dismissed H-1B Case: Public Relations

pUBLIC copy
U.S. Department of Homeland Security
20 Massachusetts Avenue, Room 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
FILE: EAC 03 13854133 Office: VERMONT SERVICE CENTER Date: OCT 2 9 zrM·
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOI(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C . § llOl(a)(l5)(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, Chief
Administrative Appeals Office
www.uscis.gov
-------------------------------- - - -.._- --- --
EAC 03 13854133
Page 2
DISCUSSION: The director denied the nonimmigrant visa petition and dismissed a subsequent motion.
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 wholesale distributor that seeks to employ the beneficiary as a public relations director.
The petitioner, therefore , endeavors to classify the beneficiary as a nonimmigrant worker in a specialty
occupation pursuant to section 101(a)(l5XH)(i)(b) of the Immigration and Nationality Act (the Act),
8 U.S.C. § 1101(a)(15XH)(i)(b).
The director denied the petition on two grounds: (l) his determination that the petitioner had failed to
establish that the proposed position qualifies for classification as a specialty occupation; and (2) his
determination that the petitioner had failed to establish that the beneficiary qualifies to perform the duties of a
specialty occupation. On appeal, the petitioner contends that the director erred in denying the petition.
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; (5) the petitioner's motion to reopen; (6) the director 's dismissal of the petitioner 's
motion; and (7) the Form I-290B and supporting documentation. The AAO reviewed the record in its
entirety before issuing its decision.
Section 214(i)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(1), 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. § 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. § 214.2(hX4XiiiXA),to qualify as a specialty occupation, the position must meet one of
the following criteria:
(1) 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;
EAC 03 13854133
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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 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. § 214.2(h)(4)(iiiXA) to mean not just any baccalaureate or higher degree, but one in a specific
specialty that is directly related to the proposed position .
The petitioner's March 31, 2003 letter of support stated that the duties ofthe proposed position would include
consulting and leading the sales and marketing divisions in setting quotas and goals; developing powerful
sales and client strategies ; developing the overall sales process and tracking long-term results against set
goals; studying the needs, objectives, and policies of the company in order to implement new and innovative
ways of promoting the company's business in various types of media; searching, establishing, and cultivating
relationships with local, national, and international media contacts, including, but not limited to , prominent
industry publications and radio channels; serving as a media contact and spokesperson for the company's
promotional events and activities ; drafting and creating various communications plans and tactics for use
with domestic and international clientele and providing strategic leadership in meeting the established plans'
goals; providing extensive writing, in the form of opinions, assessments, press releases, case studies ,
company fact sheets , etc., in order to facilitate and improve both external and internal communication;
cultivating and maintaining much-needed relationships with the local, national , and industry press; working
closely with officials from major businesses, thus helping promote the company 's sales and sustaining
goodwill; expanding the petitioner 's presence and sales in Russia and Ukraine ; conducting research on
international political markets, translating the results into appropriate informational material , and consulting
the petitioner 's C.E.O. regarding the degree of success and the appropriate methods of communication if
those markets are entered; and providing a written synopsis on the monthly resultsof implementing particular
strategies, promotional campaigns, and policies.
In determining whether a proposed 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
Department of Labor's Occupational Outlook Handbook (the Handbook) for its information about the
duties and educational requirements of particular occupat ions.
The Handbook 's discussion of the duties of advertising, marketing, promotions , public relations, and sales
managers states the following :
Public relations managers supervise public relations specialists. (See the Handbook
statement on public relations specialists .) These managers direct publicity programs to a
targeted public . They often specialize in a specific area, such as crisis management - or
in a specific industry , such as healthcare . They use every available communication
medium in their effort to maintain the support of the specific group upon whom their
organization 's success depends, such as consumers , stockholders, or the general public.
EAC 03 13854133
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For example , public relations managers may clarify or justify the firm 's point of view on
health or environmental issues to community or special interest groups.
Public relations managers also evaluate advertising and promotion programs for
compatibility with public relations efforts and serve as the eyes and ears of top
management. They observe social , economic, and political trends that might ultimately
affect the firm and make recommendations to enhance the firm's image based on those
trends.
Public relations managers may confer with labor relations managers to produce internal
company communications - such as newsletters about employee-management
relations - and with financial managers to produce company reports. They assist
company executives in drafting speeches, arranging interviews, and maintaining other
forms of public contact; oversee company archives ; and respond to information requests.
In addition , some handle special events such as sponsorship of races, parties introducing
new products , or other activities the firm supports in order to gain public attention
through the press without advertising directly.
Inthat the duties of the proposed position are sim ilar to those of public relations managers as outlined by
the Handbook , the AAO turns to the Handbook 's discussion of the qualifications necessary for entry into
the field. The Handbook states the following with regard to the educational qualifications required for
public relations managers:
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. However, requirements vary, depending upon the particular job.
* * *
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.
Courses in business law, economics, accounting, finance, mathematics, and statistics are
advantageous.. . .
* * *
Most advertising, marketing, promotions , public relations, and sales management
positions are filled by promoting experienced staff or related professional personnel. For
example, many managers are former sales representatives, purchasing agents, buyers, or
product, advertising, promotions, or public relations specialists. In small firms , where the
number of positions is limited, advancement to a management position usually comes
slowly. In large firms, promotion may occur more quickly.
Thus, the proposed position does not qualify for classification as a specialty occupation under
8 C.F.R. § 214.2(h)(4XiiiXAXl),which requires a showing that a baccalaureate or higher degree in a specific
specialty or its equivalent is normally the minimum requirement for entry into the type of position being
EAC 03 13854133
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proffered. The Handbook indicates that most public relations manager positions are filled on the basis of
experience (most positions "are filled by promoting experienced staff or related professional personnel").
Moreover, the fact that some employers "prefer" a degree or that individuals possessing degrees "should have
the best job opportunities" does not rise to this criterion 's standard of employers normally requiring at least a
bachelor 's degree or its equivalent in a specific specialty . Nor does the fact that "some" employers have
such a preference for a degree rise to the "normally required" standard. As such , public relations managers
do not qualify as specialty occupations under the first criterion.
Moreover, employers that do require a bachelor's degree do not require that it be in any particular field of
study ("[a] bachelor's degree in sociology, psychology, literature, journalism, or philosophy, among other
subjects, is acceptable"). When a range of degrees, e.g., the liberal arts, or a degree of generalized title
without further specification, e.g., business administration, can perform ajob, the position does not qualify as
a specialty occupation.' See Matter ofMichael Hertz Associates, 19 I&N Dec. 558 (Comm. 1988). To prove
that a job requires the theoretical and practical application of a body of specialized knowledge as required by
Section 214(i)(l) of the Act, a petitioner must establish that the position requires the attainment of a
bachelor's or higher degree in a specialized field of study. As noted previously , CIS interprets the degree
requirement at 8 C .F.R. § 214.2(h)(4)(iii)(AXl) to require a degree in a specific specialty that is directly
related to the proposed position.
The AAO will accord no weight to the information counsel submits from the Department of Labor 's
O*Net system. O*Net is not 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 . Its assessment (the JobZone classification) does not specify the
particular type of degree , if any, that a particular position would require. Again, CIS interprets the term
"degree " in the criteria at 8 C.F .R. § 214.2(hX4)(iii)(A) to mean not just any baccalaureate or higher
degree, but one in a specific specialty that is directly related to the proposed position.
Similarly, the AAO accords no weight to the information counsel submits from the Dictionary of
Occupational Titles (DOT). As is the case with O*Net, the DOT is not 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. The DOT's assessment (the SVP
rating) is meant only to indicate the total number of years of vocational preparation required for a
particular position. It does not describe how those years are to be divided among training, formal
education, and experience , and does not specify the particular type of degree, if any, that a position would
require.
Nor do the unpublished cases cited by counsel establish the proposed position as a specialty occupation .
Counsel has furnished no evidence to establish that the facts of the instant petition are analogous to those
in the unpublished decisions. Further, while 8 C .F.R. § 103.3(c) provides that AAO precedent decisions
are binding on all CIS employees in the administration of the Act, unpublished decisions are not similarly
binding.
1 The AAO also notes here that, in its June 27 , 2003 response to the director 's request for additional
evidence , the petitioner stated that it requires an individual with a degree in either business administration
or political science in order to fill its position. As the petitioner finds a bachelor 's degree in business
administration acceptable for the proposed position, it is precluded it from establishing the position as a
specialty occupation under 8 C.F.R. § 214.2(h)(4)(iiiXAX 1). Matter ofMichael Hertz Associates.
EAC 03 13854133
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For all of these reasons, the proposed position does not qualify for classification as a specialty occupation
under the criteria set forth at 8 C.F.R. § 214.2(hX4Xiii)(A)(l), that a baccalaureate or higher degree or its
equivalent is normally the minimumrequirement for entry into the position.
The AAO now turns to a consideration of whether the petitioner, unable to establish its proposed position
as a specialty occupation under the frrst criterion set forth at 8 C.F .R. § 214.2(h)(iiiXA), may qualify it
under one of the three remaining criteria: a degree requirement as the norm within the petitioner's
industry or the position is so complex or unique that it may be performed only by an individual with a
degree; the petitioner normally requires a degree or its equivalent for the position; or the duties of the
position are so specialized and complex that the knowledge required to perform them is usually associated
with a baccalaureate or higher degree.
The proposed position does not qualify as a specialty occupation under either prong of
8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
The first prong of this regulation requires a showing that a specific degree requirement is common to the
industry in parallel positions among similar organizations . The AAO has reviewed the job postings
submitted by counsel in response to the director 's request for additional evidence . Counsel, however, has
failed to consider the specific requirements at 8 C.F.R. § 214.2(hX4XiiiXAX2) for establishing a
baccalaureate or higher degree as an industrynorm, To meet the burden of proof imposed by the regulatory
language, a petitioner must establish that its degree requirement exists in parallel positions among similar
organizations.
The petitioner has not submitted any evidence to demonstrate that any of these job postings are from
companies "similar" to the petitioner, a wholesale distributor. There is no evidence that the advertisers
are similar to the petit ioner in size, scope, and scale of operations, business efforts , and expenditures .
Simply going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998)
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972». Without
documentary evidence to support the claim, the assertions of counsel wiII not satisfy the petitioner's
burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter ofObaigbena,
19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of
Ramirez-Sanchez;17 I&N Dec. 503, 506 (BIA 1980).
General Mills is a food processing company. The Texas Children's Hospital and Sentara Healthcare are
medical services providers . The Santa Cruz County Conference and Visitors Council is a nonprofit
organization promoting Santa Cruz County , California. McKesson Information Systems is an
information technology company. QVC is a television network. The unnamed company advertising its
vacancy through the Colorado Business Marketing Association is a "health related company."
Moreover, the job postings are too few to establish an industry-wide standard. Also, the information
regarding the duties and responsibilities of the advertised positions is general and does not support a
meaningful comparison of their actual performance and specialty knowledge requirements to those of the
proposed position. Thus , while relevant to this proceeding , the job postings submitted by counsel are
insufficient to establish the petitioner's degree requirement as an industry norm in parallel positions among
similar organizations, and they do not satisfy the requirements of the first prong of
8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
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On appeal, counsel states the following:
In essence, the adjudicator determined that the offered position does not qualify as a
specialty occupation because Petitioner submitted no proof that other employers in the
industry have the same requirements. This standard has been rejected by Federal Courts a
long time ago.
However, counsel has misunderstood this basis of the director's decision. The director did not deny the
petition on the basis of her determination that the petitioner must establish an industry standard in order to
gain approval of its petition. Rather, as discussed previously, the director determined that the petitioner
had not met its burden of proof under the first prong of the second criterion in establishing that its degree
requirement is common to parallel positions in similar organizations. The AAO concurs with the
director's findings in this regard: if the petitioner submits no evidence to establish that its degree
requirement is common to parallel positions in similar organizations, then it clearly has failed to make
such a demonstration.
Therefore, the proposed position does not qualify as a specialty occupation under the criteria set forth at
the first prong of the second criterion.
The AAO also concludes that the record does not establish that the proposed position is a specialty
occupation under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which requires a showing that the
position is so complex or unique that it can only be performed by an individual with a degree. It finds no
evidence that would support such a finding, as the position proposed in the petition is similar to the public
relations manager position described in the Handbook, which does not require a degree in a specific field
of study.
Accordingly, the petitioner has not established its proposed position as a specialty occupation under either
prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
Nor does the proposed position qualify as a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(3),
which requires a showing that the petitioner normally requires a degree or its equivalent for the proposed
position. To determine the petitioner's ability to meet this criterion, the AAO normally reviews the
petitioner's past employment practices, as well as the histories, including names and datesof employment, of
those employees with degrees who previously held the position, and copiesof those employees' diplomas.
In its response to the director's request for additional evidence, the petitioner stated that it has had no choice
in the past but to hire individuals with at least a bachelor's degree for this position. However, it did not
submit any evidence, such as that delineated above, to document its assertion. Simply going on record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure
Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972». Accordingly, the director determined that the
petitioner had failed to satisfy the third criterion.
On appeal, counsel states the following with regard to the director's determination that the petitioner
failed to satisfy the third criterion:
Taking into account related employer-employee laws and practice, Petitioner could not
afford to produce confidential and identifiable information for unrelated individuals to
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the agency which has no regulatory or supervisory power over Petitioner . Petitioner,
however, could easily produce the names and relevant degrees of people in question.
Again, simply going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter ofSoffici , 22 I&N Dec. 158, 165 (Comm. 1998)
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Absent evidence
that the petitioner satisfies the third criterion , CIS is unable to enter a finding that the petitioner has done
so.
Accordingly, the proposed position does not qualify as a specialty occupation under
8 C.F.R. §214.2(hX4Xiii)(A)(3).
A review of the duties of the proposed position does not lead to a conclusion that they would require the
beneficiary to have a higher degree of knowledge and skill than that normally expected of public relations
managers in other, similar organizations. Therefore, the duties do not appear so specialized and complex
as to require the highly specialized knowledge associated with a baccalaureate or higher degree, or its
equivalent, in a specific specialty. There is no information in the record to support a finding that the
proposed position is more specialized and complex than the public relations manager positions for which the
Handbook indicatesno requirementfor the highly specializedknowledge associated with at least a bachelor's
. degree in a specific specialty. Therefore, the evidence does not establish that the proposed position is a
specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).
The proposed position does not qualify for classification as a specialty occupation under any of the
criteria set forth at 8 C .F.R. §§ 214.2(h)( 4)(iii)(A)(l) , (2), (3), and (4), and the director was correct to
deny the petition.
The director also found that the petitioner had failed to establish that the beneficiary is qualified to
perform the duties of a specialty occupation. Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(C), to qualify to
perform services in a specialty occupation, an alien must meet one of the following criteria:
(1) Hold a United States baccalaureate or higher degree required by the specialty
occupation from an accredited college or university;
(2) Hold a foreign degree determined to be equivalent to a United States
baccalaureate or higher degree required by the specialty occupation from an
accredited college or university;
(3) Hold an unrestricted state license , registration or certification which authorizes
him or her to fully practice the specialty occupation and be immediately engaged
in that specialty in the state of intended employment; or
(4) Have education, specialized training, and/or progressively responsible experience
that is equivalent to completion of a United States baccalaureate or higher degree
in the specialty occupation , and have recognition of expertise in the specialty
through progressively responsible positions directly related to the specialty.
Although the director requested evidence of the beneficiary's qualifications to perform the duties of a
specialty occupation in h is request for additional evidence, the petitioner failed to provide it. The
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petitioner does not address this ground of the director 's denial on appeal, nor does it submit any
additional documentation. As such, it has not demonstrated that the beneficiary qualifies to perform the
duties of a specialty occupation.
The petitioner has failed to establish that the proposed position qualifies for classification as a specialty
occupation, or that the beneficiary qualifies to perform the duties of a specialty occupation. Accordingly,
the AAO will not disturb the director's denial ofthe petition. .
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.