dismissed H-1B Case: Marketing

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: EAC 03 245 55249 Office: VERMONT SERVICE CENTER Date: JAN 1 8 2006 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 I lOl(a)( 15)(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 
EAC 03 245 55249 
Page 2 
DISCUSSION: The service center director denied the nonimrnigrant 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 "Spanish Community Guide, 'Yellow Pages"' that seeks to employ the beneficiary as a 
full-time promotions manager. The petitioner endeavors to classify the beneficiary as a nonimrnigrant worker in 
a specialty occupation pursuant to 5 lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 3 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 5 214,2(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 tenn "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 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 a full-time promotions manager. Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's August 26, 2003 letter in support of the 
EAC 03 245 55249 
Page 3 
petition; and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail: determining market targets and creating a marketing program; 
coordinating marketing venues such as trade shows; meeting with potential customers to assess their 
promotional and advertising needs; coordinating the workload of the petitioner's staff to meet clients' needs; 
determining the costs associated with client requisitions and creating pricing strategies; preparing reports for 
customers detailing services to be provided and pricing schedule; preparing client contracts; liaising with the 
accounting department to set up client accounts; providing client follow-ups to determine job satisfaction; 
monitoring promotions industry for current trends; and attending trade shows and civic events. The petitioner 
indicated that the beneficiary is a qualified candidate for the job because she possesses a bachelor's degree in 
mass communications and related employment experience. 
The director found that the proffered position was not a specialty occupation because the duties are not so 
specialized and complex as to require a bachelor's degree in a specific field of study. Citing to the 
Department of Labor's (DOL) Occupational Outlook Handbook (Handbook), 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. 
5 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the director ignored evidence. Counsel states further that a promotions 
manager position requires a bachelor's degree and that the director failed to correctly calculate the SVP code 
in the DOL's Dictionary of Occupational Titles (DOT). Counsel also states that the petitioner properly 
submitted Internet job advertisements from companies similar to the petitioner to demonstrate the industry 
requirement of a related bachelor's degree. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 214.2(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 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 1151, 1165 (D. 
Minn. 1999)(quoting HirdIBlaker Cop 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 similar to a 
marketing and promotions 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 
and promotions manager job. Although the petitioner's owner states in his August 26, 2003 letter that, due to the 
its steady growth, the petitioner requires the services of a full-time employee to plan and direct its promotional 
campaigns, information on the petition reflects that the petitioner, which was established in 1993, has only three 
employees. Furthermore, the petitioner's 2002 federal income tax return reflects only $206,900 in gross receipts 
EAC 03 245 55249 
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or sales, and no wages paid. As such, the record contains no evidence of the petitioner experiencing "steady 
growth" that would necessitate the services of a full-time promotions manager. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Counsel's reference to and assertions about the relevance of information from the DOT are not persuasive. 
The DOT'S SVP rating does not indicate 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 is meant to indicate only the total number of years of vocational preparation 
required for a particular position. The classification does not describe how those years are to be divided 
among training, formal education, and experience, nor does it specify 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 
promotions 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. The advertisements 
are for promotions managers in a variety of industries, such as manufacturing, automotive, and television. The 
petitioner's industry, however, is not in manufacturing, automotive, or television. It is further noted that the 
advertisement for a productions/promotion manager for a television station stipulates the preference, as 
opposed to a requirement, of a college degree in an applicable field and two years of related employment 
experience. Furthermore, there is no evidence to show that the proposed duties of the proffered position are as 
complex as the duties described in the advertisements, such as managing preferred agencies, working with 
cross-functional teams and multiple departments, leading teams of employees, and supervising event staff. 
Thus, the advertisements do not establish that the position requires a degree in a specialty, as required. 
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. 3 214.2(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. On appeal, counsel states that the petitioner's owner, who holds a related 
bachelor's degree and a related master's degree previously performed the proposed duties. The owner and 
director of the organization would presumably have increased responsibilities in running the organization in 
addition to performing the duties of the promotions manager. The petitioner has not established that the position 
of director/promotions manager is similar to that of the promotions manager. Further, CIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty occupation, 
regardless of the petitioner's past hiring practices. Cf. Defensor v. Meissner, 201 F. 3d 384 (5" 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.' In this regard, the petitioner fails to establish that the promotions 
1 The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 9 214.2(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, 
EAC 03 245 55249 
Page 5 
manager position it is offering to the beneficiary entails the theoretical and practical application of a body of 
highly specialized knowledge. 
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. $ 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. $ 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.