dismissed H-1B Case: Market Research

identieing dsQ &lead to 
prevent clez~l j unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
'ER 
 Date: 
IN RE: 
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. 5 1 lOl(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 Appeals off& 
WAC 04 214 50959 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter 
is now before the Administrative Appeals Office (MO) on appeal. The appeal will be dismissed. The 
petition will be denied. 
The petitioner is a jewelry retailer 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 10 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 8 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 MO contains (1) the Form 1-129 and supporting documentation; (2) the 
director's denial letter; and (3) the Form I-290B and supporting documentation. The MO 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. 8 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. 
The term "specialty occupation" is further defined at 8 C.F.R. 5 214.2(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. 8 214.2@)(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 
(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. 
WAC 04 214 50959 
Page 3 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
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 proposed position. 
In its July 13, 2004 letter of support, the petitioner states that the duties of the proposed position would 
include planning and conducting market research in order to seek effective ways to promote, price, and 
expand the petitioner's domestic and international markets; researching market conditions to determine 
potential sales of quality jewelry products; designing formats for gathering data; examining and analyzing 
statistical data to forecast future marketing trends; gathering data on competitors; analyzing prices, sales, 
and methods of marketing and distribution; collecting data on customer preferences and buying habits; 
preparing reports and graphic illustrations of findings; providing consumer research data relative to 
various customer groups' needs; coordinating with the president and other marketing staff to develop and 
implement the company's advertising campaigns; conferring with media specialists to select media and 
estimate costs; submitting proposed programs and estimated budget to the vice present for conduit 
marketing approval; and coordinating printing and production requirements in order to carry out approved 
campaigns. 
The director denied the petition, finding that the petitioner had satisfied none of the criteria set forth at 
8 C.F.R. tj 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 Outlook 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. He ultimately determined the proposed position to be that of a marketing 
manager, employment that does not impose a degree requirement on the beneficiary. While, as discussed 
below, the AAO concurs in the director's 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 
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 jewelry retailer 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. 
WAC 04 214 50959 
Page 4 
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 discussions, 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. 
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 of a type that normally 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 further specification, e.g., business administration, can perform a job, the position 
does not qualifjr as a specialty occupation. Matter of Michael Hertz Associates, 19 I&N Dec. 558 (Comm. 
1988). 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. 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 cannot establish its proposed 
position as a specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I). 
Nor does the proposed position qualify as a specialty occupation under either alternative prong of 
8 C.F.R. €J 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 positions that are both (1) parallel to the proposed position and (2) 
located in organizations similar to the petitioner. 
WAC 04 214 50959 
Page 5 
No evidence has been submitted to demonstrate that a specific degree requirement is common to the jewelry 
retailing industry in parallel positions among 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. 9 214.2(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 very similar to the 
generally described market research analyst occupation described in the Handbook, which includes 
persons without a bachelor's degree or its equivalent in a specific specialty. 
Accordingly, the petitioner has not established its proposed position as a specialty occupation under either 
prong of 8 C.F.R. 9 2 14.2(h)(4)(iii)(A)(2). 
Nor does the proposed position qualify as a specialty occupation under 8 C.F.R. § 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 this 
criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. 8 214.2(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. 
To the extent they are depicted in the record, the duties of the proposed position do not establish that their 
performance would usually be associated with attainment of at least a bachelor's degree in a specific 
specialty. The descriptions of the duties in the record do not convey such specialization or complexity or 
that they would be beyond the competency of market research analysts without such a degree. There is 
no information in the record to support a finding that the duties are 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. Therefore, the evidence does 
not establish that the proposed position is a specialty occupation under 8 C.F.R. 9 214.2(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(h)(4)(iii)(A)(I), (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. 
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.