dismissed H-1B Case: Market Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
FILE: WAC 04 085 50309 Office: CALIFORNIA SERVICE CENTER ~afe: OCT 0 7 2005 
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. 9 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 04 085 50309 
Page 2 
DISCUSSION: The service center director denied the notimmigrant 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 wholesale and retail supermarket that,seeks to employ the beneficiary as a full-time market 
research assistant. The petitioner endeavors to classify the beneficiary as a nonirnrnigrant 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)( 1 5)(H)(i>(b>. 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, the 
petitioner submits a statement. 
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 practica1,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 inti 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. 
9 214.2(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 full-time market research assistant. Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's January 29, 2004 letter in support of the 
WAC 04 085 50309 
Page 3 
petition; and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail: assiSting the owner in conducting market research studies 
focusing on the supermarket sector; collecting and computerizing data; assessing the competition; 
determining, prices, size, and location of competitors; assessing the target market; considering the use of 
coupon discounting and purchase awards; recommending price points for food, beverage, and staple items; 
suggesting advertising strategies; considering the enlargement of bulk buying; looking at geographical areas 
where the petitioner might expand; considering the start-up of home delivery, mail orders, and an internet 
website; and preparing reports. The petitioner indicated that the beneficiary was a well-qualified candidate for 
the job because he holds the equivalent of a bachelor's degree in business administration and a Korean 
Bachelor of Science degree. 
The director found that the proffered position, which is primarily that of a marketing manager, was not a 
specialty occupation. 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 spec-ialty. 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 appeal, the petitioner states that the proffered position is not a marketing manager position, as the job 
duties are not managerial. The petitioner also cites to a court decision to state that the petitioner's prior history 
bears no rational relationship to the need for a professional. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
fj 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. fj 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, 11 65 (D. 
Minn. 1999)(quoting HirdIBlaker 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. The beneficiary holds a foreign 
bachelor's degree in geology and business-related employment experience. The record contains an academic 
opinion concluding that the beneficiary possesses the equivalent of a bachelor's degree in business 
administration with a specialization in supply and logistics management. A review of the proposed duties 
indicates that the proffered position is similar to that of a public relations specialist and a marketing manager. 
No evidence in the Handbook indicates that a baccalaureate or higher degree in a specific specialty is required 
for these positions. 
WAC 04 085 50309 
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The record does not include any evidence regarding parallel positions in the petitioner's industry. 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. 8 214.2(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. 5 214.2(h)(4)(iii)(A)(3). 
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. 5 2 14.2(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. 9 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.