dismissed H-1B Case: Marketing

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 03 053 50781 Office: CALIFORNIA SERVICE CENTER Date: KT 1 2 2005 
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 lOl(a)(lS)(H)(i)(b) 
ON BEWF 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 03 053 50781 
Page 2 
DISCUSSION: The service center director denied the nonirnmigrant 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 bakery and Filipino dessert shop that seeks to employ the beneficiary as an account 
manager. The petitioner endeavors to classify the beneficiary as a nonirnmigrant worker in a specialty occupation 
pursuant to 3 10l(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 lOl(a)(l5)(H>(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation and the 
beneficiary is not qualified to perform a specialty occupation. On appeal, counsel submits a brief and states, in 
part, that the proffered position is "most similar to a Marketing Manager and or a market research analyst." 
On appeal, a petitioner cannot 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. The petitioner 
must establish that the position offered to the beneficiary when the petition was filed merits classification as a 
managerial or executive position. Matter of Michelin Tire Cop, 17 I&N Dec. 248, 249 (Reg. Comm. 1978). 
A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to 
CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). In his response to the 
director's request for evidence, dated March 18, 2004, counsel stated: "[A] review of the Account Manager's 
job duties reveals that the position is most similar to a Marketing Manager." 
To determine whether a particular job qualifies as a specialty occupation, Citizenship and Immigration 
Services (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 (5" Cir. 2000). The critical element is not the 
title of the position nor 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 Act. The AAO agrees with counsel in response to the director's request for evidence that the 
position as described by the petitioner is most like a marketing manager. 
The AAO will first address the director's conclusion that the position is not a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 3 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. 3 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
WAC 03 053 50781 
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(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. 
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 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. 
The petitioner is seeking the beneficiary's services as an account manager. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's December 2, 2002 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: researching and evaluating existing markets and performing industry competitor 
analysis; identifying prospective markets and developing strategies to maximize penetration; overseeing 
developments or monitoring trends that indicate the need for new services; analyzing statistics to determine 
potential requirements and monitoring the preference of clients/customers; implementing strategies decided 
upon by management; and developing strategic partnerships and developing work plans to conduct "planning 
assignment." The petitioner indicated that a qualified candidate for the job would possess a bachelor's degree. 
The director found that the proffered position, which is similar to a marketing manager, was not a specialty 
occupation. Citing to the Department of Labor's (DOL) Occupational Outlook Handbook (Handbook), 2004- 
2005 edition, the director noted that the minimum requirement for entry into the position was not a 
baccalaureate degree or its equivalent in a specific specialty. 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, counsel states, in part, that marketing managers must have a bachelor's degree. According to 
counsel, the proffered position is a "Job Zone 4" occupation (referring to the DOL's O*Net), which requires a 
degree. Counsel states further that the Dictionary of Occupational Titles (DOT) assigns the position an SVP 
rating of 7-8, which according to counsel, requires a degree to enter into the position. Counsel also cites to a 
court decision to state that, the fact that the petitioner is a bakery is irrelevant to showing the need for the 
proffered position and, based on the petitioner's approximate annual income of $180,000, the petitioner has 
shown that it requires the beneficiary's services to ensure that it remains competitive. 
WAC 03 053 50781 
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Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
§ 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)(l) 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 from fm or individuals in the industry attest that such firms 
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. 
Minn. 1999)(quoting HirdIBlaker COT. v. Suva, 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. The AAO does not concur with counsel that the proffered position, which is primarily that 
of a marketing manager, is a specialty occupation. No evidence in the Handbook, 2004-2005 edition, indicates 
that a baccalaureate or higher degree in a specific specialty, or its equivalent, is required for a marketing manager. 
Information in the Handbook indicates that a wide range of educational backgrounds is suitable for entry into 
marketing manager jobs, but many employers prefer individuals with experience in related occupations plus a 
broad liberal arts background. 
Counsel's reference to and assertions about the relevance of information from O*Net and the DOT are not 
persuasive. Neither the DOT'S SVP rating nor a Job Zone category indicates that a particular occupation 
requires the attainment of a baccalaureate or higher degree, or its equivalent, in a specific specialty as a 
minimum for entry into the occupation. An SVP rating and Job Zone category are meant to indicate only the 
total number of years of vocational preparation required for a particular position. Neither classification 
describes how those years are to be divided among training, formal education, and experience, nor specifies 
the particular type of degree, if any, that a position would require. 
Regarding parallel positions in the petitioner's industry, the petitioner submitted Internet job postings for 
accounting manager positions. 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. The 
advertisements are for accounting managers for a non-profit organization, a corporate fleet management 
business, and a staffing services business. The petitioner's industry, however, is not represented. Thus, the 
advertisements have no relevance. 
The record also 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, therefore, 
has not established the criteria set forth at 8 C.F.R. 5 214.2(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. As the record indicates that the proffered position is a new position, the 
petitioner, therefore, has not established the criteria set forth at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3). 
WAC 03 053 50781 
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Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(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. 
The director also found that the beneficiary was not qualified to perform the duties of the proffered position 
because the beneficiary's foreign degree is not related to the proffered position. On appeal, counsel submits a 
credentials evaluation from a company that specializes in evaluating academic credentials concluding that the 
beneficiary possesses the U.S. equivalent of a bachelor's degree in business administration. As such, the 
petitioner has demonstrated that the beneficiary is qualified to perform the duties of the proffered position. 
The petition may not be approved, however, because the proffered position is not a specialty occupation. It is 
further noted that, notwithstanding the beneficiary's qualifications for the proffered position, she is not 
qualified to perform the services of a specialty occupation because the field of business administration is not a 
specialized field of study. See Matter of Michael Hertz Associates, 19 I&N Dec. 558 (Comm. 1988). 
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.