dismissed H-1B Case: Marketing / Wholesale Trade

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
FILE: WAC 04 166 52879 Office: CALIFORNIA SERVICE CENTER Date: APR 2 6 20% 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section 101 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 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 04 166 52879 
Page 2 
DISCUSSION: The service center director denied the nonimrnigrant 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 manufacturer and wholesaler of semi-precious beads and stones. It seeks to employ the 
beneficiary as a marketing management analyst and endeavors to classify him as a nonimrnigrant worker in a 
specialty occupation pursuant to section 10 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 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. 5 1 10 1 (a)(l 5)(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. 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. 
The term "specialty occupation" is further defined at 8 C.F.R. 5 214.2(h)(4)(ii) as: 
[A]n occupation which requires theoretical and practical application of a body of highly 
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 04 166 52879 
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(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. 
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) the 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) 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 management analyst. 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: 
Study products, pricing, distribution and promotional strategies of the company and develop and 
implement marketing strategies in all areas of responsibility; 
Conduct research, conceptualize and develop new product lines of beads, colored stones and related 
products including research of the competitive environment, and target markets for sales in the United 
States; 
Explore new target areas for sales and promotion jewelry products, including catalogs and trade 
shows, and establish partnerships with other business entities such as retailers and traders; 
Study the pricing strategies of the company and recommend optimal pricing strategies for diamonds, 
beads, colored stones, and related products; 
Develop promotional strategies aimed at targeted areas including major jewelry retailers and 
manufacturers including marketing communication strategies; 
Design and coordinate promotion through direct mail, printed advertising including industry 
publications, telemarketing, trade show and industry events, and the corporate website; 
Develop distribution strategies to reduce distribution costs by researching shipping options; and 
Develop and implement a marketing strategy for the company on a five-year cycle. 
WAC 04 166 52879 
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The petitioner requires a minimum of a bachelor's degree in marketing or business administration with 
coursework in marketing 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 fms or individuals in the industry attest that such fms "routinely employ and recruit only 
degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 151, 1 165 (D. Minn. 1999) (quoting 
Hird/Blaker Cop. 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 appear to fall within those noted for advertising, 
marketing, promotions, public relations, and sales managers. Marketing managers develop a firm's detailed 
marketing strategy. With the assistance of others, they determine the demand for products and services 
offered by the firm and its competitors. They identify potential markets - for example, business fms, 
wholesalers, retailers, government, or the general public. They also develop pricing strategies with an eye 
towards maximizing the firm's market share and profitability while ensuring customer satisfaction. 
Marketing managers also monitor trends that indicate the need for new products and services and oversee the 
development for new products, while working with other managers for product promotion to attract new 
customers. The duties of a marketing manager necessarily require market research and the gathering of data 
in performing that research. The position offered in this instance, is not that of a market research analyst who 
normally engages in pure market research on a consulting basis for large companies. The duties as described, 
and within the petitioner's business environment, would normally be performed by 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. $ 214.2(h)(4)(iii)(A). 
WAC 04 166 52879 
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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 that assertion, the petitioner states 
that the Handbook describes a bachelor's degree as the minimum requirement for entry into the position, and 
that the positions SVP rating justifies the requirement of a bachelor's degree. As noted above, the Handbook 
does not state that a bachelor's degree in a specific specialty is required for entry into the position. Further, 
an SVP rating is meant to indicate only the total number of years of vocational preparation required for a 
particular position. The SVP classification does not describe how those years are to be divided among 
training, formal education, and experience, nor does it specify the particular type of degree, if any, that a 
position would require. The advertisements, therefore, do not establish the referenced criterion at 8 C.F.R. 
3 2 14.2(h)(4)(iii)(A)(2). 
The petitioner asserts that it normally requires a degree in a specific specialty for the offered position, 
providing copies of its job advertisements for the present position and stating that the position was previously 
filled by an individual with a bachelor's degree in business administration. The petitioner did not present any 
additional evidence of its past hiring practices, nor did it present documentation to establish the educational 
credentials of the individual who previously performed the duties of the position. Simply going on the record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N 190 (Reg. Comm. 1972)). CIS must examine the ultimate employment of the alien, and 
determine whether the position qualifies as a specialty occupation. C.' Defensor v. Meissner, 201 F. 3d 384 
(5'h Cir. 2000). The critical element is not the title of the position or an employer's self-imposed standards, but 
whether the position actually requires the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty as the minimum 
for entry into the occupation as required by the ~ct.' To interpret the regulations any other way would lead to 
absurd results: if CIS were limited to reviewing a petitioner's self-imposed employment requirements, then 
any alien with a bachelor's degree could be brought into the United States to perform menial, non- 
professional, or an otherwise non-specialty occupation, so long as the employer required all such employees 
to have baccalaureate or higher degrees. See id at 388. The regulatory criterion at 8 C.F.R. 
3 2 14.2(h)(4)(iii)(A)(3) 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 failed to establish the referenced criteria at 8 C.F.R. $9 214.2(h)(4)(iii)(A)(2) or 
(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. 
1 
The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387. 
WAC 04 166 52879 
Page 6 
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 failed to sustain that burden and the appeal shall accordingly be dismissed. 
ORDER. The appeal is dismissed. The petition is denied.