dismissed H-1B Case: Marketing

U.S. Department of Homeland Security 
20 ~asszichusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 03 145 5 1697 Office: CALIFORNIA SERVICE CENTER Date: &L 8-"d"" 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 llOl(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 03 145 5 1697 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before 
the Administrative Appeals Off~ce (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is an Asian supermarket that seeks to employ the beneficiary as a marketing specialist. The 
petitioner endeavors to classify the beneficiary as a nonimmigrant 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. 8 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, the 
petitioner submits a brief. 
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: 
(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. 
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. Cf Defensor v. Meissner, 201 
F. 3d 384 (5th Cir. 2000). The critical element is not the title of the position or an employer's self-imposed 
WAC 03 145 5 1697 
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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) FO~ 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 a market research analyst. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's April 4, 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: analyzing and researching demographic market conditions to develop a detailed 
marketing strategy, specifically targeting international clientele; negotiating contracts; and analyzing market 
trends and market channels for Asian ethnic goods. The petitioner indicated that a qualified candidate for the 
job would possess a bachelor's degree in business administration or a related field, and one to two years of 
experience. 
The director found that the proffered position was not a specialty occupation, because the duties were most 
like those of a marketing manager, which the director found did not require a bachelor's degree. 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 director determined that the petitioner was too small to support a 
market research analyst position, and reclassified the position as a marketing manager. According to the 
petitioner, the two job descriptions parallel each other. The petitioner states that even if the director were 
correct in characterizing the proffered position as a marketing manager, he misstated the information from the 
Department of Labor's Occupational Outlook Handbook (Handbook) regarding the educational requirements 
for the position. The petitioner also asserts that the director ignored the petitioner's evidence from the 
Internet regarding the industry standard for market research managers. 
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. 
The AAO turns first to the criteria at 8 C.F.R. 5 214.2(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; 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 fm or individuals in the industry attest that such firms "routinely employ 
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and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) 
(quoting HirdBlaker Cop. v. Suva, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
In his denial, the director, relying on the Handbook, concluded both that the duties of the proffered position 
were not those of a marketing research analyst and 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 a supermarket 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. 
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 director requested the petitioner to "[p]rovide a detailed description of the work done, including 
specific job duties, the percentage of time to be spent on each duty [and] level of responsibility," counsel 
responded by providing a copy of the petitioner's original letter of support, with no additional information 
about the position description. While the petitioner indicated that the beneficiary would analyze and research 
demographic market conditions, it offered no discussion of whether such research would be original in nature, 
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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 fm 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 fm'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 . . . . 
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 . . . . 
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The petitioner states on appeal that the director failed to consider that the Handbook states, "[Slome 
employers prefer a bachelor's or master's degree in business administration with an emphasis on marketing." 
This, however, does not establish that the industry standard is for such a degree. 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. 
3 214.2(h)(4)(iii)(A). 
Regarding parallel positions in the petitioner's industry, the petitioner submitted several Internet job postings 
for marketing managers. 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. In addition, the postings 
do not indicate that the required bachelor's degree must be in a specific specialty. 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. $ 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. There is no evidence in the record regarding the petitioner's past hiring 
practices. 
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 the 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. 3 214.2(h)(4)(iii)(A)(4). 
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. 
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.