dismissed H-1B Case: Marketing

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services hs 
FILE: WAC 04 179 53396 Office: CALIFORNIA SERVICE CENTER Date: ,w 8 0 2'jOb 
IN RE: 
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. fj 1 10 l(a)(l 5)(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 
WAC 04 179 53396 
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 CD/DVD replication facility offering offset and silkscreen printing, CD business cards, 
packaging, and fulfillment distnbution services. It seeks to employ the beneficiary as a marketing administrator 
and endeavors to classify her as a nonirnmigrant worker in a specialty occupation pursuant to section 
lOl(a)(lS)(H)(i)(b) of the Imrmgration 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 does not qualify as a specialty occupation. On 
appeal, counsel submits a brief and additional information stating that the offered position qualifies as a specialty 
occupation. 
The issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty 
occupation. 
Section 10 1 (a)(l 5)(H)(i)(b) of the Act, 8 U.S.C. § 1 lOl(a)(lS)(H)(i)(b), provides, in part, for the 
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform 
services in 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. 
The term "specialty occupation" is further defined at 8 C.F.R. 3 214.2(h)(4)(ii) as: 
[A]n occupation which requires theoretical and practical application of a body of hghly 
specialized knowledge in fields of human endeavor including, but not limited to, architecture, 
engineering, mathematics, physical sciences, social sciences, medicine and health, education, 
business specialties, accounting, law, theology, and the arts, and which requires the attainment of 
a bachelor's degree or higher in a 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; 
WAC 04 179 53396 
Page 3 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties are 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. 
fj 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) the Form 1-129 and supporting documentation; (2) 
the director's denial letter; and (3) the Form I-290B with supporting documentation. The AAO reviewed the 
record in its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a marketing administrator. Evidence of the 
beneficiary's duties includes the Form 1-129 petition with supporting documentation and the petitioner's 
appeal. According to this evidence the beneficiary would: 
Execute and direct marketing plans in accordance with overall company policy; 
Supervise promotional events at points of sale and design retail environments to implement appealing 
merchandising tactics; 
Identify potential marketing channels and implement company strategies for increased marketing 
efforts in regional areas nationwide; 
Manage marketing projects, organize and maintain graphics materials and mail distribution lists; 
Develop and maintain marketing and customer databases, and monitor effectiveness of marketing 
strategies; and 
Make recommendations to the company for modification of marketing policies. 
The petitioner requires a minimum of a bachelor's degree in marketing or business management for entry into 
the proffered position. 
Upon review of the record, the petitioner has failed to establish that a baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry into the offered position, or that a degree 
requirement is common to the industry in parallel positions among similar organizations, as asserted by the 
petitioner. 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 
an industry 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 
WAC 04 179 53396 
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degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting 
Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for information about the duties and educational requirements of 
particular occupations. The duties of the proffered position, though vaguely described, appear to fall within 
those noted for advertising, marketing, promotions, public relations, and sales managers. The Handbook 
notes that a wide range of educational backgrounds is suitable for entry into these positions, but that many 
employers prefer related experience plus a broad liberal arts background. Bachelor's degrees in sociology, 
psychology, literature, journalism, philosophy, or other subjects are suitable. Requirements will vary, 
however, depending on the duties of a particular position. For example, some employers prefer a bachelor's 
or master's degree in business administration with an emphasis in marketing, for marketing, sales, and 
promotion management positions. In highly technical industries such as computer and electronics 
manufacturing a degree in engineering or science combined with a business degree may be preferred. In 
public relations management positions some employers prefer a bachelor's or master's degree in public 
relations or journalism. The Handbook further notes that most advertising, marketing, promotions, public 
relations, and sales management positions are filled by promoting experienced staff or related professional or 
technical personnel. Many managers are former sales representatives, purchasing agents, or promotions 
specialists. A baccalaureate or higher degree in a specific specialty or its equivalent is not, therefore, the 
minimum requirement for entry into the position. A degree in a wide range of disciplines will suffice. The 
petitioner has, accordingly, failed to establish the first criterion of 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
The petitioner has also failed to establish that a degree requirement, in a specific specialty, is common to the 
industry in parallel positions among similar organizations. In support of this assertion the petitioner 
submitted copies of 22 job advertisements. Those advertisements do not establish the referenced regulatory 
criterion, however. Of the advertisements submitted, seven require degrees in marketing, business, 
advertising, or communications. One prefers, but does not require, a marketing or engineering degree, and 
one prefers (but does not require) a marketing degree. The remaining 13 advertisements indicate that a 
bachelor's degree is required, but do not state that the degree need be in any particular educational discipline. 
The advertisements tend to support the findings of the Handbook, that degrees in a wide range of educational 
disciplines will provide the educational background necessary to perform the duties of the position. The 
advertisements, therefore, do not establish the referenced criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
The petitioner does not assert that it normally requires a degree in a specific specialty for the offered position, 
and offers no evidence in this regard. The regulatory criterion at 8 C.F.R. Q 214.2(h)(4)(iii)(A)(3), therefore, 
has not been established. 
Finally, the duties to be performed by the beneficiary are not so specialized or complex that knowledge 
required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a 
specific specialty. Nor are the duties so complex or unique that they can be performed only by an individual 
with a degree in a specific specialty. The duties as defined, appear to be routine for the position in the 
industry. The petitioner has, therefore, failed to establish the referenced criteria at 8 C.F.R. 
0 Q 2 1 4.2(h)(4)(iii)(A)(2) or (4). 
WAC 04 179 53396 
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The petitioner states that the beneficiary was granted H-1B status for another employer perfoming the same 
or similar duties. This reference, however, will not sustain the petitioner's burden of establishing H-1B 
qualification in the petition now before the MO. This record of proceeding does not contain the entire 
record of proceeding in the petition referred to by counsel. Accordingly, no comparison of the positions can 
be made. Each nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. 
fj 103.8(d). In making a determination of statutory eligibility, the AAO is limited to the information 
contained in the record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). It warrants noting that Congress 
intended this visa classification for aliens that are to be employed in an occupation that requires the 
theoretical and practical application of a body of highly specialized knowledge. Congress specifically stated 
that such an occupation would require, as a minimum qualification, a baccalaureate or higher degree in the 
specialty. CIS regularly approves H-1B petitions for qualified aliens who are to be employed as engineers, 
computer scientists, certified public accountants, college professors, and other such professions. These 
occupations all require a baccalaureate degree in the specialty occupation as a minimum for entry into the 
occupation and fairly represent the types of professions that Congress contemplated when it created that visa 
category. In the present matter, the petitioner has offered the beneficiary a position as a marketing 
administrator. For the reasons discussed above, the proffered position does not require attainment of a 
baccalaureate or higher degree in a specific specialty as a minimum for entry into the occupation, and 
approval of a petition for another beneficiary based on identical facts would constitute material error, gross 
error, and a violation of 8 C.F.R. fj 214.2 paragraph (h). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the A40 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 failed to sustain that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.