dismissed H-1B Case: Market Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
identifiingda~a 
prevent ciedrl y unwd 
invasioo of ped privlcr 
PUBLIC COPY 
FILE: LIN 05 012 52989 Office: NEBRASKA SERVICE CENTER Date: JUL 1 4 2006 
Immigration and Nationality Act, 8 U.S.C. 4 1 101 (a)(l S)(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 05 012 52989 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before 
the Administrative Appeals Ofice (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is a non-profit disability education service and states that it has 460 employees and annual gross 
revenues of $22,000,000. It seeks to employ the beneficiary as a market researcher and analyst and endeavors to 
classify him as a nonimmigrant worker in a specialty occupation pursuant to section 101 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 lOl(a)(l 5)(H)(i)(b). 
The director denied the petition stating that the proffered position does not qualify as a specialty occupation. On 
appeal, counsel submits a brief and additional information stating that the offered position qualifies as a specialty 
occupation. 
The first issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty 
occupation. 
Section 101 (a)(l S)(H)(i)(b) of the Act, 8 U.S.C. 8 1 101 (a)(lS)(H)(i)(b), provides, in part, for the 
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform 
services in 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. 
The term "specialty occupation" is hrther 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. 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; 
LIN 05 012 52989 
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(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties are 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. 
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: (1) the Form 1-129 and supporting documentation; (2) 
the director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) the Form I-290B with counsel's brief. The AAO reviewed the record in its 
entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a market researcher and analyst. Evidence of the 
beneficiary's duties includes the Form 1-129 petition with attachment and the petitioner's response to the 
director's request for evidence. According to this evidence the beneficiary would: 
Gather and analyze economic and statistical data, such as census, race, income, 
unemployment rates in different regions, available government funds for developmental 
disabilities, and racial ethics; 
Format survey forms and establish research methodology to meet project needs; 
Work with outreach personnel, conduct surveys and interviews to collect data about customer 
preferences, special needs, gross incomes, and the ratio of races in targeted areas; 
Participate in developing educational or training plans and procedures within designed 
funding, and write special requirements for projects based on market research and analysis; 
Participate in preparing funding applications providing analysis of related data; and 
Prepare quarterly reports for management to adjust marketing strategies and policies. 
The petitioner requires a minimum of a bachelor's degree with an emphasis in business administration or 
marketing for entry into the proffered position. 
Upon review of the record, the petitioner has failed to establish that the proffered position qualifies as a specialty 
occupation. The AAO routinely consults the U.S. Department of Labor's Occupational Outlook Handbook 
(Handbook) for information about the duties and educational requirements of particular occupations. Though 
varied, the duties of the proffered position appear to be those noted for market and survey researchers. The 
Handbook notes that market research analysts are concerned with the potential sales of a product or service. 
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Gathering statistical data on competitors and examining prices, sales, and methods of marketing and distribution, 
they analyze data on past sales to predict future sales. They devise methods and procedures for obtaining the data 
they need. Like market research analysts, survey researchers design and conduct surveys for a variety of clients, 
such as corporations, government agencies, political candidates, and providers of various services. The surveys 
collect information that is used for performing research, making fiscal or policy decisions, or improving customer 
satisfaction. They may conduct opinion research to determine public attitudes on various issues; the research 
results may help political or business leaders and others assess public support for electoral prospects or social 
policies. 
The duties of the proffered position are not those of a market research analyst in the traditional sense as the 
beneficiary would not be involved in gathering data on past sales to predict future sales. The beneficiary would, 
however, conduct research of the target market that it serves in providing services for adults and children with 
developmental disabilities. The services that it provides are dependent on the needs of its target service area 
(market) and funding available. For example, the beneficiary would collect and analyze related economic and 
statistical data, such as census, race, income, unemployment rates in different regions, the percentage of the 
population that receives government disability benefits, and available government funds for developmental 
disabilities. He would design and format survey forms in conducting research, and select the research 
methodology for gathering needed data. That information would then be used by management in designing 
education and treatment programs for those with disabilities served by the petitioner, as well as grant writing and 
funding applications which support the petitioner's work. These duties are those normally performed by market 
and survey researchers. The Handbook notes that a bachelor's degree is the minimum educational requirement 
for many market and survey research jobs. In addition to completing courses in business, marketing, and 
consumer behavior, prospective market and survey researchers should take other liberal arts and social science 
courses, including economics, psychology, English, and sociology. Because of the importance of quantitative 
skills to market and survey researchers, courses in mathematics, statistics, sampling theory and survey design, and 
computer science are extremely helpful. A degree in a specific specialty, however, is not required. The petitioner 
has failed to establish the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l). 
The petitioner does not assert that a degree requirement in a specific specialty is common to the industry in 
parallel positions among similar 
 no evidence in this regard. The petitioner did 
submit an opinion letter from 
 Associate Professor, School of Policy, Planning and 
Development, Marshall School 
 California. ~rstates that market 
research analysts and similar positions are not only employed by large companies, but by smaller 
organizations also, including non-profit companies. That opinion does not, however, address or establish a 
degree requirement for the proffered position or for the position in the petitioner's industry. It is not apparent 
from the opinion that the professor reviewed the job duties in the context of the petitioner's business. 
Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory opinions statements 
submitted as expert testimony. However, where an opinion is not in accord with other information or is in 
any way questionable, CIS is not required to accept or may give less weight to that evidence. Matter of Caron 
International, 19 I&N Dec. 791 (Comrn. 1988). The petitioner has failed to establish the referenced criterion 
at 8 C.F.R. 5 2 14.2(h)(4)(iii)(A)(Z). 
The petitioner states that it normally requires a degree or its equivalent for the offered position and that a previous 
CIS decision approved an H-1B petition for the same position. This reference will not sustain the petitioner's 
burden of establishing H-1B qualification in the petition now before the AAO. This record of proceeding does 
not contain the entire record of proceeding in the petition referred to by counsel. Accordingly, no comparison of 
the positions can be made. Each nonimmigrant petition is a separate proceeding with a separate record. See 8 
LIN 05 01 2 52989 
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C.F.R. 8 103.8(d). In making a determination of statutory eligibility, the AAO is limited to the information 
contained in the record of proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). It warrants noting that Congress intended 
this visa classification for aliens that are to be employed in an occupation that requires the theoretical and 
practical application of a body of highly specialized knowledge. Congress specifically stated that such an 
occupation would require, as a minimum qualification, a baccalaureate or higher degree in the specialty. CIS 
regularly approves H-1B petitions for qualified aliens who are to be employed as engineers, computer scientists, 
certified public accountants, college professors, and other such professions. These occupations all require a 
baccalaureate degree in the specialty occupation as a minimum for entry into the occupation and fairly represent 
the types of professions that Congress contemplated when it created that visa category. In the present matter, the 
petitioner has offered the beneficiary a position as a market researcher and analyst. For the reasons discussed 
above, the proffered position does not require attainment of a baccalaureate or higher degree in a specific 
specialty as a minimum for entry into the occupation, and approval of a petition for another beneficiary based on 
identical facts would constitute material error, gross error, and a violation of 8 C.F.R. 5 214.2 paragraph (h). The 
petitioner has failed to establish the criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(3). 
Finally, the petitioner has not established that the nature of the specific duties is so specialized and complex 
that knowledge required to perform them is usually associated with the attainment of a baccalaureate or 
higher degree in a specific specialty. Nor has it established that the duties of the offered position are so 
complex or unique that they can only be performed by an individual with a degree in a specific specialty. The 
duties of the offered position are routine in the industry for market and survey researchers. Those duties are 
normally performed by individuals with degrees in a variety of educational disciplines. The petitioner has 
failed to satisfy the referenced criteria at 8 C.F.R. 5 214,2(h)(4)(iii)(A)(2) or (4). 
As related in the discussion above, 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. 
!j 1361. The petitioner has not sustained that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.