dismissed H-1B Case: Market Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: WAC 02 027 573 19 Office: CALIFORNIA SERVICE CENTER Date: AM 0 9 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. fj 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 mher inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 02 027 573 19 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the 
Administrative Appeals Office (AAO) remanded a subsequent appeal back to the director for entry of a new 
decision. The director again denied the petition, and the matter is again before the AAO on appeal. The 
appeal will be dismissed. The petition will be denied 
The petitioner is a staffing agency that seeks to employ the beneficiary as a market research analyst. The 
petitioner, therefore, endeavors to classify the beneficiary as a nonimrnigrant worker in a specialty 
occupation pursuant to section lOl(a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 8 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the basis of his finding that the petitioner had failed to establish that the 
proposed position qualifies for classification as a specialty occupation. 
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation, 
originally submitted on October 15, 2001; (2) the director's first request for additional evidence, dated 
January 18,2002; (3) the petitioner's April 15,2002 response to the director's request; (4) the director's first 
denial letter, dated August 21, 2002; (5) the first Form I-290B and supporting documentation, dated 
September 18, 2002; (6) the AAO's February 20, 2004 remand of the petition to the director for entry of a 
new decision; (7) the director's second request for additional evidence, dated April 1, 2004; (8) the 
petitioner's June 14, 2004 response to the director's request; (9) the director's second denial letter, dated 
January 29,2005; and (10) the second Fomi I-290B and supporting documentation, dated February 25,2005. 
The AAO reviewed the record in its entirety before issuing its decision. 
The sole issue presented on appeal is whether the petitioner's proposed position qualifies for classification as 
a specialty occupation. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 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. 
The term "specialty occupation" is further defined at 8 C.F.R. 214.2(h)(4)(ii) as: 
[A]n occupation which 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 
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. 8 214.2@)(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; 
WAC 02 027 573 19 
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(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 proposed position. 
In its June 14,2004 response to the director's request for additional evidence, the petitioner stated that the 
duties of the proposed position would consist of developing analytical tools to track sales volume by 
group and product category; tracking statistical marketing and logistics data for business accounts; 
providing projection tools for annual forecasts and projections; providing profitability analysis of sales 
volumes; and establishing sales projections and profit margins by product category. 
The director denied the petition, finding that the petitioner had satisfied none of the criteria set forth at 
8 C.F.R. 5 214.2(h)(4)(iii)(A), and therefore had not established that the proposed position qualifies for 
classification as a specialty occupation. 
In determining whether a proposed position qualifies as a specialty occupation, CIS looks beyond the title 
of the position and determines, from a review of the duties of the position and any supporting evidence, 
whether the position actually requires the theoretical and practical application of a body of highly 
specialized knowledge, and the attainment of a baccalaureate degree in a specific specialty, as the 
minimum for entry into the occupation as required by the Act. The AAO routinely consults the 
Department of Labor's Occupational Outlook Handbook (the Handbook) for its information about the 
duties and educational requirements of particular occupations. 
In his January 29,2005 denial, the director, relying on the 2004-2005 edition of the Handbook, found that 
many of the duties of the proposed position reflect the employment of a market research analyst, but 
concluded that the record failed to establish that the petitioner's business was of the type or complexity to 
require a market research analyst. While, as discussed below, the AAO concurs in the director's ultimate 
finding that the proposed position is not a specialty occupation, it does not agree with the reasoning that 
led him to his conclusion. 
The AAO finds the director to have erred in concluding that the petitioner does not have the 
organizational complexity or operate the type of business that would require a market research analyst. 
As discussed below, the AAO concurs in the director's finding that the proposed position is not that of a 
market research analyst.' However, it finds the director to have misjudged the scope of the petitioner's 
' The AAO notes that the petitioner does not dispute the director's characterization of the duties of the 
proposed position as more akin to those of a marketing manager than to those of a market research 
analyst. 
WAC 02 027 573 19 
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business when he concluded that it did not have the consumer base to require the services of a marketing 
or sales staff. The AAO also disagrees with the director's statement that the petitioner's business is not 
sufficiently complex to require the services of a market research analyst. The Handbook indicates that the 
work of market research analysts is applicable to many industries and that they are employed throughout 
the economy. In that market researchers are concerned with the potential sales of products or services and 
provide a company's management with the information needed to make decisions on the promotion, 
distribution, design and pricing of products or services, the petitioner's need for marketing research may 
not be discounted based on a lack of organizational complexity or its type of business. The fact that the 
petitioner is a staffing agency does not preclude it from engaging in the type of market research activities 
described by the Handbook as a means of identifying business opportunities. Therefore, the AAO 
withdraws the director's findings in this regard. 
In reaching its own conclusions regarding the nature of the proposed position, the AAO has reviewed the 
discussion of market or marketing research analysts at pages 173-174 of the 2006-2007 edition of the 
Handbook. It has taken particular note of the following section of that discussion: 
[Mlarket research analysts devise methods and procedures for obtaining the data they 
need. They often design telephone, mail, or Internet surveys to assess consumer 
preferences. Some surveys are conducted as personal interviews by going door-to-door, 
leading focus group discussions, or setting up booths in public places such as shopping 
malls. Trained interviewers, under the market research analyst's direction, usually 
conduct the surveys. 
After compiling the data, market research analysts evaluate them and make 
recommendations to their client or employer based upon their findings. They provide a 
company's management with information needed to make decisions on the promotion, 
distribution, design, and pricing of products or services. The information may also be 
used to determine the advisability of adding new lines of merchandise, opening new 
branches, or otherwise diversifying the company's operations. Market research analysts 
might also develop advertising brochures and commercials, sales plans, and product 
promotions such as rebates and giveaways. 
The AAO finds that it is market research analysts' work in the design and analysis of original market 
research that sets this occupation apart from what might otherwise be characterized as marketing or sales 
manager positions, employment that also requires the incumbents to perform marketing research as they 
seek to identify and expand business opportunities for their employers. Although the petitioner indicated 
that the beneficiary would develop analyhcal tools to track the petitioner's sales volume, such market 
research responsibilities would not make the beneficiary a market research analyst. 
The issue is not whether the proposed position requires the beneficiary to do any market research, which 
it likely does, but whether it is that of a market research analyst and requires the theoretical and practical 
application of a body of highly specialized knowledge that can only be obtained through a master's 
degree in business administration, marketing, statistics, communications, or other related field. 
(Handbook at page 174). As the petitioner does not indicate that the proposed position would require the 
beneficiary to design and conduct the type of original market research performed by market research 
analysts, or to evaluate this type of research, the position does not reflect the work of a market research 
analyst. 
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Instead, like the director, the AAO finds the market research duties associated with the proposed position 
to be more closely related to the work of marketing managers, who also use marketing research and 
financial analysis to develop business strategies. 
The Handbook's discussion of the duties of advertising, marketing, promotions, public relations, and sales 
managers states the following: 
Marketing managers develop the firm's detailed marketing strategy. With the help of 
subordinates, including product development managers and market research managers, 
they determine the demand for products and services offered by the firm and its 
competitors. In addition, they identify potential markets-for example, business firms, 
wholesalers, retailers, government, or the general public. Marketing managers develop 
pricing strategy with an eye towards maximizing the firm's share of the market and its 
profits whlle ensuring that the firm's customers are satisfied. In collaboration with sales, 
product development, and other managers, they monitor trends that indicate the need for 
new products and services and oversee product development. Marketing managers work 
with advertising and promotion managers to promote the firm's products and services and 
to attract potential users. 
The Handbook states the following with regard to the educational qualifications required for marketing 
managers : 
A wide range of educational backgrounds is suitable for entry into advertising, marketing, 
promotions, public relations, and sales managerial jobs, but many employers prefer those 
with experience in related occupations plus a broad liberal arts background. A bachelor's 
degree in sociology, psychology, literature, journalism, or philosophy, among other 
subjects, is acceptable. However, requirements vary, depending upon the particular job. 
For marketing, sales, and promotions management positions, some employers prefer a 
bachelor's or master's degree in business administration with an emphasis on marketing. 
Courses in business law, economics, accounting, finance, mathematics, and statistics are 
advantageous. . . . 
Most advertising, marketing, promotions, public relations, and sales management 
positions are filled by promoting experienced staff or related professional personnel. For 
example, many managers are former sales representatives, purchasing agents, buyers, or 
product, advertising, promotions, or public relations specialists. In small firms, where the 
number of positions is limited, advancement to a management position usually comes 
slowly. In large firms, promotion may occur more quickly. 
Thus, the proposed position does not qualify for classification as a specialty occupation under 
8 C.F.R. 9 214.2(h)(4)(iii)(A)(l), which requires a showing that a baccalaureate or higher degree in a specific 
specialty or its equivalent is normally the minimum requirement for entry into the type of position being 
proffered. The Handbook indicates that most marketing manager positions are filled on the basis of 
experience (most positions "are filled by promoting experienced staff or related professional personnel"). 
Moreover, the fact that some employers "prefer" a degree or that individuals possessing degrees "should have 
the best job opportunities" does not rise to this criterion's standard of employers normally requiring at least a 
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bachelor's degree or its equivalent in a specific specialty. As such, marketing managers do not qualify as 
specialty occupations under the first criterion. 
Nor does the proposed position qualify as a specialty occupation under either prong of 
8 C.F.R. 9 214.2@)(4)(iii)(A)(2). The first prong of this regulation requires a showing that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. The AAO has 
reviewed the job postings submitted by the petitioner. The petitioner, however, has failed to consider the 
specific requirements at 8 C.F.R. 4 214.2@)(4)(iii)(A)(2) for establishing a baccalaureate or higher degree as 
an industry norm. To meet the burden of proof imposed by the regulatory language, a petitioner must 
establish that its degree requirement is common in the petitioner's industry in positions that are parallel to the 
proffered position and found in organizations similar to the petitioner. 
There is no evidence in the record to demonstrate that any of the companies that issued the postings are 
similar to the petitioner in size, scope, or scale of operations. Simply 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 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
The DBSI Group of Companies are, according to their advertisement, a group of privately-held 
companies involved in diversified business and real estate ownership and management. Futurestep, Inc. 
is a health care and medical products company, AAA Auto Club South provides travel-related services 
for its members, School-Link Technologies is a software company, and CyberCoders is a pharmaceutical 
company. The unnamed company advertising its vacancy through Careerbuilder.com directly is an asset 
management firm. 
Moreover, these postings do not establish that a degree in a specific specialty is required for this position. As 
noted previously, CIS interprets the term "degree" in the criteria at 
8 C.F.R. 9 214.2(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 proposed position. The companies fiom whom the petitioner has 
submitted advertisements would find acceptable degrees in, among other areas, business, business 
administration, marketing, market research, advertising, economics, psychology, or library science. Several 
of the advertisements did not list any degree fields; a degree in any field would be acceptable. 
Accordingly, the proposed position does not qualify as a specialty occupation under the first prong of 
8 C.F.R. 8 2 14.2(h)(4)(iii)(A)(2). 
Nor does the proposed position qualify as a specialty occupation under 8 C.F.R. 9 214.2@)(4)(iii)(A)(3), 
which requires a showing that the petitioner normally requires a degree or its equivalent for the proposed 
position. To determine a petitioner's ability to meet this criterion, the AAO normally reviews the petitioner's 
past employment practices, as well as the histories, including names and dates of employment, of those 
employees with degrees who previously held the position, and copies of those employees' diplomas. 
The petitioner's June 14, 2004 response to the director's request for additional evidence stated that the 
petitioner has previously employed three individuals with bachelor's degrees as market research analysts. 
However, no evidence to support this assertion was presented. Again, simply 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 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
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Moreover, the petitioner did not even state whether those individuals held the same type of degree as the 
beneficiary in this case. 
Accordingly, the proposed position does not qualify as a specialty occupation under 
8 C.F.R. $2 14.2(h)(4)(iii)(A)(3). 
The AAO next turns to the criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(4), which requires a demonstration 
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. 
To the extent that they are depicted in the record, the duties of the proposed position 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. There is no information in the record to support a 
finding that the proposed position is more specialized and complex than the general range of marketing 
manager positions for which the Handbook indicates no requirement for the highly specialized knowledge 
associated with at least a bachelor's degree in a specific specialty. Therefore, the evidence does not 
establish that the proposed position is a specialty occupation under 8 C.F.R. $ 214.2(h)(4)(iii)(A)(4). 
Accordingly, the proposed position does not qualify for classification as a specialty occupation, and the 
petition was properly denied. 
The AAO notes that even if it had classified the proposed position as that of a market research analyst, the 
position would still not qualify for classification as a specialty occupation. 
The Handbook states the following with regard to the educational qualifications necessary for entry into 
this field: 
A bachelor's degree is the minimum educational requirement for many market and 
survey research jobs. However, a master's degree may be required, especially for 
technical positions, and increases opportunities for advancement to more responsible 
positions. Also, continuing education is important in order to keep current with the latest 
methods of developing, conducting, and analyzing surveys and other data. Market and 
survey researchers may earn advanced degrees in business administration, marketing, 
statistics, communications, or some closely related discipline. Some schools help 
graduate students find internships or part-time employment in government agencies, 
consulting firms, financial institutions, or marketing research firms prior to graduation. 
In addition to completing courses in business, marketing, and consumer behavior, 
prospective market and survey researchers should take other liberal arts and social 
science courses, including economics, psychology, English, and sociology. Because of 
the importance of quantitative skills to market and survey researchers, courses in 
mathematics, statistics, sampling theory and survey design, and computer science are 
extremely helpful. Many corporation and government executives have a strong 
background in marketing. 
As the Handbook finds that market research analyst positions impose no specific degree requirement on 
individuals seeking employment in the field, the petitioner cannot establish that its proposed market 
research analyst position requires the beneficiary to hold a baccalaureate or higher degree, or its 
equivalent, in a specific specialty. When a range of degrees, e.g., the liberal arts, or a degree of generalized 
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title without further specification, e.g., business adrmnistration, can perform a job, the position does not 
qualify as a specialty occupation. Matter of Michael Hertz Associates, 19 I&N Dec. 558 (Comm. 1988). To 
prove that a job requires the theoretical and practical application of a body of specialized knowledge as 
required by Section 214(i)(l) of the Act, a petitioner must establish that the position requires the attainment of 
a bachelor's or higher degree in a specialized field of study. 
Finally, the petitioner asserts that the director's decision is inconsistent with previous petitions it has 
submitted for similar positions. This record of proceeding does not, however, contain all of the 
supporting evidence submitted to the service center in the prior cases. In the absence of all of the 
corroborating evidence contained in those records of proceeding, the documents submitted by the 
petitioner are not sufficient to enable the AAO to determine whether the positions offered in the prior 
cases were similar to the position in the instant petition. 
Each nonimmigrant petition 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). Although the AAO may attempt to hypothesize as to 
whether the prior cases were similar to the proposed position or were approved in error, no such 
determination may be made without review of the original records in their entirety. However, if the prior 
petitions were approved based on evidence that was substantially similar to the evidence contained in this 
record of proceeding, the approval of those petitions would have been erroneous. CIS is not required to 
approve petitions where eligbility 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 
(Comm. 1988). Neither CIS nor any other 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 nonirnrnigrant 
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. 5 1 (2001). 
The petitioner has failed to establish that its proposed position qualifies for classification as a specialty 
occupation under any of the criteria set forth at 8 C.F.R. $5 214.2(h)(4)(iii)(A)(l), (2), (3), and (4). As 
the proposed position is not a specialty occupation, the beneficiary's qualifications to perfom its duties 
are immaterial. Accordingly, the AAO will not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. fj 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.