dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9042239 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 2, 2020 
The Petitioner, an information technology company, seeks to extend the Beneficiary's temporary 
employment as a "market research analyst" under the H-lB nonimmigrant classification for specialty 
occupations. Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(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 record did not 
establish the position qualifies as a specialty occupation. The matter is now before us on appeal. 
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)(15)(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 "market research analyst" 3 position's duties as follows: 
• [B]e responsible for developing market insights and recommendations for new 
online and hybrid education programs for learners at [ the Petitioner] and around the 
world, including strategizing new online courses, programs, certificates and/or 
degrees. 
• [C]ollect, analyze and synthesize qualitative and quantitative data related to 
graduate and professional education, including material on workforce trends, job 
market data, prospective students and competitive digital-based education. 
• [C]onducting surveys and focus groups of target audiences of prospective students 
and employers. 
• [W]ork closely with teachers, admission staff and students to improve as-is 
processes and develop and recommend best processes and industry practices. 
On the labor condition application (LCA)4 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 June 24, 2020). 5 In tum, the 
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 To determine whether a particular job qualifies as a specialty occupation, we do 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. We must examine the ultimate employment of the individual, and determine whether the position 
qualifies as a specialty occupation. See generalf.v Defensorv. Meissner, 201 F.3d 384 (5th Cir. 2000). The critical element 
is not the title of the position or 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. 
4 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). 
5 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 
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: 
• 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 June 24, 2020). 
Unlike the information in the Handbook and the O*NET summary report, the position's duty 
description does not address helping a company understand what products people want, who will buy 
them, and at what price; determining a company's position in the marketplace; collecting and 
analyzing data on customer buying habits and factors affecting product demand; gathering data on 
competitors and analyzing their prices, sales, and methods of marketing; measuring the effectiveness 
of advertising programs and strategies; preparing reports of findings; and other typical tasks associated 
with "Market Research Analysts and Marketing Specialists." Instead, the Petitioner's description 
addresses "developing ... recommendations for new online courses"; "collect[ing], analyz[ing] and 
synthesiz[ing] qualitative and quantitative data related to graduate and professional education, 
including material on workforce trends"; and "work[ing] closely with teachers, admission staff and 
students to improve as-is processes and develop and recommend best processes and industry 
practices." 6 The dissimilarities between the Petitioner's duty description and typical duties 
summarized in the Handbook and the O*NET summary report for the designated occupational 
category, and the similarities between the duty description and typical duties of other, distinct 
occupational categories, present inconsistent information regarding the substantive nature of the 
proffered position designated in the "Market Research Analysts and Marketing Specialists" 
occupational category. 
In summation, we conclude that the record does not establish the actual substantive nature of the 
proffered position, which therefore precludes a determination of whether the position qualifies as a 
specialty occupation. 
6 The description bears some similarities to typical duties of other occupational categories, such as "Instructional Designers 
and Technologists" and "Operations Research Analysts." See O*NET OnLine Summary Rep01t for "25-9031.01 -
Instructional Designers and Technologists," http://www.onetonline.org/link/summary/25-9031.01 (last visited June 24, 
2020); see also O*NET Online Summary Report for "15-2031.00 - Operations Research Analysts," 
http://www.onetonline.org/link/summary/15-2031.00 (last visited June 24, 2020). The similarities between the position's 
duties and those of other occupational categories raise questions regarding whether the LCA corresponds to the petition. 
3 
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. 
4