dismissed H-1B Case: Marketing

PreVen t clearly unwmted 
invasion of mnal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: WAC 04 229 50285 Office: CALIFORNIA SERVICE CENTER Date: wR 2 7 ZoClfi 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and ~ationaiit~ Act, 8 U.S.C. § 1 10 l(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. 
%d~w 
A Robert P. Wiemann. D ec 
/ Administrative ~~kals 0fXce 
WAC 04 229 50285 
Page 2 
DISCUSSION: The 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 importer and wholesaler of casters that seeks to employ the beneficiary as a marketing 
specialist/director. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant 
worker in a specialty occupation pursuant to section 10l(a)(l 5)(H)(i)(b) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 9 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the basis that the petitioner had failed to prove that the proposed position 
qualifies for classification as a specialty occupation. 
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's RFE response and supporting documentation; 
(4) the director's denial letter; and (5) the Form I-290B and supporting documentation. The AAO reviewed 
the record in its entirety before issuing its decision. 
Section 214(i)(l) of the Immigration and Nationality Act (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. 
The term "specialty occupation" is further defined at 8 C.F.R. $ 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. fj 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 
WAC 04 229 50285 
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 criteria at 8 C.F.R. 
!j 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 proposed position. 
Counsel's attachment to the Form 1-129 stated that the beneficiary would gather and analyze data regarding 
sales trends for various types of company products; meet with customers to detemine their needs; discuss 
and review new products made by the company and its competitors; analyze alternative pricing structures; 
generate demand and profit-per-item studies; and prepare reports to senior management in Korea and the 
United States regarding products, prices, and sales strateges. 
In his October 8, 2004 response to the director's request for a more detailed description of the duties of the 
proposed position, counsel repeated the duties listed supra and offered percentages of time that the 
beneficiary would spend on each task. Counsel also stated the following: 
There is often very little to distinguish the company casters and prices fi-om those of their 
competitors and the company's marketing and sales efforts therefore have to create 
innovative ways and means of persuading customers to buy the company products. This 
means that the Marketing Director must do detailed marketing studies to determine what 
factors influence the customer's decision to buy, other than price and quality. Once these 
factors have been determined, then a marketing and sales plan must be created and 
implemented to persuade the customers that the company can and will meet their 
expectations regarding each of these factors, thereby distinguishing the company from its 
competitors, at least in this way. 
In determining whether a proposed position qualifies as a specialty occupation, 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. The AAO routinely consults the 
Department of Labor's Occupational Outlook Handbook (the Handbook) for its information about the 
duties and educational requirements of particular occupations. 
The director found the duties of the proposed position similar to those of a marketing manager, as that 
position is described in the Handbook. On appeal, counsel refers to the proposed position as a marketing 
manager. 
The Handbook's discussion of the duties of advertising, marketing, promotions, public relations, and sales 
managers states the following: 
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-for example, business firms, 
wholesalers, retailers, government, or the general public. Marketing managers develop 
WAC 04 229 50285 
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pricing strategy with an eye towards maximizing the firm's share of the market and its 
profits 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 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 Handbook states the following with regard to the educational qualifications required for marketing 
managers: 
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. A bachelor's 
degree in sociology, psychology, literature, journalism, or philosophy, among other 
subjects, is acceptable. However, requirements vary, depending upon the particular job. 
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. . . . 
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. In small firms, where the 
number of positions is limited, advancement to a management position usually comes 
slowly. In large firms, promotion may occur more quickly. 
Thus, the proposed position does not qualify for classification as a specialty occupation under 8 C.F.R. 
9 214.2(h)(4)(iii)(A)(I), which requires a showing that a baccalaureate or higher degree in a specific specialty 
or its equivalent is normally the minimum requirement for entry into the type of position being proffered. 
The Handbook indicates that most marketing manager positions are filled on the basis of experience (most 
positions "are filled by promoting experienced staff or related professional personnel"). Moreover, the fact 
that some employers "prefer" a degree or that individuals possessing degrees "should have the best job 
opportunities" does not rise to this criterion's standard of employers normally requiring at least a bachelor's 
degree or its equivalent in a specific specialty. As such, marketing managers do not qualify as specialty 
occupations under the first criterion. 
The MO also notes that the petitioner finds acceptable for the proposed position a generalized bachelor's 
degree in business administration without a major or concentration in marketing or other specialized business 
areas. This precludes the petitioner from establishing the position as a specialty occupation under 8 C.F.R. 
9 214.2@)(4)(iii)(A)(I). The MO notes that the petitioner submitted an educational evaluation from the 
Foundation for International Services, Inc. (FIS) in its initial submission. The FIS evaluator determined that 
the beneficiary's foreign degree is equivalent to a bachelor's degree in business administration from a 
regionally accredited college or university in the United States. However, when a range of degrees, e.g., the 
liberal arts, or a degree of generalized title without further specification, e.g., business administration, can 
perform a job, the position does not qualify as a specialty occupation. See Matter of Michael Hertz 
WAC 04 229 50285 
Page 5 
Associates, 19 I&N Dec. 558 (Cornm. 1988). To prove that a job requires the theoretical and practical 
application of a body of specialized knowledge as required by Section 214(i)(l) of the Act, a petitioner must 
establish that the position requires the attainment of a bachelor's or higher degree in a specialized field of 
study. As noted previously, CIS interprets the degree requirement at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(I) to 
require a degree in a specific specialty that is directly related to the proposed position. 
Nor does the proposed position qualify as a specialty occupation under either prong of 8 C.F.R. 
tj 214.2(h)(4)(iii)(A)(2). The first prong of this regulation requires a showing that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. No evidence to 
satisfy this prong has been submitted. 
The second prong of 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2) requires the petitioner to prove that the duties of the 
proposed position are so complex or unique that only an individual with a degree can perform them. The 
nature of the duties of the proposed position as set forth in the petition does not support such a finding, as 
they are similar to those of marketing managers as discussed in the Handbook, which do not require a 
degree. The record contains no documentation to support a finding that the proposed position is so complex 
or unique that, in contrast to many marketing positions with no degree requirement, it can only be performed 
by an individual with at least a bachelor's degree, or its equivalent, in a specific specialty. 
Therefore, the petitioner has not established that the proposed position qualifies as a specialty occupation 
under either prong of 8 C.F.R. 9 214.2(h)(4)(iii)(A)(2). 
Nor does the proposed position qualify as a specialty occupation under 8 C.F.R. $ 214.2(h)(4)(iii)(A)(3), 
which requires a showing that the petitioner normally requires a degree or its equivalent for the proposed 
position. To determine a petitioner's ability to meet this criterion, the AAO normally reviews the petitioner's 
past employment practices, as well as the histories, including names and dates of employment, of those 
employees with degrees who previously held the position, and copies of those employees' diplomas. 
Moreover, one previous hire by the petitioner would not establish a course of normal employment, as 
required by this criterion. 
In his response to the director's request for evidence and on appeal, counsel asserted that the petitioner 
normally requires a degree for the proposed position, and states that the previous marketing manager held a 
bachelor's degree in marketing. However, as noted by the director in the denial, the petitioner has offered no 
evidence to support this assertion. Simply going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
On appeal, counsel again fails to provide this evidence. Counsel states the following: 
No request was made for any documentation from the employer to support these 
statements [that the petitioner normally requires a degree]. If the RFE had wanted these 
materials, it should have asked for it. It didn't. Having said nothing about 
documentation, it made no sense that one of the reasons that was given in the decision for 
denying the petition was that the employer did not provide the names of the employer's 
previous marketing managers, proof of their employment[,] and evidence of their 
educational background. 
WAC 04 229 50285 
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However, as noted above, counsel has still not provided documentary evidence to support his assertion 
that the employer normally requires a degree for the position. Even if the director committed a 
procedural error by failing to specifically request this evidence, it is not clear what remedy would be 
appropriate beyond the appeal process itself. The petitioner has in fact supplemented the record on appeal 
and declined to submit this evidence. It would therefore serve no useful purpose to remand the case 
simply to afford the petitioner another opportunity to supplement the record with this evidence. 
The record still lacks evidence to support counsel's claim. Without documentary evidence to support the 
claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported 
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). 
Accordingly, the proposed position does not qualify as a specialty occupation under 8 C.F.R. 
fj 214.2@)(4)(iii)(A)(3). 
The AAO next turns to the criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(4), which requires a demonstration 
that 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 of the proposed position 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. There is no information in the record to support a 
finding that the proposed position is more specialized and complex than the general range of marketing 
manager positions for which the Handbook indicates no requirement for the highly specialized knowledge 
associated with at least a bachelor's degree in a specific specialty. Therefore, the evidence does not 
establish that the proposed position is a specialty occupation under 8 C.F.R. fj 214.2(h)(4)(iii)(A)(4). 
On the Form I-290B, counsel asserted that CIS has approved petitions similar to the one at issue in this 
proceeding. However, each nonimrnigrant petition is a separate proceeding with a separate record. See 
8 C.F.R. fj 103.2(b)(16)(ii). If the previous petitions were approved based upon the same evidence 
contained in this record, their approval would constitute material and gross error on the part of the 
director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Cornm. 1988). It would be absurd to suggest 
that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomely, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director did approve a nonirnmigrant petition 
similar to the one at issue here, the AAO would not be bound to follow the contradictory decision of a 
service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 
1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 5 1 (2001). 
The petitioner has failed to establish that the position qualifies for classification as a specialty occupation 
under any of the criteria set forth at 8 C.F.R. fjfj 214.2(h)(4)(iii)(A)(I), (2), (3), and (4). Therefore, the 
beneficiary's qualifications to perform the duties of the proposed position are immaterial. Accordingly, 
the AAO will not disturb the director's denial of the petition. 
WAC 04 229 50285 
Page 7 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
€J 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.