dismissed H-1B Case: Health And Beauty Products

U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 03 263 50280 Office: CALIFORNIA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant 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 materials 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 03 263 50280 
Page 2 
DISCUSSION: The service center director denied the nonirnrnigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a company engaged in the development, marketing, and distribution of health and beauty 
care products. It seeks to employ the beneficiary as a market research analyst and to classify her 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. $ 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the ground that the record failed to establish that the proffered position 
is a specialty occupation. 
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. 
As provided in 8 C.F.R. $ 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. 
$ 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 evidence (RFE); (3) the petitioner's response to the RFE; (4) the notice of decision; 
and (5) Form 1-290B and an appeal brief. The AAO reviewed the record in its entirety before issuing its 
decision. 
WAC 03 263 50280 
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On Form 1-129 and an accompanying letter the petitioner described itself as a beauty salon operator as 
well as an importer and distributor of hair and skin care, health care, and health food products. The 
petitioner stated that it was incorporated in 1998, had 50 employees at the time the instant petition was 
filed, and was planning to manufacture products in the NAFTA region and open a branch office in Hawaii 
to expand its business into the Asian-Pacific region. To further its development goals the petitioner 
indicated that it intended to hire a market research analyst. The duties of the position were described as 
follows: 
Plan and develop marketing strategies for products; research current and potential 
markets and develop corporate policies [and] procedures regarding market plans; 
communicate and negotiate with potential distributors in Japan to devise marketing and 
promotion activities; monitor financial reporting, advise management on market 
performances and product distribution, and negotiate with buyers and distributors to 
increase distribution and sales of products. 
In response to the RFE the petitioner provided an additional description of the proffered position: 
[The beneficiary] will observe [the petitioner's] retail operation, review customer 
feedback about said operations, interview retail employees about day-to-day operations 
and gather any suggestions, input they might have . . . . [The beneficiary] will evaluate 
the data and determine if any improvements in the retail operations including employee 
guidelines, customer interactions and retail procedures can be made. Further, [the 
beneficiary] will provide invaluable input on promotional events in order to ensure the 
continued success and spur the growth of our retail operation . . . . [The beneficiary] will 
spend approximately 25% of her time gathering data, 25% of her time analyzing the data, 
25% of her time presenting her findings, and 25% of her time implementing her 
improvements. Also [the beneficiary] will communicate with potential distributors in 
Japan to develop marketing and promotional activities. 
The petitioner stated that the minimum educational requirement for the position is a bachelor's degree in 
business or a social science. The beneficiary has a bachelor of arts in anthropology from the University of 
Hawaii at Manoa, granted on December 22,2002. 
In his decision the director determined that the duties of the proffered position reflected those of 
advertising, marketing, promotions, public relations, and sales managers, as described in the Department 
of Labor (D0L)'s Occupational Outlook Handbook (Handbook), rather than the duties of a market 
research analyst. According to the Handbook, a baccalaureate level of study is not a normal, industry- 
wide requirement for entry into that occupation. The record did not show that the petitioner normally 
required applicants for the position to have a bachelor's degree in the field, the director stated, or that the 
duties of the position and its level of responsibility indicated complexity and authority beyond that 
normally encountered in the occupational field. Based on the evidence of record, the director was not 
persuaded that the proffered position could not be performed by an experienced individual without a 
baccalaureate level education. The director concluded that the proffered position did not qualify as a 
specialty occupation under any of the criteria enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
WAC 03 263 50280 
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In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, 
CIS routinely consults the DOL Handbook as an authoritative source of information about the duties and 
educational requirements of particular occupations. Factors typically considered are whether the 
Handbook indicates a degree is required by the industry; 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 1151, 1165 (D.Minn. 1999) (quoting Hird/BZaker Corp. v. Sava, 
764 F.Supp. 1095, 1102 (S.D.N.Y. 1989)). CIS also analyzes the specific duties and complexity of the 
position at issue, with the Handbook's occupational descriptions as a reference, as well as the petitioner's 
past hiring practices for the position. See Shanti, Inc. v. Reno, id., at 1165-66. 
On appeal counsel asserts that the duties of the proffered position, while they may overlap with some 
duties of an advertising, marketing, promotions, public relations, or sales manager, as discussed in the 
DOL Handbook, involve sophisticated functions to create, administer, and analyze business information - 
including self-devised surveys and other methods of gathering statistical data - which can only be 
performed by a market research analyst. The Handbook indicates that market research analysts require at 
least a baccalaureate degree, the petitioner asserts, which makes them a specialty occupation. 
The occupation of market research analyst is described in the Handbook, 2004-05 edition, at 173: 
Market, or marketing, research analysts are concerned with the potential sales of a 
product or service. They analyze statistical data on past sales to predict future sales. 
They gather data on competitors and analyze prices, sales, and methods of marketing and 
distribution. Market research analysts devise methods and procedures for obtaining the 
data they need. They often design telephone, mail, or Internet surveys to assess 
consumer preferences. Some surveys are conducted as personal interviews by going 
door-to-door, leading focus group discussions, or setting up booths in public places such 
as shopping malls. Trained interviewers, under the market research analyst's direction, 
usually conduct the surveys. 
After compiling the data, market research analysts evaluate it and make recommendations 
to their client or employer based upon their findings. They provide a company's 
management with information needed to make decisions on the promotion, distribution, 
design, and pricing of products or services. The information may also be used to 
determine the advisability of adding new lines of merchandise, opening new branches, or 
otherwise diversifying the company's operations. Market research analysts might also 
develop advertising brochures and commercials, sales plans, and product promotions 
such as rebates and giveaways. 
In determining the nature of a particular position, and whether it qualifies as a specialty occupation, the 
duties that will actually be performed are crucial, not the title of the position. The petitioner must show 
that the performance demands of the position normally require a degree in a specialty for entry into the 
occupation. The critical issue is not the employer's self-imposed standard, 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 a minimum for entry into the 
occupation. Cf: Defensor v. Meissner, 201 F.3d 384,387-88 (5th Cir. 2000). 
WAC 03 263 50280 
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The AAO agrees with the director that the evidence of record does not establish that the duties of the 
proffered position are actually those of a market research analyst. The job description does not clearly 
indicate that the beneficiary would be performing typical market research duties such as devising methods 
and procedures for obtaining needed data, designing surveys, and conducting them by telephone, over the 
Internet, or in person. The petitioner's description of the proffered position contains only vague 
references to "review[ing] customer feedback" about the company's retail operation and "evaluating the 
data" to "detennine if any improvements in the retail operations . . . can be made." The research 
techniques utilized by market research analysts involve more complex tasks than are evident in the duties 
of the proffered position. 
The AAO agrees with the director that the proffered position falls within the Handbook's broad 
occupational category of advertising, marketing, promotions, public relations, and sales managers. 
Within that occupational category, the AAO determines that the duties of the proffered position most 
closely resemble those of a marketing manager, as described in the Handbook, id., at page 23: 
Marketing managers develop the firm's detailed marketing strategy. . . . [Tlhey determine 
the demand for products and services offered by the firm and its competitors. In addition, 
they identify potential markets - for example, business firms, wholesalers, retailers, 
government, or the general public. Marketing managers develop pricing strategy with an 
eye towards maximizing the firm's share of the market and its profits while ensuring that 
the firm's customers are satisfied. . . . [Tlhey monitor trends that indicate the need for 
new products and services and oversee product development. Marketing managers work 
with advertising managers to promote the firm's products and services and to attract 
potential users. 
With respect to the educational requirements of a marketing manager, the Handbook states as follows: 
A wide range of educational backgrounds is suitable for entry into advertising, marketing, 
promotions, public relations, and sales managerial jobs, but many employers prefer those 
with experience in related occupations plus a broad liberal arts background. A bachelor's 
degree in sociology, psychology, literature, journalism, or philosophy, among other 
subjects, is acceptable. 
Id. at 24. As the Handbook clearly indicates, a baccalaureate or higher degree in a specific specialty is 
not the normal, industry-wide requirement for entry into a marketing manager or sales manager position. 
Many employers give favorable consideration to a broad spectrum of degrees in hiring a marketing 
manager. Thus, a marketing manager does not meet the first altemative criterion of a specialty 
occupation, at 8 C.F.R. $ 214,2(h)(4)(iii)(A)(I), because a baccalaureate or higher degree in a specific 
specialty is not the normal minimum requirement to enter into such a position. 
As for the second alternative criterion of a specialty occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2), there 
is no evidence in the record that a degree requirement in a specific specialty is common to the petitioner's 
industry in parallel positions among similar organizations. Nor does the evidence of record demonstrate 
that the proffered position is so complex or unique that a degree in a specific specialty is required to 
perform the job. Accordingly, the proffered position does not qualify as a specialty occupation under 
either prong of 8 C.F.R. $ 214.2 (h)(4)(iii)(A)(2). 
WAC 03 263 50280 
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As for the third alternative criterion of a specialty occupation, the proffered position is newly created and 
the petitioner has no hiring history for it. Accordingly, the petitioner cannot demonstrate that it normally 
requires a baccalaureate or higher degree in a specific specialty or its equivalent for the position, as 
required for it to qualify as a specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
Finally, the record does not show that the duties of the proffered position are so specialized and complex 
that they require baccalaureate or higher level knowledge in a specific specialty. Accordingly, the 
proffered position does not meet the fourth alternative criterion of a specialty occupation at 8 C.F.R 
5 2 14.2(h)(4)(iii)(A)(4). 
For the reasons discussed above, the position proffered by the petitioner does not qualify as a specialty 
occupation under any of the criteria enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(A). Thus, the petitioner has 
not established that the beneficiary will be coming temporarily to the United States to perform services in 
a specialty occupation, as required under section lOl(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. 5 1101 
(a>(l5)(H>(i)(b>. 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: The appeal is dismissed. The petition is denied.