dismissed H-1B Case: Market Research

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 03 1 5 1367 Office: CALIFORNIA SERVICE CENTER Date: 
0 8 9888 
IN RE: Petitioner: 
Beneficiary: 
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. 5 1 10 l(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 hrther inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 04 031 51367 
Page 2 
DISCUSSION: The director of the service center denied the nonimrnigrant 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, a developing agent, seeks to employ the beneficiary as a market research analyst1 
developer. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a 
specialty occupation pursuant to section 10 l(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1 101(a)(lS)(H)(i)(b). 
The director denied the petition, stating the following: "[Ilt is concluded that the beneficiary does not 
qualify to perform the services of a marketing research analyst based on education, because the 
beneficiary does not have the specific or related degree in this specialty occupation." 
The record of proceeding before the AAO contains: (1) the Form 1-129 and supporting documentation; 
(2) the director's request for additional evidence (RFE); (3) the petitioner's RFE response and supporting 
documentation; (4) the director's denial letter; and (5) the petitioner's Form I-290B and supporting 
documentation. The AAO reviewed the record in its entirety before issuing its decision. 
Pursuant to 8 C.F.R. 5 214,2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, an 
alien must meet one of the following criteria: 
(I) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation from an 
accredited college or university; 
(3) Hold an unrestricted state license, re~stration or certification which authorizes 
him or her to hlly practice the specialty occupation and be immediately engaged 
in that specialty in the state of intended employment; or 
(4) Have education, specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree 
in the specialty occupation, and have recognition of expertise in the specialty 
through progressively responsible positions directly related to the specialty. 
The petitioner's letter of support set forth the following description of the duties of the proposed position: 
Her duties as a market research analystldeveloper will be overseeing all aspects of 
research in new products, and development of area franchises for Anzona and Utah. 
They will also include providing operational support to new franchises, designing 
marketing programs for optimum profits[,] and give new real estate guidance [sic]. In 
addition to this, she will be responsible to test the new products in the market for the 
franchise mentioned below. 
The petitioner provided an expanded description of the duties in the RFE response, as well as the 
percentages of time to be spent performing each of the tasks: 
WAC 04 031 51367 
Page 3 
a) Working in conjunction with Kahala corp [sic] and A.V.S. LLC to develop future 
franchisees (60%) 
b) Giving real estate guidance to new franshisee [sic] and to develop marketing strategies 
for the new stores in the states of Anzona & Utah (20%) 
c) Research of new food products, testing them[,] and marketing it in the above mentioned 
markets (20%) 
Nira will be responsible to market the restaurants by making promos, sampling and 
generate business by catering to big conferences and other potential businesses [sic]. She 
will also be responsible to find locations for new restaurants keeping in mind the 
demography, population[,] and standard of living in and around that location [sic]. In 
order to open up more units, she will also be required to contact real estate agents or give 
guidance to new franchises with opening new units. She will have to contact bankers to 
explore more potential A.V.S. activities to get financial help from financial institutions. 
She will also research new recipies [sic] in order to expand business for A.V.S. 
The record contains a copy of the beneficiary's bachelor's degree in commerce, a three-year program of 
study at the University of Mumbai, which is located in India, as well as copies of transcripts from that 
course of study. The record also contains a copy of the beneficiary's diploma in hotel administration and 
food technology from Sophia-Shree Basant Kumar Somani Memorial Polytechnic, also located in India, 
and transcripts from that course of study. 
The record also contains an evaluation from the International Education Research Foundation, Inc. 
(IERF), dated November 12, 2003, whiclh concludes that the beneficiary's foreign degrees is equivalent to 
a Bachelor of Science in Business Administration from a regionally accredited college or university in the 
United States. IERF concluded the following: 
It is the judgment of the International Education Research Foundation, Inc., that Nira 
Paresh Kinkhabwala has the U.S. equivalent of ninety semester units of undergraduate 
coursework and completion of a two-year training program in Hotel Administration and 
Food Technology in the United States. 
On appeal, counsel submits a new evaluation, dated March 11, 2004, from James V. Spiers, Assistant to 
the Chair and Senior Lecturer in the Department of Marketing at Arizona State University, stating the 
following: 
The W.P. Carey School of Business at Anzona State University would recognize the 
degree as beyond a two[-]year business degree. An overview of her coursework shows 
she has satisfied the requirements of a BIS degree - Bachelor of Interdisciplinary Studies 
(1). This is a university-wide program intended for students who have academic interests 
that might not be satisfied with existing majors. 
The beneficiary did not earn a degree fro~m a United States institution, so she does not qualify to perform 
services in a specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(C)(I). 
WAC04031 51367 
Page 4 
Nor does the beneficiary qualify under the second criterion, which requires a showing that the beneficiary 
holds a foreign degree determined to 'be equivalent to a United States baccalaureate or higher degree 
required by the specialty occupation from an accredited college or university. 
The U.S. Department of Labor's Occzqational Outlook Handbook (Handbook) notes that market research 
analysts generally possess graduate degrees in economics, business administration, marketing, statistics or 
a closely related discipline. Entry level positions such as research assistants, administrative or 
management trainees, marketing interviewers, or professional sales positions may be filled by individuals 
possessing only a bachelor's degree. The position proposed in the petition, however, is not that of a 
research assistant, administrative or management trainee, markting interviewer, or a professional sales 
position, the duties of which could be performed by individuals holding a baccalaureate level education. 
If a particular specialty occupation requires an educational attainment higher than that of a baccalaureate 
degree, then the beneficiary of the proposed position must possess the requisite higher education. The 
petitioner has not established that the beneficiary possesses a graduate degree in economics, business 
administration, marketing, statistics or a closely related discipline. The beneficiary is not, therefore, 
qualified to perform the duties of a market research analyst under 8 C.F.R. 214,2(h)(4)(iii)(C)(2). 
It has never been stated that the beneficiary holds an unrestricted state license, registration or certification 
to practice the specialty occupation, so she does qualify under 8 C.F.R. 5 214.2(h)(4)(iii)(C)(3). 
Nor does the beneficiary qualify under 8 C.F.R. 9 214.2(h)(4)(iii)(C)(4), as she does not have the 
education, specialized training, andor progressively responsible experience that is equivalent to 
completion of a United States baccalaureate or higher degree in the specialty occupation, as well as 
recognition of expertise in the specialty through progressively responsible positions directly related to the 
specialty. In reaching this conclusion, tlhe AAO noted that the beneficiary has several years of prior work 
experience in the field. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(D), equating a beneficiary's credentials to a United States 
baccalaureate or higher degree is determined by one or more of the following: 
(I) An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
which has a program for granting such credit based on an individual's training andor 
work experience; 
(2) The results of recognized college-level equivalency examinations or special credit 
programs, such as the College Level Examination Program (CLEP), or Program on 
Noncollegiate Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation sei-vice which 
specializes in evaluating foreign educational credentials; 
(4) Evidence of certification or registration from a nationally-recognized professional 
association or society for the specialty that is known to grant certification or 
registration to persons in the occupational specialty who have achieved a certain 
level of competence in the specialty; 
WAC 04 03 1 5 1367 
Page 5 
(5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, andlor work experience in areas related to the specialty and 
that the alien has achieved recognition of expertise in the specialty occupation as 
a result of such training and experience. 
The beneficiary has not met the requirements set forth at 8 C.F.R. $5 214.2(h)(4)(iii)(D)(l), (2), or (4), as 
the record contains no evidence to satisfy any of those criteria. 
Nor does the beneficiary qualify under As noted above, the AAO has 
reviewed the evaluation submitted by University. However, the a 
specialty occupation requires a is deficient, as it conflicts 
with the earlier evaluation granting the beneficiary 90 semester units of undergraduate coursework and 
completion of a two-year training program in Hotel Administration and Food Technology in the United 
States. 
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 Ir2ternationa1, 19 I&N Dec. 
791 (Comm. 1988). The second evaluation is not in accord with the other evidence of record, most 
notably the first evaluation, and the AAO will not consider it. 
Also, the second evaluation is based upon certificates from a nonacademic institution. The first 
e~~aluation noted specifically that no transfer-level credit from the beneficiary's experience 
Polytechnic (Sophia Shree) was recommended. The second 
evaluator did take that experience intoconsideration. It has not been demonstrated th 
provides academic coursework, especially in light of the fact that the earlier evaluation only awarded two 
years of credit for certificate training. See Matter of Caron International, 19 I&N Dec. at 791. 
When CIS determines an alien's qualifications pursuant to 8 C.F.R. fj 214.2(h)(4)(iii)(D)(5), the alien 
must have a baccalaureate degree followed by at least five years of experience in the specialty in order to 
demonstrate equivalency to a master's degree. As the beneficiary does not have a baccalaureate degree, 
there can be no equivalency determination of a master's degree under the regulation. As the beneficiary 
does not meet the threshold requirement of a baccalaureate degree, it cannot be established that the 
beneficiary is qualified to perform the services of the specialty occupation, which requires a master's 
degree. 
Therefore, none of the four criteria set forth at 8 C.F.R. $ 214.2(h)(4)(iii)(C) have been satisfied, and the 
director was correct in finding the beneficiary unqualified to perform the duties of a market research 
analyst. 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. 
5 136 1. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.