dismissed H-1B Case: Jewelry

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 01 286 50765 Office: CALIFORNIA SERVICE CENTER Date: 1 8 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U. S.C. 9 1 10 1 (a)(l 5)(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 01 286 50765 
Page 2 
DISCUSSION: The director of the service center denied the nonirnmigrant 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 company engaged in the sales, marketing, and repair of jewelry. In order to employ the 
beneficiary as its sales and marketing manager, the petitioner endeavors to classify the beneficiary as a 
nonimmigrant worker in a specialty occupation pursuant to section 10 1 (a)(l 5)(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 basis that the petitioner had failed to establish that the proffered 
position met the requirements of a specialty occupation. The director determined, in part, that the duties of 
the proffered position reflect those of the occupational category discussed in the "Advertising, Marketing, 
Promotions, Public Relations and Sales Manager" section of the Department of Labor's (DOL) Occupational 
Outlook Handbook ha and book).' 
On appeal, counsel contends that the evidence of record establishes that the proffered position meets at least 
four of the five independently qualifying specialty occupation criteria of the the governing regulation, 
8 C.F.R. $ 214.2(h)(4)(iii)(A). 
The director's decision to deny the petition was correct. The AAO bases its decision upon its consideration of 
the entire record of proceeding before it, which includes: (1) the petitioner's Form 1-129 and the supporting 
documentation filed with it; (2) the director's request for additional evidence (WE); (3) the materials 
submitted in response to the WE; (4) the director's denial letter; and (5) the Form I-290B and counsel's brief 
and attached documents. 
Section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 9 1 10 l(a)(lS)(H)(i)(b), provides a nonimmigrant 
classification for aliens who are coming temporarily to the United States to perform services in a specialty 
occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. § ll84(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. 
Thus, it is clear that Congress intended this visa classification only for aliens who are to be employed in an 
occupation that requires the theoretical and practical application of a body of highly specialized knowledge 
that is conveyed by at least a baccalaureate or higher degree in a specific specialty. 
1 In this decision the MO's references will be to the 2004-2005 edition of the Handbook. 
WAC 01 286 50765 
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Consonant with section 214(i)(l) of the Act, the regulation at 8 C.F.R. 9 214.2(h)(4)(ii) states that a specialty 
occupation means an occupation: 
which [l] 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 [2] requires the attainment of a 
bachelor's degree or higher in a specijic specialty, or its equivalent, as a minimum for entry into 
the occupation in the United States. (Italics added.) 
Pursuant to 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 equivalmt 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) has consistently interpreted the term "degree" in the criteria at 
8 C.F.R. 5 214.2(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. Applying this standard, CIS regularly approves 
H-1B petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public 
accountants, college professors, and other such professions. These occupations all require a baccalaureate 
degree in the specific specialty as a minimum for entry into the occupation and fairly represent the types of 
professions that Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a 
position's title or generalized descriptions of duties. It looks primarily for evidence about the specific duties, 
and about the nature of the petitioning entity's business operations. CIS must examine the ultimate 
employment of the alien, and determine whether the position qualifies as a specialty occupation. CJ: Defensor 
v. Meissner, 201 F. 3d 384 (5th Cir. 2000). Neither the title of the position, abstract descriptions of its duties, 
nor an employer's self-imposed standards are persuasive in the critical assessment that CIS must make: 
whether the evidence of record establishes that performance of 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. 
WAC 01 286 50765 
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The February 18, 2002 letter submitted by former counsel in response to the RFE contains this information 
about the petitioner's business operations: 
[The petitioner] was established in 1994 and engages in the sales, marketing and repair 
service of precious, exquisite, and customized jewelry. It currently enjoys an approximate 
gross annual income of more than $550,000 and a staff of five employees. [It] has two 
existing branches in Los Angeles and Sun Valley, California, and it is in the process of 
establishing its third branch in Los Angeles. The company's goal for 2002 is to hire three 
new employees for its second Los Angeles branch and to earn an estimated $600-700,000 in 
annual sales from its three stores. Therefore, it is essential that they now broaden the 
company's sales and marketing campaign to include this new expansion. 
The letter from former counsel includes the following information about the duties of the proffered position: 
As a Sales and Marketing Manager, [the beneficiary] will be spending 50% of her time 
planning, establishing, directing and coordinating the sales and marketing operations of the 
business and overseeing the work of her staff: 20% reviewing market analyses to determine 
customer needs, volume potentials, product quality and styles, pricing and discount rates; 5% 
coordinating sales distribution, advertisements and promotions of existing and new products; 
10% conferring with management to discuss possible or prospective clients and to outline 
new policies or sales promotions campaigns; 5% directing the preparation of special 
products' promotional features, such as the introduction of new and improved products and 
jewelry customization; 5% monitoring and analyzing sales promotion results to determine the 
cost effectiveness of existing promotional campaigns and the need to alter new campaigns; 
and 5% planning and preparing new advertising and promotional materials and arranging for 
store and product publicity. She will also be required to review operational records to project 
sales and to determine the profitability for each branch. In addition, [the beneficiary] will 
head a staff of two people that will include [employee], the sales assistant, and [employee], 
the marketing assistant, who will be assisting her in the day-to-day sales and marketing 
operations of the various store branches. [The beneficiary] may be implementing employee 
incentive programs, including bonuses, to increase motivation and inspire good customer 
service. 
The evidence of record does not satisfy the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(I). This provision 
assigns specialty occupation status to those positions for which the normal minimum entry requirement is a 
baccalaureate or higher degree, or the equivalent, in a specific specialty related to the position's duties. 
The information submitted into the record hom the DOL's Dictionary of Occupational Titles (DOT) and 
Occupational Information Network (O*NET) is not probative. Neither the DOT nor the O*NET is a persuasive 
source of information regarding whether a particular job requires the attainment of a baccalaureate or higher 
degree in a specific specialty, or its equivalent, as a minimum for entry into the occupation. Their SVP 
ratings are meant to indicate only the total number of years of vocational preparation required for a particular 
position. An SVP rating does not describe how those years are to be divided among training, formal 
WAC 01 286 50765 
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education, and experience, and it does not specify the particular type of degree, if any, that a position would 
require. 
The AAO recognizes the Handbook as an authoritative source on the duties and educational requirements of a 
wide variety of occupations. The AAO finds no basis in the record for counsel's assertion that the proffered 
position is similar to that of a market research analyst. The proposed duties as described in the record of 
proceeding establish that the beneficiary would be worlang as a marketing manager in charge of the petitioner's 
overall advertising, marketing, promotions, public relations, and sales activities. The section on "Advertising, 
Marketing, Promotions, Public Relations, and Sales Managers" in the current, 2004-2005 edition of the 
Handbook (at pages 23-26) indicates that a bachelor's degree or higher, or the equivalent, in a specific specialty is 
not a normal minimum-entry requirement for such a position. No evidence of record refutes this information. 
Accordingly, the petitioner has not satisfied the criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(l). 
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 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 firms "routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 
36 F. Supp. 2d 1151, 1165 @.Minn. 1999) (quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 1102 
(S.D.N.Y. 1989)). 
As already discussed, the Handbook does not indicate that the proffered position requires a degree in a specific 
specialty. Although relevant, the two submissions from other firms in the petitioner's industry have little weight. 
They attest only to their hiring practices, do not comment on other firms' practices, and do not address the 
information in the Handbook. The record's job vacancy advertisements from other employers are not probative. 
They are too few to establish a common-to-the-industry hiring practice. The advertisements also exceed the 
scope of evidence relevant to ths criterion, as the advertisers include employers outside the petitioner's industry 
(jewelry sales, sales, marketing, and repair). The petitioner has not demonstrated that the proffered position and 
those advertised are parallel, as required by thts criterion, because the record does not contain sufficient 
information about the specific work performed in the proffered position and in the positions advertised. 
Counsel's assertion that a bachelor's degree requirement "is standard for all industries employing Sales and 
Marketing Managers" is not substantiated by the evidence of record and will be gven no weight. Simply going 
on record without supporting documentary evidence is not sufficient for the purpose of meeting the burden of 
proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Furthermore, the assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Rarnirez- 
Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
WAC 01 286 50765 
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The evidence of record does not qualify the proffered position under the second alternative prong of 8 C.F.R. 
9 214.2 (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. Here the evidence of record does not establish either such uniqueness or complexity. No 
evidence in the record distinguishes the proffered position from the general range of marketing management 
positions, for which the Handbook indicates that there is no normal minimum requirement for a bachelor's 
degree in a specific specialty. 
The petitioner has not met the criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(3) for a position for which the 
employer normally requires at least a baccalaureate degree or its equivalent in a specific specialty. As the 
petitioner has never before proffered the position in question, there is no basis for approving the petition under 
this criterion. 
The evidence does not satisfy the criterion at 8 C.F.R. 9 214.2(h)(iii)(A)(4) for positions with specific duties 
so specialized and complex that their performance requires knowledge that is usually associated with the 
attainment of a baccalaureate or higher degree in a specific specialty. The petitioner has not provided any 
evidence to establish that the proposed duties are any more specialized and complex than the duties of the general 
range of sales manager positions, and neither the Handbook nor any other evidence of record establishes a usual 
association of those positions with at least a bachelor's degree in a specific specialty. The AAO has noted that, 
contrary to the requirement of the Act and the regulations for a degree in a specific specialty directly related to the 
duties of the position, counsel merely argues that the duties "require a bachelor's degree or its equivalent." (See 
section 4 at page 5 of the brief.) 
As the petitioner has failed to establish that the proffered position qualifies as a specialty occupation under any 
criterion of 8 C.F.R. $ 214.2(h)(4)(iii)(A), the director's decision shall not be disturbed. 
Beyond the decision of the director, it is noted that the Labor Condition Application (LCA) was not certified 
until after the petition was filed. The record indicates that LCA was certified on September 13,2001, and that 
the Form 1-129 was filed on September 12, 2001. A certified LCA is a necessary and material part of the 
nonimmigrant worker visa petition. The regulation at 8 C.F.R. $ 214.2(h)(4)(iii)(B)(l) expressly includes a 
certified LCA among the documents that a petitioner "shall submit" with an H-1B petition, and the regulation 
at 8 C.F.R. 5 2 14.2(h)(4)(i)(B)(l) states: 
Before filing a petition for H-1B classification in a specialty occupation, the petitioner shall 
obtain a certification from the Department of Labor that it has filed a labor condition 
application in the occupation specialty in which the alien(s) will be employed. 
The petitioner did not comply with this requirement to secure an LCA certification before filing the petition. For 
ths reason also, the petition cannot be approved. 
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. Accordingly, the appeal will be dismissed. 
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ORDER: The appeal is dismissed. The petition is denied.