dismissed H-1B Case: Marketing

IdexMyiq data deleted to 
prevent cle:nrly unwarranted 
iavasicmn pssona8 privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
A* 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
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. 
WAC 04 050 50173 
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 wholesale distributor of electronics products that seeks to extend its authorization to 
employ the beneficiary as a part-time marketing manager. The petitioner endeavors to classify the beneficiary 
as a nonimmigrant worker in a specialty occupation pursuant to 9 1 Ol(a)(lS)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 9 1 10 1 (a)(l 5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, the 
petitioner's president submits a letter and additional evidence, including: 13 W-2 forms for 2003; the 
beneficiary's medical records; an excerpt from the Department of Labor's (DOL) O*Net; and job 
advertisements. 
Section 214(i)(l) of 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. 
Pursuant to 8 C.F.R. 8 214.2(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. 
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 
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 04 050 50173 
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The petitioner is seeking the beneficiary's services as a part-time marketing manager. Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's November 17, 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 and preparing reports based on 
demographic research, strength of the economy, and statistical information; preparing recommendations 
directed towards maximizing the petitioner's share of the market; consulting management on merchandise 
availability, market price, and overstocked merchandise; designing questionnaires for retailers and other 
wholesalers; interviewing sales representatives; and compiling monthly reports for management and sales 
staff regarding economy demands, market trends, and new products. The petitioner indicated that a qualified 
candidate for the job would possess a bachelor's degree in marketing. 
The director found that the proffered position was not a specialty occupation because the proposed duties are 
not so specialized and complex as to require a related bachelor's degree. Citing to the DOL's 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). 
The director also found that the petitioner's evidence was conflicting and contradictory, such as the 
beneficiary's reported salary of $34,000, as opposed to her actual 2003 earnings of $7,500. 
On appeal, the petitioner's president states, in part, that the functions and duties of the proffered position 
satisfy the requirements of a specialty occupation. According to the petitioner, the proffered position has an 
SVP rating of 7, (referring to the DOL's Dictionary of Occupational Titles (DOT)), which requires a degree. 
The petitioner submits job advertisements as supporting documentation. The petitioner states further that the 
beneficiary was hospitalized on several occasions and thus earned a lower salary than reported. 
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. 5 214.2(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 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 firms 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 115 1, 1 165 (D. 
Minn. 1999)(quoting HirdBlaker Corp. 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 the petitioner that the proffered position is a specialty 
occupation. No evidence in the Handbook, 2006-2007 edition, indicates that a baccalaureate or higher degree 
in a specific specialty is required for a marketing manager position. Furthermore, although information on the 
petition, which was signed by the petitioner's president on November 17, 2003, reflects that the petitioner has 
a gross annual income of more than $8 million, the petitioner has not submitted any evidence in support of 
this claim such as federal income tax returns. Going on record without supporting documentary evidence is 
WAC 04 050 50 173 
Page 4 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1 972)). 
The petitioner's reference to and assertions about the relevance of information from O*Net and the DOT are 
not persuasive. Neither the DOTS 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. 
It is noted that CIS approved another petition that had been previously filed on behalf of the beneficiary. The 
director's decision does not indicate whether he reviewed the prior approval of the other nonimmigrant 
petition. If the previous nonimmigrant petition was approved based on the same unsupported assertions that 
are contained in the current record, the 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 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). 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 had approved the nonimmigrant petition 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.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
The prior approval does not preclude CIS from denying an extension of the original visa based on 
reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). 
Regarding parallel positions in the petitioner's industry, the petitioner submitted Internet job postings for 
marketing-related 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. One of the 
advertisements is for a marketing associate in the manufacturing industry, with duties that entail coordinating 
the National Architectural Summit Program. The petitioner has not demonstrated that the proposed duties of 
the proffered position are as complex as the duties described for the advertised position. Another 
advertisement is for a marketing associate for a nationwide leading distributor of packaging and industrial 
supplies. The educational requirement for this position is described as "BAIBS," which confirms the 
information found in the Handbook, namely, that a marketing manager position does not require a 
baccalaureate or higher degree in a specific specialty. 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. § 214.2(h)(4)(iii)(A)(l) or (2). 
WAC 04 050 501 73 
Page 5 
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. On appeal, the petitioner states that the person whom the beneficiary 
replaced did not possess a degree. Furthermore, the record does not contain any evidence of the petitioner's past 
hiring practices and, therefore, the petitioner has not met its burden of proof in this regard. The petitioner, 
therefore, has not established the criterion set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
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 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.