dismissed H-1B Case: Market Research

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 238 5 1936 Office: CALIFORNIA SERVICE CENTER Date: APf? 0 ? 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 I 10 l(a)( 1 5)(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. Wiernann, Director 
Administrative Appeals Office 
WAC 04 238 51936 
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 nursing registry that seeks to employ the beneficiary as a market research analyst. The 
petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to 
€j lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. €j 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. €j 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. 
€j 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) 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. 
The petitioner is seeking the beneficiary's services as a market research analyst. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's August 12, 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 
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perform duties that entail: analyzing data pertaining to the petitioner's current and potential client base; 
analyzing demographic statistics pertaining to healthcare facilities and institutions; analyzing past and present 
marketing strategies and targeting future markets; preparing marketing and financial reports; and conducting 
surveys of existing clients and institutions. The petitioner indicated that a qualified candidate for the job 
would possess a bachelor's degree in marketing, business administration, or an equivalent thereof. 
The director found that the proffered position was not a specialty occupation because the job is not a market 
research analyst position; it is a marketing manager position. Citing to the Department of Labor's (DOL) 
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. § 2 14.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the proffered position is that of a market research specialist. Counsel 
states further that, even if the petitioner were to concede that the proffered position fell under the category of 
advertising, marketing, promotions, public relations, or sales managers, these positions are also professional, 
as information in the Handbook indicates that they require a bachelor's degree. Counsel also states that every 
government publication, including the DOL's Handbook, Dictionary of Occupational Titles (DOT), and 
O*Net, indicates that positions such as market research analysts and marketing managers are professional 
positions. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. tj 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. 5 214,2(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 1 15 1, 1 165 (D. 
Minn. 1999)(quoting HirdIBlaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AAO does not concur with counsel that the proffered position is a specialty 
occupation. A review of the Advertising, Marketing, Promotions, Public Relations, and Sales Managers job 
descriptions in the Handbook, 2006-2007 edition, confirms the accuracy of the director's assessment to the effect 
that the job duties parallel the responsibilities of a marketing manager. No evidence in the Handbook indicates 
that a baccalaureate or higher degree in a specific specialty, or its equivalent, is required for a marketing manager 
job. Further, even if the AAO were to conclude that the proffered position is that of a market research analyst, the 
position would still not qualifjl as a specialty occupation because a review of the Market and Survey Researchers 
category in the 2006-07 Handbook does not indicate that a bachelor's degree in a specialty is required for a 
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market research analyst position.' As neither the marketing manager position nor the market research analyst 
position requires a degree in a specialty, the position does not satisfy the regulatory requirement for eligibility 
as a specialty occupation under the first criterion. 
Counsel's reference to and assertions about the relevance of information from O*Net and the DOT are not 
persuasive. Neither the DOTS SVP rating nor a Job Zone category indicates that a particular occupation 
requires the attainment of a baccalaureate or higher degree, or its equivalent, in a specific specialty as a 
minimum for entry into the occupation. An SVP rating and Job Zone category are meant to indicate only the 
total number of years of vocational preparation required for a particular position. Neither classification 
describes how those years are to be divided among training, formal education, and experience, nor specifies 
the particular type of degree, if any, that a position would require. 
The record does not include any evidence regarding parallel positions in the petitioner's industry. The record 
also does not include any evidence from firms, individuals, or 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 counsel does not address this issue on appeal, it will not be discussed 
further. The evidence of record does not establish this criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. 3 214.2(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. 5 214.2(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. 
The director also found that the proffered position was not a specialty occupation because petitioner did not 
establish that there was a bona fide position for the beneficiary to fill. Information on the petition, which was 
signed by the petitioner's CEO on August 19, 2004, indicates that the petitioner was established in 2002, and 
has 14 employees and a gross annual income in excess of $400,000. The petitioner provided no 
documentation in support of these claims. The petitioner's 2003 federal income tax return reflects only 
$222,394 in gross receipts or sales, and no salaries and wages paid. 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 Crafi of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). Accordingly, the petitioner has not demonstrated that the beneficiary is 
1 
 A review of the website of Marketing Research Association (MRA) at http://www.mra- 
net.org/edevents/cguide2.cfm#3 finds that a wide variety of degrees are acceptable for entry into the industry 
including liberal arts, social science, and communications. 
WAC 04 238 51936 
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coming to the United States to perform services in a specialty occupation as required by the statute at 
section 101(a) (1 S)(H)(i)(b) of the Act; 8 U.S.C. 5 1 101(a)(l 5)(H)(i)(b). For this additional reason, the 
petition may not be approved. 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. 9 1361. 
The petitioner has not sustained that burden. 
ORDER. 
 The appeal is dismissed. The petition is denied.