dismissed H-1B Case: Garment Industry

U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 024 53979 Office: CALIFORNIA SERVICE CENTER Date: JAN 0 6 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 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, Director 
Administrative Appeals Office 
WAC 04 024 53979 
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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 garment company that seeks to employ the beneficiary as a strategic planning analyst. 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. 5 1 10 1(a)( lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, the 
petitioner submits a letter. 
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. 3 214.2(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. 
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) 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) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
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The petitioner is seeking the beneficiary's services as a strategic planning analyst. Evidence of the 
beneficiary's duties includes the 1-129 petition, the petitioner's September 2, 2003 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: reviewing, analyzing and suggesting improvements to the company's 
organizational systems to assist the company in operating more efficiently and effectively and to minimize 
operational risks; reviewing forms and reports and conferring with management and staff about the format, 
distribution and purpose of such documents and identifying problems and recommending improvements; 
planning the study of work problems and procedures, such as organizational change, communications, 
information flow, inventory control and cost analysis; documenting the findings of the study and preparing 
recommendations for implementation for any new systems, procedures or organizational changes; developing 
and implementing a records management program for filing, protection and retrieval of records; 
recommending purchase of storage equipment and designing an area layout for storage to ensure efficient 
product inventory; examining statistical data to forecast future trends and identify potential markets; 
establishing research methodology and designing the format for data gathering. such as surveys, opinion pools 
or questionnaires; gathering data on competitors and assessing prices, sales and method of sales and 
distribution; and collecting data on consumer preferences and buying habits and checking on consumer 
reaction to any new or improved products/se~ices; preparing monthly forecasts (capital, depreciation 
expense, profit/loss); analyzing and providing reporting on variance between goal, forecast and actuals; 
building and maintaining a relationship with internal and external accounting divisions; supporting capital 
spending by analyzing capital projects; preparing annual and mid-year project reviews related to real estate; 
preparing a quarterly lease report; preparing a report and recommendation for new showroom models; 
preparing a fixture analysis report; preparing a transfer sales analysis report; taking a leadership role in the 
sales planning process to create a strategy for development of the company's fashion lines; creating, 
analyzing and reviewing receipt flows for the merchandise area; suggesting in-season recommendations of 
receipt shiftslplan corrections; ensuring the timely distribution of orders; organizing and coordinating the 
workload; and developing a close working relationship with buyers and vendors. The petitioner indicated that 
a qualified candidate for the job would possess a bachelor's degree in business administration, accounting, 
economics, finance or a related field. 
The director found that the proffered position was not a specialty occupation. The director found further that 
the petitioner failed to establish any of the criteria found at 8 C.F.R. 3 2 14.2(h)(4)(iii)(A). 
On appeal, the petitioner states that it has a bona fide need for a strategic planning analyst. It 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. The petitioner states that the director 
was incorrect in describing the proffered position as a financial analyst and financial manager. The petitioner 
asserts that it is planning to expand its operations and that there is significant competition in the fashion and 
garment industry, which is the reason it needs to hire a strategic planning analyst. The petitioner further 
asserts that the director's determination that it is too small to require the services of a strategic planning 
analyst is irrelevant to its business need for such a position. The petitioner states that it submitted Internet 
postings for similar positions in response to the director's request for evidence, and that these established that 
the industry standard is for planning analysts with relevant bachelor's degrees. 
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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 turns first to the criteria at 8 C.F.R. # 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 Department of Labor's 
Occupational Outlook Handbook (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 fm "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 AAO concurs with the petitioner's statement that the proffered position is neither a financial analyst nor a 
financial manager. The duties of the position appear to combine those of a management analyst and a marketing 
manager. 
The AAO notes that a position as a management analyst is generally a specialty occupation, although a 
position as a marketing manager is generally not a specialty occupation. The issue that remains is whether the 
petitioner will employ the beneficiary in the specialty occupation. Upon review of the record, the petitioner 
has not established that it will employ the beneficiary in a management analyst position. 
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 routinely consults the Handbook for its information about the duties and educational requirements 
of particular occupations. The Handbook reveals that the beneficiary's duties do not rise to the level of a 
management analyst, an occupation that qualifies as a specialty occupation. According to the Handbook, 
management analysts, often referred to as management consultants in private industry, analyze and propose 
ways to improve an organization's structure, efficiency, or profits. The Handbook reports that analysts and 
consultants collect, review, and analyze information in order to make recommendations to managers. They 
define the nature and extent of problems; analyze relevant data, which may include annual revenues, 
employment, or expenditures; interview managers and employees while observing their operations; and 
develop solutions to problems. Once a course of action is decided, consultants report their findings and 
recommendations to the client, and for some projects, consultants are retained to help implement their 
suggestions. According to the Handbook, firms providing management analysts vary in size from a single 
practitioner to a large international organization employing thousands of consultants. 
As described by the petitioner, the duties of the proffered position are general and lack specificity. The 
petitioner indicated on the Form 1-129 that it has a gross annual income of $104,000. The petitioner does not 
provide any evidence of the complexity of its business on which it bases its need for a strategic planning 
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analyst or a management analyst. While the petitioner listed the duties of the position, the petitioner has not 
established how these duties relate specifically to its business operations. 
Based on the evidence in the record, the AAO cannot conclude that a baccalaureate or higher degree or its 
equivalent in a specific specialty is the normal minimum requirement for entry into the particular position, 
management analyst. 
The Handbook describes in detail where management analysts are commonly employed; it states: 
Management analysts held about 577,000 jobs in 2002. Thirty percent of these workers were 
self-employed, about one and a half times the average for other management, business, and 
financial occupations. Management analysts are found throughout the country, but 
employment is concentrated in large metropolitan areas. Most work in management, 
scientific, and technical consulting firms, in computer systems design and related services 
firms, and for Federal, State, and local governments. The majority of those working for the 
Federal Government are in the U.S. Department of Defense. 
The Handbook's quoted passage does not mention that the petitioning entity, a garment company, or any other 
small private business with six employees, would be a likely employer of a management consultant. This passage 
supports the AAO's determination that it cannot conclude that the duties of the proposed position correspond 
to those of a management analyst. 
The petitioner submitted four Internet postings regarding parallel positions in the petitioner's industry. The 
four postings were for various analyst positions, two were with retail companies and two were with garment 
designers and manufacturers. Two of the postings indicated that a bachelor's degree in business was required, 
and two stated that a bachelor's degree in specific business-related fields was required. Only one of the 
companies requiring a specific degree was similar to the petitioner. This does not establish an industry 
standard. The petitioner has not established that the proffered position meets the terms of 8 C.F.R. 
5 214.2(h)(4)(iii)(A)(2). 
The AAO now turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. The record does not contain any evidence of the petitioner's past hiring 
practices and therefore, the petitioner has not met its burden of proof in this regard. 
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. Again, the evidentiary record does not 
depict the duties of the proffered position as rising to those of a management analyst as described in the 
Handbook. 
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. 
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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.