dismissed H-1B Case: Market Research

identifying data deleted to 
pevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
US. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
VL 
JUL 11 2006 
FILE: WAC 04 067 50575 Office: CALIFORNIA SERVICE CENTER Date: 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(l 5)(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. 
udministrative Appeals Office 
WAC 04 067 50575 
Page 2 
DISCUSSION: The service center director 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 health care products provider that seeks to employ the beneficiary as a market research 
analyst and to classifj her as a nonimmigrant worker in a specialty occupation pursuant to section 
10 1 (a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1 10 1 (a)( 1 S)(H)(i)(b). 
The director denied the petition on the basis that the petitioner did not establish that the proposed position is a 
specialty occupation. On appeal, counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. fj 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. 
Pursuant to 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: 
(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. 
8 214.2(h)(4)(iii)(A) to mean not just any bachelor's or higher degree, but one in a specific field of study that 
is directly related to the proposed position. 
The record of proceeding before the AAO contains: (1) Form 1-129 with supporting documents; (2) the 
director's request for additional evidence (RFE); (3) the petitioner's response to the WE; (4) the director's 
denial letter; (5) the petitioner's motion to reopen (MTR); (6) the director's dismissal of the MTR and (7) the 
Form I-290B with brief and additional documents. The AAO reviewed the record in its entirety before 
issuing its decision. 
The petitioner lists the proposed position as a market research analyst. Evidence of the beneficiary's duties 
includes the Form 1-129 with accompanying support letter, the response to the RFE, and the petitioner's brief 
WAC 04 067 50575 
Page 3 
on appeal. According to this evidence, the beneficiary's duties would include: researching and developing 
demographic profiles of persons requiring personalized home healthcare services and medical facilities 
requiring quality products that suit the needs of the persons they are caring for; developing marketing plans to 
sell prescription medications, home care equipment, respiratory products and services, diabetic care products, 
IV therapy equipment, enteral nutrition supplies, wound care supplies, prosthetics, incontinence supplies, 
urinary care products, and ostomy supplies; developing plans to participate in trade shows, expositions, and 
other group gatherings to sell products; providing research and information on the competition regarding 
pricing, service, and product positioning; ensuring pricing and quotes comport with profession standards; 
following through to ensure good customer service by taking a pro-active interest in preventing and solving 
problems associated with rates. The petitioner stated that the position required a bachelor of arts degree, no 
previous work experience, and that several educational backgrounds and majors were well-suited for the 
position, as it combined marketing, business analysis, and detail-oriented written and verbal communication 
skills. 
The director found that the petitioner failed to establish that it was engaged in the type of business that 
typically required a full- or part-time market research analyst. The director found that the petitioner did not 
have the organizational complexity to justify hiring a market research analyst for a significant length of time. 
The director found that since the petitioner did not have an advertising, marketing, or sales staff, that the 
beneficiary wou/d end up performing those duties. The director also found that, while some of the position 
required some market analysis, the duties were more similar to those of a marketing manager. Finally, the 
director found that the petitioner's marketing manager position did not qualify as a specialty occupation. 
On appeal, counsel asserts that the proposed position is that of a market research analyst and that it is a 
specialty occupation. 
The petitioner need only satisfy one of the criteria at 8 C.F.R. 8 214.2(h)(4)(iii)(A) to establish that a position 
is a specialty occupation. Upon a thorough review of the record, the AAO concludes that the petitioner has 
failed to establish that the proposed position meets any of the four criteria outlined in 8 C.F.R. 
$214.2(h)(4)(iii)(A). Therefore, the proposed position is not a specialty occupation. 
As a preliminary matter, the AAO finds the director to have erred in concluding that the petitioner is not 
engaged in the type of business that would require a market research analyst. In that the Department of 
Labor's Occupational Outlook Handbook (Handbook) indicates that the work of marketing research analysts 
is concerned with the potential sales of products or services and that they provide a company's management 
with information needed to make decisions on the promotion, distribution, design and pricing of products or 
services, market research is applicable to a broad range of industries and businesses seeking to improve their 
market share and profits. The fact that the petitioner is engaged in providing health care products does not 
preclude it from engaging in the type of market research activities described by the Handbook as a means of 
increasing its business opportunities and earnings. Accordingly, the AAO withdraws the director's finding in 
this regard. 
Nevertheless, no evidence contained in the record demonstrates that the proposed position is a specialty 
occupation. 
To determine whether a 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 
WAC 04 067 50575 
Page 4 
attainment of a bachelor's degree in a specific field of study as the minimum for entry into the occupation as 
required by the Act. 
The AAO routinely consults the Handbook for its information about the duties and educational requirements 
of particular occupations. Based on the petitioner's description and a thorough review of the Handbook, the 
AAO concurs with the director that the description of the proposed position more closely reflects the duties of 
marketing managers, who, according to the Handbook, estimate the demand for products and services offered 
by the firm and its competitors and identify potential markets; and reflect less those of market research 
analysts, who design and develop surveys to assess consumer preference. Market research analysts direct 
trained interviewers who conduct the actual surveys, then analyze the survey results for their clients. None of 
the proposed duties involves the creation and oversight of market surveys. 
The duties described for the proposed position more closely resemble the duties of marketing managers. 
These individuals identify potential markets and work with advertising and promotion managers to promote 
the firm's products and services and to attract potential users. These duties mirror the duties listed for the 
proposed position, such as "developing plans to participate in trade shows, expositions, and other group 
gatherings to sell products" and "providing research and information on the competition regarding pricing, 
service, and product positioning; ensuring pricing and quotes comport with profession standards." 
The AAO finds that the petitioner has not established that the proposed position is a specialty occupation. 
The petitioner has failed to establish that the position is one that qualifies as a specialty occupation under the 
criterion at 8 C.F.R. 214.2(h)(4)(iii)(A)(I), a bachelor's or higher degree or its equivalent, in a specific field 
of study, is normally the minimum requirement for entry into the particular position. To determine whether 
the proposed position is a specialty occupation under this criterion, the AAO turns to the Handbook's 
discussion of the educational requirements for marketing managers. The Handbook indicates that employers 
often require bachelor's degrees for marketing managers but not in any specific specialty. Thus, the petitioner 
has failed to establish that a bachelor's degree or its equivalent, in a specific field of study, is normally the 
minimum requiremeit for entry into the proposed position. 
The AAO turns next to the first alternative prong of the criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2) - a 
specific degree requirement is common to the industry in parallel positions among similar organizations. To 
determine if a position is a specialty occupation under this criterion, CIS generally considers whether letters 
or affidavits from companies or individuals in the industry attest that such companies "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, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). The job announcements the petitioner 
submitted are not sufficient to establish an industry-wide specialized bachelor's degree requirement for parallel 
positions among health products providers. The job announcements are distinct from the instant position in 
several significant ways and either do not describe the duties with sufficient particularity to determine if they are 
similar to the proposed position, or are from companies dissimilar to the petitioner, a healthcare products provider 
with about 17 employees. The petitioner has not established that the degree requirement is common to the 
industry in parallel position among similar organizations. Therefore, the proposed position does not qualify 
as a specialty occupation under the first alternative prong at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2). 
The AAO now turns to the third criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A) - the employer normally requires at 
least a bachelor's degree or its equivalent, in a specific field of study, for the position. To determine if a 
petitioner has established this criterion, the AAO generally reviews the petitioner's past employment 
WAC 04 067 50575 
Page 5 
practices, including the histories of those employees who previously held the position, as well as their names, 
dates of employment, and copies of their diplomas. In the instant case, the petitioner has submitted no 
evidence to establish its normal hiring practices for this particular position. In the absence of an employment 
history for the proposed position, the petitioner cannot establish that its proposed position qualifies as a 
specialty occupation under the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
Finally, the AAO turns to the criteria related to the complexity and uniqueness of the proposed position and 
the specialized nature and complexity of the proposed duties. A petitioner satisfies the second alternative 
prong of the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2) if it establishes that a particular position is so 
complex or unique that it can be performed only by an individual with a bachelor's degree in a specific field 
of study. The criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(#) requires a petitioner to 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 bachelor's or higher degree in a specific field of study. The petitioner 
submitted a list of the job duties for the proposed position but provided no further detail as to the unique or 
complex nature of the proposed position. This list is not sufficient to establish that the proposed position is 
unique compared with other similar marketing manager positions within the same industry. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 5 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied