dismissed H-1B Case: Market Research

rn~JC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 010 53599 Office: CALIFORNIA SERVICE CENTER Date: JAN 1 8 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)( lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(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 04 010 53599 
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DISCUSSION: The 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 medical placement agency that seeks to employ the beneficiary as a market research 
analyst. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a 
specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 3 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the basis that the petitioner had failed to establish that the proposed 
position qualifies for classification as a specialty occupation, and that the beneficiary is unqualified to 
perform the services of a specialty occupation. 
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation; (2) the 
director's request for evidence; (3) the petitioner's response to the director's request for evidence; (4) the 
director's denial letter; and (5) the Form I-290B and supporting documentation. The AAO reviewed the 
record in its entirety before issuing its decision. 
Section 214(i)(l) of the Immigration and Nationality Act (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. 
The term "specialty occupation" is firther defined at 8 C.F.R. 5 214.2(h)(4)(ii) as: 
[A]n occupation which requires theoretical and practical application of a body of hghly 
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. $ 2 14.2(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 
WAC 04 010 53599 
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(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. 
4 214.2(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 petitioner, a medical placement agency, proposes to hire the beneficiary as a marketing analyst. In its 
October 9, 2003 letter of support, the petitioner stated that the duties of the proposed position included 
gathering information on competitors, prices, sales, and methods of soliciting business in the local and 
regional area for the purpose of creating a chain or more branches of the business or the possibility of 
franchising the business in different areas; conducting surveys and questionnaires or other forms of 
campaigns in order to pursue these purposes; conducting personal interviews with prospective customers or 
business partners in order to gather personal preferences of servicing and other personal needs, and 
submitting it to the manager; conducting "all sorts" of market analysis and research in order to assist 
management in its expansion; prepare reports and graphic illustration of findings in coordination with the 
manager of the company for use by the manager as marketing tools and approaches toward getting more 
clients andlor business partners; and assisting the president and other officers of the company in business 
calls or meetings in regards to additional and potential business for the company. 
The director denied the petition, finding that the petitioner had satisfied none of the four criteria set forth at 
8 C.F.R. 9: 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 Occz4putional Outlook Hundhook (the Handbook) for its information about the 
duties and educational requirements of particular occupations. 
The Handbook states the following with regard to the employment of marketing research analysts: 
Market, or marketing, research analysts are concerned with the potential sales of a 
product or service. They analyze statistical data on past sales to predict future sales. 
They gather data on competitors and analyze prices, sales, and methods of marketing and 
distribution. Market 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 discussion, 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 
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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 . . . . 
Because of the applicability of market research to many industries, market research 
analysts are employed in most industries.. . . 
The occupation of a market research analyst is normally a specialty occupation, requiring those seeking 
entry-level employment in private industry to have a master's degree in a related field. However, the 
proposed position does not qualify as a specialty occupation under the first criterion, as the petitioner 
imposes no specific degree requirement on the position. In its letter of support, the petitioner stated that a 
candidate for the proposed position "must have a Bachelor of Arts Degree with any major field of 
concentration." 
As noted previously, CIS interprets 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 proposed position. When a range of degrees, e.g., the liberal arts, or a degree of generalized title 
without further specification, e.g., business administration, can perform a job, the position does not qualify as 
a specialty occupation. See Mutter ofMichael 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. 
Accordingly, the proposed position does not qualify as a specialty occupation under 8 C.F.R. 
!j 2 14.2(h)(4)(iii)(A)(I). 
Nor does the proposed position qualify as a specialty occupation under either alternative prong of 8 C.F.R. 
214.2(h)(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. However, no 
evidence was submitted to satisfy ths prong. 
The second prong of 8 C.F.R. tj 214.2(h)(4)(iii)(A)(2) requires the petitioner to prove that the duties of the 
proposed position are so complex or unique that only an individual with a degree can perform them. Whlle a 
master's degree is the normal minimum entry requirement for those seeking employment as market research 
analysts, the petitioner's willingness to accept candidates with bachelor's degrees in a range of fields 
precludes the proposed position from classification as a specialty occupation under this prong. Mutter of 
Michael Hertz Associates, 19 I&N Dec. at 558. Again, 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. 
Therefore, the petitioner has not established that the proposed position qualifies as a specialty occupation 
under either prong of 8 C.F.R. 5 2 14.2(11)(4)(iii)(A)(2). 
Nor does the proposed position qualify as a specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3), 
which requires a showing that the petitioner normally requires a degree or its equivalent for the proposed 
WAC 04 0 10 53599 
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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. 
However, the petitioner has stated that this is the first time it is filling this position, which precludes 
approval under this criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(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. 
As noted previously, although a master's degree is the normal minimum entry requirement for those seeking 
employment as market research analysts in private industry, the petitioner's willingness to accept candidates 
with bachelor's degrees in a range of fields precludes the proposed position from classification as a specialty 
occupation under this prong. Matter of Michael Hertz Associutes, 19 I&N Dec. at 558. 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. 
The petitioner has failed to establish that the position qualities for classification as a specialty occupation 
under any of the criteria set forth at 8 C.F.R. 35 214.2(h)(4)(iii)(A)(I), (2), (3, and (4). 
The petition may not be approved for another reason, as the record does not demonstrate that the 
beneficiary holds a master's degree or its foreign equivalent. The director determined that the beneficiary 
was not qualified to perform the duties of a specialty occupation. While the Handbook does indicate that 
persons holding bachelor's degrees in a related field may be hired for entry-level positions as research 
assistants, administrative or management trainees, marketing interviewers, or salespersons, the position 
proposed here is not one of those positions. 
Pursuant to 8 C.F.R. 5 2 14.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, an 
alien must meet one of the following criteria: 
(I) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation from an 
accredited college or university; 
(3) Hold an unrestricted state license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately engaged 
in that specialty in the state of intended employment; or 
(4) Have education, specialized training, andlor progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree 
in the specialty occupation, and have recognition of expertise in the specialty 
through progressively responsible positions directly related to the specialty. 
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In making its determination as to whether the beneficiary qualifies to perform the duties of a specialty 
occupation, the AAO turns to the criteria at 8 C.F.R. 214.2(h)(4)(iii)(C), as described above. The 
beneficiary did not earn a degree from a United States institution of higher education, so she does not 
qualify under the first criterion. 
Nor does the beneficiary qualify under the second criterion, which requires a demonstration that the 
beneficiary's foreign degree has been determined to be equivalent to a United States baccalaureate or 
higher degree required by the specialty occupation from an accredited college or university. Counsel 
submitted an evaluation of education from the International Education Research Foundation, Inc. (IERF), 
dated January 26, 2004. While the IERF evaluator determined that the beneficiary's foreign education is 
equivalent to a bachelor's degree in communication arts, this evaluation does not satisfy 
8 C.F.R. 3 2 14.2(h)(4)(iii)(C)(2). 
In order to qualify to perform the duties of a specialty occupation under 8 C.F.R. 
214.2(h)(4)(iii)(C)(2), the beneficiary's degree must be in the field required by the specialty. The 
Ha~~cz'hook indicates that most market research analyst positions in the private sector require at least a 
master's degree in business administration, marketing, statistics, communications, or some closely related 
discipline. As the beneficiary possesses a bachelor's degree in communication arts, she cannot qualify 
under this criterion. 
The record does not demonstrate, nor has counsel contended, that the beneficiary holds an unrestricted 
state license, registration or certification to practice the specialty occupation, so she does not qualify 
under the third criterion, either. 
The fourth criterion, set forth at 8 C.F.R. $ 214.2(h)(4)(iii)(C)(4), requires a showing that the 
beneficiary's education, specialized training, and/or progressively responsible experience is equivalent to 
the completion of a United States baccalaureate or higher degree in the specialty occupation, and that the 
beneficiary also has recognition of that expertise in the specialty through progressively responsible 
positions directly related to the specialty. 
Thus, it is the fourth criterion under which the petitioner must classify the beneficiary's combination of 
education and work experience. Pursuant to 8 C.F.R. 9 214,2(h)(4)(iii)(D), equating a beneficiary's 
credentials to a United States baccalaureate or higher degree is determined by one or more of the 
following: 
(I) An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
which has a program for granting such credit based on an individual's training 
and/or work experience; 
(2) The results of recognized college-level equivalency examinations or special 
credit programs, such as the College Level Examination Program (CLEP), or 
Program on Noncollegiate Sponsored Instruction (PONST); 
(3) An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 
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(4) Evidence of certification or registration from a nationally-recognized 
professional association or society for the specialty that is known to grant 
certification or registration to persons in the occupational specialty who have 
achieved a certain level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, andlor work experience in areas related to the specialty and 
that the alien has achieved recognition of expertise in the specialty occupation as 
a result of such training and experience. 
The beneficiary's combination of education and previous experience do not satisfy 8 C.F.R. 
5 2 14.2(h)(4)(iii)(D)(l), as no evaluation of the beneficiary's work experience has been submitted. 
No evidence has been submitted to establish, nor has counsel contended, that the beneficiary satisfies 
8 C.F.R. ij 214.2(h)(4)(iii)(D)(2), which requires that the beneficiary submit the results of recognized 
college-level equivalency examinations or special credit programs, such as the College Level 
Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI). 
Nor does the beneficiary satisfy 8 C.F.R. kj 214.2(h)(4)(iii)(D)(3). The beneficiary is unqualified under 
this criterion for the same reason she was unqualified under 8 C.F.R. 
5 214,2(h)(4)(iii)(C)(2): in order to qualify under this criterion, the beneficiary's degree must be in the 
field required by the specialty. As discussed previously, the Hundbook indicates that most market 
research analyst positions in private industry require at least a master's degree in a related field. As the 
beneficiary possesses the equivalent of a bachelor's degree, and not a master's degree, in communication 
arts, she cannot qualify under this criterion. 
No evidence has been submitted to establish, nor has counsel contended, that the beneficiary satisfies 
8 C.F.R. 9: 214.2(h)(4)(iii)(D)(4), which requires that the beneficiary submit evidence of certification or 
registration from a nationally-recognized professional association or society for the specialty that is 
known to grant certification or registration to persons in the occupational specialty who have achieved a 
certain level of competence in the specialty. 
The AAO next turns to the fifth criterion. When CIS determines an alien's qualifications pursuant to 
8 C.F.R. ij 214.2(h)(4)(iii)(D)(5), the alien must have a baccalaureate degree followed by at least five 
years of experience in the specialty in order to demonstrate equivalency to a master's degree. It must be 
clearly demonstrated that the alien's training andlor work experience included the theoretical and 
practical application of specialized knowledge required by the specialty occupation; that the alien's 
experience was gained while working with peers, supervisors, or subordinates who have a degree or its 
equivalent in the specialty occupation; and that the alien has recognition of expertise in the specialty 
evidenced by at least one type of documentation such as: 
(9 Recognition of expertise in the specialty occupation by at least two recognized 
authorities in the same specialty occupation1; 
I Recognized u~ltlzo~it~. means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. A recognized authority's opinion 
must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such opinions, citing 
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(ii) Membership in a recognized foreign or United States association or society in the 
specialty occupation; 
(iii) Published material by or about the alien in professional publications, trade 
journals, books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation in a foreign country; 
or 
(v) Achievements which a recognized authority has determined to be significant 
contributions to the field of the specialty occupation. 
Counsel's submission traces the beneficiary's work experience from 1985 onward, for a period of 18 
years (the petition was filed in 2003). The AAO's next line of inquiry is therefore to determine whether 
this work experience included the theoretical and practical application of specialized knowledge required 
by the specialty occupation, whether it was gained while working with peers, supervisors, or subordinates 
who held a degree or its equivalent in a related field, and whether the beneficiary achieved recognition of 
expertise in the specialty evidenced by at least one of the five types of documentation delineated in 
sections (i), (ii), (iii), (iv), or (v) of 8 C.F.R. 5 214.2(h)(4)(iii)(D)(5). 
The record indicates that the Far East Bank and Trust Company employed the beneficiary from 1985 
through 1993 as an advertising and public relations supervisor. However, there is no evidence to 
establish that this work experience included the theoretical and practical application of specialty 
knowledge required by market research analysts, that it was gained while working with peers, 
supervisors, or subordinates who held degrees, or that the beneficiary achieved recognition of expertise. 
The record also indicates that the Conception Overseas Marketing Corporation employed the beneficiary 
from 1993 through 1995 as an operations manager. However, there is no evidence to establish that this 
work experience included the theoretical and practical application of specialty knowledge required by 
market research analysts, that it was gained while working with peers, supervisors, or subordinates who 
held degrees, or that the beneficiary achieved recognition of expertise. 
The record also indicates that the Leader Golf Bag Manufacturing Corporation employed the beneficiary 
from 1995 through 1999 as a sales and marketing manager. However, there is no evidence to establish 
that this work experience included the theoretical and practical application of specialty knowledge 
required by market research analysts, that it was gained while working with peers, supervisors, or 
subordinates who held degrees, or that the beneficiary achieved recognition of expertise. 
The record also indicates that the Pilipinas Golf Bag Manufacturing Corporation employed the 
beneficiary from 1999 through 2003 as a marketing manager. However, there is no evidence to establish 
that this work experience included the theoretical and practical application of specialty knowledge 
required by market research analysts, that it was gained while working with peers, supervisors, or 
subordinates who held degrees, or that the beneficiary achieved recognition of expertise. 
specific instances where past opinions have been accepted as authoritative and by whom: (3) how the conclusions 
were reached; and (4) the basis for the conclusions supported by copies or citations of any research material used. 8 
C.F.R. 3 2 14.2(h)(4)(i1). 
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As such, the beneficiary does not qualify under any of the criteria set forth at 8 C.F.R. 
$0 214.2(h)(4)(iii)(D)(1)(2)(3)(4), or (9, and therefore by extension does not qualify under 8 C.F.R. 
3 2 14.2(h)(4)(iii)(C)(4). The petitioner has not proven that the beneficiary is qualified to perform the 
duties of this specialty occupation, which requires a graduate degree in a related field. 
The petitioner has failed to demonstrate that the proposed position qualifies for classification as a 
specialty occupation. The petitioner has also failed to demonstrate that the beneficiary is qualified to 
perform the duties of a market research analyst. Accordingly, the AAO will not disturb the director's 
denial of the petition. 
The burden of proving eligibility for the benefit sought rests solely with the petitioner. Section 29 1 of the Act, 
8 U.S.C. 5 136 1. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.