dismissed H-1B Case: Market Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
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U.S. Citizenship 
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PUBLIC COPY 
y FILE: SRC 04 244 50903 Office: TEXAS SERVICE CENTER Date: APR 1 2 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101(a)(l 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. Wiemann, Director 
Administrative Appeals Office 
SRC 04 244 50903 
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 restaurant and seeks to employ the beneficiary as a market research analyst. The petitioner 
endeavors to classify the beneficiary as a nonirnmigrant worker in a specialty occupation pursuant to section 
10 1 (a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
 1 10 1 (a)(l S)(H)(i)(b). 
The director denied the petition because 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 issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty 
occupation. 
Section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 5 1 lOl(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. 9 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 further defined at 8 C.F.R. 9 214.2(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. 9 214.2(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; 
SRC 04 244 50903 
Page 3 
(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. 
tj 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) 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 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 Form 1-129 petition with attachment, the petitioner's response to the 
director's request for evidence, and its appeal. According to this evidence the beneficiary would: 
Develop strategic marketing plans to achieve corporate objectives for services; 
Develop and manage the marketing budget; 
Negotiate contract terms with outside agencies and suppliers; 
Provide market information as required by planning and marketing; 
Provide monthly new business and base business forecasts; and 
Submit weekly expense reports. 
The petitioner requires a minimum of a bachelor's degree in finance or a related field for entry into the 
proffered position. 
Upon review of the record, the petitioner has failed to establish that a baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry into the offered position, or that a degree 
requirement is common to the industry in parallel positions among similar organizations, as asserted by the 
petitioner. Factors often considered by CIS when determining these criteria include: whether the Department 
of Labor's Occupational Outlook Handbook (Handbook) reports that the industry requires a degree; whether 
an industry 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 
Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
SRC 04 244 50903 
Page 4 
The AAO routinely consults the Handbook for information about the duties and educational requirements of 
particular occupations. The duties of the proffered position, though vaguely described, appear to fall within 
those noted for advertising, marketing, promotions, public relations, and sales managers. The Handbook 
notes that a wide range of educational backgrounds is suitable for entry into the aforementioned positions, but 
that many employers prefer related experience plus a broad liberal arts background. Bachelor's degrees in 
sociology, psychology, literature, journalism, philosophy, or other subjects are suitable. Requirements will 
vary, however, depending on the duties of a particular position. For example, some employers prefer a 
bachelor's or master's degree in business administration with an emphasis in marketing, for marketing, sales, 
and promotion management positions. In highly technical industries such as computer and electronics 
manufacturing a degree in engineering or science combined with a business degree may be preferred. In 
public relations management positions some employers prefer a bachelor's or master's degree in public 
relations or journalism. The Handbook further notes that most advertising, marketing, promotions, public 
relations, and sales management positions are filled by promoting experienced staff or related professional or 
technical personnel. Many managers are former sales representatives, purchasing agents, or promotions 
specialists. A baccalaureate or higher degree in a specific specialty or its equivalent is not, therefore, the 
minimum requirement for entry into the position. A degree in a wide range of disciplines will suffice. The 
petitioner has failed to establish the first criterion of 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
The petitioner has failed to establish that a degree requirement, in a specific specialty, is common to the 
industry in parallel positions among similar organizations, or that it normally requires a degree in a specific 
specialty for the offered position, and offers no evidence in this regard. The petitioner has not established the 
referenced criteria at 8 C.F.R. $ 2 14.2(h)(4)(iii)(A)(2) or (3). 
Finally, the duties to be performed by the beneficiary are not so specialized or complex that knowledge 
required to perfom them is usually associated with the attainment of a baccalaureate or higher degree in a 
specific specialty. Nor are the duties so complex or unique that they can be performed only by an individual 
with a degree in a specific specialty. The duties as defined, appear to be routine for the position in the 
industry. The petitioner has, therefore, failed to establish the referenced criteria at 8 C.F.R. 
$9 214.2(h)(4)(iii)(A)(2) or (4). 
The proffered position does not meet any of the requirements of 8 C.F.R. 5 214.2(h)(4)(iii)(A). Accordingly, 
the director's denial of the Fonn 1-129 petition shall not be disturbed. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
 1361. 
The petitioner has failed to sustain that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.