dismissed H-1B Case: Market Research

US'. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington. DC 20529 
FILE: WAC 04 258 5 1164 Office: CALIFORNIA SERVICE CENTER Date: APR 0 2006 
- -- 
IN RE: Petitioner: 
Beneficiary: fi 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. tj 110 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. 
Administrative ~ppkafoffice 
WAC 04 258 51 164 
Page 2 
DISCUSSION: The director of the service center 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 retailer and installer of floor coverings 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)(lS)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 9 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 1-1 29 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) 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. 9 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. 9 214.2(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. § 2 14.2(h)(4)(iii)(A), to qualie 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 04 258 51 164 
Page 3 
(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 "degree7' in the criteria at 8 C.F.R. 
tj 214.2@)(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 September 22, 2004 letter of support, the petitioner stated that the beneficiary would spend ten 
percent of her time analyzing and researching market conditions, at both the national and international 
levels, to help the petitioner determine potential sales of products and services; ten percent of her time 
establishing research methodology and designing formats for data gathering, such as surveys, opinion 
polls, or questionnaires; ten percent of her time using the results of these surveys to create a marketing 
campaign based upon regional preferences; ten percent of her time interpreting the petitioner's data 
concerning expenditures, prices, and future trends through daily statistical reports, utilizing knowledge of 
research and statistics technology to recommend improvements to its methods of operation and 
marketing; ten percent of her time examining and analyzing statistical data to forecast future marketing 
trends; ten percent of her time analyzing business trends and developing strategies to help the petitioner 
project future revenues; ten percent of her time gathering data on competitors and analyzing processes, 
sales, and methods of marketing and promotion; ten percent of her time preparing a comprehensive 
marketing study of local industries and competitors in the surrounding areas; ten percent of her time 
determining the advisability of adding new lines of services, opening new branches, or otherwise 
diversifying the company's operations; five percent of her time tapping new markets and introducing 
innovative packages and services; and five percent of her time checlung consumer reactions to new or 
improved products or services. 
The director denied the petition, finding that the petitioner had satisfied none of the criteria set forth at 
8 C.F.R. 8 214.2(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 Ozrtlook Handbook (the Handbook) for its information about the 
duties and educational requirements of particular occupations. 
In his 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 marketing 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 
WAC 04 258 51 164 
Page 4 
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 retailer and installer of floor coverings 
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. 
The 2006-2007 edition of the Handbook states the following with regard to the employment of market 
research analysts: 
Market, or marketing, research analysts are concerned with the potential sales of a 
product or service. Gathering statistical data on competitors and examining prices, sales, 
and methods of marketing and distribution, they analyze statistical data on past sales to 
predict future sales. Market research analysts devise methods and procedures for 
obtaining the data they need. Often, they design telephone, mail, or Internet surveys to 
assess consumer preferences. They conduct some surveys as personal interviews, 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 and evaluating the data, market research analysts 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 also may 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 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 
WAC 04 258 51 164 
Page 5 
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 
title without Mher specification, e.g., business administration, 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). The 
petitioner does not indicate that the market research analyst position in this case is a technical position 
requiring a master's degree. 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. As noted previously, 
CIS interprets the degree requirement at 8 C.F.R. fi 214.2(h)(4)(iii)(A) to require a degree in a specific 
specialty that is directly related to the proposed position. Accordingly, the petitioner has not established its 
proposed position as a specialty occupation under 8 C.F.R. fi 214.2(h)(4)(iii)(A)(l). 
Nor does the proposed position qualify as a specialty occupation under either alternative prong of 8 C.F.R. 
fi 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. 
The AAO has reviewed the job postings submitted by counsel. Counsel, however, has failed to consider the 
specific requirements at 8 C.F.R. fi 214.2(h)(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 exists in parallel positions among organizations similar to the petitioner. 
The petitioner must also establish that the degree commonly required is in a specific specialty. 
There is no evidence in the record to establish that any of the job postings are fiom companies similar in size 
and scope of operations to the petitioner, a retailer and installer of floor coverings with seven employees.' 
Structural Graphics designs three-dimensional marketing products, Bearing Point is an accounting firm, 
CompUSA is a computer retailer, Lowe's Companies, Inc., is a home improvement retailer with 975 
stores in 45 states, Smith Hanley is a consulting firm, and Hunter Douglas manufactures and markets 
window coverings and architectural products. No information was submitted regarding the unnamed 
company advertising its notice of vacancy through HTR, America's Lending Partners, Boston Scientific, 
Asia Pearl, or the EIS Fabrico Division. No evidence has been submitted to demonstrate that the 
petitioner and any of these companies are "similar organizations." 
Accordingly, the proposed position does not qualify as a specialty occupation under the first prong of 
8 C.F.R. 9 214.2(h)(4)(iii)(A)(2). 
The AAO also concludes that the record does not establish that the proposed position is a specialty 
occupation under the second prong of 8 C.F.R. fi 214.2(h)(4)(iii)(A)(2), which requires a showing that the 
position is so complex or unique that it can only be performed by an individual with a degree. It finds no 
evidence that would support such a finding, as the position proposed in the petition is similar to the 
market research analyst position described in the Handbook, which does not require a degree in a specific 
field. 
1 
While the petitioner indicated on the Form 1-129 that it has 15 employees, the payroll records and list of 
employees submitted on appeal reflect seven employees. 
WAC 04 258 51164 
Page 6 
Accordingly, the petitioner has not established its proposed position as a specialty occupation under either 
prong of 8 C.F.R. 5 214,2(h)(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 
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. No 
evidence has been submitted to verify that the proposed position qualifies as a specialty occupation under th~s 
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. 
A review of the duties of the proposed position does not lead to a conclusion that they would require the 
beneficiary to require a higher degree of knowledge and skill than that normally expected of 
non-technical market research analysts who routinely undertake a range of demanding and complex 
business activities. Therefore, 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. There is no information in the record to support a finding that the proposed position is 
more specialized and complex than the market research analyst 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. The duties as described by the petitioner do not reflect a higher degree of knowledge and slull 
than would normally be required of market research analysts who routinely work in highly complex 
environments. Therefore, the evidence does not establish that the proposed position is a specialty 
occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
The petitioner has failed to establish that the position qualifies for classification as a specialty occupation 
under any of the criteria set forth at 8 C.F.R. $9 214.2@)(4)(iii)(A)(l), (2), (3), and (4). As the proposed 
position is not a specialty occupation, the beneficiary's qualifications to perform its duties are immaterial. 
Accordingly, the AAO will not disturb the director's denial of the petition. 
Beyond the decision of the director, the petition may not be approved for another reason. The petitioner's 
failure to obtain a certified labor condition application (LCA) prior to filing the petition precludes its 
approval. 
The regulation at 8 C.F.R. 5 214.2@)(4)(i)(B)(l) stipulates the following: 
Before filing a petition for H-1B classification in a specialty occupation, the petitioner 
shall obtain a certification from the Department of Labor that it has filed a labor 
condition application in the occupational specialty in which the alien(s) will be 
employed. 
The instant petition was received at the service center on September 24, 2004, but it did not contain a 
certified LCA. Rather, the petition contained an uncertified LCA and a facsimile transmittal sheet, as 
evidence that counsel had submitted an LCA to the Department of Labor for certification. As such, the 
director requested a certified LCA in his October 4, 2004 request for evidence. In response, counsel 
WAC 04 258 51 164 
Page 7 
submitted an LCA that had been certified on September 28, 2004, or four days after the petition was 
received at the service center. 
The regulation at 8 C.F.R. 5 214.2(h)(4)(iii)(B)(l) states that, when filing an H-1B petition, the petitioner 
must submit with the petition "[a] certification from the Secretary of Labor that the petitioner has filed a 
labor condition application with the Secretary." Thus, in order for a petition to be approvable, the LCA 
must have been certified before the H-1B petition was filed. The submission of an LCA certified 
subsequent to the filing of the petition satisfies neither 8 C.F.R. $ 214.2(h)(4)(i)(B)(l) nor 8 C.F.R. 
tj 214.2(h)(4)(iii)(B)(l). CIS regulations affirmatively require a petitioner to establish eligibility for the 
benefit it is seeking at the time the petition is filed. See 8 C.F.R. tj 103.2(b)(12). 
Although a certified LCA was submitted, the failure to procure it before filing the H-1B petition 
precludes the petition's approval, and there is no provision in the regulations for discretionary relief from 
the LCA requirements. For this additional reason, the petition may not be approved. 
Finally, counsel asserts that CIS has already determined that the proposed position is a specialty 
occupation since CIS has approved other, similar petitions in the past. 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 the records of proceeding, the documents 
submitted by counsel are not sufficient to enable the AAO to determine whether the position 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. tj 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). 
 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. If the prior petitions 
were approved based on evidence that was substantially similar to the evidence contained in this record of 
proceeding, however, the approval of those petitions would have been erroneous. CIS is not required to 
approve 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 
(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 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 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.