dismissed H-1B Case: Jewelry Manufacturing

iaentiQi, data 0 
PRveRt clearly unwpr~od 
invasion of personal privacy 
PUBLIC copy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
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FILE: SRC 04 198 50381 Office: TEXAS SERVICE CENTER Date: APf? 1 1 2006 
IN RE: 
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 
SRC 04 198 50381 
Page 2 
DISCUSSION: The service center director denied the nonirnrnigrant 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 jewelry manufacturer that seeks to employ the beneficiary as a product and business 
development manager. The petitioner endeavors to classify the beneficiary as a nonirnrnigrant worker in a 
specialty occupation pursuant to 5 lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 101(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 5 214.2(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 (US) 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 poSihon. 
The record of proceeding before the AA0,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 E--290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as,a product and business development manager. Evidence 
of the beneficiary's duties includes: the 1-129 petition; t& petitioner's June 24, 2004 letter in support of the 
SRC 04 198 50381 
Page 3 
petition; and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail: establishing research methodology and designing formats for 
data gathering such as surveys, opinion polls, and questionnaires; analyzing the petitioner's existing 
advertising and marketing efforts and assessing the potential for expansion; forecasting future market trends; 
gathering data on competitors and studying the buying habits of the petitioner's customers; revamping 
customer service and production; making decisions on advertising; providing guidance regarding inventory 
and marketing campaigns; improving the petitioner's operating and economic performance; developing a 
three-year plan for market expansion; designing procedures for more efficient management of customer 
contracts; working with the production manager on plans to increase capacity; monitoring the progress of 
business development and coordinating modifications; reviewing publications, attending shows, and 
consulting with sales representatives and customers; evaluating design ideas; creating and modifying design 
and production techniques; and coordinating production plans and specifications. The petitioner indicated that 
the beneficiary is a qualified candidate for the job because she possesses the equivalent of a bachelor's degree 
with an emphasis in marketing. 
The director found that the proffered position, which iq that of a marketing manager, was not a specialty 
occupation. Citing to the Department of Labor's Occupational Outlook Handbook (Handbook), the director 
noted that the minimum requirement for entry into the position was not a baccalaureate degree or its 
equivalent in a specific specialty. The director found further that the petitioner failed to establish any of the 
criteria found at 8 C.F.R. $ 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the petitioner - has satisfied three criteria of 
8 C.F.R. $ 214.2(h)(4)(iii)(A). Counsel states that a baccalaureate or higher degree or its equivalent is 
normally the minimum requirement for entry into the particular position, that the degree requirement is 
common to the industry in parallel positions among similar organizations, and that 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. Counsel states further that the beneficiary will oversee the 
management of the petitioner's marketing efforts as well as oversee the design of the jewelry. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. 3 214.2(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 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 1 15 1, 1 165 
(D. Minn. 1999)(quoting HirdBlaker Colp. v. Sava, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AAO does not concur with counsel that the proffered position, which combines the 
duties of a marketing manager with a precious stone and metaI worker, is a specialty occupation. No evidence in 
SRC 04 198 50381 
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the Handbook, 2006-2007 edition, indicates that a baccalaureate or higher degree in a specific specialty, or its 
equivalent, is required for these pos 
 rd includes a sales agreement, dated September 
19,2003, between the petitioner and 
 ecting, in part, the assignment of approximately 
$75,000 worth of orders to the petitioner. Counsel states that the petitioner is also undergoing negotiations with 
another supplier. The petitioner, however, has not demonstrated that these activities elevate the complexity of the 
proffered position to require a bachelor's degree in a specific specialty. It is further noted that, although the 
proposed duties include: "Working with the production manager on plans to increase capacity," the petitioner's 
organizational hierarchy is unclear. The evidence of record contains no organizational chart. Further, the 
record contains no evidence of the petitioner's claimed 13 employees, such as quarterly wage reports. It is noted 
that the petitioner's 2003 federal income tax return reflects only $240,091 in salaries and wages. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm., 1998)(citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comrn. 1972)). 
Regarding parallel positions in the petitioner's industry, the record \contains letters from two businesses 
similar to the petitioner's. Both writers assert that positions such as the proffered position require a bachelor's 
degree in marketing or an equivalent thereof. The writers, however, do not provide any evidence in support of 
their assertion or rely on industry surveys, data or other \rlocumentation to reach the conclusion that the 
position requires a bachelor's degree in a field related 40 marketing. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SofSici, 22 I&N Dec. 158, 165 (Comrn. 1998)(citing Matter of Treasure Craft of California, 14 I&N 
Dec. 190 (Reg. Comm. 1972)). The Handbook is a compilation of results of nationwide industry questionnaires, 
surveys and personal interviews by the DOL, and indicates that there is no specific degree requirement for entry 
into the field. The AAO may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. However, where an opinion is not in accord with other information or is in any way questionable, 
the AAO is not required to accept or may give less weight to that evidence. Matter of Caron International, 19 
I&N Dec. 791 (Comm. 1988). 
The record also does not include any evidence from firms, individuals, or professional associations regarding 
an industry standard, or documentation !o support the complexity or uniqueness of the proffered position. The 
petitioner, therefore, has not established the criteria set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) or (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. As counsel does not address this issue on appeal, it will not be discussed 
further. The evidence of record does not establish this criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 21$.2(h)(4)(iii)(A)(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. 
To the extent that they are depicted in the record,-the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A-j(4). 
SRC 04 198 50381 
Page 5 
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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 29 1 of the Act, 8 U.S:C. $ 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.