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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: WAC 04 130 50296 Office: CALIFORNIA SERVICE CENTER Date: 
 JUL 1 4 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(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{Pf 
Administrative ~ppeals Office 
WAC 04 130 50296 
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 an importer and wholesale of shrimp and other seafoods 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)(l 5)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. fj 1 10 1 (a)(l 5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief and additional and previously submitted evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. fj 11 84(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. $ 214.2(h)(4)(iii)(A), to qualifL 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: (I) the 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 
WAC 04 130 50296 
Page 3 
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. 
The petitioner is seeking the beneficiary's services as a market research analyst. Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's support letter; 
and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail the following: 
Analyzing statistics and other data in the industry to forecast future marketing trends; develop pricing 
strategies taking into account the type of product being offered; researching how to expand the market 
at a lower price as well as the level of competition within. 
Contacting suppliers and vendors to tell the market situation locally, regionally, and internationally to 
increase the potential sales of products and find out the pricing, demand, supplies, and future trends. 
Buying shrimp, fish, scallops, squid, and lobsters from Latin American countries that will be sold in 
the United States and Europe. 
Selling seafood products in the United States and Europe and updating the sales price list of the 
white shrimp. 
The petitioner endeavors to continue its employment of the beneficiary as a market research analyst. 
In the denial letter, the director concluded that many of the proposed duties reflect those of a market research 
analyst as that occupation is described in the 2004-2005 edition of the Department of Labor's (DOL) 
Occupational Outlook Handbook (the Handbook). However, the director was not persuaded that the 
beneficiary would perform the proposed duties, which he found to qualify as those of a specialty occupation. 
Sole reliance on a list of duties resembling those of a market research analyst taken from the Handbook to 
establish that the proposed position qualifies as a specialty occupation is misplaced, the director stated. When 
determining whether a position qualifies as a specialty occupation, the director stated that the specific duties 
of the proposed position combined with the nature of the petitioning entity's business operations are factors 
that are considered, and that each position must be evaluated based on the nature and complexity of the job 
duties. The director stated that the beneficiary's degree in a related area does not guarantee that the proposed 
position is a specialty occupation; and that performing incidental specialty occupation duties is insufficient to 
establish that the proposed position is a specialty occupation. The director found that the petitioner does not 
have the organizational complexity or engage in the type of business or industry in which market research 
analysts are employed. The director concluded that the proposed duties are more similar to those of a 
marketing manager as that occupation is depicted in the Handbook, and that the Handbook reveals that this 
occupation does not require a bachelor's degree in a specific specialty. The director found the petitioner's job 
description of the beneficiary's duties generic in nature, providing no detail as to the specialized or complex 
nature of the proposed position. According to the director, the petitioner submitted no evidence that would 
corroborate the assertion that it normally requires a bachelor's degree for the proposed position. The director 
concluded that no evidence demonstrated that the proposed duties exceed those of a marketing manager. 
WAC 04 130 50296 
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On appeal, counsel states that the submitted evidence indicates that the offered position is that of a market 
research analyst and that the Dictionary of Occupational Titles (DOT) and the Handbook reveal that a market 
research analyst qualifies as a specialty occupation as it requires a bachelor's degree. Counsel maintains that 
CIS previously approved the offered position as a specialty occupation. Counsel states that Young China 
Daily vs. Chappell, 742 F. Supp. 552 (N.D. Cal. 1989) indicates that a petitioner's size is irrelevant in 
determining the need for a professional. According to counsel, the petitioner is a subsidiary of Red Chamber 
Co., which as $700 million in sales. Counsel asserts that the nature of the petitioner's business and the 
industry in which it is engaged in are irrelevant factors in determining whether it has a need for a market 
research analyst. Counsel states that the offered position is not that of a marketing manager, and the director 
initially conceded that the proposed duties "appear to reflect some of those performed by [mlarket [rlesearch 
[alnalysts." Counsel asserts that the director's request for evidence never sought evidence regarding whether 
the offered position qualified as a specialty occupation. Counsel states that the director previously approved 
the offered position as a specialty occupation on two occasions. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. Ej 214,2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
Counsel asserts that CIS approved two petitions that had been previously filed on behalf of the beneficiary by 
the petitioner. 
The director's decision does not indicate whether he reviewed the prior approvals of the other nonimmigrant 
petitions. If the previous nonimmigrant petitions were approved based on the same assertions and evidence 
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 Dec. 593, 597 (Comm. 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 nonimmigrant petition 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). 
The prior approvals do not preclude CIS from denying an extension of the original visa petition based on a 
reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). 
The AAO concurs with the director's conclusion that the evidence does not provide a basis for approving the 
petition. However, the AAO finds that a position involving some non-specialty-occupation duties does not 
WAC 04 130 50296 
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necessarily preclude it from being a specialty occupation. A position may require a baccalaureate degree or 
an advanced degree in a specific academic field even though some of the position's duties do not. The 
2006-2007 edition of the Handbook does not suggest that a particular kind of business would not need a 
market research analyst, or that a business must have a certain organizational structure in order to substantiate 
the need for a market research analyst. Notwithstanding this, the AAO does not find that the proposed 
position qualifies as a specialty occupation. 
The AAO finds that the proposed duties are a combination of those of a market research analyst and a 
marketing manager. The Handbook, a resource that the AAO routinely consults, states the following about 
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 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 discussions, or 
setting up booths in public places such as shopping malls. Trained interviewers usually 
conduct the surveys under the market research analyst's direction. 
After compiling and evaluating the data, market research analysts make recommendations to 
their client or employer on the basis of 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 diversi@ing the 
company's operations. Market research analysts also might develop advertising brochures 
and commercials, sales plans, and product promotions such as rebates and giveaways. 
The Handbook reports that a market research analyst is not required to hold a baccalaureate degree in a 
specific academic field, as it states: 
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. 
The Handbook describes a marketing manager as follows: 
Marketing managers develop the firm's marketing strategy in detail. With the help of 
subordinates, including product development managers and market research managers, they 
estimate 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 to help firms 
WAC 04 130 50296 
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maximize profits and market share while 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 they oversee product development. 
Marketing managers work with advertising and promotion managers to promote the firm's 
products and services and to attract potential users. 
According to the Handbook employers do not require a marketing manager to possess a bachelor's degree in a 
specific specialty. It states: 
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. In highly technical industries, such as computer and electronics manufacturing, 
a bachelor's degree in engineering or science, combined with a master's degree in business 
administration, is preferred. 
Counsel turns to the DOT to show that the offered position is a specialty occupation. 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. An 
specific vocational preparation (SVP) rating 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. For this reason, the director did not err in discounting the DOT information. 
Based on the Handbook's information and the evidence in the record, the AAO finds that the petitioner fails 
to establish the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I): that a baccalaureate or higher degree or its 
equivalent in a specific specialty is the normal minimum requirement for entry into the particular position. 
The petitioner submits no evidence to establish the first alternative prong at 8 C.F.R. $214.2(h)(4)(iii)(A)(2) - 
that a specific degree requirement is common to the industry in parallel positions among similar 
organizations. 
The petitioner has not satisfied the second alternative prong at 8 C.F.R. tj 214.2(h)(4)(iii)(A)(2), as no 
evidence in the record shows the proffered position is so complex or unique that it can be performed only by 
an individual with a degree. The Handbook reveals a bachelor's degree in a specific academic discipline is 
not required for a market research analyst or a marketing manager. Although the petitioner's March 24,2004 
WAC 04 130 50296 
Page 7 
letter states that the beneficiary will "continue to perform market research studies and analysis to determine 
the demand for [the] company's services," no evidence representing the beneficiary's work product while 
employed with the petitioner has been submitted into the record. The beneficiary's duties are described in 
exclusively generalized and generic terms that do not establish whether their actual performance involves 
practical and theoretical application of highly specialized knowledge. Thus, the AAO has no factual basis in 
which to determine whether the position that is offered here has such complexity or uniqueness as to require a 
bachelor's degree in a specific specialty. Thus, the petitioner fails to establish the second alternative prong at 
8 C.F.R. 9 214.2(h)(4)(iii)(A)(2). 
No evidence in the record establishes the regulation at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(3): that the petitioner 
normally requires a degree or its equivalent for the position. 
To satisfy the regulation at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(4), the petitioner must establish that the nature of 
the specific duties is so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a baccalaureate or higher degree. The Handbook reveals a bachelor's degree 
in a specific discipline is not normally required for a market research analyst or a marketing manager position. 
The petitioner's March 24, 2004 letter indicates that the petitioner seeks to continue the beneficiary's 
employment there, and that the beneficiary will "continue to perform market research studies and analysis to 
determine the demand for [the] company's services." The AAO notes, however, that the petitioner submitted 
no samples of the beneficiary's work product while employed with the petitioner. Neither the description of 
the beneficiary's duties - which are limited and generalized - nor any other other evidence of record 
establishes the substantive work that the beneficiary actually performs. Thus, the AAO has no factual basis in 
which to determine whether the nature of the proposed duties is so specialized and complex that the 
knowledge required to perform them is usually associated with the attainment of a baccalaureate or hgher 
degree. Accordingly, the petitioner fails to establish the criterion at 8 C.F.R. 9 214.2(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. Accordingly, the AAO shall not disturb the director's denial of the petition on this 
ground. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.