dismissed H-1B Case: Market Research

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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FILE: WAC 03 240 5 1640 Office: CALIFORNIA SERVICE CENTER Date: 9 [;T , ,&,, 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
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 03 240 5 1640 
Page 2 
DISCUSSION: The director of the California 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 sportswear manufacturer, with 48 employees. It seeks to employ the beneficiary as a 
market research specialist. 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 request for evidence; (3) counsel's response to the director's request for evidence; (3) the director's 
denial letter; and (4) Form I-290B, with counsel's brief and new and previously submitted 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. 8 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. fj 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. fj 214.2(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 03 240 5 1640 
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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 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 (5th Cir. 2000). The critical element is not the title of the position nor an employer's sell'-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 market research specialist. Evidence of 
the beneficiary's duties includes: the Form 1-129; a July 22, 2003 letter of support from the petitioner; and 
counsel's May 5, 2004 response to the director's request for evidence. 
At the time of filing, the petitioner stated that the beneficiary's duties entail researching and analyzing market 
conditions of supplying active sportswear and accessories for men, women and juniors; studying and 
surveying the U.S. market consumption and sales; gathering and analyzing data of sales, inventory, annual 
and seasonal demands by sports wholesalers, schools, sports clubs, and retailers; performing computer 
modeling of market demands of general customized active sportswear products; preparing research reports as 
basis of the company's management business planning (40% of time); analyzing marketing and sales 
operations in the United States market; devising and organizing marketing campaigns for the company's 
products; compiling budget and planning for the marketing operation; coordinating participation in the annual 
novelty or new product trade shows in the United States to promote the company's products (40% of time); 
and devising, developing e-commerce strategy for the company; studying online ordering system and 
developing sales by using the company extensive website which functions as a new product releasing, Q & A 
application for customer services, and product and sales order processing (20% of time). The petitioner stated 
the candidate must have a bachelor's degree in economics with several years experience or graduate school 
training in marketing or business management. 
The director requested additional information about the proffered position, including specific job duties, the 
percentage of time to be spent on each duty, and level of responsibility. Additionally, the director requested 
evidence that the position of market research specialist is a common position required by similarly sized 
offices with similar incomes. 
In response, the petitioner noted that the market research specialist would work under the direction of the 
marketing manager and will not supervise other employees. The petitioner submitted internet job postings for 
market research analyst positions at a variety of companies. Counsel explained that the petitioner is in need 
of a market research specialist at this time because it has grown in sales from $10 million to $12 million and 
WAC 03 240 5 1640 
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that the work force has grown from 30 to 48 persons in the past three years. Counsel indicated that the 
petitioner would have the incumbent conduct market surveys, research and marketing planning. 
In his denial, the director questioned whether the petitioner has the organizational complexity to support a 
position for a market research analyst and noted that most organizations would have little need for a 
permanent full-time or even a part-time position as a Market Research Analyst. The director referred to the 
Department of Labor's Occupational Outlook Handbook (the Handbook) which indicates ". . . .companies find 
it more profitable to contract for marketing research services rather than support its own marketing 
department." The director found that the petitioner does not engage in the type of business for which a 
marketing research analyst would be required on a full-time or part-time basis. Further, the director found 
that most of the duties were that of a marketing manager and that marketing managers were not specialty 
occupations. 
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 and/or 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 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 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.. . . 
On appeal, counsel contends that the director misstated the facts that the petitioner's sales territory covers the 
United States and is not limited to a local community or a local metropolitan area. The petitioner states that it 
has a marketing department and has four regional sales representatives. Counsel asserts that various types of 
companies use the services of market research analysts. Counsel refers to the internet job postings for market 
research analysts. Counsel states that the petitioning company's strong sales and marketing operation 
necessarily demand a qualified market research analyst. 
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Based on the record of proceeding, the AAO has determined that the proffered position is most similar to that 
of a marketing manager in the Handbook. According to the Handbook, marketing managers develop the 
firm's detailed marketing strategy. With the help of subordinates, marketing managers determine the demand 
for products and services offered by the firm and its competitors. In addition, they identify potential markets. 
According to the Handbook, marketing managers develop pricing strategy with an eye towards maximizing 
the firm's share of the market and its profits while ensuring that the firm's customers are satisfied. This is 
similar to the proffered position in that the duties include, among others, analyzing marketing and sales 
operations in the United States market place; devising and organizing marketing campaigns for the company's 
products; compiling budget and planning for the marketing operation; coordinating participation in the annual 
novelty or new product trade shows in the United States to promote the company's products. 
With respect to the educational qualifications required of marketing managers, the Handbook states: 
A wide range of educational backgrounds is suitable for entry into advertising, marketmg, 
promotions, public relations, and sales managerial jobs, but many employers prefer those with 
experience in related occupations plus a broad liberal arts background. 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. 
Consequently, there is insufficient evidence in the record to establish that a baccalaureate or higher degree or 
its equivalent in a specific specialty is the normal minimum requirement for entry into the marketing manager 
position. 
To establish the second criterion - that a specific degree requirement is common to the industry in parallel 
positions among similar organizations - counsel relies on submitted internet job postings from various 
companies for market research analysts. However as discussed above, the proffered position is not a market 
research analyst but a marketing manager. Consequently, the postings fail to establish that there is a specific 
baccalaureate degree that is a common industry-wide requirement. 
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 specific degree or its equivalent for the position. 
The fourth criterion at 8 C.F.R. 8 214,2(h)(4)(iii)(A) 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. To the extent they are described in the 
record, the duties of the position are not so specialized and complex that the knowledge required to perform 
them is usually associated with the attainment of a baccalaureate or higher degree. The duties of the proffered 
position are typical of a marketing manager. The petitioner has not established that the duties to be performed 
for its business, a sportswear manufacturer, are so complex as to require a degree in a specific specialty. The 
duties parallel those in the Handbook for a marketing manager, an occupation that does not require a specific 
baccalaureate degree. The petitioner therefore fails to establish the fourth criterion. 
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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. 
5 136 1. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.