dismissed H-1B Case: Oriental Carpeting

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 02 128 52660 Office: VERMONT SERVICE CENTER Date: E'T 2 $ 2005 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. fj 1 lOl(a)(lS)(H)(i)(b) 
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 
EAC 02 128 52660 
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 is a company engaged in the design, development, production, and sales of oriental carpeting. 
In order to employ the beneficiary in a position that the petitioner designates product development manager, 
the petitioner 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), 8U.S.C. 
9 1 lol(a)(l5)0(i)(b). 
The director denied the petition on the basis that the petitioner had failed to establish that the proffered 
position met the requirements of a specialty occupation as set forth in the regulation at 8 C.F.R. 
5 214.2(h)(4)(iii)(A). Evidence of record specifically addressed by the director includes: the Specific 
Vocational Preparation (SVP) code of 7 that the petitioner cites as designated by the Department of Labor's 
(DOL) Dictionary of Occupational Titles (DOT) for the type of position that it is proffering; a copy of the 
"Advertising, Marketing, Promotions, Public Relations and Sales Manager" section of DOL's Occupational 
Outlook Handbook (Handbook); and job vacancy announcements for product development managers that 
other employers have posted on the Internet. 
On appeal, counsel frrst asserts that the director "makes reference to" the DOT and the Handbook "but fails to 
take into account [that] the beneficiary was previously (and currently) the holder of a[n] H-1B under the same 
title in a company [Dover Rug] that directly parallels the current petitioner." Counsel also states that Dover 
Rug "had at least 3 other Product Development Managers in the past all of which had bachelor's degrees." 
Counsel names two of these persons, and he provides copies of Form I-797A notices of approval of H-1B 
petitions for the beneficiary and one of the aforenamed persons to work at Dover Rug. Counsel contends that 
the present petition should be approved "[iln the interest of fairness and justice" because the beneficiary "also 
previously had an H-lb approved under the same job title, same job duties and same type of company (Dover 
Rug Co.) in the same area." Counsel's states the second basis of the appeal as follows: 
The service claims that the job postings submitted were not comparable to the proffered 
position, not of similar size and scope to our organization. The service center apparently 
claims, then, that there could be no organization on this earth that could be of comparable 
size, and scope as another. This is clearly erroneous when compared with the beneficiary's 
previous employer. If the two organizations are not of the same size and scope, with the job 
titles and duties being the same, then there can be no two organizations (or jobs) ever 
anywhere that would fit that description. This makes 8 C.F.R. 5 214.2(h) useless in 
determining whether a specialty occupation exists. Is it the services intent here to re-write the 
law [?I 
The director's decision to deny the petition was correct. The AAO bases its decision upon its consideration of 
the entire record of proceeding before it, which includes: (1) the petitioner's Form 1-129 and the supporting 
documentation filed with it; (2) the director's request for additional evidence (RFE); (3) the materials 
EAC 02 128 52660 
Page 3 
submitted in response to the RFE; (4) the director's denial letter; and (5) the Form I-290B and counsel's brief 
(styled as a Motion to Reopen) and its attached documents. 
Section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 3 I 10 l(a)(lS)(H)(i)(b), provides a nonimmigrant 
classification for 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. 3 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. 
Thus, it is clear that Congress intended this visa classification only for aliens who are to be employed in an 
occupation that requires the theoretical and practical application of a body of highly specialized knowledge 
that is conveyed by at least a baccalaureate or higher degree in a specific specialty. 
Consonant with section 214(i)(l) of the Act, the regulation at 8 C.F.R. 214.2@)(4)(ii) states that a specialty 
occupation means an occupation: 
which [I] 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 [2] requires the attainment of a 
bachelor's degree or higher in a spec$c specialty, or its equivalent, as a minimum for entry into 
the occupation in the United States. (Italics added.) 
Pursuant to 8 C.F.R. 3 214.2(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 
EAC 02 128 52660 
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(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) has consistently interpreted the term "degree" in the criteria at 
8 C.F.R. 5 214.2@)(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. Applying this standard, CIS regularly approves 
H-1B petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public 
accountants, college professors, and other such professions. These occupations all require a baccalaureate 
degree in the specific specialty as a minimum for entry into the occupation and fairly represent the types of 
professions that Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a 
position's title or generalized descriptions of duties. It looks primarily for evidence about the specific duties, 
and about the nature of the petitioning entity's business operations. CIS must examine the ultimate 
employment of the alien, and determine whether the position qualifies as a specialty occupation. CJ: Defensor 
v. Meissner, 201 F. 3d 384 (5th Cir. 2000). Neither the title of the position, abstract descriptions of its duties, 
nor an employer's self-imposed standards are persuasive in the critical assessment that CIS must make: 
whether the evidence of record establishes that performance of 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 Act. 
The AAO discounts counsel's reliance upon Dover Rug and its history with regard to previously approved 
H-1B petitions. Each nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. 
# 103.8(d). In malung a determination of statutory eligibility, CIS is limited to the information contained in 
the record of proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). The director's decision does not indicate whether he 
reviewed the prior approval of the other nonimmigrant petitions filed by Dover Rug. The AAO is not 
required to approve applications or petitions where eligibility has not been demonstrated, merely because of 
prior approvals that may have been erroneous. If the nonimmigrant petitions referenced by counsel were 
approved on substantially the same evidence contained in the current record, the approvals would constitute 
material and gross error on the part of the director. The AAO is not required to approve applications or 
petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Cornrn. 1988). It 
would be absurd to suggest that CIS or any agency must treat acknowledged errors as binding precedent. 
Sussex Engg. Ltd. v. Montgomey, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
A prior approval does not preclude CIS from denying an extension of an original visa petition based on a 
reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 
1240482 (5th Cir. 2004). Furthermore, the AAO's authority over the service centers is comparable to the 
relationship between a court of appeals sand a district court. Even if a service center director had approved 
nonimmigrant petitions on behalf of a beneficiary, the AAO would not be bound to follow the contradictory 
decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), ard, 
248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct 51 (2001). 
EAC 02 128 52660 
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It is also noted that neither counsel nor the petitioner present documentary evidence to support their assertions 
of equivalency between the proffered position and positions at Dover Rug, between Dover Rug and the 
petitioner, or between Dover Rug petitions and the petition that is the subject of this proceeding. Simply 
going on record without supporting documentary evidence is not sufficient for the purpose of meeting the 
burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Furthermore, the assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
The petitioner's response to the RFE includes a job description document that states that the purpose of the 
proffered position is "to determine where waste and duplication could be eliminated and to make changes in 
our sales and marketing department in order to run a more cost effective and efficient operations [sic]." The 
document identifies the following duties and responsibilities: 
Setting weekly sales targets and holding meetings every day to improve the sales, to keep the 
sales staff motivated and to effectively develop, maintain, and expand a solid base of 
customers. 
Coordinate sales and marketing staff to focus on the products to continue or to discontinue 
and the new products to be introduced to yield better productivity and profits. 
= Search new domestic and national markets for our products. 
. Plan sales and marketing strategies. 
Plan advertising and promotional budgets as well as maintain all advertising and promotion 
accounts for all locations. 
Training and educating the sales staff about the product and how to improve the quality of 
service in order to get optimum results. 
The evidence of record does not satisfjr the criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A)(I), which assigns 
specialty occupation status to those positions for which the normal minimum entry requirement is a 
baccalaureate or higher degree, or the equivalent, in a specific specialty related to the position's duties. 
Counsel's references to an SVP rating of 7 in the DOT and Online Wage Library (OWL) are not probative. 
Neither the DOT nor the OWL is a persuasive source of information regarding whether a particular job 
requires the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent, as a 
minimum for entry into the occupation. Their SVP ratings are meant to indicate only the total number of 
years of vocational preparation required for a particular position. An SVP rating does not describe how those 
years are to be divided among training, formal education, and experience, and it does not specify the 
particular type of degree, if any, that a position would require. 
EAC 02 128 52660 
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The AAO recognizes the Handbook as an authoritative source on the duties and educational requirements of a 
wide variety of occupations. The AAO concurs with counsel's assessment, reflected in the Handbook excerpt 
submitted into the record, that the proffered position comports with the occupational category Advertising, 
Marketing, Promotions, Public Relations and Sales Manager as related in the  andb book.' However, the 
Handbook indicates that a baccalaureate or higher degree or its equivalent in a specific specialty is not normally 
the minimum requirement for entry into positions in this occupational category. (See the subsection "Training, 
Advancement, and Other Qualifications," at pages 24-25 of the 2004-2005 edtion.) 
As the evidence of record does not establish that a baccalaureate degree or higher, or the equivalent, in a specific 
specialty is a normal minimum-entry requirement for the proffered position, the petitioner has not satisfied the 
criterion at 8 C.F.R. 5 2 14.2@)(4)(iii)(A)(l). 
The petitioner has not satisfied either of the alternative prongs of 8 C.F.R. 3 214.2(h)(4)(iii)(A)(2). 
The first alternative prong assigns specialty occupation status to a proffered position with a requirement for at 
least a bachelor's degree, in a specific specialty, that is common to the petitioner's industry in positions that 
are both (1) parallel to the proffered position and (2) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by CIS 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 fms "routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 
36 F. Supp. 2d 1151, 1165 @.Minn. 1999) (quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 1102 
(S.D.N.Y. 1989)). 
The director correctly determined that the record's advertisements from other firms for product development 
managers are not probative. The advertisers are: (1) the mortgage-lending unit of a major banking institution, 
Citigroup; (2) a provider of secure, outsourced e-business infrastructure services involving more than 13,000 
servers within over 1,000 networks in 63 countries; (3) a manufacturer of reusable textiles, apparel, surgical; and 
decorative products that prefers candidates with a bachelor's degree in textile sciences; (4) the Citi credit card unit 
of Citigroup; and (5) Aegon, a firm whose business is not identified. The evidence of record fails to establish 
significant similarity between the advertised positions and the one proffered here. The educational requirements 
stated in the advertisements - which include degrees with unspecified majors as well as degrees in a specific 
specialty - are not inconsistent with the aforementioned Handbook information. Besides the fact that the 
relevance of the advertisements to the particular position proffered here has not been established, and that the 
advertisements do not establish a degree requirement in a specialty, the advertisements are too few to establish a 
position's normal hiring requirements in the industry. 
1 
See also pages 23-26 of the 2004-2005 edition of the Handbook, the edition which the AAO consulted in its 
review of this proceeding. 
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As already discussed, the Handbook does not indicate that the proffered position requires a degree in a specific 
specialty. There are no letters or affidavits from individuals, firms, or professional associations attesting to the 
minimum degree requirements for a position such as that proffered here. The job vacancy advertisements in the 
record fiom other firms are not probative. They are too few to establish a common-to-the-industry hiring 
practice. The advertisements also exceed the scope of evidence relevant to this criterion, as the advertisers 
include employers outside the petitioner's industry. The petitioner has not demonstrated that the proffered 
position and those advertised are parallel, as required by this criterion, and the businesses in which most of the 
advertisers engage suggest the opposite: they appear to be materially different fiom the petitioner's rug business. 
The evidence of record does not qualify the proffered position under the second alternative prong of 8 C.F.R. 
9 214.2@)(4)(iii)(A)(2), which provides a petitioner the opportunity to show that its particular position is so 
complex or unique that it can be performed only by an individual with at least a bachelor's degree in a 
specific specialty. Here the evidence of record does not establish either such uniqueness or complexity. No 
evidence in the record distinguishes the proffered position from the general range of marketing or sales 
management positions, for which the Handbook indicates that there is no normal minimum requirement for a 
bachelor's degree in a specific specialty. 
The petitioner has not met the criterion at 8 C.F.R. 8 214.2@)(4)(iii)(A)(3) for a position for which the 
employer normally requires at least a baccalaureate degree or its equivalent in a specific specialty. Counsel 
asserts that the petitioner "primarily hires those with college degrees or their equivalent" (at page 2 of counsel's 
letter of reply to the RFE), and the petitioner's August 13, 2003 letter attests that, in addition to the beneficiary, 
two of its employees "have a Bachelor's Degree," and that all the members of its "extended team" of independent 
contractors in sales "hold a Bachelor's Degree." No supportive documentation has been submitted into the 
record. Simply going on record without supporting documentary evidence is not sufficient for the purpose of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165. Furthermore, the 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534; Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506. The AAO also notes that the degree historically required by the 
petitioner must be in a specific specialty whose application is necessary for successful performance of the 
duties of the position, and cannot simply be an unspecified "bachelor's degree." 
The evidence does not satisfy the criterion at 8 C.F.R. 9 214.2(h)(iii)(A)(4) for positions with specific duties 
so specialized and complex that their performance requires knowledge that is usually associated with the 
attainment of a baccalaureate or higher degree in a specific specialty. The petitioner has not provided any 
evidence to establish that the proposed duties are any more specialized and complex than the duties of the general 
range of marketing or sales manager positions, and neither the Handbook nor any other evidence of record 
establishes a usual association of those positions with at least a bachelor's degree in a specific specialty. 
As the petitioner has failed to establish that the proffered position qualifies as a specialty occupation under any 
criterion of 8 C.F.R. 9 214.2(h)(4)(iii)(A), the director's decision shall not be disturbed. 
Beyond the decision of the director, it is noted that the petitioner has not established that the beneficiary is 
qualified to serve in a specialty occupation in accordance with 8 C.F.R. 55 214,2(h)(4)(iii)(C) and (D). The 
educational equivalency evaluation upon which the petitioner relies depends partly upon an assessment of the 
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beneficiary's work experience. However, there is no evidence that the evaluator is an official authorized by a 
U.S. college or university to grant college-level credit for training or experience, as required by 8 C.F.R. 
$8 214.2(h)(4)(iii)(C)(l). For this reason also, the petition must be denied. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
$ 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is msmissed. The petition is denied.