dismissed H-1B Case: Marketing

ldentifying data deleted to 
prevent dearly unwarranted 
Masion of oersonal orivack 
PUBLlC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave.. N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: 
IN RE: 
WAC 04 800 49125 
 Office: CALIFORNIA SERVICE CENTER 
 Date: JUL 1 7 2o06 
Petitioner: 
Beneficiary 
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. 3 I I0 1 (a)( 1 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. 
Wministrative Appeals Office 
WAC 04 800 49 125 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition. The petitioner submitted 
an untimely appeal of that decision. The director treated the appeal as a motion to reopedreconsider, but, 
again, denied it. 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 children's clothing importer and distributor that seeks to extend the employment the 
beneficiary as a marketing manager and to classify her 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. 
§ 1 1 0 1 (a)( 1 5)(H)(i)(b). 
The director denied the petition on the basis that the petitioner did not establish that the proposed position is a 
specialty occupation. On appeal, counsel submits a brief and previously submitted documents. 
Section 214(i)(l) of the Act, 8 U.S.C. 
 1 l84(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. 
 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. 
tj 2 14.2(h)(4)(iii)(A) to mean not just any bachelor's or higher degree, but one in a specific field of study that 
is directly related to the proposed position. 
The record of proceeding before the AAO contains: (1) Form 1-129 with supporting documents; (2) the 
director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's denial letter; 
(5) the Form I-290B with additional documents submitted on January 18,2005; (6) the director's reopening of 
the petition and his subsequent denial; and (7) the Form I-1290B with new and previously submitted 
documents filed on February 23, 2005. The AAO reviewed the record in its entirety before issuing its 
decision. 
WAC 04 800 49 125 
Page 3 
Based on statements made on the Form I-290B filed on January 18, 2005, the director found the petitioner to 
have asserted that the proposed position is that of a marketing manager. Evidence of the beneficiary's duties 
includes the Form 1-129 with accompanying support letter, the response to the RFE, and the petitioner's 
submissions on appeal. According to the evidence, provided at the time of filing and in response to the RFE, 
the beneficiary's duties would include: collecting information on trends and the latest developments in 
children's clothing and fashion accessories; assisting in the collection of customer information, such as 
purchase preference and buying habits; assisting in formulating marketing strategies; contributing ideas for 
new product development; and assisting in developing sales forecasts for key products and analyzing their 
market performance. The petitioner stated that the position required a bachelor's degree in economics. 
The director found that the petitioner had failed to establish the proposed position as a specialty occupation 
under any of the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A). He also concluded that the petitioner lacked the 
organizational complexity to justify a position for a marketing manager. 
On appeal, counsel maintains the proffered position qualifies as specialty occupation based on the uniqueness 
of the position and the specialization and complexity of the position's duties. Counsel focuses his analysis on 
the second alternative prong of the criterion at 8 C.F.R. 214.2(h)(4)(iii)(A)(2) and on the criterion at 8 C.F.R. 
214.2(h)(4)(iii)(A)(4). Counsel also asserts that the instant petition should be approved because it is an 
extension of an already approved petition. 
The petitioner need only satisfy one of the criteria at 8 C.F.R. 214.2(h)(4)(iii)(A) to establish that a position is 
a specialty occupation. Upon a thorough review of the record, the AAO concludes that the petitioner has 
failed to establish that the proposed position meets any of the four criteria outlined at 8 C.F.R. 
$2 14.2(h)(4)(iii)(A). Therefore, the proposed position is not a specialty occupation. 
As a preliminary matter, the AAO will address counsel's assertion that the AAO should approve the instant 
petition because this is an extension request of a previously approved petition. Counsel submits a copy of the 
prior H-IB approval notice for beneficiary. This record of proceeding does not, however, contain all of the 
supporting evidence submitted with the previous petition. In the absence of all of the corroborating evidence 
contained in that record of proceeding, the documents submitted by counsel are not sufficient to enable the 
AAO to determine whether the position offered in that prior case is similar to the position in the instant 
petition. 
Each nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. 5 103.8(d). In 
making a determination of statutory eligibility, CIS is limited to the information contained in the record of 
proceeding. See 8 C.F.R. $ 103.2(b)(16)(ii). Although the AAO may attempt to hypothesize as to whether the 
prior case was similar to the proposed position or was approved in error, no such determination may be made 
without review of the original record in its entirety. If the prior petition was approved based on evidence that 
was substantially similar to the evidence contained in this record of proceeding, however, the approval of the 
prior petition would have been erroneous. Citizenship and Immigration Services (CIS) is not required to 
approve petitions where eligibility has not been demonstrated, merely because of prior approvals that may 
have been erroneous. See, e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 
1988). Neither CIS nor any other 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). 
To determine 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 supporting evidence, whether the position 
actually requires the theoretical and practical application of a body of highly specialized knowledge and the 
WAC 04 800 49 125 
Page 4 
attainment of a bachelor's degree in a specific field of study as the minimum for entry into the occupation as 
required by the Act. 
On appeal, counsel reiterates the duties of the position provided by the petitioner at the time of filing and in 
response to the WE, but also describes an expanded role for the beneficiary that would require her to design 
and conduct market studies and based on the results to determine the petitioner's target markets for 
advertising and promotion, and the styles and designs and fabrics to be imported and distributed in the United 
States each season. Counsel also indicates that the beneficiary would be in charge of the petitioner's 
distribution channels, evaluating and selecting the most efficient methods and means, and would oversee the 
inspection of the petitioner's imported goods. He further asserts that the petitioner would prepare the 
petitioner's marketing and advertising budgets and determine the allocation of advertising and promotion 
monies. Moreover, he reports that the beneficiary would also oversee the petitioner's outside advertising and 
marketing agencies, two independent sales representatives, as well as several other workers. The AAO will 
not, however, consider these duties, as they describe a position that is materially different from that outlined 
by the petitioner at the time of filing and in response to the director's WE. The duties presented on appeal 
significantly expand the scope and responsibilities of the proposed position and alter the nature of the 
employment initially described by the petitioner. On appeal or in response to an RFE, a petitioner may not 
offer a new position to the beneficiary, or materially change a position's title, its level of authority within the 
organizational hierarchy, or the associated job responsibilities. Matter of Michelin Tire Corp., 17 I&N Dec. 
248,249 (Reg. Comm. 1978). 
The AAO routinely consults the Department of Labor's Occupational Outlook Handbook (Handbook) for 
information about the duties and educational requirements of particular occupations. Based on the 
petitioner's description and a thorough review of the Handbook, the AAO finds that the description of the 
proposed position reflects that of marketing managers, who develop a firm's marketing strategy. This 
description mirrors the proposed duties of assisting in "formulating marketing strategies," "contributing ideas 
for new product development," and "developing sales forecasts for key products and analyzing their market 
performance." Notwithstanding this, the AAO finds that the petitioner has not established that the proposed 
position is a specialty occupation. 
The petitioner has failed to establish that the position is one that qualifies as a specialty occupation under the 
criterion at 8 C.F.R. 214.2(h)(4)(iii)(A)(I), a bachelor's or higher degree or its equivalent, in a specific field 
of study, is normally the minimum requirement for entry into the particular position. To determine whether 
the proposed position is a specialty occupation under this criterion, the AAO turns to the Handbook's 
discussion of the educational requirements for marketing managers. The Handbook indicates that a wide 
range of educational backgrounds is suitable for entry into marketing manager positions. Employers prefer 
applicants with bachelor's degrees but do not require them. Employers who do require bachelor's degrees do 
not always require that those degrees be in a business-related field. Finally employers often promote 
experienced staff into the position of marketing managers. Thus, the petitioner has failed to establish that a 
bachelor's degree or its equivalent, in a specific field of study, is normally the minimum requirement for 
entry into the proposed position. 
The AAO turns next to the first alternative prong of the criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2) - a 
specific degree requirement is common to the industry in parallel positions among similar organizations. To 
determine if a position is a specialty occupation under this criterion, CIS generally considers whether letters 
or affidavits from companies or individuals in the industry attest that such companies "routinely employ and 
recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 (D.Minn. 1999) (quoting 
WAC 04 800 491 25 
Page 5 
Hird/Blaker Corp. v. Sava, 7 12 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). On appeal, counsel "concedes that it 
would be difficult for the position to qualify as a specialty under this criterion." The petitioner has not 
established that the degree requirement is common to the industry in parallel positions among similar 
organizations. Therefore, the proposed position does not qualify as a specialty occupation under the first 
alternative prong at 8 C.F.R. § 2 14.2(h)(4)(iii)(A)(2). 
The AAO now turns to the third criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) - the employer normally requires at 
least a bachelor's degree or its equivalent, in a specific field of study, for the position. To determine if a 
petitioner has established this criterion, the AAO generally reviews the petitioner's past employment 
practices, including the histories of those employees who previously held the position, as well as their names, 
dates of employment, and copies of their diplomas. In the instant case, the petitioner has submitted no 
evidence to establish its normal hiring practices. In the absence of an employment history for the proposed 
position, the petitioner cannot establish that its proposed position qualifies as a specialty occupation under the 
criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
Finally, the AAO turns to the criteria related to the complexity and uniqueness of the proposed position and 
the specialized nature and complexity of the proposed duties. A petitioner satisfies the second alternative 
prong of the criterion at 8 C.F.R. 214.2(h)(4)(iii)(A)(2) if it establishes that a particular position is so 
complex or unique that it can be performed only by an individual with a bachelor's degree in a specific field 
of study. The criterion at 8 C.F.R. 2 14.2(h)(4)(iii)(A)(4) requires a petitioner to establish that 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 bachelor's or higher degree in a specific field of study. The record lacks 
evidence to establish that the combined duties, as described by the petitioner, are so complex or unique that they 
can only be performed by an individual with a degree in a specific specialty, or that they are so specialized and 
complex as to require knowledge usually associated with the attainment of a bachelor's degree or higher in a 
business-related field. The record contains no opinions provided by experts in the field or professional 
organizations that distinguish the proffered position or its duties from the typical employment of marketing 
managers, an occupational field that the Handbook has indicated does not impose a degree requirement. 
Therefore, the petitioner has not established that the proposed position is a specialty occupation based on its 
complexity or uniqueness, or the specialized nature of is duties. 
The burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. tj 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.