dismissed H-1B Case: Medical Services

U.S. Department of Homeland Security 
20 Mass Ave.. N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 070 50299 Office: CALIFORNIA SERVICE CENTER Date: sEp 2 1 20815 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
NSTRUCTIONS: 
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 04 070 50299 
Page 2 
DISCUSSION: The director of the service center denied the nonirnmigrant 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 medical facility and spa. It seeks to employ the beneficiary as a market research analyst. 
The petitioner, therefore, endeavors to classify the beneficiary as a nonirnrnigrant 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. 
§ 1 10 1 5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. 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 howledge 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. 
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 regulation at 8 C.F.R. 214.2(h)(l)(ii)(B)(I) states that the H-1B classification applies to an alien who is 
coming temporarily to the United States to perform services in a specialty occupation. 
WAC 04 070 50299 
Page 3 
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 a market research analyst. Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's support letter; 
and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail gathering and analyzing information and statistical data on past 
revenues to predict future revenues and marketing trends; gathering data on competitors and analyzing their 
prices, sales, and methods of marketing and using the information to advise about new services, opening new 
branches, or diversifying business operations; devising methods and procedures for obtaining information and 
statistical data; designing telephone, personal, or mail interview surveys to assess the preferences and buying 
habits of existing clients and potential clients; conducting opinion research to determine the general market 
attitude and acceptance of the different services offered and to create a marketing campaign based on 
customer preferences; evaluating the gathered data and making recommendations based on the data; advising 
management regarding promotions, distribution, design, and pricing of the petitioner's services. In the 
February 2, 2004 letter, the petitioner elaborated on the proposed duties. The petitioner requires a bachelor's 
degree in economics, marketing, statistics, or a related field for the proposed position. 
The director stated that some of the proposed duties reflect those of a market research analyst as that 
occupation is described in the Department of Labor's (DOL) Occupational Outlook Handbook (the 
Handbook). But the director stated that sole reliance on the Handbook and other governmental publications 
to demonstrate that a position is a specialty occupation is misplaced. When determining whether a position 
qualifies as a specialty occupation, the director stated that each position must be evaluated based on the nature 
and complexity of the job duties, and that performing incidental specialty occupation duties is insufficient to 
establish that a position is a specialty occupation. The director also stated that the beneficiary's degree in a 
related area does not guarantee the position is a specialty occupation. The director was not persuaded to 
classify the proposed position as a market research analyst because the petitioner's business did not extend 
beyond the local community, and lacked a consumer base that required the services of a marketing andlor 
sales staff. The director found that the petitioner did not have the organizational complexity to require the 
services of a market research analyst. No evidence establishes, the director stated, that the petitioner had 
marketing staff or specialists to gather data or sales representatives to implement advertising or sales 
campaigns as a result of the research performed and recommendations made by the market research analyst. 
Nor did the director find that the petitioner's business ever produced advertising or sales campaigns through 
in-house account, creative, and media services departments. The director concluded that the beneficiary 
would perform these duties, which are not of a specialty occupation. According to the director, even if the 
beneficiary were performing some market analysis, that duty would be incidental to the primary duties and 
are insufficient to establish that the proposed position qualifies as a specialty occupation. The director 
determined that the proposed position requires some market analysis, but that the petitioner is not in an 
industry that the Handbook describes as employing market research analysts on a part-time or a full-time 
WAC 04 070 50299 
Page 4 
basis for any significant length of time. The director found the proposed position similar to a marketing 
manager, which the Handbook reveals is not a specialty occupation. The director discussed the four criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A), finding that the petitioner established none of them. 
On appeal, counsel states that the petitioner requires the services of a market research analyst on a full-time 
basis, and that this is more cost effective than retaining the service of an outside market research analyst. 
Counsel states that the petitioner employs a team of experts, which are described in the Life Well Institute 
brochures as treating patients and clients. Counsel states that the petitioner has experienced growth that 
extends beyond the local community, and references financial documents, a mailing list, and an 
organizational chart to substantiate this. According to counsel, the petitioner is embarking on an expansion 
plan to compete in the health and wellness service industry, and to increase market exposure and product 
distribution. Counsel references and discusses evidence about the medical and health spa industry, asserts 
that companies in the industry require a bachelor's degree for the proposed position, and submits three job 
postings to support this assertion. Counsel also discusses bachelor's programs in various colleges. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
9 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
On appeal, counsel claims that the petitioner has experienced exceptional growth in its size and income, and 
number of clients and employees, and that due to this growth and stiff competition the petitioner requires the 
services of a market research analyst. However, no evidence demonstrates that the petitioner has experienced 
growth in any of these areas. The petitioner submitted only one income tax return for 2002, which is 
insufficient to demonstrate income growth over a period of time.' The evidence does not establish that the 
petitioner increased its staff or employs "a highly professional team of experts." The organizational chart 
does not show employment of physicians, licensed physical and occupational therapists, licensed nutritionists 
and dietitians, and licensed hypnotherapists. The evidence, including Forms W-2 for 2003, and DE-6 Forms 
for 2003, reflects that the petitioner employs a small staff: a medical assistant, a president (who seems to 
provide services as a cardiologist), and a medical biller. The petitioner uses the services of independent 
contractors. Exhibit I, a list of names and contact information, does not demonstrate that the petitioner 
experienced a dramatic increase in clientele over a period of time or that it has or seeks clientele fi-om across 
the country. The statements of counsel on appeal or in a motion are not evidence and thus are not entitled to 
any evidentiary weight. See INS vs. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503 (BIA 1980). 
The AAO's conclusion, fi-om the evidence to which it has referred, is that the petitioner fails to establish any 
of the criteria at 8 C.F.R. 214.2@)(4)(iii)(A) since no evidence establishes that the beneficiary is coming 
temporarily to the United States to perform services in a specialty occupation as required by the regulation at 
8 C.F.R. $ 214.2(h)(I)(ii)(B)(I). Counsel asserts that the petitioner seeks the services of market research 
analyst due to its dramatic growth. But the evidence in the record does not show that the petitioner 
The income of $699,783 shown in the Form 1120, U.S. Corporation Income Tax Return for 2002, pertains 
only to the medical facility, as the day spa opened in 2003. 
WAC 04 070 50299 
Page 5 
experienced such growth. Thus, the reasons for employing a market research analyst are not supported by the 
record. The petitioner therefore fails to establish that the beneficiary would be coming temporarily to the 
United States to perform services in a specialty occupation as required by the regulation at 8 C.F.R. 
Q 214.2(h)(l)(ii)(B)(I). As such, the petitioner satisfies none of the criteria at 8 C.F.R. 5 214.2(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; a specific degree requirement is common to the industry in 
parallel positions among similar organizations; the proffered position is so complex or unique that it can be 
performed only by an individual with a degree; the petitioner normally requires a degree or its equivalent for 
the position; or 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 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.