dismissed H-1B Case: Marketing

identieing data deleted to 
prevent clearly unwarranted 
invasion of per~onal privacy 
U.S. Department of Ifomeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 04 250 54 105 Office: VERMONT SERVICE CENTER Date: akk 1 8 2006 
IN RE: Petitioner: 
Beneficiary: 
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. tj 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, 
Administrative Appeals Office 
EAC 04 250 54 105 
Page 2 
DISCUSSION: The acting director of the Vermont Service Center 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 online procurement information provider, with two employees. It seeks to employ the 
beneficiary as a marketing analyst pursuant to section 10 1 (a)( 1 5)(H)(i)(b) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 8 1101(a)(l5)(~)(i)(b). The director denied the petition because she determined the 
position was not a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence; (3) counsel's response to the director's request for evidence; (3) the director's 
denial letter; and (4) Form I-290B, with counsel's letter and additional documentation. The AAO reviewed 
the record in its entirety before reaching its decision. 
The issue before the AAO is whether the position qualifies as a specialty occupation. To meet its burden of 
proof in this regard, the petitioner must establish that the employment it is offering to the beneficiary meets 
the following statutory and regulatory requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1184(i)(l) defines the term 
"specialty occupation" as one 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: 
An 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 equ'ivalent, 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 
EAC 04 250 54105 
Page 3 
(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 above criteria 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 
F. 3d 384 (5'h 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 petitioner seeks the beneficiary's services as a marketing analyst. Evidence of the beneficiary's duties 
includes: the Form 1-129; the petitioner's September 1, 2004 letter in support of the petition; the petitioner's 
May 24, 2004 employment contract with the beneficiary; and counsel's September 23, 2004 response to the 
director's request for evidence. This evidence indicates that the duties of the proffered position would require 
the beneficiary to: 
Marketing Assistance Program, e.g., the- 
esigned to assist U.S. companies in sourcing partners in 
and security (DVRICCTV cameras and fingerprint 
-. 
ID) products bf select Korean small and mid-sized companies sponsored byX;rean 
government agencies. roducdbrand marketing. sales channel 
development); 
Prepare the marketing package, such as brochures, catalogs and presentation 
materials, for promoting to potential business partners and customers (productJbrand 
marketing); 
Identify and design market research objectives embedded within international 
business, the U.S. government~commercia1 procurement marketplace and e-business, 
including event and conference information; 
Provide detailed analysis that assists U.S. vendors and business partners to find 
quality international companies and that helps global companies enter the U.S. 
government/commercia1 marketplace; 
Develop and implement marketing strategies and sales distribution channels; 
Develop business and subcontracting, joint-marketing, sales 
representation, distribution, 
 and perform initial marketing activities to 
identify sales opportunities, prospects and to develop strategic action plans for the 
next steps; 
Arrange face-to-face meetingslevents between domestic and international business 
partners; and 
Manage customer s luding technical troubleshooting help, complaints, 
subscription and fees 
EAC 04 250 541 05 
Page 4 
The petitioner states that the proffered position requires knowledge normally associated with a baccalaureate 
degree in marketing or a related field. 
To make its determination whether the employment just described qualifies as a specialty occupation, the 
AAO turns to the criteria at 8 C.F.R. $ 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; and 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 Department of Labor's Occupational Outlook 
Handbook (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 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 Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 
I 102 (S.D.N.Y. 1989)). 
In her denial, the director, relying on the 2004-2005 edition of the Handbook, concluded that the duties of the 
proffered position were most closely aligned with those of a public relations specialist, not those of a market 
research analyst. Based on her review of the record, the director determined that the record failed to establish 
that the petitioner's business was of the type to hire a market research analyst. 
As discussed below, the AAO concurs in the director's finding that the proffered position is not that of a 
market research analyst. However, it finds the director to have erred in concluding that the petitioner is not 
engaged in the type of business that would require a marketing research analyst. In that the Handbook 
indicates that the work of marketing research analysts is concerned with the potential sales of products or 
services 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 a small online business providing government procurement information to its clients 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. Accordingly, the AAO withdraws the director's finding in 
this regard. 
Although the petitioner has given the proffered position the title of market analyst, its discussion of the 
position's duties does not align with that provided by the Handbook regarding the employment of market or 
marketing research analysts. Marketing research analysts gather statistical data on competitors; examine 
prices, sales, and methods of marketing and distribution; and analyze data on past sales to predict future 
sales.' Accordingly, the proffered position is not that of a market research analyst. 
On appeal, counsel offers a detailed description of the tasks that would be performed by the beneficiary in 
carrying out the duties previously described by the petitioner, emphasizing those needed to support the 
petitioner's Marketing Assistance Program and its connection to the Korean nonprofit/government agency 
and Small Business Corporation. She states that to carry out his duties in relation to the Marketing Assistance 
Program, the beneficiary would be required to identify and develop "business relationships with U.S. 
partnersldistribution channels to develop sales opportunitieslorders of Korean products." She further 
indicates that he would be required to develop relationships with appropriate marketing specialists or 
' Occupational Outlook Handbook, 2006-2007 Edition, at www.bls.gov/oco/ocosO13.htm. 
EAC 04 250 54105 
Page 5 
consulting companies that could help and lead the sales of Korean products in the United States, and would be 
expected to find appropriate U.S. business partners for Korean clients, identifying marketing targets, 
identifying, surveying and contacting potential buyers and demonstrating clients' products/solutions to these 
organizations.2 Moreover, the beneficiary would be required to produce marketing packages of clients' 
brochures, catalogs and presentation materials for U.S. promotion purposes. Therefore, although the 
petitioner has indicated that the beneficiary would also perform some limited customer service function, his 
role within the petitioner's organization, as presented by counsel, would be one of marketing the 
productslservices of Korean clients to U.S. vendors that contract with U.S. government agencies. 
While the AAO notes that counsel also states that the beneficiary would analyze product lines or industries in 
the U.S. government market to provide information on "supplemental trends and status, competition, list of 
major contractors and suppliers," this research activity is not described in terms that reflect the type of 
analyses performed by market researchers. Instead, as presented, it appears to indicate the collection, rather 
than the analysis, of industry-related information needed to support the petitioner's marketing activities. 
Accordingly, the AAO finds the proffered position, as described in the record, to outline responsibilities that 
describe the work of marketing managers and market research managers, employment discussed by the 2006- 
2007 Handbook under the occupational titles of advertising, marketing, promotions, public relations and sales 
managers. As reported by the Handbook: 
[Aldvertising, 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 in detail. With the help 
of subordinates, including product development managers and market research managers, 
they estimate the demand for products and services offered by the firm and its competitors. 
In addition, they identify potential markets . . . . Marketing managers develop pricing 
strategy to help firms maximize profits and market share while ensuring that the firm'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 they 
oversee product development. Marketing managers work with advertising and promotion 
managers to promote the firm's products and services and to attract potential users . . . . 
The AAO notes that the Internet job listing posted for the proffered position also describes the position as that 
of a marketing manager. 
With regard to the preparation required for employment as a marketing manager, the Handbook reports the 
following: 
Counsel's discussion of the specific tasks to be performed by the beneficiary is supported by the job 
description included in the job announcement submitted by the petitioner in response to the director's request 
for evidence. 
EAC 04 250 54105 
Page 6 
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. In highly technical industries, such as computer and electronics 
manufacturing, a bachelor's degree in engineering or science, combined with a master's 
3 
degree in business administration, is preferred. 
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 petitioner has not established the 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)(I) - a baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position. 
To establish a proffered position as a specialty occupation under the second criterion at 8 C.F.R. 
3 214.2(h)(4)(iii)(A), a petitioner must prove either that a specific degree requirement is common to the 
industry in parallel positions among similar organizations, or that the proffered position is so complex or 
unique that it can be performed only by an individual with a degree in the specific specialty. In the instant 
case, the petitioner has provided eight Internet job advertisements for marketing analysts as proof that its 
degree requirement for the proffered position is the norm within its industry. However, none of these 
announcements respond to the requirements of the criterion's first prong. Of the seven, none are published by 
organizations that are established as similar to the petitioner, an online provider of government procurement 
information. Neither do they describe positions that may be considered parallel to the proffered position. 
With regard to the second prong, the record offers no evidence that the proffered position may be 
distinguished from similar non-degreed employment based on its unique nature or complexity. Accordingly, 
the petitioner has not established the proffered position as a specialty occupation under either prong of the 
second criterion. 
The AAO next considers the criteria at 8 C.F.R. $5 214.2(h)(4)(iii)(A)(3) and (4): the employer normally 
requires a degree or its equivalent for the position; and 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 determine a petitioner's ability to meet the third criterion, CIS often reviews the position's employment 
history, including the names and dates of employment of those employees with degrees who previously held 
the position, as well as the petitioner's hiring practices with regard to similar positions. However, in the 
instant case, counsel, in response to the director's request for evidence, indicated that the proffered position is 
Occupational Outlook Handbook, 2006-2007 Edition, at www.bls.gov/ocoocos013 .htm.. 
EAC 04 250 54105 
Page 7 
newly created. Accordingly, the petitioner cannot establish that it normally requires a degree when filling the 
proffered position. 
The fourth criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature of its 
position's duties is so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a baccalaureate or higher degree. Therefore, to establish the proffered 
position as a specialty occupation, the petitioner must distinguish the duties to be performed by the 
beneficiary from those of a typical marketing manager, employment that the Handbook indicates does not 
normally impose a degree requirement. 
 I 
On appeal, counsel contends that the duties of the proffered position, particularly those related to the 
petitioner's Marketing Assistance Program, require not only that the beneficiary have marketing skills and 
knowledge but also have international business knowledge to be able to communicate with private industry 
clients and Korean government agencies and business associations. While the AAO agrees that the 
international nature of the petitioner's services could result in more complex marketing responsibilities, the 
record does not establish that the beneficiary would be required to have greater knowledge and skill than that 
possessed by other marketing managers who routinely work in highly complex and competitive environments. 
It does not address or document the type or extent of the international business knowledge that counsel states 
would be required of the beneficiary in connection with the petitioner's Korea-based clients. Without such 
evidence, counsel's assertions are not persuasive. Without documentary evidence to support the claim, the 
assertions of counsel are not sufficient to meet the petitioner's burden of proof. The assertions of counsel do 
not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 
I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
The Internet job listing for the proffered position also undermines the petitioner's ability to establish the 
proffered position as a specialty occupation under the fourth criterion. It indicates only that the petitioner 
would prefer a degree "related to marketing or having saleslmarketing experience in the U.S." not that it 
requires a degree for the proffered position. In that the petitioner has published a job announcement for the 
proffered position that does not require a degree in a directly related field, its contention that the duties of the 
position satisfy the specialized and complex threshold of the fourth criterion is not persuasive. Accordingly, 
the record does not establish the proffered position as a specialty occupation under the requirements at 
8 C.F.R. tj 214.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the petitioner has failed to establish that the proffered 
position qualifies as a specialty occupation under the requirements at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
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. 
5 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.