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 
Services 
FILE: WAC 04 005 50002 Office: CALIFORNIA SERVICE CENTER Date: JAN 0 $ Iff 
IN RE: Petitioner: 
Beneficiary: 
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 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. 
WAC 04 005 50002 
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 a garment manufacturing company that seeks to employ the beneficiary as a marketing 
manager. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant 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. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on two independent grounds, namely, that the petitioner had failed to 
establish (1) that the proposed position qualifies for classification as a specialty occupation, and (2) that the 
beneficiary is qualified to perform the duties of 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 counsel's July 20, 2004 letter that was submitted 
with it. 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. 9 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. 5 214.2(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. 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 
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(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. 
§ 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. 
The petitioner's September 9,2003 letter of support stated that the beneficiary would divide her work time as 
follows: forty percent developing the company's marketing strategy; thirty percent conducting research and 
determining the demand for the services offered by the company and its competitors, and developing 
retention and solicitation strategies with an eye toward maximizing the company's share of the market and 
profits while ensuring that customers are satisfied; and the remaining thirty percent monitoring trends that 
indicate the need for new services and developing strategies to address the trends together with other 
marketing staff; working collaboratively with advertising executives toward implementing the ideas 
developed as a result of the trends study; and serving as a liaison between the company and the advertising 
agencies contracted by the company. 
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 particularoccupations. 
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 
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. 
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 
>. 
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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. 
5 214.2(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 AAO also notes that the petitioner finds a bachelor's degree of business administration acceptable for the 
proffered position, which precludes it from establishing the position as a specialty occupation under 8 C.F.R. 
5 214.2(h)(4)(iii)(A)(l). The AAO notes that the petitioner submitted an educational evaluation from the 
Global Education Group (Global) in its initial submission. The Global evaluator determined that the 
beneficiary's foreign degree is equivalent to a bachelor's degree in business administration from an 
accredited institution of higher education 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 
Associates, 19 I&N Dec. 558 (Cornrn. 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. 5 214.2(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 alternative prong of 8 C.F.R. 
5 214.2(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. 
The AAO has reviewed the job postings submitted by counsel. Counsel, however, has failed to consider the 
specific requirements at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2) for establishing a baccalaureate or higher degree as 
an industry norm. To meet the burden of proof imposed by the regulatory language, a petitioner must 
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establish that its degree requirement exists in parallel positions among organizations similar to the petitioner. 
The petitioner must also establish that the degree commonly required is in a specific specialty. 
There is no evidence in the record to establish that any of the job postings are from companies similar in size 
and scope of operations to the petitioner, a garment manufacturer with thirteen employees. Washington 
Mutual is a financial services company, KPMG is an accounting firm, and Ararnark provides managed 
services in food, facility and other support services, and uniform and career apparel. No information is 
submitted regarding Natrol, Inc. 
Accordingly, the proposed position does not qualify as a specialty occupation under the first prong of 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
The second prong of 8 C.F.R. 5 214.2(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 more 
complex or unique than marketing manager positions at other, similar organizations. 
Therefore, the petitioner has not established that the proposed position qualifies as a specialty occupation 
under either prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(Z). 
Nor does the proposed position qualify as a specialty occupation under 8 C.F.R. 5 214.2(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. No 
evidence has been submitted, nor has the petitioner contended, that the position qualifies as a specialty 
occupation under this criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(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. 5 214.2(h)(4)(iii)(A)(4). 
Finally, counsel contends that the petition should be approved because the beneficiary "was previously 
accorded H-1B status to engage in essentially the same occupation as the one in this case." However, 
each nonirnmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. 
5 103.2(b)(16)(ii). If the previous petition was approved based upon the same evidence contained in this 
record, that 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 
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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. Montgomery, 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 nonimmigrant petition 
on behalf of this beneficiary, 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.), afSd, 248 F.3d 
1 139 (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 four criteria set forth at 8 C.F.R. $5 214.2(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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
$ 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.