dismissed H-1B Case: Management Consulting

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 252 53387 Office: CALIFORNIA SERVICE CENTER Date: A~R 1 
 2m 
IN RE: Petitioner: 
Beneficiary: 
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. 3 1 10 1 (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 
WAC 04 252 53387 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant 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 research and management consulting business that seeks to employ the beneficiary as a 
business analyst. The petitioner endeavors to classify the beneficiary as a nonimmigrant 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 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation and the 
beneficiary is not qualified to perform a specialty occupation. On appeal, counsel submits a brief. 
The AAO will first address the director's conclusion that the position is not a specialty occupation. 
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 (CIS) interprets 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. 
The record of proceeding before the AAO 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 I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
WAC 04 252 53387 
Page 3 
The petitioner is seeking the beneficiary's services as a business analyst. Evidence of the beneficiary's duties 
includes: the 1-129 petition; the petitioner's August 30, 2004 letter in support of the petition; and the 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: supporting and coordinating the daily business operations and related accounting 
and finance functions; supporting and implementing the appropriate systems and procedures to efficiently run 
the business and attain company objectives; conducting quantitative analyses of company information 
affecting investment and growth opportunities; developing short- and long-term business and fiscal plans; 
analyzing customer project requirements and determining the direction of future product development; 
evaluating activity reports and financial statements to determine progress and status for obtaining objectives; 
revising objectives and plans in accordance with current market conditions; providing support activities such 
as financial reports and projections to executives to achieve increased sales and profits; overseeing and 
assisting in the preparation of proposals, bid reviews, and costing and pricing reviews to minimize 
commercial risk and maximize profitability; and assisting in the negotiation and finalization of customer 
contracts and agreements. The petitioner indicated that a qualified candidate for the job would possess a 
bachelor's degree in business administration or a related field. 
The director found that the proffered position was not a specialty occupation because the petitioner has not 
demonstrated that the proffered position requires a bachelor's degree in a specific specialty. The director 
found further that the petitioner failed to establish any of the criteria found at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the petitioner plans to expand its business to the U.S. west coast and, 
therefore, requires the services of a business analyst. Counsel states further that the proposed duties are so 
specialized and complex as to require a bachelor's degree in business administration, and that CIS has 
previously approved similar petitions. Counsel also states that the record contains supporting documentation 
including Internet job postings and a professional opinion evaluation. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. 5 214.2(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. 5 214.2(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 Department of Labor's 
Occupational Outlook Handbook (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 (D. Minn. 1999)(quoting HirdIBlaker Corp. v. Suva, 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. Although a review of the Handbook, 2006-2007 edition, finds that a business 
analystJmanagement analyst, in some instances, may qualify as a specialty occupation, the AAO does not 
concur with counsel that the proffered position is a specialty occupation. In this case, information on the 
petition that was signed by the petitioner's CEO on August 30, 2004 reflects that the petitioner was 
WAC 04 252 53387 
Page 4 
established in 1999 and has "3+" U.S. employees and an approximate gross annual income of $776,000. A 
document that was submitted in response to the director's request for additional evidence indicates that the 
petitioning entity comprises the following five positions: chief executive officer; vice presidentlwest coast; 
U.S. sales manager; U.S. university relations manager; and account manager. Upon review of the proposed 
duties and the duties described for the petitioner's senior and managerial employees, it is not clear who 
exactly is performing the services the petitioner provides, namely, monitoring the student groups, conducting 
MBA and undergraduate surveys, and gathering the statistical information to provide to U.S. companies and 
universities. It is also unclear how the beneficiary could realistically perform the proposed duties, such as 
supporting and coordinating the daily business operations in the Del Mar office, when information on the 
petition indicates that the Del Mar office has only two employees, the vice president and the business analyst. 
Since the petitioner is a research and management consulting business, it is presumed that at least one of the 
employees would perform research and consulting activities. Accordingly, is unclear what daily business 
operations the beneficiary will support and coordinate. The petitioner's assertion that it expects to hire an 
additional five to ten new employees in the next six to 18 months for its California office is noted. The 
petitioner, however, must establish eligibility at the time of filing the nonimrnigrant visa petition. A visa 
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new 
set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on 
any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of 
the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988).' 
The evaluation from Assistant Professo of the chool of Business at 
Hofstra University, is noted. Professor states, in part, that the pro ered position requires bachelor's- 
level academic training in business administration, business management, or a related area. This information 
is not convincing evidence that the position of a business analyst is a specialty occupation in this case, based 
on the discrepancies discussed above. In view of the foregoing, the petitioner has not demonstrated that a 
baccalaureate or higher degree in a specific specialty is required for the proffered position. 
The petitioner noted that CIS approved other petitions that had been previously filed on behalf of business 
analysts. The director's decision does not indicate whether he reviewed the prior approvals of the other 
nonirnrnigrant petitions. Each petition filing is a separate proceeding with a separate record. 
See 8 C.F.R. 5 103.8(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. 5 103.2(b)(16)(ii). If the previous nonirnmigrant petitions 
were approved based on the same unsupported and contradictory assertions that are contained in the current 
record, the approval 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 
An Internet search of the petitioner's new business address at: 
California 92014, as reflected on the Business Certificate Amlication of the Citv of Solana Beach. finds the 
following listing: 
 L 
Shari'ah-compliance I 
Financial Group." There is no mention of the petitioner's business. 
WAC 04 252 53387 
Page 5 
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 (1988). 
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 nonirnmigrant 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.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
Regarding parallel positions in the petitioner's industry, the petitioner submitted Internet job postings for 
business analysts. There is no evidence, however, to show that the employers issuing those postings are 
similar to the petitioner, or that the advertised positions are parallel to the instant position. The advertisements 
are for business analysts in a variety of industries, including aerospace, finance, and information technology. 
Further, not all the advertisements stipulate a bachelor's degree in a specific specialty. Thus, the 
advertisements have no relevance. 
The record also does not include any evidence from fm, individuals, or professional associations regarding 
an industry standard, or documentation to 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. 
 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. On appeal, counsel states that the proffered position is newly created and 
that the petitioner hires only individuals with at least a bachelor's degree. As the proffered position is a new 
position, this information does not prove that that petitioner normally requires a bachelor's degree for the 
proffered position. The evidence of record does not establish this criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(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)(4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. 
The director also found that the beneficiary was not be qualified to perform the duties of a specialty occupation. 
As discussed above, the exact nature of the proffered position is unclear and, therefore, the educational 
requirements cannot be determined. It is noted that the beneficiary obtained a Bachelor of Science in Business 
Administration degree with a concentration in sport management. The Handbook indicates that the position of 
management analyst in private industry requires a master's degree. In view of the foregoing, the petitioner has not 
demonstrated that the beneficiary is qualified to perform a specialty occupation. For this additional reason, the 
petition may not be approved. Accordingly, the AAO shall not disturb the director's denial of the petition. 
WAC 04 252 53387 
Page 6 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.