dismissed H-1B Case: Marketing And Management Analysis

iddm dataddeted 0 
prevent clearly unwarranted 
invasion of ps4 privacy 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: EAC 04 174 50205 Office: VERMONT SERVICE CENTER 
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. 9 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 documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
B247yy 
Robert P. Wiemann, D ect 
Administrative Appeals 0gce 
EAC 04 174 50205 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now 
before the Administrative Appeals Office (MO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a cargo forwarding and courier service that seeks to employ the beneficiary as a strategic 
managementlmarketing analyst. The petitioner, therefore, endeavors to classify the beneficiary as a 
nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 9 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the ground that: (1) the proffered position is not a specialty occupation; 
and (2) the beneficiary is not qualified for a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 9 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 
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. 
9 214.2(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 
EAC 04 174 50205 
Page 3 
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 strategic managementlmarketing analyst. Evidence of 
the beneficiary's duties includes: the Form 1-129; the attachments accompanying the Form 1-129; and the 
petitioner's support letter. According to this evidence, the beneficiary would perform duties that entail: 
creating and overseeing campaigns to increase cargo and courier services and retail business within minority 
populations in the region, specifically the Asian population; researching market conditions such as delivery 
and cargo preferences of customers; gathering data on shippinglcargo establishments and analyzing their 
pricing, delivery plan, advertising techniques and marketing methods; analyzing business and operating 
procedures to manage and deliver work; organizing and documenting findings of studies and preparing 
recommendations for implementing new systems, procedures, or organizational changes; installing new 
systems and training personnel in applications; conferring with personnel about newly implemented systems 
or procedures; designing phone and mail interview surveys and questionnaires to assess customer/client 
preferences; developing networking strategies that focus on targeted communities such as shipping job fairs 
and cargo handling activities; preparing periodic assessments of the marketing strategy and recommending 
alternatives that increase the deliverylcourier business and expand business among targeted communities; 
conducting periodic statistical analysis to assess growth and the possibility of establishing branches in other 
locations, including the feasibility of adding new delivery productslservices; analyzing the petitioner's 
performance against the shippinglcargo industry standard and developing strategies and programs that meet or 
exceed the industry average; and submitting periodic reports to the ownerlpresident regarding developments 
on marketing and management plans. For the proposed position the petitioner requires a bachelor's degree in 
management, marketing, commerce, or a related field. 
The director found that the proposed duties are a combination of those of a market research analyst and a 
management analyst as those occupations are described in the Department of Labor's Occupational Outlook 
Handbook (the Handbook). The director stated that the Handbook discloses that those occupations typically 
are found in consulting firms or are held by individual consultants. The director concluded that in light of the 
size and scope of the petitioner's business, the beneficiary would not be "fully and solely occupied with the 
duties of a specialty occupation." The director also concluded that based on the Handbook's information, the 
beneficiary is unqualified for a market research analyst or a management analyst position. 
On appeal, counsel states that the director erred by denying the petition without issuing a request for 
additional evidence and for failing to elaborate on the grounds for the denial. Counsel states that there is no 
regulatory requirement that a beneficiary must have experience in order to qualify for a specialty occupation. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
4 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
Counsel contends on appeal that the director violated 8 C.F.R. 3 103.2(b)(8) by failing to request further 
evidence before denying the petition. The cited regulation requires the director to request additional evidence 
in instances "where there is no evidence of ineligibility, and initial evidence or eligibility information is 
EAC 04 174 50205 
Page 4 
missing." Id. The director is not required to issue a request for further information in every potentially 
deniable case. If the director determines that the initial evidence supports a decision of denial, the cited 
regulation does not require solicitation of further documentation. The director did not deny the petition based 
on insufficient evidence of eligibility. Furthermore, even if the director had committed a procedural error by 
failing to solicit further evidence, it is not clear what remedy would be appropriate beyond the appeal process 
itself. The petitioner has in fact supplemented the record on appeal, and therefore it would serve no useful 
purpose to remand the case simply to afford the petitioner the opportunity to supplement the record with new 
evidence. 
The AAO first considers the criteria at 8 C.F.R. $9 214.2(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 Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
The AAO does not agree with the director's statement that the size and scope of the petitioner's business 
determines the beneficiary's duties, and that the employment of market research analysts and management 
analysts is limited to particular industries. The Handbook discloses that management analysts are found in a 
wide range of industries and are employed in small companies, and that market research analysts are 
employed throughout the economy. Notwithstanding the Handbook's information, the AAO finds that the 
proposed duties are not those of a market research analyst or a management analyst, or a combination of both 
occupations. 
In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determines, from a review of the duties of the position and any supporting evidence, whether the 
position actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate degree in a specific specialty as the minimum for entry into the 
occupation as required by the Act. 
The AAO routinely consults the Handbook for its information about the duties and educational requirements 
of particular occupations. The Handbook describes a management analyst as follows: 
After obtaining an assignment or contract, management analysts first define the nature and 
extent of the problem. During this phase, they analyze relevant data-which may include 
annual revenues, employment, or expenditures-and interview managers and employees 
while observing their operations. The analyst or consultant then develops solutions to the 
problem. While preparing their recommendations, they take into account the nature of the 
organization, the relationship it has with others in the industry, and its internal organization 
EAC 04 174 50205 
Page 5 
and culture. Insight into the problem often is gained by building and solving mathematical 
models. 
Once they have decided on a course of action, consultants report their findings and 
recommendations to the client. These suggestions usually are submitted in writing, but oral 
presentations regarding findings also are common. For some projects, management analysts 
are retained to help implement the suggestions they have made. 
The Handbook relays that a management analyst defines the nature and extent of problems, reports findings 
and recommendations, and sometimes implements suggestions. 
The AAO finds that the petitioner has not established that the proposed duties reflect those of a management 
analyst, which is a specialty occupation. As described by the petitioner, the proposed duties are portrayed in 
general terms, without any particularity, such that the duties do not relate to the petitioner's business, a cargo 
forwarding and courier service, or to any specifically defined problems. For example, the beneficiary is 
described as analyzing business or operating procedures in order to devise efficient methods to manage and 
deliver work. However, the petitioner fails to describe its current business and operating procedures, the 
methods it uses to manage and deliver work, and the particular problems it experiences in those areas. The 
petitioner does not describe in any manner the "new systems" that will be installed and does not elaborate on 
the types or standards of "performance" that will be analyzed and compared within the shippinglcargo 
industry. To determine whether a position qualifies as a specialty occupation, CIS must examine the actual 
employment of a beneficiary, which are the specific tasks to be performed by the beneficiary. In light of the 
generic job description offered here, and in the absence of a narration of specific business and operational 
problems, the AAO cannot identify the beneficiary's specific tasks, and thereby, whether the position is that 
of a management analyst. In addition, without a reliable description of the position's duties, the AAO is 
unable to determine whether the performance of those duties meets the statutory definition of a specialty 
occupation. 
For the proposed position, the petitioner requires a bachelor's degree in management, marketing, commerce, 
or a related field. With respect to the employment of a management analyst, the Handbook states: 
Educational requirements for entry-level jobs in this field vary widely between private 
industry and government. Most employers in private industry generally seek individuals with 
a master's degree in business administration or a related discipline. Some employers also 
require additional years of experience in the field or industry in which the worker plans to 
consult, in addition to a master's degree. Some will hire workers with a bachelor's degree as 
a research analyst or associate. Research analysts usually need to pursue a master's degree in 
order to advance to a consulting position. Most government agencies hire people with a 
bachelor's degree and no pertinent work experience for entry-level management analyst 
positions. 
EAC 04 174 50205 
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The AAO considers the Handbook's passage to indicate that in private industry a master's degree or its 
equivalent in business administration or a related discipline is normally the minimum educational requirement 
for entry into a management analyst position. Although the Handbook conveys that some employers hire 
workers with a baccalaureate degree as a research analyst or associate, no evidence in the record indicates the 
proposed position parallels a research analyst or associate; nor has the petitioner made such an assertion. 
Thus, the petitioner's educational requirement for the proposed position differs from the Handbook's 
requirement of a master's degree or its equivalent in business administration or a related discipline for a 
management analyst position. 
The petitioner asserts that some of the proposed duties are those of a marketing analyst. The Handbook 
describes a marketing analyst as follows: 
Market, or marketing, research analysts are concerned with the potential sales of a product or 
service. Gathering statistical data on competitors and examining prices, sales, and methods of 
marketing and distribution, they analyze data on past sales to predict future sales. Market 
research analysts devise methods and procedures for obtaining the data they need. Often, they 
design telephone, mail, or Internet surveys to assess consumer preferences. They conduct 
some surveys as personal interviews, going door-to-door, leading focus group discussions, or 
setting up booths in public places such as shopping malls. Trained interviewers usually 
conduct the surveys under the market research analyst's direction. 
After compiling and evaluating the data, market research analysts make recommendations to 
their client or employer on the basis of their findings. They provide a company's management 
with information needed to make decisions on the promotion, distribution, design, and pricing 
of products or services. The information also may be used to determine the advisability of 
adding new lines of merchandise, opening new branches, or otherwise diversifying the 
company's operations. Market research analysts also might develop advertising brochures 
and commercials, sales plans, and product promotions such as rebates and giveaways. 
According to the Handbook, the primary role of a market research analyst is to "devise methods and 
procedures for obtaining the data they need." Although the beneficiary will design phone and mail interview 
surveys and questionnaires, the petitioner does not indicate the percentage of time that the beneficiary will 
spend on this duty. Consequently, the AAO cannot conclude that the beneficiary will actually provide 
services as a market research analyst. 
The AAO finds that the proposed duties that relate to marketing1 correspond to those of managerial positions 
in marketing, which the Handbook depicts as follows: 
1 
 The duties relating to marketing include creating and overseeing campaigns to increase cargo and courier 
services and retail business within the minority populations in the region, specifically among Asian 
populations; researching market conditions such as delivery and cargo preferences of customers; gathering 
EAC 04 174 50205 
Page 7 
Marketing managers develop the firm's marketing strategy in detail. With the help of 
subordinates, including product development managers and market research managers, they 
estimate the demand for products and services offered by the firm and its competitors. In 
addition, they identify potential markets-for example, business firms, wholesalers, retailers, 
government, or the general public. Marketing managers develop pricing strategy to help firms 
maximize profits and market share while ensuring that the firm's customers are satisfied. In 
collaboration with sales, product development, and other managers, they monitor trends that 
indicate the need for new products and services, and they oversee product development. 
Marketing managers work with advertising and promotion managers to promote the firm's 
products and services and to attract potential users. 
According to the Handbook, managerial positions in marketing do not require a baccalaureate degree in a 
specific specialty. The Handbook states: 
A wide range of educational backgrounds is suitable for entry into advertising, marketing, 
promotions, public relations, and sales managerial jobs, but many employers prefer those 
with experience in related occupations plus a broad liberal arts background. A bachelor's 
degree in sociology, psychology, literature, journalism, or philosophy, among other subjects, 
is acceptable. . . . 
For marketing, sales, and promotions management positions, some employers prefer a 
bachelor's or master's degree in business administration with an emphasis on marketing. . . . 
The AAO's conclusion, based on the above discussion, is that the petitioner fails to satisfy the first criterion at 
8 C.F.R. 9 214.2(h)(4)(iii)(A): that a baccalaureate or higher degree or its equivalent in a specific specialty is 
the normal minimum requirement for entry into the particular position. 
The submitted job postings fail to establish the first alternative prong at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(2) - 
that a specific degree requirement is common to the industry in parallel positions among similar 
organizations. The companies in the postings are either not similar in nature to the petitioner, a small cargo 
forwarding and courier service, or they do not ir a bach r' degree in s ecific s ecialty. American 
Chemical Societv is in the chemical industry; and are technology 
companies is ieand other postings are from technology 
companies, a food service company, and an automotive supplier. I.T. Direct does not require a bachelor's 
degree in a specific specialty. For these reasons, the petitioner fails to establish that a specific degree 
data on other shippinglcargo establishments in the area, analyzing their pricing structure, delivery plan, and 
advertising techniques and marketing methods. . 
EAC 04 174 50205 
Page 8 
requirement is common to the industry in parallel positions among organizations that are similar to the 
petitioner. 
The petitioner has not satisfied the second alternative prong at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(2) as no 
evidence in the record shows the proffered position is so complex or unique that it can be performed only by 
an individual with a degree. As discussed earlier in this decision, the AAO cannot conclude that the proposed 
duties are a combination of those of a management analyst and a market research analyst, both of which are 
positions that qualify as specialty occupations. Thus, the petitioner fails to establish the second alternative 
prong at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(2). 
No evidence in the record establishes the regulation at 8 C.F.R. 4 214.2(h)(4)(iii)(A)(3): that the petitioner 
normally requires a degree or its equivalent for the position. 
To satisfy the regulation at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(4), the petitioner must establish that the nature of 
the specific duties is so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a baccalaureate or higher degree. As discussed in this decision under 
8 C.F.R. 214.2(h)(4)(iii)(A)(l), the AAO cannot conclude that the proposed duties are a combination of 
those of a management analyst and a marketing analyst, both of which qualify as specialty occupations. 
Accordingly, the petitioner fails to establish this last criterion at 8 C.F.R. § 214.2(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 director also determined that the beneficiary is not qualified for the proposed position. Because the AAO 
found that the proposed position does not qualify as a specialty occupation, the beneficiary's qualifications for 
the proposed position are irrelevant. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 4 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.