dismissed H-1B Case: Marketing

U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
FILE: SRC 04 004 50500 Office: TEXAS SERVICE CENTER Date: ;EF 2 2 200: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section lOl(a)(lS)(K)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 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 
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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 an import-export company that seeks to employ the beneficiary as an international marketing 
analyst. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation 
pursuant to section lOl(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 lOl(a)(l5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, the 
petitioner submits a letter. 
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. 
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. 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a 
position's title. The specific duties of the proffered position, combined with the nature of the petitioning 
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the 
alien, and determine whether the position qualifies as a specialty occupation. CJ: Defensor v. Meissner, 201 
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F. 3d 384 (5th Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed 
standards, but whether the position actually requires the theoretical and practical application of a body of 
highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty 
as the minimum for entry into the occupation, as required by the Act. 
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 an international marketing analyst. Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's September 26, 2003 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: gathering, organizing and interpreting information using sources 
such as company records, trade journals, government reports and financial publications; writing reports, 
summarizing conclusions, making recommendations and proposing alternate courses of action; performing 
project management, business and financial analysis, accounting and finance; analyzing the consumer field, 
where broad distribution of the product and keen competition require constant analyses of the factors 
affecting consumer behavior; studying factors such as the probable sales volume of present and proposed 
products, product life cycle, who is buying the product or similar products, where the product is, and where it 
is manufactured; planning, designing, implementing and analyzing survey results; selecting, assigning, 
training, supervising and evaluating subordinate personnel; developing and implementing plans to improve 
economy, efficiency and quality of work or services; and directing organizationaVoperationa1 studies and 
presenting recommendations for reducing costs and increasing revenues. The petitioner indicated that a 
qualified candidate for the job would possess a bachelor's degree in marketing or its equivalent. 
The director found that the proffered position was not a specialty occupation. In addition, the director found 
that the petitioner is not the type of company that typically employs market research analysts. 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 Department of Labor's Occupational Outlook Handbook (Handbook) 
indicates that a marketing analyst position always requires a bachelor's degree, and that this establishes that 
the proffered position is a specialty occupation. The petitioner also states that the proffered position requires 
theoretical and practical application of a body of specialized knowledge. The petitioner states that the 
beneficiary has the equivalent of an associate's degree from a U.S. college, and that her ten years of work 
experience combined with her degree is the equivalent of a bachelor's degree in marketing. The petitioner 
states that the director improperly found that the petitioner's size was relevant to whether the proffered 
position is a specialty occupation. The petitioner asserts that CIS made broad assumptions about the role of 
the proffered position within the petitioner's company, rather than relying on the duties of the position. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
9 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
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The AAO turns first to the criteria at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(l) 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 
considered by the AAO when determining these criteria include: whether the Handbook, on which the AAO 
routinely relies for the educational requirements of particular occupations, reports 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 fms 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 Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
In her denial, the director concluded that the record failed to establish that the petitioner's business was of a 
type to require a market research analyst. While the AAO concurs in the director's finding that the proffered 
position is not that of a market research analyst, as discussed below, it finds the director to have too narrowly 
defined the sectors of the economy that might require the services of a marketing research analyst. In that the 
2004-2005 edition of the Handbook indicates that the work of marketing research analysts is concerned with 
the potential sales of a product or service and that they provide a company's management with information 
needed to make decisions on the promotion, distribution, design and pricing of products or services, market 
research is applicable to a broad range of industries and businesses seeking to improve their market share and 
profits. The fact that the petitioner is an import/export company does not preclude it from engaging in the 
type of market research activities described by the Handbook as a means of increasing its business 
opportunities and earnings. However, the petitioner's potential need to conduct market research does not 
establish the proffered position as a specialty occupation. 
In reaching its own conclusions regarding the nature of the proffered position, the AAO has reviewed the 
discussion of market or marketing research analysts, as described at pages 173-174 of the Handbook. It has 
taken particular note of the following part of that discussion: 
[Mlarket research analysts devise methods and procedures for obtaining the data they need. 
They often design telephone, mail, or Internet surveys to assess consumer preferences. Some 
surveys are conducted as personal interviews by going door-to-door, leading focus group 
discussions, or setting up booths in public places such as shopping malls. Trained 
interviewers, under the market research analyst's direction, usually conduct the surveys. 
After compiling the data, market research analysts evaluate them and make recommendations 
to their client or employer based upon their findings. They provide a company's management 
with information needed to make decisions on the promotion, distribution, design, and pricing 
of products or services. The information may also be used to determine the advisability of 
adding new lines of merchandise, opening new branches, or otherwise diversifying the 
company's operations. Market research analysts might also develop advertising brochures 
and commercials, sales plans, and product promotions such as rebates and giveaways. 
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The AAO finds that it is market research analysts' work in the design, development and supervision of 
original market research that sets this occupation apart from what might otherwise be characterized as a 
marketing manager position, employment that also requires the incumbent to conduct market research. 
Although the petitioner indicated that the beneficiary would plan, design, implement and analyze survey 
results, it offered no discussion of whether such research would be original in nature, nor the role of the 
beneficiary in carrying out such research. In the absence of such information, the analysis and research 
responsibilities described by the petitioner appear more closely related to the work of marketing managers, 
whose work is also focused on the marketing and selling of products and services. As discussed within the 
occupation of advertising, marketing, promotions, public relations and sales managers at pages 23-24 of the 
Handbook: 
The objective of any firm is to market and sell its products or services profitably . . . . 
Advertising, marketing, promotions, public relations, and sales managers coordinate the 
market research, marketing strategy, sales, advertising, promotion, pricing, product 
development, and public relations activities. 
Marketing managers develop the firm's detailed marketing strategy. With the help of 
subordinates, including product development managers and market research managers, they 
determine the demand for products and services offered by the firm and its competitors. In 
addition, they identify potential markets . . . . Marketing managers develop pricing strategy 
with an eye towards maximizing the firm's share of the market and its profits while ensuring 
that the fm's customers are satisfied. In collaboration with sales, product development, and 
other managers, they monitor trends that indicate the need for new products and services and 
oversee product development. Marketing managers work with advertising and promotion 
managers to promote the firm's products and services and to attract potential users . . . . 
Having found the duties of the proffered position to be those of a marketing manager, the AAO now turns to 
the Handbook for its discussion of the educational requirements imposed on individuals who seek 
employment within this profession: 
A wide range of educational backgrounds is suitable for entry into advertising, marketing, 
promotions, public relations, and sales managerial jobs, but many employers prefer those 
with experience in related occupations plus a broad liberal arts background . . . . 
For marketing, sales, and promotions management positions, some employers prefer a 
bachelor's or master's degree in business administration with an emphasis on marketing. 
Courses in business law, economics, accounting, finance, mathematics, and statistics are 
advantageous . . . . 
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Most advertising, marketing, promotions, public relations, and sales management positions 
are filled by promoting experienced staff or related professional personnel. For example, 
many managers are former sales representatives, purchasing agents, buyers, or product, 
advertising, promotions, or public relations specialists . . . . 
As the Handbook indicates no specific degree requirement for employment as a marketing manager, the AAO 
concludes that the performance of the proffered position's duties does not require the beneficiary to hold a 
baccalaureate or higher degree in a related field. Accordingly, the AAO finds that the petitioner is unable to 
establish its proffered position as a specialty occupation under the requirements of the first criterion at 
8 C.F.R. 5 214.2(h)(4)(iii)(A). 
Counsel states that the Handbook indicates that a market research analyst is a specialty occupation. The AAO 
agrees with counsel that a market research analyst is generally a specialty occupation, but in this instance, the 
proffered position is a marketing manager, despite the title the petitioner gives it. CIS looks beyond the title 
of the position and determines, from a review of the duties of the position and any supporting evidence, 
whether the position actually requires the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a baccalaureate degree in a specific specialty as the minimum for entry into 
the occupation as required by the Act. 
Regarding parallel positions in the petitioner's industry, the petitioner submitted numerous newspaper and 
Internet job postings for market research analysts. As noted, the AAO finds that the proffered position is a 
marketing manager, rather than a market research analyst. In addition, there is no evidence to show that the 
employers issuing those postings are similar to the petitioner, or that the advertised positions are parallel to 
the instant position. Thus, the advertisements have little relevance. 
The record 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 has, thus, not 
established the criteria set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. This appears to be a newly created position and the petitioner is not able 
to meet this criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. 3 214.2(h)(iii)(4)(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). 
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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. 
Beyond the decision of the director, the AAO notes that the petitioner has failed to establish that the 
beneficiary is qualified to perform an occupation that requires a baccalaureate degree. The beneficiary does 
not hold a baccalaureate degree from an accredited U.S. college or university in any field of study, or a 
foreign degree determined to be equivalent to a baccalaureate degree from a U.S. college or university in any 
field of study. Therefore, the petitioner must demonstrate that the beneficiary meets the criterion at 8 C.F.R. 
5 2 14.2(h)(4)(iii)(C)(4). 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(D), equating the beneficiary's credentials to a United States 
baccalaureate or higher degree shall be determined by one or more of the following: 
(I) An evaluation from an official who has authority to grant college-level credit for training 
and/or experience in the specialty at an accredited college or university which has a program 
for granting such credit based on an individual's training and/or work experience; 
(2) The results of recognized college-level equivalency examinations or special credit programs, 
such as the College Level Examination Program (CLEP), or Program on Noncollegiate 
Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service which specializes in 
evaluating foreign educational credentials; 
(4) Evidence of certification or registration from a nationally-recognized professional association 
or society for the specialty that is known to grant certification or registration to persons in the 
occupational specialty who have achieved a certain level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the specialty 
occupation has been acquired through a combination of education, specialized training, 
and/or work experience in areas related to the specialty and that the alien has achieved 
recognition of expertise in the specialty occupation as a result of such training and 
experience. 
The petitioner submitted an evaluation from the Foundation for International Services, Inc., a company that 
specializes in evaluating academic credentials. The evaluator concluded that the beneficiary possesses the 
equivalent of a bachelor's degree in marketing from an accredited U.S. college or university. However, the 
evaluation is based upon the beneficiary's education and work experience. A credentials evaluation service 
may not evaluate an alien's work experience or training; it can only evaluate educational credentials. See 8 
C.F.R. 5 214.2(h)(4)(iii)(D)(3). The AAO will accept that portion of the evaluation that analyzes the 
equivalency of the beneficiary's foreign education. With respect to that portion of the evaluation analyzing 
the beneficiary's work experience, the evaluation carries no weight in these proceedings. Matter of Sea, Inc., 
19 I&N Dec. 8 17 (Cornm. 1988). 
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When CIS determines an alien's qualifications pursuant to 8 C.F.R. 3 214.2(h)(4)(iii)(D)(5), three years of 
specialized training and/or work experience must be demonstrated for each year of college-level training the 
alien lacks. It must be clearly demonstrated that the alien's training andlor work experience included the 
theoretical and practical application of specialized knowledge required by the specialty occupation; that the 
alien's experience was gained while working with peers, supervisors, or subordinates who have a degree or its 
equivalent in the specialty occupation; and that the alien has recognition of expertise in the specialty 
evidenced by at least one type of documentation such as: 
(i) Recognition of expertise in the specialty occupation by at least two recognized authorities 
1 in the same specialty occupation ; 
(ii) Membership in a recognized foreign or United States association or society in the 
specialty occupation; 
(iii) Published material by or about the alien in professional publications, trade journals, 
books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation in a foreign country; or 
(v) Achievements which a recognized authority has determined to be significant 
contributions to the field of the specialty occupation. 
In addition to the evaluation from the credentials evaluation service, the record also contains an employment 
letter and a position description from that employer. 
The AAO now turns to the beneficiary's prior work experience, and whether it included the theoretical and 
practical application of specialized knowledge required by the specialty. The letter provided from the 
beneficiary's employer and the position description only indicate the beneficiary's general duties, but do not 
include her daily activities or level of responsibility. The evidence does not reference the beneficiary's level 
of responsibility, or establish that the beneficiary's experience was gained while working with peers, 
supervisors, or subordinates who have a degree or its equivalent in the specialty occupation. Thus, the AAO 
cannot conclude that the beneficiary's past work experience included the theoretical and practical application 
of a body of highly specialized knowledge. 
Finally, there is insufficient evidence that the beneficiary has recognition of expertise, as required by the 
regulations. The petitioner, therefore, did not establish that the beneficiary possesses the equivalent of a 
bachelor's degree, or that she is qualified to perform the duties of a specialty occupation. For this additional 
reason, the petition may not be approved. 
1 Recognized authority means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. A recognized authority's 
opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such 
opinions, citing specific instances where past opinions have been accepted as authoritative and by whom; (3) 
how the conclusions were reached; and (4) the basis for the conclusions supported by copies or citations of 
any research material used. 8 C.F.R. 3 214.2(h)(4)(ii). 
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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 not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.