dismissed H-1B Case: Market Research

~dentifying data dd&d 
prevent d- 
invadon of persoaal pmaCg 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 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, Director 
Administrative Appeals Office 
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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 jewelry manufacturing business that seeks to employ the beneficiary as a businesslmarket 
research analyst. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty 
occupation pursuant to 5 lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 10 1 (a>( 15>(H)(i>(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief and additional evidence, including copies of pages from the petitioner's new color 
brochure, copies of recent jewelry orders, and Internet job postings. 
Section 214(i)(l) of the Act, 8 U.S.C. $ 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: 
(1) 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. 
2 14.2(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) 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) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
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The petitioner is seeking the beneficiary's services as a businesslmarket research analyst. Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's January 21, 2004 letter in support of the 
petition; and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail: researching market conditions in local, regional, or national area; 
establishing research methodology and design format for data gathering, such as surveys, opinion polls, or 
questionnaires; examining and analyzing statistical data to forecast future business trends for potential sales of 
products; analyzing business trends and developing strategies; developing and implementing procedures for 
identifying advertising needs; compiling and analyzing existing financial records, growth quality of 
management, and potential financial risks; preparing a comprehensive market study of local, national, and 
international industries and competitors; and assisting with the development, refinement, andlor 
standardization of tools, methodologies, and procedures for data and information collection, manipulation, 
reporting, and storage. The petitioner indicated that a qualified candidate for the job would possess a 
bachelor's degree in business administration, marketing, or a related field. 
The director found that the proffered position was not a specialty occupation because the job is not a market 
research analyst position; it is similar to advertising, marketing, promotions, public relations, and sales 
manager positions. Citing to the Department of Labor's Occupational Outlook Handbook (Handbook), 2004- 
2005 edition, the director noted that the minimum requirement for entry into the position was not a 
baccalaureate degree or its equivalent in a specific specialty. The director found further that the petitioner 
failed to establish any of the criteria found at 8 C.F.R. $ 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the proffered position is a part-time market research analyst. Counsel 
states further that the AAO reversed the denials of two similar petitions, and cites to a court decision to state 
that the petitioner's size bears no rational relationship to the need for a professional. Counsel submits Internet 
job postings to show that the position of market research analyst is common to the industry. Counsel also 
states that the proposed duties are so specialized and complex as to require a bachelor's degree in a relevant 
field. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. 
Factors often considered by CIS when determining these criteria include: whether the Handbook reports that the 
industry requires a degree; whether the industry's professional association has made a degree a minimum entry 
requirement; and whether letters or affidavits from firms or individuals in the industry attest that such firms 
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. 
Minn. 1999)(quoting HiroYBlaker Corp. v. Sava, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
The AAO does not concur with the petitioner that the proffered position is that of a market research analyst, a 
position that, in business and industry, normally requires a master's degree in business administration, 
marketing, statistics, communications, or some closely related discipline. See the Handbook, 2004-2005 ed. at 
174. In this case, the proffered position does not require a master's degree. Furthermore, although the 
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petitioner's president states in his January 2 1, 2004 letter that the beneficiary would report directly to him, the 
petitioner's organization chart reflects that the beneficiary would report to the marketing head, who, in turn, 
reports to the business manager, who, in turn, reports to the vice president, who, in turn, reports to the 
president. The record contains no explanation for this inconsistency. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any 
aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
Furthermore, although counsel states in his April 16, 2004 letter that the proffered position is a newly created 
position, it is not clear how the beneficiary's duties differ from the petitioner's marketing head, and from the 
business manager, who was previously granted H-1B status. It is noted that the record does not contain a copy 
of the approved petition and supporting documentation for the petitioner's business manager. As discussed 
above, the petitioner's organizational hierarchy is unclear. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
Counsel states on appeal that the AAO "reversed the denials" of two similar petitions. The record of 
proceeding does not contain copies of such petitions. It must be emphasized that each petition filing is a 
separate proceeding with a separate record. See 8 C.F.R. 5 103.8(d). In making a determination of statutory 
eligibility, CIS is limited to the information contained in that individual record of proceeding. See 8 C.F.R. 
5 103.2(b)(16)(ii). 
Regarding parallel positions in the petitioner's industry, the petitioner submitted Internet job postings for 
business analysts. There is no evidence, however, to show that the employers issuing those postings are 
similar to the petitioner, or that the advertised positions are parallel to the instant position. One of the 
advertisers is the largest operator of leased fine jewelry departments in department stores throughout the 
United States. The proposed duties entail participating in cross-organizational process analysis and design 
teams. The petitioner has not demonstrated that the proposed duties of the proffered position are as complex 
as the duties described for the advertised position. Another advertiser is one of the world's premier 
watchmakers with over 1,400 employees. The proposed duties entail compiling and analyzing sales 
information for the petitioner's chain and department store business. It is noted that this advertisement does 
not stipulate a bachelor's degree in a specific specialty. In view of the foregoing, the advertisements have no 
relevance. 
The record also does not include any evidence from professional associations regarding an industry standard, 
or documentation to support the complexity or uniqueness of the proffered position. The petitioner, therefore, 
has not established the criteria set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. As the record indicates that the proffered position is a new position, the 
petitioner, therefore, has not established the criteria set forth at 8 C .F.R. 3 2 14.2(h)(4)(iii)(A)(3). 
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Finally, the AAO turns to the criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(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. 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. 9 214.2(h)(4)(iii)(A)(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. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.