dismissed H-1B Case: Marketing

U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
FILE WAC 03 083 50190 Office: CALIFORNIA SERVICE CENTER Date: 0~1 1 4 1005 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S .C. 5 1 10 1 (a)( 1 S)(H)(i)(b) 
ON BEHALF OF PETlTIONER: 
SELF-REPRESENTED 
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.03 083 50190 
Page 2 
DISCUSSION: The service center 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 staffing company that seeks to employ the beneficiary as a marketing manager. The 
petitioner 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. § 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the petitioner did not ,establish that the proffered position was a 
specialty occupation. The director also stated that the petitioner had not complied with the terms of its 
previously approved petitions. On appeal, the petitioner submits a letter. 
Section 214(i)(l) of the Immigration and Nationality Act (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. 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 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. 
WAC 03 083 50190 
Page 3 
The petitioner is seeking the beneficiary's services as a marketing manager. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's January 7, 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: developing marketing strategies to solicit new accounts for the business; drafting 
and preparing outgoing correspondence to prospective clients; designing and creating flyers, brochures and 
other marketing materials to promote the company's services; answering all inquiries regarding the scope of 
services, fees, referrals and contracts; assisting in the development and implementation of policies and 
procedures according to the standard guidelines of the state regulatory agency; and working with the 
controller in preparing the annual budget and management report. The petitioner indicated that a qualified 
candidate for the job would possess a bachelor's degree in business administration/commerce, with a 
concentration in marketing, management, economics or mass communication. 
The director found that the proffered position was not a specialty occupation and that the petitioner did not 
establish that it would actually be employing the beneficiary. The director found further that the petitioner 
failed to establish any of the criteria found at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
On appeal, the petitioner states that it would be the actual employer of the beneficiary. The petitioner also 
states that its record of filing numerous petitions relates to its business of staffing other organizations, and that 
it has a high turnover rate. The petitioner asserts that previous petitions, which were identical to the current 
petition, were approved. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
3 214.2(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. $ 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 often considered by CIS when determining these criteria include: whether the Department of Labor's 
Occupational Outlook Handbook (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 from 
finns 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 (D.Minn. 1999)(quoting HiraBlaker Corp. v. Sava, 712 F. 
Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. 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 2004-2005 
edition of the Handbook describes educational requirements for entry into the marketing manager field: 
WAC 03 083 50190 
Page 4 
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 
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. 
This clearly indicates that a marketing manager is not a specialty occupation, since there is no requirement for 
a degree in a specific specialty for entry into this field. A wide range of areas of study would be appropriate 
preparation for a position as a sales and marketing manager, with only some employers preferring a specific 
specialty. 
As noted above, 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. The Act defines the term "specialty occupation" as an occupation that requires "attainment of a 
bachelor's or higher degree in the specij?c specialty (or its equivalent) as a minimum for entry into the 
occupation in the United States." Section 214(i)(l)(B) of the Act, 8 U.S.C. 5 1184(i)(l). (Emphasis added). 
Regarding parallel positions in the petitioner's industry, the petitioner submitted four Internet job postings for 
marketing managers. There is no evidence, however, to show that the employers issuing those postings are 
similar to the petitioner, or that the advertised positions are parallel to the instant position. 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. 5 214.2(h)(4)(iii)(A)(I) or 
(2). 
The AAO now turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. In its response to the director's request for evidence, the petitioner stated 
that it has had two previous marketing managers, both of whom had bachelor's degrees. The petitioner included 
a copy of one person's degree. The AAO notes that the Quarterly Wage and Withholding Reports submitted in 
response to the director's request for evidence do not include the individual whose degree was submitted, despite 
the petitioner's assertion that he worked for the petitioner during the time period covered by the reports. Doubt 
cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to 
explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in 
fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Even if one or both of these 
people had worked for the petitioner, there is no evidence of the duties that they performed. This evidence does 
not establish the petitioner's previous hiring practices for the proffered position. 
WAC 03 083 50190 
Page 5 
In addition, there is no evidence in the record regarding the petitioner's client's past hiring practices. In Defensor 
v. Meissner, 201 F. 3d 384 (5" Cir. 2000), the court held that the Immigration and Naturalization Service, now 
CIS, reasonably interpreted the statute and the regulations when it required the petitioner to show that the entities 
ultimately employing the foreign nurses require a bachelor's degree for all employees in that position. The court 
found that the degree requirement should not originate with the employment agency that brought the nurses to the 
United States for employment with the agency's clients. 
Finally, the AAO turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(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. 
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. 5 214.2(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. 
Regarding the petitioner's assertion that identical petitions were previously approved, the record of proceeding 
does not contain copies of the visa petitions that the petitioner claims were previously approved. If the 
previous nonirnrnigrant petitions were approved based on the same unsupported and contradictory assertions 
that are contained in the current record, the approval would constitute clear and gross error on the part of CIS. 
CIS is not required to approve applications or 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 (Cornrn. 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 the court of 
appeals and the district court. Even if a service center director had approved the nonimrnigrant petitions on 
behalf of the 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.), affd 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
The director also found that the petitioner had not actually employed many of the individuals for whom it 
received approval, and when it did employ them, they were frequently paid at a significantly lower rate than 
had been asserted on the Form 1-129 at the time of filing. The petitioner failed to directly address these 
findings of the director. An H-1B alien is coming temporarily to the United States to perform services in a 
specialty occupation. Section 101 (a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 5 lOl(a)(lS)(H)(i)(b). 8 C.F.R. 
5 214.2(h)(l)(ii)(B). In this case, the petitioner did not establish that the beneficiary would be coming to the 
United States to perform services in a specialty occupation. The petitioner did not overcome the director's 
findings on appeal. 
WAC 03 083 50190 
Page 6 
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.