often are the lead designers who are responsible for creating the designs, 
choosing the colors and fabrics, and overseeing technical designers who 
turn the designs into a final product. They are responsible for creating the 
prototypes and patterns and work with the manufacturers and suppliers 
during the production stages. Large design houses also employ their own 
patternmakers, tailors, and sewers who create the master patterns for the 
design and sew the prototypes and samples. Designers working in small 
firms, or those new to the job, usually perform most of the technical, 
patternmahng, and sewing tasks in addition to designing the clothing. 
With respect to the educational qualifications for fashion designers, the Handbook states: 
In fashion design, employers seek individuals with a 2-year or 4-year 
degree who are knowledgeable about textiles, fabrics, ornamentation, 
and fashion trends. Designers must have a strong sense of the esthetic- 
an eye for color and detail, a sense of balance and proportion, and an 
appreciation for beauty. Fashion designers also need excellent 
communication and problem-solving skills. Despite the advancement of 
computer-aided design, sketching ability remains an important advantage 
in fashion design. A good portfoliw-a collection of examples of a 
person's best work--often is the deciding factor in getting a job. 
In addition to creativity and sketching ability, fashion designers also 
need to have sewing and patternmaking skills, even if they do not 
perform these tasks themselves. Designers need to be able to understand 
these skills so they can give proper instructions as to how the garment 
should be constructed. Fashion designers also need strong sales and 
presentation skills in order to persuade clients to purchase their designs. 
Good teamwork and communication slulls also are necessary because of 
the increasingly international nature of the business that requires constant 
contact with suppliers, manufacturers, and buyers around the world. 
Aspiring fashion designers can learn these necessary shlls through 
internships with design or manufacturing firms. Some designers also gain 
valuable experience working in retail stores, as personal stylists, or as 
custom tailors. Such experience can help designers gain sales and 
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marketing skills while learning what styles and fabrics look good on 
different people. Designers also can gain exposure to potential employers 
by entering their designs in student or amateur contests. Because of the 
global nature of the fashion industry, experience in one of the 
international fashion centers, such as Milan or Paris, can be useful. 
Beginning fashion designers usually start out as pattern makers or 
sketching assistants for more experienced designers before they can 
advance to higher level positions. Experienced designers may advance to 
chief designer, design department head, or other supervisory position. 
Some designers may start their own design company, or sell their designs 
in their own retail stores. A few of the most successful designers can 
work for high-fashion design houses that offer personalized design 
services to wealthy clients. 
The Handbook does not establish a baccalaureate degree requirement for fashion designers. Instead, it 
emphasizes fashion design experience, creativity, and skills such as sketching ability, sewing and 
patterning, in addition to communication and problem-solving skills. The Handbook is clear that a 
baccalaureate degree in a specific specialty or its equivalent is not the normal minimum requirement for 
entry into the occupation. 
Accordingly, the AAO finds that the petitioner has failed to establish the proffered position as a specialty 
occupation under the first criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(I) - a baccalaureate or higher degree 
or its equivalent is normally the minimum requirement for entry into the particular position. 
The petitioner has not satisfied either of the alternative prongs of 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2). 
The first alternative prong assigns specialty occupation status to a proffered position with a requirement 
for at least a bachelor's degree, in a specific specialty, that is common to the petitioner's industry in 
positions that are both (1) parallel to the proffered position and (2) located in organizations that are 
similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by CIS when 
determining the criterion 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 fms "routinely employ and recruit only 
degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.Minn. 1999)(quoting 
HirdLBlaker Cop. v. Sava, 7 12 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). As earlier discussed, the petitioner 
has not established that the proffered position is one for which the Handbook reports an industry-wide 
requirement for a bachelor's degree in a specific specialty. Also, there are no submissions from professional 
associations, individuals, or fms in the petitioner's industry. 
The record of job vacancy announcements from other employers are not probative. To establish its degree 
requirement as the norm within its industry, the petitioner submitted 30 Internet job postings for fashion 
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designers. Counsel contends that the advertisements are proof that a bachelor's degree is common in the 
fashion design industry. The AAO does not agree. None of the advertisements are published by 
organizations that may be considered similar to the petitioner, a retailer of vintage clothing with 4 
employees. For example, one of the advertisements is for manufacturing and production in an 
unspecified business; another is from a golf club manufacturer, seelung a manager of a golf apparel 
company; five are from the same global retailer of footwear, apparel, and gear. 
The advertisements contain information that is inconsistent with at least a bachelor's degree in a specific 
specialty being a requirement common to the industry for positions parallel to the one proffered here, for 
the advertisements indicate that a bachelor's degree in a major unrelated to fashion design would be 
acceptable: some of the advertisements specify a bachelor's degree only, without designating a specific 
major or concentration of studies. Further, the evidence of record does not establish that the positions 
advertised are parallel to the one proffered here. Some of the advertisements list duties that are more 
extensive than the duties listed for the proffered position. Some of the advertisements provide too little 
information about the advertised position to provide a basis for comparison on how closely they 
approximate the position proffered here. Furthermore, there is no evidence of record to establish that the 
advertisements are representative of individual advertisers' usual course of recruiting and hiring. Also, 
there is no evidence to establish that the limited set of fashion-related advertisements for a specific degree 
accurately represents a requirement that is common to the industry for the particular position here 
proffered. 
The evidence of record does not qualify the proffered position under the second alternative prong of 8 
C.F.R. 214.2(h)(4)(iii)(A)(2), which provides a petitioner the opportunity to show that its particular 
position is so complex or unique that it can be performed only by an individual with at least a bachelor's 
degree in a specific specialty. Neither the record's description of the duties comprising the proffered 
position nor any evidence of record distinguishes the proffered position as more complex than or unique 
from such fashion designer positions as the Handbook indicates may be performed by individuals with 
less than a baccalaureate or its equivalent in a specific specialty directly and closely related to fashion 
design. 
The AAO next considers the criteria at 8 C.F.R. 9 214.2(h)(4)(iii)(3) and (4): the employer normally 
requires a degree or its equivalent for the position; and the nature of the specific duties is so specialized 
and complex that the knowledge required to perfonn them is usually associated with the attainment of a 
baccalaureate or higher degree. 
To determine the petitioner's ability to meet the third 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. Counsel indicated that the position is newly created. In that the record provides no 
evidence related to the petitioner's hiring practices for the proffered position, it does not establish the 
proffered position as a specialty occupation under the third criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(3). 
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The fourth criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(4) requires that a petitioner establish that the nature 
of the specific duties of the position are so specialized and complex that the knowledge required to 
perform them is usually associated with the attainment of a baccalaureate of higher dziyree. The job 
description of the petitioner's fashion designer does not, however, outline Gutles tt. complexity or 
specialization to require the attainment of a baccalaureate degree or highe:.. 19:; ieserib .j in the record, 
the position involves basic generic duties for fashion design. The duties, as described, do not establish 
that they are more specialized and complex than fashion designer positions which the Handbook indicates 
can be performed without the knowledge usually associated with at least a bachelor's degree in a specific 
specialty. 
Therefore, the proffered position has not been established as a specialty occupation under the 
requirements at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the petitioner has failed to establish that the proffered 
position meets the requirements for a specialty occupation set forth at 8 C.F.R. 5 214.2(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. 
1361. The petitioner has not sustained that burden. 
ORDER: The appeal is hsmissed. The petition is denied.