dismissed H-1B Case: Oriental Rug Retail

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washngton, DC 20529 
U. S. Citizenship 
and Immigration 
bz 
FILE: LIN 04 094 5243 1 Office: NEBRASKA SERVICE CENTER Date: "lN 2 1 2@# 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Irnyigration and Nationality Act, 8 U.S.C. 3 1 lOl(a)(lS)(H)(i)(b) 
I 
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 
LIN 04 094 5243 I 
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 an importer, wholesaler, and retailer of Oriental rugs. It seeks to employ the beneficiary as a 
marketing representative. The petitioner, therefore, endeavors to classify the beneficiary as a nonirnrnigrant 
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. fj 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the ground that the proffered position is not a specialty occupation. On 
appeal, counsel submits a brief and additional evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. fj 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@)(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. 
fj 2 14.2(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 
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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 marketing representative. 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 developing and upgrading marketing strategies that will 
expand and maximize the target market; analyzing the sales team and the rug maintenance department to 
recommend strategies for increasing productivity and sales; determining the marketing and advertising 
resources; developing business plans; evaluating area profiles; conducting direct mail to those areas deemed 
most beneficial; strategizing and coordinating advertising and promotional events and designing flyers, 
brochures, websites, and other promotional tools; having responsibility for sales presentations, presentations 
to company staff, and for educationaVinformative presentations via television, radio, and newspapers; 
gathering a database of potential wholesale clients such as interior designers, furniture stores, interior designer 
suppliers, and rug retailers; serving as the representative in arranging appointments with clients for the sales 
team; and managing the upkeep of established accounts. Counsel's June 29, 2004 letter elaborated on the 
proposed duties. For the proposed position, the petitioner requires a bachelor's degree, or its equivalent, in 
marketing or a related field and two years of experience. 
The director was not persuaded that the proposed position resembles a market research analyst, as that 
occupation is described in the Department of Labor's (DOL) Occupational Outlook Handbook (the 
Handbook, as the director stated that the petitioner is not in the type of industry that normally needs a market 
research analyst. The director found that the proposed position resembles managerial positions in marketing, 
advertising, and promotions, and stated that the Handbook reports that those occupations do not require a 
baccalaureate degree in a specific specialty. The director concluded that the petitioner failed to establish any of 
the criteria under 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal, counsel states that the director failed to properly consider the evidence and that the denial is 
unreasonable and unsupported. Counsel cites Young China Daily vs. Chappell, 742 F. Supp. 552 (N.D. Cal. 
1989), and asserts that the case indicates that the size of an employer and the employer's past employment 
practices bear no relevance to the need for a professional and that it is the duties to be performed that matter. 
Counsel states that the court discussed the applicability of the Dictionaly of Occupational Titles (DOT). 
Counsel states that in earlier correspondence the petitioner stated that in performing the proposed duties the 
beneficiary "will utilize traditional methods of market research analysis through person-to-person surveys, 
telephone surveys, and consumer satisfaction surveys." Counsel also states that "we learned through analysis 
of survey data, that we could increase profitability by offering maintenance and cleaning of our rugs and thus, 
we have implemented an advertising campaign targeting these customers;" and that the beneficiary will "rely 
on principles of public relations campaigning, marketing programs, consumer behavior, and promotion 
management." According to counsel, the director concluded that the petitioner does not need a market 
research analyst on the ground that it is a small Oriental rug company. Counsel asserts that the director 
misinterprets the Handbook as it indicates that most industries, regardless of size, employ market researchers. 
Counsel emphasizes that the petitioner needs a market research analyst to expand its products, services, and 
d LIN 04 094 5243 1 
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market share. Counsel states that the petitioner's past hiring practices are not relevant in determining 
whether the proposed duties require a bachelor's degree in a specific specialty. According to counsel, 
because the Handbook reveals that the proposed position resembles a market research analyst, the proposed 
position requires a baccalaureate degree in a specific specialty. Counsel states that assuming that the 
proposed position resembles a marketing, advertising, and promotions manager, then it qualifies as a specialty 
occupation based on the Handbook's information about the educational requirements of those occupations. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
tj 214.2@)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The MO 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 115 1, 1 165 
(D.Minn. 1999)(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
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. 
In the denial letter, the director questioned the petitioner's need for a market research analyst. The AAO 
does not agree with the director's conclusions regarding the industries in need of market research analysts. 
Based on the discussion of the occupation in the 2004-2005 edition of the Handbook, it indicates that such 
analysts may reasonably be found in virtually every industry and business seeking to enhance the sales of its 
products andlor services. However, the MO does share the director's concerns regarding the employment 
that has been described by the petitioner. 
The Handbook states the following with regard to the employment of marketing research analysts: 
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 
LIN 04 094 5243 1 
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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. 
At the time of filing, the petitioner's description of the proposed duties corresponded to those of managerial 
positions in marketing, advertising, promotions, and sales. In response to the director's request for evidence, 
counsel's June 29, 2004 letter stated that the proposed position resembles a market research analyst and that 
the beneficiary: 
[Wlill utilize traditional methods of market research analysis through person-to-person 
surveys, telephone surveys, and consumer satisfaction surveys. Marketing surveys are 
proven to be an effective way to better understand a consumer base including consumer needs 
and consumer behaviors. With data collected from such surveys, we can identify which areas 
of our business we must improve to reach varied targeted market areas. 
The evidence in the record does not support counsel's analogy of the proposed position to a market research 
analyst or her assertion that the beneficiary will perform the duties described in the above passage. In the 
February 9,2004 letter the petitioner indicates that the beneficiary will "conduct direct mail to those areas she 
deems most beneficial." Although the duty to "conduct direct mail" lacks specificity, it does not seem to 
pertain to the duties described in the June 29, 2004 letter, which was furnished in response to the request for 
evidence. The purpose of the request for evidence is to elicit hrther information that clarifies whether 
eligibility for the benefit sought has been established. 8 C.F.R. 5 103.2(b)(8). When responding to a request 
for evidence, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title 
or its associated job responsibilities. The petitioner must establish that the position offered to the beneficiary 
is a specialty occupation. See Matter of MicheZin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). If 
significant changes are made to the initial request for approval, the petitioner must file a new petition rather than 
seek approval of a petition that is not supported by the facts in the record. The AAO finds that the introduction 
of these duties in response to the request for evidence significantly change the job description depicted in the 
February 9, 2004 letter that was offered at the time of filing. As such, the AAO will not consider these job 
duties in this proceeding. In addition, 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 AAO agrees with the director's conclusion that the proposed duties are a combination of those of 
marketing, advertising, and promotions managers. Some of the duties also reflect those of a sales manager. 
B LIN 04 094 5243 1 
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The Handbook describes a marketing manager as one who determines the demand for products and services; 
identifies potential markets such as business firms or the genera1 public; develops a pricing strategy with an 
eye towards maximizing the firm's share of the market and its profits while ensuring that the firm's customers 
are satisfied; monitors trends that indicate the need for new services and oversees product development; and 
works with advertising and promotions managers to promote a firm's products and services. Similar to these 
duties, the beneficiary will work on marketing strategies; determine the resources that should be used for 
marketing and advertising; evaluate area profiles; and gather a database of potential wholesale clients. The 
Handbook depicts advertising and promotions managers as handling advertising and promotions. These 
duties correspond to the beneficiary's duties of conducting direct mail to those areas deemed most beneficial; 
strategizing and coordinating advertising and promotional events; and designing flyers, brochures, websites 
and other promotional tools. According to the Handbook, sales managers direct a sales program such as 
advising the sales representatives on ways to improve their sales performance, maintaining contact with 
dealers and distributors, setting goals, and establishing training programs for sales representatives. Similar to 
this, the beneficiary will be responsible for sales presentations, presentations to company staff, and for 
educational/informative presentations via television, radio, and newspapers; will serve as the representative in 
arranging appointments with clients for the sales team; and will manage accounts once established. 
With respect to the educational requirements of these occupations, the Handbook explains: 
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. 
The Handbook reports that 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"; and for 
"advertising management positions, some employers prefer a bachelor's degree in advertising or journalism." 
The Handbook, therefore, reveals that employers do not require a baccalaureate degree in a specific specialty 
for managerial positions in marketing, sales, promotions, and advertising. As such, the AAO disagrees with 
counsel's assertion that the Handbook indicates that a bachelor's degree is required for marketing, 
advertising, and promotions managers. 
Based on the evidence in the record, the petitioner fails to establish the first criterion at 8 C.F.R. 
Cj 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 petitioner submits no evidence to establish the first alternative prong at 8 C.F.R. Cj 214.2(h)(4)(iii)(A)(2) - 
that a specific degree requirement is common to the industry in parallel positions among similar 
organizations. 
The petitioner has not established the second alternative prong at 8 C.F.R. Cj 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 baccalaureate degree in a specific specialty. As already discussed, the proposed duties 
1 u LIN 04 094 5243 1 
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are a combination of those of managerial positions in marketing, sales, promotions, and advertising; and the 
Handbook explains that those occupations do not require a baccalaureate degree in a specific specialty. 
Consequently, the petitioner fails to establish the second alternative prong at 8 C.F.R. 5 214,2(h)(4)(iii)(A)(2). 
No evidence in the record establishes the regulation at 8 C.F.R. 5 214.2(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. 5 214.2(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. The record reflects that the proposed 
duties are a combination of those of managerial positions in marketing, sales, promotions, and advertising, 
which are occupations that the Handbook explains do not require a baccalaureate degree in a specific 
specialty. Thus, the petitioner fails to establish this last criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
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. 
ORDER: The appeal is dismissed. The petition is denied.