dismissed H-1B Case: Marketing

identifying dete deleted to 
prevent clearly unwmnteo 
inmion of personal privacy 
U.S. Department of Ilomeland Security 
20 Mass Ave , N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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. 9 1 10l(a)(l5)(~)(ij(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 ofice. 
@&4& W&-- 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 05 15 1 54372 
Page 2 
DISCUSSION: The director of the service center 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 has a restaurant and franchise operation. It seeks to employ the beneficiary as a marketing 
manager, and endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant 
to section IOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 l l Ol(a)(l S)(H)(i)(b). 
The director denied the petition on the basis that the proffered position fails to qualify as a specialty 
occupation. Counsel submitted a timely appeal. 
Section 214(i)(l) of the Act, 8 U.S.C. tj 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 qualifL 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. 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: (I) the Form 1-129 and supporting documentation; (2) 
the director's request for evidence (RFE); (3) the petitioner's response to the director's request; (4) the 
- 
WAC 05 15 1 54372 
Page 3 
director's denial letter; and (5) the Form 1-290B 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 marketing manager. Evidence of the beneficiary's 
duties includes: the Form 1-129 petition and the attachments accompanying the Form 1-129 petition, the 
petitioner's support letter, and the petitioner's response to the RFE. According to this evidence, the 
beneficiary would perform duties described as follows: conduct research of potential new Japanese cuisine 
franchise products, oversee menu development, conduct a regional and nationwide survey, develop pricing 
strategies with the goal of maximizing the franchise restaurant's profits, have contact with potential buyers of 
a franchise restaurant, and draft the terms and conditions of the franchise agreement. In the September 6, 
2005 letter the petitioner indicates that it requires a bachelor's degree for the proposed position. 
The director denied the petition. 
 He stated that the 2004-2005 edition of the Department of Labor's 
Occupational Outlook Handbook (the Handbook) indicates that the proposed duties resemble those of a 
marketing manager, which does not require a baccalaureate degree in a specific field. The director found that 
the evidence of record did not distinguish the beneficiary's duties from those 
 performed by a 
marketing manager. He noted that the letter from the president and owner of 
 apanese did not 
establish the proposed position as requiring a baccalaureate degree in a specialty 
On appeal, counsel states that the petitioner operates restaurants in Kern and Tulare Counties in California, 
with the view of franchising. Counsel asserts that the director erred by requiring that the baccalaureate degree 
for the proposed position "be in a specific field of stud 
 as this language is not in the regulation relied on by 
the director. Counsel states that the letter from Y Japanese establishes that a bachelor's degree is 
common to the industry in parallel positions among organizations similar to the petitioner. 
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. 
To qualie a position as a specialty occupation the petitioner must establish one of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). It is noted that the petitioner requires a baccalaureate degree for the proposed 
position. Counsel states that the regulations do not require that the baccalaureate degree "be in a specific field 
of study." Counsel's assertion is undermined by section 214(i)(l) of the Act: it defines the term "specialty 
occupation" as an occupation requiring theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a bachelor's or higher degree in the speciJic specialty (or its equivalent) as a 
minimum for entry into the occupation in the United States. Furthermore, case law such as Matter of Michael 
Hertz Assocs., 19 I&N Dec. 558, 560 (Comm. 1988)' indicates that for a position to qualify as a specialty 
occupation the petitioner must establish that it requires a "precise and specific course of study that relates 
directly and closely to the position in question" and that "there must be a close corollary between the required 
specialized studies and the position," and that "the requirement of a degree of generalized title, such as 
business administration or liberal arts, without further specification, does not establish eligibility." 
'C 
WAC 05 15 1 54372 
Page 4 
The record reflects that the petitioner does not require a baccalaureate degree in a specific academic field for 
the proposed position. It requires any baccalaureate degree. Accordingly, the petitioner fails to establish the 
proposed position as a specialty occupation under section 214(i)(l) of the Act and under any of the criteria at 
8 C.F.R. $ 2 14.2(h)(4)(iii)(A). 
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 on this 
ground. 
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.