dismissed H-1B Case: Marketing

adentifyi~g dab ddeMt It; 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 066 53448 Office: CALIFORNIA SERVICE CENTER Date: m868% 
PETITION: Petition for a  oni immigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 1 10 l(a)(l S)(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 04 066 53448 
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 provides personal health and wellness services, It seeks to employ the beneficiary as a copy 
and newsletter writer. The petitioner, therefore, endeavors twlassify the beneficiary as a nonimmigrant worker 
in a specialty occupation pursuant to section 10 1 (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 because the prdfered position is not a specialty occupation. On appeal, 
counsel submits a brief and additional evidense. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(lg defines the term "specialty occupation" as an occupation 
that requires: 
(A) theoretical and practical application ofa 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 occupa$ion in the United States. 
Pursuant to 8 C.F.R. 9 214.2@)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum requirement 
for entry into the particular position; 
I 
(2) The degree requirement is common to the industry in parallel positions among similar 
organizations or, in the alternative, an employer may show that its particular position is 
so complex or unique that it can be performed only by an individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific (duties is so specialized and complex that knowledge required 
to perform the duties is usually associated with the attainment of a baccalaureate or 
higher degree. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
9 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is 
directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
WAC 04 066 53448 
Page 3 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as 3 copy and newsletter writer. Evidence of the 
beneficiary's duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's 
support letter; and the petitioner's response to the director's request for evidence. According to this evidence, 
the beneficiary would perform duties that entail researching, writing an$ editing newsletters, promotional 
articles, and informative materials for promoting products and services. The petitioner's response to the 
request for evidence elaborated on the proposed duties. In the 'response, for example, the beneficiary is 
described as researching data and information regarding the culture -and customs of a specific audience using 
communication techniques; then evaluating the gathered informatibn and' data to assess the value and 
importance that the audience attributes to health and wellness. For the proposed position the petitioner 
requires a bachelor's degree, or its equivalent, in the liberal arts, English, communication, or a related field. 
The director stated that the evidentiary record fails to establish that the petitioner has the necessary size and 
scope to require the full-time services of a copy/newsletter writer for three years; and that performing 
incidental specialty occupation duties fail to establish that' a position is a specialty occupation. The director 
found that the proposed duties resemble those of advertising, marketing, promotions, public relations, and 
sales managers; and that the Handbook indicates that those positions do not require a bachelor's degree in a 
specific specialty. According to the director, the evidence failed to show that the proposed position could not 
be performed by an experienced person whose educational training fell short of a bachelor's degree. 
i 
counsel states that the submitted evidence of letters from Kip Morrison and Associates, mu- MS-, an-~nstitute show that the proposed position requires a 
degree, and that the petitioner requires and previously used the sewrccs -of a copy and newsletter 
writer. Counsel emphasizes that small businesses require the services of a copy and newsletter writer; 
counsel discusses the proposed duties, stating that they are complex and specialized and that they differ from 
those of an advertising, marketing, promotions, public relations, and sales manager. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
8 2 14.2@)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO first considers the criteria at 8 C.F.R. $9 214.2(h)(4)(ii-i)(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 often 
considered by CIS when determining these criteria include: whether the Handbook reports that the industry 
requires a degree; whether the industry's professional association has made a degree a minimum entry 
requirement; and whether letters or affidavits fi-om firms or individuals in the industry attest that such finns 
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 
@.Minn. 1999)(quoting HirdBlaker COT. v. Sava, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
WAC 04 066 53448 
Page 4 
In determining whether a 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 gupporting 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 Hmdbook for its information about the 
duties and educational requirements of particular occupations. 
The Handbook reveals that the proposed duties are a combination of those of a marketing manager and a 
copywriter. The Handbook depicts a marketing manager as follQws: 
Marketing managers develop the firm's detailed marketing strategy. With the help of 
subordinates, including product development managers an"d'parket 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 sf 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. 
A copywriter is described in the Handbook as preparing "advertising copy for use by publication or broadcast 
media or to promote the sale of goods and seli.,ices." 
The Handbook reports that a bachelor's degree in a speczjk specialty is not required for a marketing manager; 
and the AAO recapitulates here the Handbook's text about the educational requirements of writers: 
% 
A college degree generally is required for a position as a writer or editor. Although some 
employers look for a broad liberal arts backgrobd, most prefer to hire people with degrees in 
communications, journalism, or English. For those who specialize in a particular area, such as 
fashion, business, or legal issues, additional' background in the chosen field is expected. 
Knowledge of a second language is helpful for some positions. 
Because the Handbook discloses that a baccalpureate degree in a speciJic specialty is not required for a 
marketing manager and a copywriter, the proposed position, which is similar to these occupations, would also 
not require a bachelor's degree in a specific spec~alty. 
Based on the above discussion, the petitioner fails to satisfy the first criterion at 8 C.F.R. 
8 2 14.2(h)(4)(iii)(A), which is that a baccalaureate or higher degree or its equivalent in a specific specialty is 
the normal minimum requirement for entry into the particular position. 
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Page 5 
The petitioner submits a letter from Sargon Dental Instl'tute to establish the first alternative prong at 8 C.F.R. 
tj 214.2(h)(4)(iii)(A)(2) - that a specific degree requirement is common to the ipdustry in parallel positions 
among similar organizations. The letter from Sargon Dental Institute asserts that the institute hires people 
with baccalaureate degrees as copywriters or medical writers. The AAO observes that the letter does not state 
that the baccalaureate degree must be in a specific specialty, though. The-letter is therefore insufficient to 
show that a specific degree requirement is common to the industry in parallel positions among similar 
organizations. 
To establish the second alternative prong at 8 C.F.R. tj 214.2(h)(4)(iii)(A)(2) the petitioner must show that the 
proposed position is so complex or unique that it can be performed only by an individual with a degree in a 
specific specialty. No evidence shows that the proposed position is complex or unique, requiring a bachelor's 
degree in a specific specialty such as communication or English. Although the petitioner's January 2, 2004 
letter states that the beneficiary will target the Asian comm&ity, no evidence depicts this market as so 
complex or unique as to require a baccalaureate degree in atsp&ific specialty such as communication. The 
press releases contained in the record discuss skincare products and services; they do not convey information 
indicating that the writer of the press releases must have a degree in, or some knowledge about, a specialized 
field such as engineering, business, or one of the sciences. ~hks, the submitted evidence fails to establish that 
the proposed position is so complex or unique that it can 9 peformed only by an individual with a degree in 
a specific specialty. 
To establish the regulation at 8 C.F.R. tj 214.2(h)(4)(iii)(A)(3) the petitioner must show that it normally 
from Kip Morrison and 
requires a bachelor's degree. 
studies and volunteered as a copy 
indicates in her letter that the petitioner is a 
copy and newsletter services 
promoting the petitioner holds a bachelor's degree in English. The AAO notes that the record reflects that the 
beneficiary holds the educational equivalent to a bachelor's degree in international studies. 
The AAO finds that the evidence is not persuasive in establishing that the petitioner normally requires a degree 
or its equivalent for the position. CIS must examine the ultimate employment of the alien, and determine 
whether the position qualifies as a specialty occupation. CJ: Defensor v. Meissn2r, 201 F. 3d 384 (5th Cir. 
2000). The critical element is not the title of the position or an employer's self-imposed 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 ~ct.' To interpret the regulations any other way would lead 
to absurd results: if CIS were limited to reviewing a petitioner's self-imposed requirements, then any alien 
1 The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387. 
WAC 04 066 53448 
Page 6 
with a bachelor's degree could be brought into tQe United States to..perform a menial, non-professional, or an 
otherwise non-specialty occupation, so long as the employer ,required all such employees to have 
baccalaureate or higher degrees. See id. at 388. -As discussed earlier in this decision, the proposed position is 
similar to a copywriter and marketing manager, which are occupatiofis that the Handbook reveals do not 
require a bachelor's degree in a specific specialty. Furthermore: the petitioner accepts a wide range of 
baccalaureate degrees: from a degree in the liberal arts, to a degree in English, international studies, or 
communication; thus, the petitioner does not require a bachelor's degree in a specific specialty that is directly 
related to the proposed position. 
To satisfy the regulation at 8 C.F.R. fj 214.2(h)f4)(iii)(A)(4), the petitioner must establish that 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. 'In this decision the AAO has already 
conveyed that the proposed duties resemble those of a marketing manager and a copywriter, which are 
occupations that do not require a bachelor's degree in a specific specialty. Furthermore, the AAO has found 
that even though the beneficiary will target the Asian community, no evidence shows that this market is so 
specialized and complex as to require the knowledge associated with the attainment of a baccalaureate degree 
in a specific specialty such as English, communication, or international studies. The AAO has also concluded 
that the submitted press releases about skincare services and products do not depict that the writer of the press 
releases must have knowledge about a specialized field such as engineering, business, or one of the sciences 
in order to prepare the press releases. Thus, the petitioner fails to establish this last criterion at 8 C.F.R. 
fj 2 14.20(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 PA0 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. fj 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.