dismissed H-1B Case: Retail

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwd 
invasion of psnonrl* 
PUBLIC COPY 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 2 16 5 1 170 Office: CALIFORNIA SERVICE CENTER Date: AUG 0 2 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(a)(l S)(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. 
A?!?&C;~T Administrative Appeals 
WAC 04 216 51 170 
Page 2 
DISCUSSION: The service center director 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 retailer of consumer products and general merchandise that seeks to employ the beneficiary 
as a management analyst. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a 
specialty occupation pursuant to § 10 1 (a)( 1 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, the 
petitioner submits a letter and additional documentation, including a 2003 federal income tax return and 
invoices. 
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. 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; 
(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)(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 
director's denial letter; and (5) ~orm I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
WAC 04 216 51 170 
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The petitioner is seeking the beneficiary's services as a management analyst. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's June 11, 2004 letter in support of the petition; and the 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: providing consultation and advice to management and staff; obtaining and 
analyzing the petitioner's existing operations and administrative systems to identify areas that require 
enhancement or modification; developing marketing strategies; proposing ways to improve or change 
organizational structure, wage administration, and work schedules; and training and mentoring workers. The 
petitioner indicated that a qualified candidate for the job would possess a bachelor's degree. 
The director found that the proffered position was not a specialty occupation because the job is not a 
management analyst position; it combines the duties of marketing, sales, promotions, and public relations 
managers. Citing to the Department of Labor's Occupational Outlook Handbook (Handbook), 2004-2005 
edition, the director noted that the minimum requirement for entry into the position was not a baccalaureate 
degree or its equivalent in a specific specialty. The director found further that the petitioner failed to establish 
any of the criteria found at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
On appeal, the petitioner states, in part, as follows: 
There is an immediate need of a much higher level management to look after the overall 
welfare, management, administration, operation and growth of the corporation. Our business 
have [sic] its own central warehouse in [the] Vernon area, where we store [the] bulk of our 
inventory, and nobody sees after the proper supply and distribution of those [sic] merchandise. 
We have state of the art POS and Inventory System but nobody reviews and analyzes these data 
to come up with on time and useful reports to serve as guide on making proper forecasts on our 
future sales and purchases. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. 5 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 5 214.2(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, 1165 (D. 
Minn. 1999)(quoting HirdBlaker Corp. v. Suva, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. On appeal, the petitioner states that the beneficiary will review and analyze its inventory 
data related to supply and distribution to make forecasts on future sales and purchases. The AAO does not concur 
with the petitioner the proffered position is that of a management analyst, which in private industry generally 
requires a master's degree in business administration or a related discipline. See the Handbook, 2006-2007 
edition. It is noted that the beneficiary in this case holds a foreign bachelor's degree in biology. A review of the 
WAC 04 216 51 170 
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Advertising, Marketing, Promotions, Public Relations, and Sales Managers occupational category in the 
Handbook, 2006-2007 edition, confirms that some of the job duties are similar to the responsibilities of a 
marketing manager. No evidence in the Handbook indicates that a baccalaureate or higher degree, or its 
equivalent, is normally required for a marketing manager job. 
The AAO also notes that the proffered duties are so broadly described as to also comport with those of general 
and operations managers, positions for which the Handbook chapter on Top Executives indicates a baccalaureate 
degree or higher, or the equivalent, in a specific specialty is not a normal requirement. 
Regarding parallel positions in the petitioner's industry, the record contains letters from four retail-related 
businesses. The writers assert that for their professional positions they require a bachelor's degree in a related 
field. The writers, however, do not provide any evidence in support of their assertions nor do they rely on 
industry surveys, data or other documentation to reach the conclusion that the position requires a bachelor's 
degree in a specific specialty. Further, their assertions are not supported by any evidence that would establish 
the authority of these individuals to speak to industry-wide hiring practices. The AAO may, in its discretion, 
use as advisory opinions statements submitted as expert testimony. However, where an opinion is not in 
accord with other information or is in any way questionable, the AAO is not required to accept or may give 
less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). 
The petitioner also submitted Internet job postings for various positions including a quality assurance analyst, 
a financial analyst, and a store support analyst. This information is not convincing evidence that the proffered 
position is a specialty occupation in this case, as the petitioner has not established that the proffered position 
is for a quality assurance analyst, a financial analyst, a store support analyst, or that the proffered position is 
similar to the advertised positions. In view of the foregoing, the petitioner has not demonstrated that a 
baccalaureate or higher degree in a specific specialty is the industry standard for the proffered position. 
The record also does not include any evidence from firms, individuals, or professional associations regarding 
an industry standard, or documentation to support the complexity or uniqueness of the proffered position. As 
indicated in the earlier discussion about the Handbook's information, to the extent that it is depicted in the 
record, the proffered position does not appear unique from or more complex than management positions that do 
not normally require at least a baccalaureate degree, or the equivalent, in a specific specialty. 
The petitioner, therefore, has not established the criteria set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. As the petitioner does not address this issue on appeal, it will not be 
discussed further. The evidence of record does not establish this criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(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. 
To the extent that they are depicted in the record, 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. The proposed duties are described at a general level that does not establish specific 
work that the beneficiary would perform and how actual performance of that work would require the 
WAC 04 216 51 170 
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application of knowledge associated with the attainment of at least a bachelor's degree in a specific specialty. 
Therefore, the evidence does not establish that the proffered position is a specialty occupation under 8 C.F.R. 
tj 2 14.2(h)(4)(iii)(A)(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. 
Beyond the decision of the director, the petitioner has not established that the beneficiary is qualified to 
perform the services of a specialty occupation. The record contains a credentials evaluation from an academic 
evaluator concluding that the beneficiary's foreign biology degree and work experience are equivalent to a 
U.S. bachelor's degree with a dual major in business management and biology. The record, however, contains 
no corroborating evidence such as foreign employment letters that contain a comprehensive description of the 
beneficiary's duties. Thus, the evaluator's conclusions about the equivalency of work experience carry no 
weight in these proceedings. Further, as discussed above, a review of the Handbook finds that, in private 
industry, management analyst positions generally require a master's degree in business administration or a related 
discipline is generally required. CIS may, in its discretion, use as advisory opinions statements submitted as 
expert testimony. However, where an opinion is not in accord with other information or is in any way 
questionable, CIS is not required to accept or may give less weight to that evidence. Matter of Caron 
International, 19 I&N Dec. 791 (Comm. 1988). For this additional reason, the petition may not be approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.