dismissed H-1B Case: Marketing

U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 03 161 505 12 Office: CALIFORNIA SERVICE CENTER  ate: 5f-; 1 9 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 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 materials 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 03 161 50512 
Page 2 
DISCUSSION: The service center director denied the nonirnrnigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a restaurant delivery business. It seeks to employ the beneficiary as an account manager 
and to classify him as a nonimrnigrant worker in a specialty occupation pursuant to section 
10l(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the grounds that the record failed to establish that the proffered 
position is a specialty occupation and that the beneficiary is qualified to perform the services of a 
specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 3 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. 
As provided in 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. 
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 evidence (RFE); (3) the petitioner's response to the RFE; (4) the notice of decision; 
and (5) Form I-290B, an appeal brief, and supporting materials. The AAO reviewed the record in its 
entirety before issuing its decision. 
WAC 03 161 50512 
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On Form 1-129 and an accompanying letter the petitioner described itself as a delivery service for 
restaurants to off-site customers. The petitioner stated that it started operations in January 2000, had 16 
employees and gross annual income of $3.5 million at the time the instant petition was filed, and 
proposed to hire the beneficiary as a part-time account manager (20 hourslweek) to perform the following 
duties: 
Research and evaluate existing restaurants and perform industry competitor analysis - 
5 hourslweek. 
Identify prospective restaurants and develop strategies to minimize penetration - 
4 hourslweek. 
Oversee developments or monitor trends that indicate the need for new services - 
2 hourslweek 
Analyze statistics to determine potential requirements and monitor the preferences of 
clients/customers - 3 hourslweek. 
Implement strategies decided upon by management - 2 hourslweek. 
Develop strategic partnerships and work plan to conduct planning assignment - 
4 hourslweek. 
In response to the RFE the petitioner provided the following description of the proffered position: 
Will communicate with the various restaurants in a professional manner, research market 
conditions, conduct organizational assessment to establish goals, objectives, 
specifications for clients, advise clients of issues facing organization that may influence 
the engagement; support the consulting process and be responsible for the accounts 
profitability. 
According to the petitioner, the proffered position is a combination of two occupational categories 
described in the Department of Labor (D0L)'s Occupational Outlook Handbook (Handbook) - a 
marketing manager and a market research analyst. Both occupations require a bachelor's degree for entry 
level positions, the petitioner asserts, thus qualifying the proffered position as a specialty occupation. The 
petitioner states that the beneficiary is qualified for the position by virtue of his baccalaureate level course 
of study, concentrating in insurance, which he completed in May 2000 at the Dimitar Apostolov Tzenov 
Academy of Economy in Svishtov, Bulgaria. 
In his decision the director determined that the duties of the proffered position reflected those of a 
marketing manager, as described in the DOL Handbook, rather than the duties of a market research 
analyst. The director quoted excerpts from the Handbook indicating that a baccalaureate level of study in 
a specific specialty is not the normal, industry-wide minimum requirement for entry into that occupation. 
No evidence was submitted that a degree in a specific field of study is common to the petitioner's 
industry in parallel positions among similar organizations, that the proffered position is so complex or 
unique that a specialty degree was required to perform it, or that the petitioner normally requires a degree 
in a specific specialty or its equivalent for the position of account manager. Nor did the record establish 
that the duties of the proffered position are so specialized and complex that they could only be performed 
by an individual with baccalaureate level knowledge in a specific specialty. The director concluded that 
the proffered position did not meet any of the alternative criteria enumerated at 8 C.F.R. § 214.2 
WAC 03 161 50512 
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(11)(4)(iii)(A) to qualify as a specialty occupation. The director also found that the beneficiary was not 
qualified to perform the services of a specialty occupation because the record failed to establish that the 
beneficiary's foreign education, or his combination of foreign education and experience, is equivalent to a 
U.S. baccalaureate or higher degree in a specific specialty. 
In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, 
CIS routinely consults the DOL Handbook as an authoritative source of information about the duties and 
educational requirements of particular occupations. Factors typically considered are whether the 
Handbook indicates a degree is required by the industry; 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, 1165 (D.Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 
764 F.Supp. 1095, 1 102 (S.D.N.Y. 1989)). CIS also analyzes the specific duties and complexity of the 
position at issue, with the Handbook's occupational descriptions as a reference, as well as the petitioner's 
past hiring practices for the position. See Shanti, Inc. v. Reno, id., at 1165-66. 
On appeal counsel argues that regardless of whether the proffered position is categorized as a market 
research analyst or a marketing manager, the Handbook indicates that a baccalaureate degree is required 
to enter both occupational fields, thereby making the proffered position a specialty occupation under 
8 C.F.R. tj 214.2(h)(4)(iii)(A)(I). Counsel also contends that the proffered position qualifies as a 
specialty occupation under the alternative criteria at 8 C.F.R. tj 214,2(h)(4)(iii)(A)(2), (3), and (4), though 
no new documentation has been submitted. In addition, counsel asserts that the beneficiary's education 
is equivalent to a baccalaureate degree in marketing, thereby qualifying him to perform the services of the 
proffered position. 
In the appeal brief counsel asserts that the petitioner has 116 employees, not 16 as stated by the director in 
the decision, "as evidenced by the organizational charts previously submitted with the response to the 
[RFE]." In fact, the only organizational chart submitted with the RFE shows just 14 employees, while a 
separate employee list submitted with the RFE identifies only ten employees. On Form 1-129 the 
petitioner stated that it had 16 employees. It is incumbent upon a petitioner to resolve any inconsistencies 
in the record by independent objective evidence. Attempts to explain or reconcile such illconsistencies 
will not suffice without competent evidence pointing to where the truth lies. See Matter of Ho, 19 I&N 
Dec. 582, 591-92 (BIA 1988). Moreover, doubt cast on any aspect of a petitioner's proof may lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence. Id. 
The occupation of market research analyst is described in the Handbook, 2004-05 edition, at 173: 
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 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. 
WAC 03 161 50512 
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After compiling the data, market research analysts evaluate it 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. 
In determining the nature of a particular position, and whether it qualifies as a specialty occupation, the 
duties that will actually be performed are critical, not the title of the position. The petitioner must show 
that the performance demands of the position normally require a degree in a specialty for entry into the 
position. The critical issue is not the employer's self-imposed standard, 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 a minimum for entry into the 
occupation. CJ: Defensor v. Meissner, 201 F.3d 384,387-88 (5th Cir. 2000). 
The AAO agrees with the director that the evidence of record does not establish that the duties of the 
proffered position are those of a market research analyst. The job description does not clearly indicate 
that the beneficiary would be performing typical market research duties such as devising methods and 
procedures for obtaining needed data, designing surveys, and conducting them by telephone, over the 
Internet, or in person. The petitioner's description of the proffered position contains only general 
references to "research[ing] and evaluat[ing] existing restaurants" or "market conditions" and 
"analyz[ing] statistics" without indicating how the research and analysis would be conducted. The 
research techniques utilized by market research analysts involve more complex tasks than are evident in 
the duties of the proffered position. 
The AAO agrees with the director that the proffered position falls within the Handbook's occupational 
category of marketing managers. As described in the Handbook, id., at 23: 
Marketing managers develop the firm's detailed marketing strategy. . . . [Tlhey 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 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. . . . [Tlhey monitor trends that indicate the need for 
new products and services and oversee product development. Marketing managers work 
with advertising managers to promote the firm's products and services and to attract 
potential users. 
With respect to the educational requirements of a marketing manager, the Handbook states as follows: 
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 
WAC 03 161 50512 
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degree in sociology, psychology, literature, journalism, or philosophy, among other 
subjects, is acceptable. 
Id. at 24. As the Handbook clearly indicates, a baccalaureate or higher degree in a specific specialty is 
not the normal, industry-wide requirement for entry into a marketing manager or sales manager position. 
Many employers give favorable consideration to a broad spectrum of degrees in hiring a marketing 
manager. Thus, a marketing manager does not meet the first alternative criterion of a specialty 
occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l), because a baccalaureate or higher degree in a specific 
specialty is not the normal minimum requirement to enter into such a position. 
As for the second alternative criterion of a specialty occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2), there 
is no evidence in the record that a degree requirement in a specific specialty is common to the petitioner's 
industry in parallel positions among similar organizations. Nor does the evidence of record demonstrate 
that the proffered position is so complex or unique that a degree in a specific specialty is required to 
perform the job. Accordingly, the proffered pisition does not qualify as a specialty occupation under 
either prong of 8 C.F.R. 5 214.2 (h)(4)(iii)(A)(2). 
As for the third alternative criterion of a specialty occupation, the proffered position is newly created and 
the petitioner has no hiring history for it. Accordingly, the petitioner cannot demonstrate that it normally 
requires a baccalaureate or higher degree in a specific specialty or its equivalent for the position, as 
required for it to qualify as a specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
Finally, the evidence of record does not show that the duties of the proffered position are so specialized 
and complex that they require baccalaureate or higher level knowledge in a specific specialty. 
Accordingly, the proffered position does not meet the fourth alternative criterion of a specialty occupation 
at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
For the reasons discussed above, the position proffered by the petitioner does not qualify as a specialty 
occupation under any of the criteria enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(A). Thus, the petitioner has 
not established that the beneficiary will be coming temporarily to the United States to perform services in 
a specialty occupation, as required under section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 5 1101 
(a>( l5)(H)(i>(b>. 
Since the proffered position is not a specialty occupation, the issue of the beneficiary's qualifications to 
perfom the services of a specialty occupation is inconsequential in deciding the instant appeal. 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: The appeal is dismissed. The petition is denied.