dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6736728 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 23, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as an 
"expert services associate" under the H-lB nonirnrnigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C . § l 10l(a)(l5)(H)(i)(b). 
The H-lB program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the proffered 
position does not qualify as a specialty occupation. On appeal, the Petitioner submits additional 
evidence and asserts that the Director erred. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de nova review, we cannot determine the substantive nature of the proffered position, which 
precludes a determination of whether that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 1 
When determining whether a position is a specialty occupation, we review the H-lB petition and the 
supporting documents to ascertain the salient aspects of the proposed employment. A crucial aspect 
of this matter is whether the Petitioner has submitted sufficient and consistent evidence describing the 
duties of the proffered position such that we may discern the nature of the position and whether the 
position actually requires the theoretical and practical application of a body of highly specialized 
knowledge attained through at least a baccalaureate degree in a specific discipline . See sections 
101 (a)(l5)(H)(i)(b ), 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). The substantive nature of the work 
determines (1) the normal minimum educational requirement for entry into the particular position, which 
is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 2; 
1 The Petitioner submitted documentation to support the H-lB petition , including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
(3) the level of complexity or uniqueness of the proffered position, which is the focus of the second 
alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or 
its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and complexity 
of the specific duties, which is the focus of criterion 4.2 8 C.F.R. § 214.2(h)(4)(iii)(A). Accordingly, 
U.S. Citizenship and Immigration Services must be able to determine the substantive nature of a 
proffered position's duties before it can determine whether such a position qualifies as a specialty 
occupation. 
The Petitioner describes the proffered "expert services associate" position's duties, and the percentage 
of the Beneficiary's time required to perform them, as follows: 3 
• Building, testing, and launching email campaigns and interactive programs. [30%] 
• Utilizing the [Petitioner's] platform.4 [30%] 
• Reviewing project requests from clients to determine how to implement using 
established processes and best practices, or scope productions requirements for 
custom projects. [15%] 
• Delivering quality solutions in a timely manner, on budget to ensure client 
satisfaction. [ 10%] 
• Delivering quality marketing deliverables for [the Petitioner's] customers. [10%] 
• Utilizing matter expertise in marketing programs and campaigns in the 
development, testing, and launching of marketing programs. [5%] 
On the labor condition application (LCA)5 submitted in support of the petition, the Petitioner designated 
the proflered position in the "Market Research Analysts and Marketing Specialists" occupational 
category, corresponding to the Standard Occupational Classification (SOC) code 13-1161.00 from the 
Occupational Information Network (O*NET). According to the U.S. Department of Labor's (DOL) 
Occupational Outlook Handbook (Handbook), "Market Research Analysts" typically "study market 
conditions to examine potential sales of a product or service. They help companies understand what 
products people want, who will buy them, and at what price." Bureau of Labor Statistics, U.S. Dep't 
of Labor, Occupational Outlook Handbook, Market Research Analysts, https://www.bls.gov/ooh/ 
business-and-financial/market-research-analysts.htm#tab-2 (last visited Apr. 22, 2020). 6 In tum, the 
O*NET summary report for "Market Research Analyst and Marketing Specialists" indicates that 
typical duties of positions in the occupational category include the following types of tasks: 
2 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
3 The Petitioner submitted expanded duty descriptions. Although we omit the expanded descriptions for brevity. we have 
reviewed them in their entirety. 
4 The record contains printouts from the Petitioner's website, describing the platform as "a single platform [through which] 
marketing organizations can manage and orchestrate all interactions with [their] customers across email, mobile, social, 
display, and the web." 
5 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-1 B worker the higher of either the prevailing 
wage for the occupational classification in the area of employment or the actual wage paid by the employer to other 
employees with similar duties, experience. and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. § 655.731(a). 
6 The Handbook is a source of information on the duties and educational requirements of the wide variety of occupations 
that it addresses. However, we do not maintain that the Handbook is the exclusive source of relevant information. 
2 
• Seek and provide information to help companies determine their position in the 
marketplace. 
• Collect and analyze data on customer demographics, preferences, needs, and 
buying habits to identify potential markets and factors affecting product demand. 
• Gather data on competitors and analyze their prices, sales, and method of marketing 
and distribution. 
• Measure the effectiveness of marketing, advertising, and communications 
programs and strategies. 
• Prepare reports of findings, illustrating data graphically and translating complex 
findings into written text. 
O*NET OnLine Summary Report for "13-1161.00 - Market Research Analysts and Marketing 
Specialists," http://www.onetonline.org/link/ summary/13-1161.00 (last visited Apr. 22, 2020). 
Unlike the information in the Handbook and the O*NET summary report, the position's duty 
description does not address studying market conditions to examine potential sales of a product or 
service, helping a company understand what products people want, who will buy them, and at what 
price, collecting and analyzing data on customer demographics and buying habits, gathering data on 
competitors and analyzing their prices, sales, and methods of marketing, preparing reports of findings, 
and other typical tasks. 7 Instead, the petitioner's description addresses "[b ]uilding, testing, and 
launching email campaigns and interactive programs"; [r]eviewing project requests from clients to 
determine ... scope productions requirements for custom projects"; and [d]elivering quality solutions 
in a timely manner, on budget [and] quality marketing deliverables for [the Petitioner's] customers." 8 
The dissimilarities between the Petitioner's duty description and typical duties summarized in the 
Handbook and the O*NET summary report raise questions regarding the substantive nature of the 
"expert services associate" position designated in the "Market Research Analysts and Marketing 
Specialists" occupational category. 
We note that the record contains an opinion letter written by Dr.I l a senior lecturer 
of business and the director of graduate studies at the University of I I School of Business. 
As a matter of discretion, we may use opinion statements submitted by a petitioner as advisory. Matter 
o_f Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we will give an opinion less 
weight if it is not in accord with other information in the record or if it is in any way questionable. 
Id. We are ultimately responsible for making the final determination regarding an individual's 
eligibility for the benefit sought; the submission of expert opinion letters is not presumptive evidence 
of eligibility. Id.; see also Matter o_f V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion 
testimony, while undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but 
7 The record does not establish the substance of the "email campaigns and interactive programs" the Beneficiary would 
build, test, and launch, in order to assist us in determining whether doing so would "help companies understand what 
products people want, who will buy them, and at what price." 
8 The description bears some similarities to those of other occupational categories, such as "Computer Systems Analysts," 
and "Public Relations Specialists." See O*NET OnLine Summary Report for "15-1121.00- Computer Systems Analysts," 
http://www.onetonline.org/link/summary/l 5-l l 21.00 (last visited Apr. 22, 2020); see also O*NET OnLine Summary 
Report for "27-3031.00 - Public Relations Specialists," http://www.onetonline.org/link/summary/27-303 l.OO (last visited 
Apr. 22, 2020). The similarities between the position's duties and other occupational categories raise questions regarding 
whether the LCA corresponds to the petition. 
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rather is admissible only if 'it will assist the trier of fact to understand the evidence or to determine a 
fact in issue."'). 
Dr. I I based his opm10n on his review of "information on [the Petitioner] on the 
Bloomberg.com website," "information in the company support letter," and information in the 
Handbook and O*NET. In his letter, Dr.I I asserts that the Handbook: 
indicates that individuals in these types of positions [in the "Market Research Analyst" 
occupational category] are responsible for such duties as monitoring and forecasting 
marketing and sales trends; measuring the effectiveness of marketing programs and 
strategies; devising and evaluating methods for collecting data, such as surveys, 
questionnaires, and opinion polls; gathering data on consumers, competitors, and 
market conditions; analyzing data using statistical software; converting complex data 
and findings into understandable tables, graphs, and written reports; and preparing 
reports and presenting results to clients and management. 
Similarly, Dr.~I ---~I asserts that the O*NET summary report for "Market Research Analysts": 
indicates that individuals in these types of positions [in the "Market Research Analyst" 
occupational category] are responsible for such duties as preparing reports of findings, 
illustrating data graphically and translating complex findings into written text; 
collecting and analyzing data on customer demographics, preferences, needs, and 
buying habits to identify potential markets and factors affecting product demand; 
conducting research on consumer opinions and marketing strategies, collaborating with 
marketing professionals, statisticians, pollsters, and other professionals; measuring and 
assessing customer and employee satisfaction; devising and evaluating methods and 
procedures for collecting data, such a surveys, opinion polls, or questionnaires, or 
arrange to obtain existing data; measuring the effectiveness of marketing, advertising, 
and communications programs and strategies; seeking and providing information to 
help companies determine their position in the marketplace; forecasting and tracking 
marketing and sales trends, analyzing collected data; gathering data on competitors and 
analyzing their prices, sales, and method of marketing and distribution; monitoring 
industry statistics and following trends in trade literature; attending staff conferences 
to provide management with information and proposals concerning the promotion, 
distribution, design, and pricing of company products or services; directing trained 
survey interviewers; and developing and implementing procedures for identifying 
advertising needs. 
However, Dr.I I does not identify which of the Beneficiary's duties-essentially using the 
Petitioner's platform to customize emails to send to a client's customers based on the client's 
requests-match the duties of a "Market Research Analyst" summarized in the Handbook or the 
O*NET summary report. For example, Dr.I I does not identify which of the Beneficiary's 
duties corresponds to "monitoring and forecasting marketing and sales trends," "gathering data on 
competitors and analyzing their prices, sales, and method of marketing and distribution," and 
"preparing reports of findings." As such, Dr.I l's opinion seems to be based on duties other 
than those provided by the Petitioner, raising questions regarding the substantive nature of the 
4 
proffered position and the extent to which Dr.I I is familiar with the position. Based on the 
concerns we addressed, and considered in light of the entire record, Dr. I I's opinion bears 
minimal probative value. See Matter of Caron Int'!, Inc., 19 I&N Dec. at 795. 
In summation, we conclude that the record raises questions regarding the actual substantive nature of 
the proffered position, which therefore precludes a determination of whether the position qualifies as 
a specialty occupation. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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