dismissed H-1B Case: Marketing

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship . 
and Immigration 
FILE: WAC 03 098 50426 Office: CALIFORNIA SERVICE CENTER Date: OCP 2 6 2005 
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 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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 098 50426 
Page 2 
DISCUSSION: The director of the 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 elderly home facility that seeks to employ the beneficiary as a marketing analyst. The 
petitioner, therefore, endeavors to classify the beneficiary as a nonirnmigrant worker in a specialty occupation 
pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
3 1 10 1 (ax1 5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
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 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)(4Xiii)(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. 
3 214.2(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 
WAC 03 098 50426 
Page 3 
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 marketing analyst. Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's support letter; 
and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail researching market conditions in the local and regional areas to 
identify approaches to increase income and to generate exposure; evaluating services to determine what to 
add to increase the facility's desirability; establishing methodologies and designing formats for data gathering, 
such as surveys and the development of questionnaires; examining and analyzing data to forecast future 
trends; gathering data on competitors and analyzing prices, methods of marketing, and public relations; 
identifying market sources and the expansion and retention of existing customer bases; collecting market data, 
customer preferences, and habits; implementing a structured strategic approach to ensure optimum market 
penetration with minimal expenditure; and reviewing costs, quality of service, and integrity of billing. 
Specifically, the beneficiary will develop and implement marketing strategies and plans designed to achieve 
census and mix goals; maintain ongoing contact with referral sources; develop and implement events and 
functions to attract prospective clients and referral sources; provide appropriate trend and activity reports; 
monitor marketing trends and competitors to ensure marketing strategies and plans meet marketing 
conditions; develop and prepare press releases, advertisements, brochures, flyers and other collateral materials 
which are appropriate for sales; and train and coordinate staff to serve as back up. The petitioner requires a 
bachelor's degree or its equivalent in business, marketing, commerce, or a related field. 
The director stated that many of the proposed duties reflect those of a market research analyst as that 
occupation is described in the Department of Labor's (DOL) Occupational Outlook Handbook (the 
Handbook). When determining whether a position qualifies as a specialty occupation, the director stated that 
the specific duties of the proposed position combined with the nature of the petitioning entity's business 
operations are factors that are considered, and that each position must be evaluated based on the nature and 
complexity of the job duties. The director stated that the beneficiary's degree in a related area does not 
guarantee that the proposed position is a specialty occupation; and that performing incidental specialty 
occupation duties is insufficient to establish that the proposed position is a specialty occupation. The director 
found that the petitioner is not in an industry in which market research analysts are employed, and that the 
petitioner did not have the organizational complexity to require the services of a market research analyst. The 
director concluded that the proposed position is analogous to a marketing manager; stated that the Handbook 
reveals that employers do not require a bachelor's degree in a specific specialty for this occupation; and found 
the submitted job postings unpersuasive in establishing that the proposed position is a specialty occupation. 
According to the director, the evidence of record was not persuasive to show that the job offered could not be 
performed by an experienced person whose educational training fell short of a baccalaureate degree. 
On appeal, counsel states that the director's decision is inconsistent in that the director determined that the 
proposed position is similar to a market research analyst, but denied the petition finding that the proposed 
position is not akin to a market research analyst. Counsel asserts that the proposed position differs from a 
marketing manager, but parallels a market research analyst. Counsel states that the director misinterprets the 
WAC 03 098 50426 
Page 4 
Handbook's information about a market research analyst. According to counsel, most of the beneficiary's 
time will be spent performing market research analyst duties, and counsel maintains that the Act and 
regulations do not require that every duty relate to a specialty occupation. Counsel states that market research 
analysts are employed in most industries; that the Handbook shows that the petitioner is in a suitable industry 
for this occupation; and that the Handbook is not exhaustive in its description of employers of market 
research analysts. Counsel asserts that the Act and regulations discuss specialty occupations without 
reference to an employer's size or nature. Counsel contends that CIS lacks the expertise to assess the 
petitioner's organization, business plans, and personnel needs. Counsel contends that the director failed to 
explain and support his contention that the proposed position is not a bona fide position. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
Counsel asserts that the Act and regulations describe specialty occupations without reference to the size or 
nature of the petitioner; and that CIS lacks the expertise to assess a petitioner's organization, business plans, 
and personnel needs. Counsel's assertion is not persuasive since CIS may evaluate evidence to corroborate 
assertions made by a petitioner, and to establish the nature of a position in the context of a petitioner's 
business to determine whether the beneficiary is coming to the United States to perform duties in a specialty 
occupation. Section 10 1 (a) of the Act, 8 U.S.C. 5 1 101 (a)(lS)(H)(i)(b). 
Counsel asserts that the proposed position is analogous to a market research analyst. The Handbook depicts 
a market research analyst as concerned with the potential sales of a product or service. Essentially, they 
analyze statistical data to predict future sales, gather data on competitors and analyze prices, sales, and 
methods of marketing and distribution, and devise methods and procedures for obtaining the data they need. 
The petitioner states that the beneficiary will assist in the petitioner's "needs and growth plans"; the job 
description states that the petitioner seeks to "increase the desirability of our facility"; and have the 
beneficiary identify "new market sources as well as expansion and retention of existing customer bases" and 
"attract prospective clients and/or referral sources." The AAO finds these assertions unpersuasive in 
establishing that the proposed position is a specialty occupation as no evidence in the record corroborates the 
petitioner's assertions. The submitted license for the petitioner's residential-elderly facility indicates that the 
facility is limited in capacity to six occupants. Thus, this evidence fails to demonstrate that the services of a 
market research analyst will be employed, for example, to assist in the petitioner's need to "increase the 
desirability" of its six person facility or to expand and retain existing customers. No expansion plans appear 
of record. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In his denial, the director questioned the petitioner's need for the services of a market analyst. The AAO does 
not agree with the director's conclusions regarding the industries in need of market research analysts. Based 
on the discussion of the occupation in the 2004-2005 edition of the Handbook, it concludes that such analysts 
may reasonably be found in virtually every industry and business seeking to enhance the sales of its products 
WAC 03 098 50426 
Page 5 
and/or services. However, the AAO does share the director's concerns regarding the employment that has 
been described by the petitioner. 
The Handbook, at page 173, states the following with regard to the employment of marketing research 
analysts: 
Market, or marketing, research analysts are concerned with the potential sales of a product or 
service. They analyze statistical data on past sales to predict future sales. They gather data 
on competitors and analyze prices, sales, and methods of marketing and distribution. Market 
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 discussion, 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 . . . . 
Because of the applicability of market research to many industries, market research analysts 
are employed in most industries.. . . 
The occupation of a market research analyst is a specialty occupation, normally requiring those seeking entry- 
level employment to have a master's degree in a related field. However, while the petitioner has identified its 
position as that of a market research analyst, its description of the beneficiary's duties lacks the specificity 
and detail necessary to support the petitioner's contention. 
At the time of filing, the petitioner offered a generic description of the beneficiary's market research duties, 
one that appeared to describe the occupation of market research analyst rather than the proffered position. 
The director found this description insufficient to establish the position as a specialty occupation and asked 
for further information, specifically requesting a more detailed description of the job duties. In response, the 
petitioner provided the same generic description of the beneficiary's market research duties. The petitioner 
failed to offer a detailed description of the beneficiary's duties within the petitioner's business, other than in 
general terms, e.g., "designing and implementing surveys to assess consumer preferences in the 
seniorlnursing care industry in the United States"; "coordinate staff members to assist in market research 
polling and marketing and public relations programs"; "advise management on current market trends and 
future predictions; determine advisability of increasing business." 
On appeal, counsel contends that the very similarity between the petitioner's description of its proffered 
position and the Handbook's discussion of the occupation of market research analyst should be a basis for 
approval. The AAO does not agree. A petitioner cannot establish its employment as a specialty occupation 
by describing the duties of that employment in the same general terms as those used by the Handbook in 
WAC 03 098 50426 
Page 6 
discussing an occupational title, e.g., a market research analyst establishes research methodologies or 
performs market analyses. This type of generalized description is necessary when defining the range of duties 
that may be performed within an occupation, but cannot be relied upon by a petitioner when discussing the 
duties attached to specific employment. In establishing a position as a specialty occupation, a petitioner must 
describe the specific duties and responsibilities to be performed by a beneficiary in relation to its particular 
business interests. 
In the instant case, the petitioner has offered no description of the duties of its proffered position beyond the 
generalized outline it provided at the time of filing. It cannot, therefore, establish that the position meets any 
of the requirements for a specialty occupation set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A). CIS must examine 
the actual employment of an alien, i.e., the specific tasks to be performed by that alien, to determine whether a 
position qualifies as a specialty occupation. However, the petitioner's description of the duties of its position 
is so generic that it is not possible to identify those tasks and, therefore, whether the position is that of a 
market research analyst. Further, without a reliable description of the position's duties, the AAO is unable to 
determine whether the performance of those duties meets the statutory definition of a specialty occupation -- 
employment requiring the theoretical and practical application of a body of highly specialized knowledge and 
the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for 
entry into the occupation. As a result, the AAO finds the petitioner has failed to establish that it has a 
specialty occupation for which it is seeking the beneficiary's services. 
The AAO's conclusion, from the evidence to which it has referred, is that the petitioner fails to establish that 
the beneficiary is coming temporarily to the United States to perform services in a specialty occupation as 
required by the regulation at 8 C.F.R. 5 214.2(h)(l)(ii)(B)(l). As such, the petitioner satisfies none of the 
criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A): that a baccalaureate or higher degree or its equivalent in a specific 
specialty is the normal minimum requirement for entry into the particular position; a specific degree 
requirement is common to the industry in parallel positions among similar organizations; the proffered 
position is so complex or unique that it can be performed only by an individual with a degree; the petitioner 
normally requires a degree or its equivalent for the position; or the nature of the specific 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. 
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 on this 
ground. 
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.