dismissed H-1B Case: Market Research

Identuptng data deleted Q 
prevent dearly unwarranted 
invasion of personal privacy 
PUBLIC 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 21 1 5 185 1 Office: CALIFORNIA SERVICE CENTER Date: j.M mt( 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in yo=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 21 1 51851 
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 wholesaler of general merchandise video games and video games accessories with twenty- 
five employees. It seeks to employ the beneficiary as a market research analyst. The director denied the 
petition based on his determination that the petitioner had failed to establish that its proffered position was a 
specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's denial letter; and (3) Form I-290B, with counsel's brief and new documentation. The AAO 
reviewed the record in its entirety before reaching its decision. 
The issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet its 
burden of proof in this regard, a petitioner must establish that the job it is offering to the beneficiary meets the 
following statutory and regulatory requirements. 
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 one 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. 5 214.2(h)(4)(ii) as: 
An 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. 5 2 14.2(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. 
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Citizenship and Immigration Services (CIS) interprets the term "degree" in the above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a 
position's title. The specific duties of the proffered position, combined with the nature of the petitioning 
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the 
alien, and determine whether the position qualifies as a specialty occupation. CJ: Defensor v. Meissner, 201 
F. 3d 384 (5" Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed 
standards, 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 the minimum for entry into the occupation, as required by the Act. 
The petitioner states that it is seeking the beneficiary's services as a part-time market research analyst. 
Evidence of the beneficiary's duties includes the Form 1-129 and a June 30, 2004 letter of support from the 
petitioner. 
At the time of filing, the petitioner stated that the beneficiary's duties would entail, in part: monitoring and 
coordinating sales trading and transactions as well as distributorship of the videogames and accessories in the 
U.S. and other countries; devising methods to increase profitability, manage expenses and reduce company 
overhead; analyzing statistics, and other types of data, such as annual revenues and expenditures to develop 
solutions to decrease overhead expenses; reviewing data gathered on competitors and analyze their prices, 
methods of marketing, and distribution then make recommendations and assist in the implementation of the 
proposal. The petitioner indicated that the beneficiary was qualified for the position because she has earned 
the equivalent of a Bachelor of Science in Business Administration with a major in marketing. The petitioner 
submitted its income tax return for the year 2002 indicating gross sales of $6,474,452. 
In his denial, the director noted the duties described by the petitioner appear to reflect some of the duties 
performed by market research analysts as listed under market and survey researchers in the Department of 
Labor's Occupational Outlook Handbook (the Handbook). The director stated that sole reliance on a list of 
duties resembling those of a market research analyst to establish that the proffered position qualifies as a 
specialty occupation was misplaced. The director referred to the Handbook and stated that market research 
analysts research, compile, analyze market data and advise management and that the duties do not include 
acting on that data. The director found that the record failed to establish that the petitioner has a marketing 
division or staff to gather market data for analysis by the incumbent in the position. Additionally, the director 
refers to the Handbook in support of his conclusion that the petitioner does not engage in the type of business 
for which a market research analyst would be required on a full-time or part-time basis. 
The AAO does not agree with the director's conclusions regarding the industries in need of market research 
analysts. Based on the discussion of the occupation in the 2004-2005 edition of the Handbook, it concludes 
that such analysts may reasonably be found in virtually every industry and business seeking to enhance the 
sales of its products andlor services. However, the AAO does share the director's concerns regarding the 
employment that has been described by the petitioner. 
The Handbook, at page 173, states the following with regard to the employment of market research analysts: 
WAC 04 211 51851 
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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 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 a specialty occupation, normally requiring those seeking entry- 
level employment to have a master's degree in a related field. However, while the petitioner has identified its 
position as that of a market research analyst, its description of the beneficiary's duties lacks the specificity 
and detail necessary to support the petitioner's contention. 
On appeal, the petitioner contends that the company is expanding its operations and is opening another branch 
in Florida. The petitioner explains that with this expansion it requires the services of a marketing analyst to 
"conduct market research and to analyze market research analysis and trends in different parts of the country 
and abroad for our products." The petitioner submitted its organizational chart and brochures of an office 
building that it asserts is its additional location. The petitioner refers to the director's decision as indicating 
that the duties of the proffered position reflect those of a market research analyst and therefore is usually 
associated with a baccalaureate degree. 
The record does not support the complexity of the duties of a market research analyst. 
The petitioner has not established that the proffered duties are those of a market research analyst. It has not 
established that the position meets any of the requirements for a specialty occupation set forth at 8 C.F.R. $ 
2 14.2(h)(4)(iii)(A). 
As a whole, the Handbook's information on market research analysts conveys that their work is characterized 
by the design and implementation of data-collection methodologies, data collection, and precise data analysis, 
at a level of expertise that most often requires a master's degree. Note, for instance, this statement at page 
174 of the Handbook: 
In addition to being required for most market and survey research jobs in business and 
industry, a master's degree is usually the minimum requirement for a job as an instructor in 
junior and community colleges. 
WAC 04 211 51851 
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Many of the duties described by the petitioner are not those of a market research analyst such as: monitoring 
and coordinating sales trading and transactions as well as distributorship of the videogames and accessories in 
the U.S. and other countries; devising methods to increase profitability, manage expense and reducing 
company overhead. The information provided by the petitioner does not establish that the beneficiary's 
involvement with marketing research would be on such a specialized methodological and analytical level, or 
that it would require a master's degree in marketing or a related specialty. The record provides no 
information about the specific research and analytic methodologies that the beneficiary would employ and the 
specialized knowledge that she would have to apply in their use. There are no specifics about any of the job 
functions upon which the petitioner relies for specialty occupation status. 
The submitted company product catalogue does not contain the name of the petitioner. The record does not 
contain evidence of the petitioner's customers. The petitioner has not provided a list of customers or 
competitors fi-om which to gather research or to conduct surveys. The petitioner does not explain how it 
would utilize the services of a market research analyst in relation to its business of selling repackaged video 
games. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing 
Matter of Treasure Craft of Calfornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner's description of the duties of its position are not those of a market research analyst. The market 
research duties are generically defined to conclude that they require, on a day-to-day basis, the minimum of a 
bachelor's degree in the field. Duties such as monitoring and coordinating sales trading and transactions, and 
distributorship are more alun to those of a marketing manager, an occupation which does not require a degree 
in a specialty as a minimum requirement for entry. The duties of devising methods to increase profitability, 
manage expenses and reducing company overhead are typically those of a management analyst as described 
in the Handbook. While a management analyst is also generally a specialty occupation, requiring a master's 
degree in a specialty for employers in private industry, the listing of these duties is too vague and generic to 
determine whether the performance of the duties requires a degree in a specialty. As indicated in the 
discussion of market research analyst above, the petitioner does not describe the daily tasks of the proposed 
beneficiary, in relation to the company's business, that will be carried out in devising methods to increase 
profitability, manage expenses and reduce company overhead. A management analyst uses complex 
methodologies to analyze a company's profile to make recommendations. The record does not provide 
enough specifics to determine that the beneficiary's general managerial duties require a degree in a specialty. 
The AAO has determined that the performance of those duties do not meet the statutory definition of a 
specialty occupation -- employment requiring the theoretical and practical application of a body of highly 
specialized knowledge and the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation. As a result, the AAO finds the petitioner has failed to 
establish that it will employ the beneficiary in a specialty occupation under the first criterion. 
The petitioner has not established the second criterion - that a specific degree requirement is common to the 
industry in parallel positions among similar organizations. 
No evidence in the record establishes the regulation at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(2) which requires the 
petitioner to establish that a specific degree requirement is common to the industry in parallel positions 
among similar organizations. Nor can the petitioner establish that the particular position is so complex or 
unique that it can be performed only by an individual with a degree. 
. WAC 04 211 51851 
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Nor is there evidence in the record to establish the third criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A): that the 
petitioner normally requires a degree or its equivalent for the position. 
The regulation at 8 C.F.R. tj 214.2(h)(4)(iii)(A)(4) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is usually 
associated with the attainment of a baccalaureate or higher degree. On appeal the petitioner states "with this 
expansion [it] require[s] the services of a market research analyst to conduct market research and to analyze 
market research analysis and trends in different parts of the country and abroad for [its] products." Upon 
review of the record, the petitioner has not described the specific duties of the proffered position in relation to 
the nature of its business. The petitioner has not established that the nature of the specific duties is so 
specialized and complex that the knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree and therefore fails to establish 8C.F.R. 
g 2 14.2(h)(4)(iii)(A)(4). 
Beyond the decision of the director, the Handbook indicates that a master's degree is the minimum 
requirement for private sector market research and survey jobs. The petitioner indicated that the beneficiary 
is qualified for the position because she has the equivalent of a bachelor's degree in business administration 
with a major in marketing. The record does not establish that the beneficiary is qualified to perform the duties 
of a market research analyst in private industry. For this additional reason, the petition may not be approved. 
Therefore, for the reasons related in the preceding discussion, 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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
tj 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.