dismissed H-1B Case: Market Research

identigin8 data deleted to 
prevent clearly unwarranted 
invasion of pemml privacy 
i' 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 089 50646 Office: CALIFORNIA SERVICE CENTER Date: MAR 3 0 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 04 089 50646 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition. The Administrative Appeals 
Office (AAO) summarily dismissed a subsequent appeal, finding that no additional evidence was received in 
support of the appeal. The matter is again before the AAO on a motion to reopen or reconsider. On motion, 
counsel asserts that the AAO improperly dismissed the appeal, as the Form I-290B stated a specific,reason how 
the director made an erroneous conclusion of law or statement in fact in denying the petition. Counsel 
additionally asserts that a brief was timely filed and submits FedEx tracking information as evidence. The motion 
will be granted. The previous decision shall be affirmed. The petition will be denied. 
The petitioner is an importer, wholesaler, and converter of fabric that seeks to employ the beneficiary as a 
full-time market 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. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On motion, 
counsel submits a brief. 
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. 
Pursuant to 8 C.F.R. 8 214.2(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. 
5 214.2(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 
WAC 04 089 50646 
Page 3 
director's denial letter; (5) Form I-290B and supporting documentation; (6) the AAO's summary dismissal; 
and (7) the petitioner's motion to reconsider. The AAO reviewed the record in its entirety before issuing its 
decision. 
The petitioner is seeking the beneficiary's services as a full-time market research analyst. Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's February 6, 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, under the direct supervision of the petitioner's sales and marketing manager, would perform 
duties that entail: researching market conditions throughout the United States and other countries to determine 
the potential for increased sales of the petitioner's products and services; establishing research methodologies 
and designing formats, such as surveys, opinion polls, and questionnaires to assess consumer preferences and 
to forecast future marketing trends; gathering data on competitors' prices, sales, and methods of marketing 
and distribution; and preparing reports and graphic illustrations of findings. The petitioner indicated that the 
beneficiary is a qualified candidate for the job because he possesses the equivalent of a U.S. bachelor's degree 
in business administration. 
The director found that the proffered position, which entails duties related to a sales representative, was not a 
specialty occupation. 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. 5 214.2(h)(4)(iii)(A). 
On motion, counsel states, in part, that the proffered position, which entails collecting, analyzing, and 
interpreting data on the textile and fashion market, is that of a market research analyst. Counsel states further 
that the record contains job advertisements from local competitors to show that this requirement is industry 
wide. Counsel also states that the nature of the proposed duties is so complex as to require a bachelor's 
degree. 
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. 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, Znc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. 
Minn. 1999)(quoting HirdIBlaker Corp. v. Suva, 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 concurs with counsel that the proffered position is that of a market research 
WAC 04 089 50646 
Page 4 
indicate that a bachelor's degree in a specialty is required for a market research analyst position.' As the 
market research analyst does not require.a degree in a specialty, the position does not satisfy the regulatory 
requirement for eligibility as a specialty occupation under the first criterion. 
Regarding parallel positions in the petitioner's industry, the petitioner submitted Internet job postings for 
market research analysts. A review of the job postings finds that a wide range of educational backgrounds is 
suitable for entry into marketing analyst jobs, such as business, computer science, social science, and 
psychology. Further, some of the advertisements did not specify a bachelor's degree in a specialty, thereby 
confirming the position of the DOL in its Handbook, namely that a market research analyst position does not 
require a bachelor's degree in a specialty. 
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. 3 214.2(h)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 3 214.2(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 motion, 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. 3 214.2(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. 3 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The previous 'decision of the AAO, dated September 9,2004, is affied. The petition is denied. 
1 
 A review of the website of Marketing Research Association (MRA) at http://www.mra- 
net.org/edeventslcnuide2.cfm#3 finds that a wide variety of degrees are acceptable for entry into the industry' 
including liberal arts, social science, and communications.