dismissed H-1B Case: Management Analysis

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
 LIN 03 21 7 5 1674 
 Office: NEBRASKA SERVICE CENTER 
 Date: JUN 2 8 2006 
IN RE: Petitioner: 
Beneficiary: 
Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(H)(i)(b) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 101(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, Chief 
Administrative Appeals Office 
LIN 03 217 51674 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition, and the Administrative 
Appeals Office (AAO) dismissed a subsequent appeal. Based upon the petitioner's showing that a brief that 
had been timely submitted on appeal was not included in the record of proceeding considered by the AAO in 
rendering its previous decision, the AAO here grants the petitioner's motion to reopen the proceeding and 
reconsider the evidence, including the aforementioned brief. The previous decision of the AAO is withdrawn. 
Upon reopening and reconsideration, the AAO affirms its earlier decision. The petition will be denied. 
The petitioner is engaged in the retail merchandising of convenience foods, dry goods, and imported gifts. In 
order to employ the beneficiary as a management analyst, the petitioner endeavors to classify the beneficiary as 
a nonirnrnigrant worker in a specialty occupation pursuant to section 101 (a)(lS)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the basis that the petitioner failed to establish that the proffered position 
meets any specialty occupation criterion set forth at 8 C.F.R. fj 214.2(h)(4)(iii)(A). In part, the director found 
that the duties of the proffered position "appear to be closely related to the duties performed by a management 
analyst as described in [the Department of Labor's Occupational Outlook Handbook (Handbook)]." 
However, the director also determined that, by the range of degree fields which it reports that employers find 
acceptable, the Handbook indicates that the management analyst occupation is not one that requires a degree 
in a specific specialty. 
On appeal, counsel contends that the director's decision does not accord with the evidence of record and court 
cases. Counsel also asserts that the director's decision conflicts with AAO decisions that determined that 
management analyst positions were specialty occupations. For the reasons discussed below, the AAO has 
determined that the director was correct to dismiss the petition for failure to establish that the proffered position is 
a specialty occupation. Accordingly, the appeal will be dismissed and the petition will be denied. 
The AAO bases this decision upon its review of the entire record as now constituted, including: (1) the 
petitioner's Form 1-129 and supporting documentation; (2) the director's request for additional evidence 
(RFE); (3) the matters submitted in response to the RFE; (4) the director's denial letter; (5) the Form I-290B, 
filed on October 23, 2003, and the matters appended to it; (6) the petitioner's brief on appeal, consisting of a 
Form I-290B, date-stamped January 10, 2005, with counsel's statements beginning at part 3 of the form and 
extending through a five-page addendum; (5) counsel's December 28, 2005 cover letter requesting 
consideration of the brief; and (6) the documents submitted by counsel with the brief and cover letter, which 
are related to the brief's earlier absence from the record despite counsel's timely submission. 
Section 214(i)(l) of the Act, 8 U.S.C. fj 1184(i)(l), defines the term "specialty occupation" as one 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. 
LIN 03 217 51674 
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Thus it is clear that Congress intended this visa classification for aliens that are to be employed in an 
occupation that requires the theoretical and practical application of a body of highly specialized knowledge. 
Congress specifically stated that such an occupation would require, as a minimum qualification, a 
baccalaureate or higher degree in the specialty. 
In line with this section of the Act, 8 C.F.R. 5 214.2(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 specific specialty, or its equivalent, as a 
minimum for entry into the occupation in the United States." 
Pursuant to 8 C.F.R. 
 214.2@)(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. 
In accordance with the statutory and regulatory provisions to which 8 C.F.R. fj 214.2(h)(4)(iii)(A) is related, 
Citizenship and Immigration Services (CIS) has consistently interpreted the term "degree" in the criteria at 
8 C.F.R. 3 214.2(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 specialty occupation as a minimum for entry into the occupation and fairly represent the types of 
professions that Congress contemplated when it created that visa category. 
For the reasons discussed below, the AAO finds that the record of proceeding does not substantiate counsel's 
contentions. The AAO finds that the director was correct to deny the petition, but disagrees with the reasoning 
upon which the director based his decision. 
LIN 03 217 51674 
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The AAO disagrees with the director's conclusion that, as described in the Handbook, management analyst 
positions do not qualify under section 1 of 8 C.F.R. 5 214.2(h)(4)(iii)(~).' These paragraphs fi-om the 2006-2007 
edition of the Handbook indicate more clearly than the paragraphs fiom an earlier edition quoted by the director 
that performance of the duties of management analyst positions normally require at least a bachelor's degree in a 
specific specialty that is closely related to the duties: 
Firms providing management analysis range in size from a single practitioner to large 
international organizations employing thousands of consultants. Some analysts and 
consultants specialize in a specific industry, such as healthcare or telecommunications, while 
others specialize by type of business function, such as human resources, marketing, logistics, 
or information systems. In government, management analysts tend to specialize by type of 
agency. The work of management analysts and consultants varies with each client or 
employer, and from project to project. Some projects require a team of consultants, each 
specializing in one area. In other projects, consultants work independently with the 
organization's managers. In all cases, analysts and consultants collect, review, and analyze 
information in order to make recommendations to managers. 
Educational requirements for entry-level jobs in this field vary widely between private 
industry and government. Most employers in private industry generally seek individuals with 
a master's degree in business administration or a related discipline. Some employers also 
require additional years of experience in the field in which the worker plans to consult, in 
addition to a master's degree. Some will hire workers with a bachelor's degree as a research 
analyst or associate. Research analysts usually need to pursue a master's degree in order to 
advance to a consulting position. Most government agencies hire people with a bachelor's 
degree and no pertinent work experience for entry-level management analyst positions. 
Few universities or colleges offer formal programs of study in management consulting; 
however, many fields of study provide a suitable educational background for ths occupation 
because of the wide range of areas addressed by management analysts. These include most 
academic programs in business and management, such as accounting and marketing, as well 
as economics, computer and information sciences, and engineering. In addition to the 
appropriate formal education, most entrants to this occupation have years of experience in 
1 
 In reaching this determination, the AAO accorded no weight to the information submitted from the 
Dictionary of Occupational Titles (DOT), as this resource does not analyze positions in terms of their status as 
a specialty occupation under the Act and related CIS regulations. The DOT is not 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. It provides an assessment 
(the SVP rating) that is meant to indicate only the total number of years of vocational preparation required for 
a particular position. It does not describe how those years are to be divided among training, formal education, 
and experience, and it does not specify the particular type of degree, if any, that a position would require. 
LIN 03 217 51674 
Page 5 
management, human resources, information technology, or other specialties. Analysts also 
routinely attend conferences to keep abreast of current developments in their field. 
Read in the context of the entire section in which they appear, these paragraphs indicate that specific management 
analyst positions in the private sphere require a master's degree in a specialty closely aligned with the particular 
business aspects which the management analyst would analyze, such as engineering, marketing, or computer 
science, or a master's of business administration. This differs from an occupation for which the acceptability of a 
wide range of distinctly different academic majors would signify that hlghly specialized knowledge would not 
have to be applied on the job. 
The AAO finds that the proffered position does not qualify under section 1 of 8 C.F.R. !j 214.2@)(4)(iii)(A). 
Notwithstanding the "management analyst" title the petitioner has ascribed to it, the evidence of record does not 
establish that the petitioner has proffered a position for which the normal minimum entry requirement is at least a 
master's degree or its equivalent in a particular specialty. 
In order to the determine whether a petitioner has established that the position it has proffered actually requires 
the knowledge-application and educational credentials prescribed by the statutory and regulatory framework on 
specialty occupations, CIS must look beyond the title and educational credentials that a petitioner specifies. CIS 
must examine the ultimate employment of the alien to determine whether the position qualifies as a specialty 
occupation. Cj Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000). In this pursuit, 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 ~ct.~ To interpret the regulations any other way would lead to absurd results: if CIS were limited to 
reviewing a petitioner's self-imposed employment requirements, then any alien with a bachelor's degree could be 
brought into the United States to perform a menial, non-professional, or an otherwise non-specialty occupation, so 
long as the employer required all such employees to have baccalaureate or higher degrees. See id. at 388. 
The AAO has considered all of the evidence in the record about the position and its proposed responsibilities and 
duties, including counsel's statements on appeal about areas of responsibility (monthly reporting on the 
petitioner's relative position in the market; weekly meetings with managers and assistant managers on the 
implementation of company procedures; weekly financial, budgetary and accounting analysis; definition and 
creation of business plans, communication with relevant personnel, resource allocation, and maintenance of team 
productivity and morale; design of questionnaires and other data-gathering media; direction of business and 
operational strategy aimed at the expanding share of the market; identification of expert resources on business 
network systems, and initiation and development of business and accounting data bases; analysis of businesses for 
possible acquisition; and spearheading all expansion and growth projects.) 
The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387. 
LIN 03 217 51674 
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The AAO finds that the petitioner has limited its description of the proffered position to generalized and generic 
terms that convey neither the range of specific, concrete tasks involved nor the type and level of specialized 
knowledge that those tasks would require. While the petitioner asserts that the job performance in the position 
would require the possession and application of the specialized knowledge attained by a baccalaureate degree in a 
specific specialty, the validity of this assertion is not evident in the record. As so generally described in the 
record, the duties do not comport with the management analyst occupation described in the Handbook, because 
the Handbook inlcates that this occupation requires the application of at least a master's degree level of highly 
specialized knowledge in a distinct specialty that is closely related to the business problems under analysis. 
Rather, the generalized nature of the proposed duties that is presented in the record suggests a general 
management position whose performance does not require a master's degree in marketing or any other specific 
specialty. 
Because the evidence of record does not establish that the proffered position is one that normally requires at least 
a baccalaureate degree or its equivalent in a specific specialty, the petitioner has not satisfied the criterion at 
8 C.F.R. 9 214.2(h)(4)(iii)(A)(l). 
In determining whether a petitioner has met the degree requirement of the first alternative prong at 8 C.F.R. 
214.2(h)(4)(iii)(A)(2), factors ofien 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 fms 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 Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
As above discussed, it has not been demonstrated that the proffered position is a management analyst position 
as described in the Handbook. Furthermore, there are no letters or affidavits from the petitioner's industry or an 
industry professional association that attests to a routine recruiting and hiring practice. 
In his brief on appeal, counsel contends that the record's job vacancy advertisements from other employers were 
not accorded proper weight, noting that "the five advertisements were for management analysts in the same area 
of the country, with the same job description and job titles and various similar job titles and descriptions." The 
AAO finds, however, that these advertisements are not probative. 
For application of the first alternative prong at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(2), "parallel positions" status 
between a proffered position and others in an industry is not determined by similar wording of generalized 
hctions of the positions, but by the degree of similarity between the work involved in the actual performance of 
the positions. The record's information about both the advertised positions and the one proffered here is too 
generalized for an accurate comparison of the actual work and specialty-knowledge applications they involve. 
Further, no evidence establishes that these few advertisements are an accurate representation of an 
industry-wide educational standard for positions parallel to the one that is the subject of this petition. 
Accordingly, the petitioner has not satisfied the criterion of the first alternative prong of 8 C.F.R. 
3 21 4.2@)(4)(iii)(A)(2). 
LIN 03 217 51674 
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Next, counsel rightly concedes that, as this is the first time the position in question has been proffered, the 
petitioner cannot meet the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3), which is for a position for which the 
employer normally requires at least a baccalaureate degree or its equivalent in a specific specialty. 
Finally, the AAO also finds that the descriptions of the proffered position are too general and generic to 
qualify the proffered position as a specialty occupation by virtue of complexity, uniqueness, or specialization. 
These descriptions indicate a variety of general duties, but they do not convey either that the proffered 
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 (as required to meet the second alternative criterion of 8 C.F.R. 
3 214.2(h)(4)(iii)(A)(2)), or that the specific duties are so specialized and complex that their performance requires 
knowledge that is usually associated with a baccalaureate or higher degree in a specific specialty (as required to 
meet the criterion of 8 C.F.R. 3 214.2(h)(4)(iii)(A)(4)). 
Because it is not substantiated by the evidence of record, the AAO accords no weight to counsel's assertion that 
the petitioner "has demonstrated that the nature of the proposed duties is so specialized and complex that the 
knowledge required to perform the duties is usually associated with attainment of a baccalaureate or higher 
degree." Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Cornm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 1972)). Without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). The petitioner has not provided the specificity required by the criterion of 8 C.F.R. 
3 214.2(h)(4)(iii)(A)(@, to which counsel alludes. That provision provides for the qualification of a position as a 
specialty occupation if: 
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. 
The record describes the proffered position by abstract hctions, such as "present[ing] monthly reports of the 
position of our company in the market against our competitors['] positions"; providing "[wleekly financial, 
budgetary and accounting analysis to ensure the proper allocation of resources as prescribed by company policy"; 
and "study work problems such as organizational changes communication and information flow, inventory 
control, and cost analysis, and will also suggest long-term business strategies." The petitioner does not illustrate 
specific matters in its business to which these functions relate, does not define specific tasks that would engage 
the beneficiary in his actual work, and does not demonstrate or explain how specific tasks or duties would require 
the theoretical and practical application of the level of highly specialized knowledge that the petitioner contends 
that the beneficiary must possess. 
Counsel has not established that the court cases that he cites require reversal of the director's decision in this case. 
Likewise, counsel's citation to several AAO decisions is not persuasive. Counsel's citation of previous AAO 
decisions opinions about positions other than that proffered here is not persuasive. Counsel has not 
established that the facts of the cited decisions are substantially the same as the facts in the instant case. 
LIN 03 217 51674 
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Further, AAO non-precedent decisions have no persuasive impact. While 8 C.F.R. $ 103.3(c) provides that 
CIS precedent decisions are binding on all CIS employees in the administration of the Act, unpublished 
decisions are not similarly binding. Furthermore, each nonimmigrant petition is a separate proceeding with a 
separate record. See 8 C.F.R. $ 103.8(d). In making a determination of statutory eligibility, CIS is limited to 
the information contained in the record of proceeding, see 8 C.F.R. $ 103.2(b)(16)(ii), and the record 
presently before the AAO does not establish the proffered position as a specialty occupation. 
Counsel's statement that he "has submitted over fifteen petitions for management analysts for the H-1B 
classification and all of them were granted with similar job titles and job descriptions for diffaent employers" is 
not evidence. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena; Matter 
of Laureano; and Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Also, the assertions are 
irrelevant to the merits of this case which must be determined by the evidence within the four corners of the 
record of proceeding: each nonimmigrant petition is a separate proceeding with a separate record. See 
8 C.F.R. $ 103.8(d). 
If previous nonimmigrant petitions were approved based on the same unsupported assertions that are 
contained in the current record, the approvals would constitute material and gross error on the part of the 
director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comrn. 1988). It would be absurd to suggest that CIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1 988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
The petitioner has failed to establish that the proffered position is a specialty occupation within the meaning 
of the Act and the criteria set forth at 8 C.F.R. $ 214.2(h)(4)(iii)(A). Accordingly, there is no basis for 
disturbing the director's decision. 
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. 
ORDER: 
 The previous decision of the AAO, dated September 23, 2003, is withdrawn. The appeal is 
dismissed. The petition is denied.