dismissed H-1B Case: Market Research

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: SRC 04 23 1 5 1275 Office: TEXAS SERVICE CENTER me: JUN 0 5 2006 
IN RE: 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality. Act, 8 U.S.C. 3 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 materials have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
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DISCUSSION: The service center director denied the nonirnrnigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a beer and wine importer. It seeks to employ the beneficiary as market research analyst 
and to classify him 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. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the ground that the record failed to establish that the proffered position 
qualifies as a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
As provided in 8 C.F.R. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation the position must meet 
one of the following criteria: 
(1) 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) Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the notice of decision; 
and (5) Form I-290B, an appeal brief, and supporting materials. The AAO reviewed the record in its 
entirety before issuing its decision. 
SRC 04 23 1 5 1275 
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The petitioner describes itself as an importer of wine and beer from Australia, Argentina, Chile, Hungary, 
New Zealand, and South Africa, and a wholesaler to hotels, restaurants, and wine stores. On its Form 
1-129 the petitioner stated that its business was established in March 2003, had four employees at the time 
of filing in August 2004, and projected gross annual income of $700,000. In an accompanying letter the 
petitioner indicated that it wished to employ the beneficiary as a market research analyst for three years, 
and described the job duties as follows: 
[The beneficiary] will be responsible for: the development and sales of Schwartzenberg 
Imports for the South American division; development and implementation of marketing 
plans nationally and internationally; creating and introducing company brand programs 
and strategies; insuring that accounts are going through proper trade channels; 
coordinating account activity with distributors; expansion of distribution in the U.S. 
within the Spanish community; communication with foreign financial institutions; 
conducting educational wine seminars and staff training. 
According to the petitioner, the minimum educational requirement for the proffered position is a 
bachelor's degree in business administration, or a closely related specialty. The beneficiary is qualified 
for the position, the petitioner declares, by virtue of his bachelor of business administration, with a major 
in management, from the University of Houston, granted on December 15,2002. 
In response to the RFE the petitioner supplemented its original job description with additional details 
about the duties of the proffered position. It reads as follows: 
In order to perform [his] broader general duties, that focus on development, 
implementation, creation, and introduction of our products and services not only in South 
America but in the United States as well, [the beneficiary] will be required to spend a 
majority of his time performing market research analysis. Specifically, [he] will be 
required to design and execute research surveys to address the growing needs of our 
company by researching market conditions in markets throughout South America and the 
United States; gather information on competitors' prices, sales, and methods of marketing 
and distribution; assure that the surveys he conducts provide reliable information; analyze 
and prepare reports of strategies; communicate these research results effectively both in 
the written reports and orally; and create, develop, and maintain research databases. It is 
only after performing these duties that he will be able to focus on the broader duties 
previously described. Furthermore, because of the fact that market conditions are 
constantly changing, [the beneficiary] will have to constantly update previous analysis 
and conduct new analysis as our business expands into new markets. As our company 
grows, it is our hope that we will be able to hire additional marketing and sales 
representatives who will be able to focus on [the beneficiary's] broader duties, allowing 
him to focus his full attention on market research analysis. 
In her decision the director indicated that, while some market analyst positions could be considered 
specialty occupations, the petitioner failed to establish, in the context of its particular business operation, 
that a baccalaureate or higher degree is the minimum educational requirement to perform the duties of the 
proffered position. The evidence of record did not establish that a baccalaureate degree is commonly 
required by the industry in parallel positions among similar organizations, the director stated, or that the 
SRC 04 23 1 5 1275 
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proffered position is so complex or unique that it can only be performed by an individual with such a 
degree. The director concluded that the proffered position did not meet any of the alternative criteria 
enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(A) to qualify as a specialty occupation. 
On appeal counsel reiterates the petitioner's contention that the beneficiary will be performing the duties 
of a market research analyst in the proffered position, quoting the augmented job description in the 
response to the RFE. Counsel refers to information in the Department of Labor (D0L)'s Occupational 
Outlook Handbook (Handbook) that market research analysts require a baccalaureate or higher degree, 
thus qualifying the proffered position as a specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l). 
Counsel also asserts that the proffered position qualifies as a specialty occupation under the alternative 
criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2) and (4), based on the petitioner's characterization of the 
complex, unique and specialized nature of the position and its duties. 
In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, 
CIS routinely consults the DOL Handbook as an authoritative source of information about the duties and 
educational requirements of particular occupations. Factors typically considered are whether the 
Handbook indicates a degree is required by the industry; whether the industry's professional association 
has made a degree a minimum entry requirement; and whether letters or affidavits from firms or 
individuals in the industry attest that such firms "routinely employ and recruit only degreed individuals." 
See Shanti, Inc. v. Reno, 36 F.Supp. 2d 1151, 1165 (D.Minn. 1999) (quoting Hird/Blaker Corp. v. Suva, 
764 F.Supp. 1095, 1102 (S.D.N.Y. 1989)). CIS also analyzes the specific duties and complexity of the 
position at issue, with the Handbook's occupational descriptions as a reference, as well as the petitioner's 
past hiring practices for the position. See Shanti, Inc. v. Reno, id., at 1165-66. 
The occupation of market research analyst is described in the Handbook, 2006-07 edition, as follows: 
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 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 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. 
SRC 04 231 51275 
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With respect to the educational requirements for market research analysts, the Handbook, id., states the 
following: 
A bachelor's degree is the minimum educational requirement for many market . . . 
research jobs. However, a master's degree may be required, especially for technical 
positions . . . . Market and survey researchers may earn advanced degrees in business 
administration, marketing, statistics, communications, or some closely related discipline. 
Based on the foregoing information, the AAO concludes that a baccalaureate or higher degree in a 
specific specialty is not the normal minimum requirement for entry into a market research analyst 
position. Though master's degrees in certain specialty fields may be necessary for some positions, 
baccalaureate degrees in a variety of disciplines may be a sufficient for entry into many market research 
positions. Accordingly, market research analysts do not qualify as a specialty occupation under 8 C.F.R. 
§ 2 14.2(h)(4)(iii)(A)(I). 
Based on the evidence of record, however, the AAO determines that the duties of the proffered position 
are not those of a market research analyst. In determining the nature of a particular position, and whether 
it qualifies as a specialty occupation, the duties that will actually be performed are dispositive, not the title 
of the position. The petitioner must show that the performance demands of the position normally require 
a degree in a specialty for entry into the position. The critical issue is not the employer's self-imposed 
standard, but whether the position actually requires the theoretical and practical application of a body of 
highly specialized knowledge and the attainment of a baccalaureate or higher degree in the specific 
specialty as a minimum for entry into the occupation. Cf. Defensor v. Meissner, 201 F.3d 384, 387-88 
(5th Cir. 2000). 
The job description of the proffered position contains only general references to "design[ing] and 
execut[ing] research surveys . . . [on] market conditions," to "gather[ing] information on competitors' 
prices, sales, methods of marketing and distribution," to "preparing reports of research findings," to 
"creat[ing], develop[ing], and maintain[ing] databases," without providing any details about the 
substantive content of such activities or how the research and analysis would be conducted. The 
petitioner has provided few specifics about the types of surveys to be conducted, the types of data to be 
collected, and the types of analysis the beneficiary would present to management. The petitioner must do 
more than simply recite certain job duties of a market research analyst in the Handbook. It must show 
how those job duties will be performed in relation to its own business. Simply going on record without 
supporting evidence does not satisfy the petitioner's burden of proof. See Matter of Sofici, 22 I&N Dec. 
158, 165 (Cornm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 
1972)). Accordingly, the record does not establish that the proffered position would require the 
beneficiary to perform as a market research analyst. 
Based on the petitioner's description of the job duties, the AAO determines that the proffered position 
accords with the Handbook's description of a marketing manager. That occupation is described in the 
Handbook, 2006-07 edition, as follows: 
Marketing managers develop the firm's marketing strategy in detail. With the help of 
subordinates . . . they estimate the demand for products and services offered by the firm 
and its competitors. In addition, they identify potential markets - for example, business 
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firms, wholesalers, retailers, government, or the general public. Marketing managers 
develop pricing strategy to help firms maximize profits and market share while ensuring 
that the firm's customers are satisfied. . . . [Tlhey monitor trends that indicate the need 
for new products and services and they oversee product development . . . . 
With respect to the educational requirements of the occupation, the Handbook, id., states the following: 
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. 
Most . . . marketing . . . management positions are filled by promoting experienced staff 
or related professional personnel . . . . 
As the Handbook clearly indicates, a baccalaureate or higher degree in a specific specialty is not the 
normal, industry-wide requirement for entry into a marketing manager position. Many employers give 
favorable consideration to a broad spectrum of degrees in hiring for such a position, and many positions 
are filled based on the applicant's relevant work experience. Thus, a marketing manager does not meet 
the first alternative criterion of a specialty occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l), because a 
baccalaureate degree in a specific specialty is not the normal minimum requirement to enter into such a 
position. 
As for the second alternative criterion of a specialty occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2), the 
record includes eight internet job advertisements for market research analysts, all of which require a 
baccalaureate or higher degree. None of the advertising companies is in the same line of business as the 
petitioner, however, and most or all of the companies appear to be far larger than the petitioner in their 
scale of operations. Thus, the internet job announcements do not establish that a degree requirement in a 
specific specialty is common to the petitioner's industry in parallel positions among similar organizations, 
as required for the proffered position to qualify as a specialty occupation under the first prong of 8 C.F.R. 
5 214.2(h)(4)(iii)(A)(2). Nor does the evidence of record demonstrate that the proffered position is so 
complex or unique that a degree in a specific specialty is required to perform the job, as required for the 
position to qualify as a specialty occupation under the second prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
With regard to the third alternative criterion of a specialty occupation, the proffered position is newly 
created and the petitioner has no hiring history for it. Accordingly, the petitioner cannot demonstrate that 
it normally requires a baccalaureate or higher degree in a specific specialty or its equivalent for the 
position, as required for it to qualify as a specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
Finally, the evidence of record does not show that the duties of the proffered position are so specialized 
and complex that the knowledge required to perform them is usually associated with a baccalaureate or 
higher degree in a specific specialty. The documentation of record does not establish that the duties of the 
. . 
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position exceed the scope of an entry-level marketing manager, for whom baccalaureate level knowledge 
in a specific specialty is not normally required. Thus, the position does not meet the fourth alternative 
criterion of a specialty occupation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
For the reasons discussed above, the position proffered by the petitioner does not qualify as a specialty 
occupation under any of the criteria enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(A). The petitioner has not 
established that the beneficiary will be coming temporarily to the United States to perform services in a 
specialty occupation, as required under section 10l(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. 5 1101 
(a>( 15>(H)(i)(b). 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: The appeal is dismissed. The petition is denied.