dismissed H-1B Case: Marketing

U.S. Department of Homeland Security 
I 
20 Massachusetts Ave. NW, Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 089 50438 Office: CALIFORNIA SERVICE CENTER Date: r$,y !, 7nnF 
L TL., 
IN RE: Petitioner: 
Beneficiary: 
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. 3 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials 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 04 089 50438 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be summarily dismissed. The 
petition will be denied. 
The petitioner is a musical instrument manufacturer and distributor. It seeks to employ the beneficiary as 
a marketing communications specialist and to classify him as a nonimmigrant worker in a specialty 
occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act, 8 U.S.C. 
§ 1 lOl(a>(15)(H)(i)(b). 
The director denied the petition on the ground that the record failed to establish that the proffered position 
qualifies as a specialty occupation. 
The proffered position was described by the petitioner in its initial submission, as well as in its response 
to the director's request for evidence, as a "marketing communications specialist" with the following 
duties: 
Data Gathering (20% of work-time) 
Using all pertinent resources, THE EMPLOYEE will acquire all relevant data and 
information related to the industry in particular. This will involve observing the operational 
activities and interviewing personnel of the company to be familiar with the procedures 
involved in the business. [He] will read journals, reports, and other material to become 
familiar with the current events of the mobile technology. [He] will review published 
materials and recommend revisions or changes in scope, format, content and methods of 
reproduction, including online materials. 
Identifying/Cateaorizina Information (10% of work-time) 
This will include documenting, recording, and organizing information. THE EMPLOYEE 
will maintain records and files of work and revisions. [He] will compile, analyze and report 
on lead generation activities, including web site traffic, and on and off line marketing 
programs. [He] will manage all product support literature, i.e. brochures, datasheets, other 
printed and electronic materials. Lastly, [he] will manage content review and approvals and 
publish approved policies and procedures in the company's manual/handbook. 
Generate Creative Output (30% of work-time) 
In general, [he] may be involved in writing material regarding work methods and procedures 
and may be designated as our process-description writer. [He] will assist management in 
planning and creating strategies, tactics, activities and materials to convey the best 
advertising message to target markets. [He] will design, write, and prepare various marketing 
materials for print, including corporate brochures, direct mail pieces, training materials, and 
magazine ads. [He] will create content and graphics for marketing needs; create new 
advertising and direct mail pieces; develop online policy and procedure within company 
standards; generate new manuals and produce communications for release to the public or 
within the company; create training materials; design art and copy layouts for material to be 
WAC 04 089 50438 
Page 3 
presented by visual communications media such as magazines, newspapers, television and 
packaging; study illustrations and photographs to plan presentation of material, product or 
service; determine size and arrangement of illustrative material and copy; select style and size 
of type; and arrange layout based upon available space, knowledge of layout principles, and 
esthetic design concepts. [He] will also develop and execute both online and offline 
marketing plans and programs in support of business development objectives; create direct 
marketing and promotional material. [He] will be responsible for the creative concept and 
development of new marketing tools. 
Coordinate Production/Publication of Materials (10% of work-time) 
THE EMPLOYEE may arrange for typing, duplication, and distribution of materials. [He] 
will review final layout and suggest improvements as needed. [He] will be responsible for 
publishing and distribution of all documentation. [He] will prepare and proofread all projects 
before releasing them to the printing company. [He] will also prepare notes and instructions 
for workers who assemble and prepare final layouts for printing. 
Maintain Corporate Image (10% of work-time) 
THE EMPLOYEE will work on corporate identity. [His] strong conceptual ability and 
experience in developing effective advertising in relation to the marketing recognition will 
come into play. This includes creating and maintaining our corporate image through 
proposals, packaging, sponsorship materials and advertising. [He] will establish and maintain 
a consistent "look and feel" across all marketing materials (print, presentation, and web). 
Moreover, [he] will assist the president with strategic marketing activities such as branding, 
messaging and look and feel of corporate materials. [He] will maintain the company's public 
relations, including updates, special promotions, copy writing, new features, look and feel, 
advertising and links. [He] will manage overall implementation of marketing projects. 
The director determined that the proffered position is similar to that of a marketing manager, as described 
in the Department of Labor's Occupational Outlook Handbook, and found that the position did not 
qualify as a specialty occupation under any of the regulatory criteria enumerated at 8 C.F.R. 8 214.2 
(h)(4)(iii)(A). 
On appeal the petitioner's president asserts that the proffered position was incorrectly described by his 
original attorney, is not a marketing communications specialist, and has different duties from those 
discussed above. The president states that he wants to hire the beneficiary to perform the following 
duties: 
Help manage the company's daily and long-term business activities and obligations. 
Serve the company's professional musician customers worldwide. 
Write and edit instructional materials of the unique Stick instrument and its two-handed string 
tapping method. 
Assist in production, purchasing, customer liaison, and special projects. 
WAC 04 089 50438 
Page 4 
The duties of the proffered position as described in the appeal are completely different from the duties 
described prior to the director's decision. Though the petitioner's president asserts that he was not given 
the opportunity to review the information supplied by his original attorney and that it was submitted 
without the president's signature, the record shows otherwise. In his initial letter to the California Service 
Center, which accompanied Form 1-129, the petitioner's president identified the proffered position as a 
marketing communications specialist, described the duties in language consistent with the job title (as 
recounted in the director's decision and by the AAO in the instant decision), and affixed his signature at 
the end of the letter. A petitioner may not make material changes to its petition in an effort to make a 
deficient petition conform to legal requirements. See Matter of Izummi, 22 I&N Dec. 169 (Assoc. Comm. 
1998). "The AAO cannot consider facts that come into being only subsequently to the filing of the 
petition." Id. at 176. Accordingly, the new position description and supporting documentation submitted 
on appeal cannot be considered by the AAO in adjudicating the instant appeal. 
As specified in the regulation at 8 C.F.R. 3 103.3(a)(l)(v), "[aln officer to whom an appeal is taken shall 
summarily dismiss any appeal when the party concerned fails to identify specifically any erroneous 
conclusion of law or statement of fact for the appeal." The petitioner has not specifically identified any 
erroneous conclusion of law or statement of fact in the director's decision, which correctly identified the 
proffered position, based on the petitioner's consistent description of the job duties prior to the decision, 
1 as a marketing manager which does not qualify as a specialty occupation. Accordingly, the instant 
appeal must be summarily dismissed. 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. $ 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: The appeal is dismissed. The petition is denied. 
1 
The procedure for filing an amended or new petition is explained in 8 C.F.R. $ 214.2(h)(2)(E).