dismissed H-1B Case: Marketing

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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 federal contractor business that seeks to employ the beneficiary as an account manager for 
purchasing. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty 
occupation pursuant to $ 10l(a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 10 l(a)(l5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, the 
petitioner submits a statement. 
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. $ 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 1.0 
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. 
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 an account manager for purchasing. Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's undated letter in support of the petition; and 
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the petitioner's response to the director's request for evidence. According to this evidence, the beneficiary 
would perform duties that entail: developing work plan to conduct planning assignment; evaluating, existing 
markets and performing industry competitor analysis; identifying prospective markets and developing 
strategies to maximize penetration; determining costs and formulating and coordinating merchandising 
policies and activities to ensure profit; analyzing sales statistics to determine sales potential and inventory 
requirements and monitor the preferences of clients; implementing strategies decided upon by management; 
developing strategic partnerships, as appropriate; and preparing reports regarding market conditions and 
merchandise costs. Although not explicitly stated, it appears that the petitioner requires a baccalaureate degree 
or its equivalent in physical sciences for the proffered position. 
The director found that the proffered position was not a specialty occupation because the job is not a market 
research analyst position; it is a marketing manager position. Citing to the Department of Labor'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. 
$ 2 1 4.2(h)(4)(iii)(A). 
On appeal, the petitioner states, in part, that the proposed duties, which include performing market research 
on available materials and services, testing and analyzing such products and services; and performing cost 
comparisons and analysis, are so complex and highly technical in nature as to require the services of a 
professional with the appropriate academic qualifications. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
tj 2 14.2(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 1 15 1, 1 165 (D. 
Minn. 1999)(quoting HirdBlaker Corp. v. Suva, 7 12 F. Supp. 1095, 1 102 (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 account manager position 
is a specialty occupation. A review of the Advertising, Marketing, Promotions, Public Relations, and Sales 
Managers job descriptions in the Handbook, 2004-2005 edition, confirms the accuracy of the director's 
assessment to the effect that, the job duties parallel those responsibilities of a marketing manager. No evidence in 
the Handbook indicates that a baccalaureate or higher degree in a specific specialty, or its equivalent, is required 
for a marketing manager job. 
Regarding parallel positions in the petitioner's industry, the petitioner submitted Internet job postings for 
various marketing-related positions. There is no evidence, however, to show that the employers issuing those 
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postings are similar to the petitioner, or that the advertised positions are parallel to the instant position. The 
advertisements are for marketing-related positions in industries such as healthcare, pharmaceuti~cals, and 
retail. 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. $ 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. In the petitioner's undated letter submitted at the time of filing, the 
petitioner's general manager stated: "[Wle have 18 other employees working in this capacity and all are degreed." 
The record, however, 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. Going on record without supporting documentary 
evidence is 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. 1972)). 
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 tliat 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. 9 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.