dismissed H-1B Case: Retail Marketing

identifyingdata deleted to
prevent clearly unwarranted
invasionof personalprivacy
U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
PUBLIC COpy
MAR 152007
FILE: WAC 05 10754571 Office: CALIFORNIA SERVICE CENTER Date:
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(H)(i)(b)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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
WAC 05 10754571
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 appea1. The appeal will be dismissed. The petition will be
denied.
The petitioner is a wireless products retailer that seeks to employ the beneficiary as a management
trainee/administrative assistant. The petitioner, therefore, endeavors to classify the beneficiary as a
nonimmigrant worker in a specialty occupation pursuant to section 101 (a)(l5)(H)(i)(b) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b).
The director denied the petition because the proffered position is not a specialty occupation. The petitioner
submits a timely appeal.'
Section 2l4(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. § 2l4.2(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.
! Although the submitted Form G-28 indicates that
petitioner, the AAO notes tha_oes not qua!
regulation at 8 C.F.R. § 292(a)( .
the attorney or representative of the
as an authorized representative under the
WAC 05 10754571
Page 3
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) the Form 1-129 and supporting documentation; (2)
the director's denial letter; and (3) the Form 1-290B 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 management trainee/administrative assistant.
Evidence of the beneficiary's duties includes: the Form 1-129; the attachments accompanying the Form 1-129;
and the petitioner's support letter. According to this evidence, the beneficiary would perform duties that
entail: assisting the contract marketing consulting firm in collecting data about local consumer behavior to
identify cellular phone products and services; working with the petitioner's managers or under the supervision
of the market research analyst to design a more comprehensive survey to determine customers' demands for
different types of cell phones and monthly plans; working under the supervision of the market research
analyst to prepare bilingual reports that evaluate consumer psychology and buying behavior, and the
relationship between buying habits and differences in age and ethnicity from survey and study data;
developing marketing and promotional campaigns based on consumer behavior studies and surveys that were
conducted and analyzed by the marketing firm; assisting the contract employment counselor in designing and
preparing employee manuals for employment training and consulting purposes and evaluation forms for
evaluating employee performance; assisting executives in organizing and drafting bilingual product
brochures, commercials, sales plans, and product promotions; and rewriting advertising and promotional
materials. The petitioner asserts that it requires a baccalaureate degree in psychology, communications, or
economics for the proposed position.
The director stated that the proposed position involves working under the supervrsion of a contracted
marketing consulting firm and an employment counselor. Most of the duties described in the record, the
director states, are carried out by contracted personnel. The director found that the beneficiary will perform
administrative assistant and routine translation duties, which he determined do not establish the proffered
position as a specialty occupation.
On appeal, the petitioner submits contractual agreements to establish that the beneficiary will perform the
proposed part-time position for three years and board minutes to show a relationship with Soniya Technology
International, Inc., and the need to employ a communications specialist. The petitioner states that the
beneficiary will perform writing and translating duties, which the AAO has previously found to be specialty
occupation duties. The petitioner states that the Department of Labor's Occupational Outlook Handbook (the
Handbook) reflects that the occupation of writer and editor requires a bachelor's degree. The petitioner points
to the Handbook's information regarding interpreter and localization translators to establish that the
beneficiary's translator duties are those of a specialty occupation, and the petitioner further states that the
Handbook reveals that "careers in technology and communication" also include language/communication
specialist and technical copywriter.
WAC 05 10754571
Page 4
Upon review of the record, the petitioner has established none of the four criteria outlined III
8 C.F.R. § 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation.
The AAO first considers the criteria at 8 C.F.R. §§ 214.2(h)(4)(iii)(A)(1) 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 2006-2007 edition of 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 1151,
1165 (D.Minn. I999)(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.
On appeal, the petitioner states that the beneficiary will assist in promoting the new technology of Soniya
Technology International Inc. by rewriting current advertisements and providing localization of promotional
materials (including creation of technical documents including above-captioned family safety system and
uDSP.) The petitioner states that the goal of the beneficiary's translation is:
[F]or the product (including above-captioned Family [L]ink Systems) to appear as if it were
originally manufactured in the country where it will be sold.
The AAO observes that the duty of creating technical documents was not previously described III the
petitioner's March 7, 2005 letter, which had depicted the beneficiary's translation duties as:
[Assisting the] executive in organize [sic] and drafting [a] bilingual product brochure,
commercial, sales plan, [and] product promotions such as rebates and giveaways.
[Rewriting] [the] company['s] current advertising and promotional materials by using his
psychology background in both Chinese and English.
On appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title,
its level of authority within the organizational hierarchy, or the associated job responsibilities. The petitioner
must establish that the position offered to the beneficiary when the petition was filed merits classification as a
specialty occupation. Matter ofMichelin Tire Corp., 17 I&N Dec. 248,249 (Reg. Comm. 1978). A petitioner
may not make material changes to a petition in an effort to make a deficient petition conform to CIS
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). The duty of creating
technical documents, the AAO finds, would materially alter the beneficiary's job responsibilities as the
WAC 05 10754571
Page 5
language used by the petitioner implies that the beneficiary would be required to perform as a localization
translator, a specific and highly technical specialization in the field of translation. The Handbook's
information about translators describes localization translation as involving the complete adaptation of a
product for use in a different language and culture. Given that this specialized duty was not previously
described in the petitioner's March 7, 2005 letter, the AAO will not consider it as part of the proposed job
description.
The AAO routinely consults the Handbook for its information about the duties and educational requirements
of occupations. The AAO finds that the beneficiary's duties primarily involve assisting a market or
marketing research analyst and providing translation. The Handbook describes a market or marketing
research analyst as follows:
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
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.
According to the Handbook, a market or marketing research analyst is not generally required to possess a
baccalaureate degree in a specific academic specialty. The petitioner's March 7, 2005 letter describes the
beneficiary as performing duties under the supervision of a market research analyst or as assisting the market
research analyst. However, the AAO finds that there is no evidence in the record establishing that the
petitioner has retained a contract marketing firm or a market research analyst that the beneficiary is to be
supervised by or assist. The submitted contractor agreements carry little evidentiary value as they are
proposals that have not been signed by all parties. Thus, the petitioner has not provided evidence establishing
that the beneficiary will perform market or marketing research analyst duties that require a baccalaureate
degree in a specific academic field. Going on record without supporting documentary evidence is not
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soifici, 22 I&N Dec.
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14I&N Dec. 190 (Reg. Comm.
1972)).
WAC 05 10754571
Page 6
The Handbook describes a translator as an occupation that involves converting:
[W]ritten materials from one language into another. They must have excellent writing and
analytical ability. And because the documents that they translate must be as flawless as
possible, they also need good editing skills.
Localization translators constitute a relatively recent and rapidly expanding specialty.
Localization involves the complete adaptation of a product for use in a different language and
culture. At its earlier stages, this work dealt primarily with software localization, but the
specialty has expanded to include the adaptation of Internet sites and products in
manufacturing and other business sectors.
Translators working in localization need a solid grasp of the languages to be translated, a
thorough understanding of technical concepts and vocabulary, and a high degree of
knowledge about the intended target audience or users of the product. The goal of these
specialists is for the product to appear as if it were originally manufactured in the country
where it will be sold and supported. Because software often is involved, it is not uncommon
for people who work in this area of translation to have a strong background in computer
science or computer-related work experience.
The Handbook also indicates that translators are not required to possess a baccalaureate degree in a specific
academic discipline. It states:
The educational backgrounds of interpreters and translators vary. Knowing a language in
addition to a native language is essential. Although it is not necessary to have been raised
bilingual to succeed, many interpreters and translators grew up speaking two languages.
In high school, students can prepare for these careers by taking a broad range of courses that
include English writing and comprehension, foreign languages, and basic computer
proficiency. Other helpful pursuits include spending time abroad, engaging in comparable
forms of direct contact with foreign cultures, and reading extensively on a variety of subjects
in English and at least one other language.
Beyond high school, there are many educational options. Although a bachelor's degree is
often required, interpreters and translators note that it is acceptable to major in something
other than a language. However, specialized training in how to do the work is generally
required. A number of formal programs in interpreting and translation are available at
colleges nationwide and through nonuniversity training programs, conferences, and courses.
Many people who work as conference interpreters or in more technical areas-such as
WAC 05 10754571
Page 7
localization, engineering, or finance-have master's degrees, while those working in the
community as court or medical interpreters or translators are more likely to complete job­
specific training programs.
The petitioner states that the beneficiary would assist in organizing and drafting bilingual product brochures,
commercials, sales plans, and product promotions such as rebates and giveaways, and would rewrite the
company's advertising and promotional materials. As described by the petitioner, the proposed duties would
not require a person to possess extensive writing and comprehension skills and an in-depth understanding of
vocabulary or concepts in a technical area such as computer science, localization, science, law, engineering,
or finance. Instead, the documents that are to be drafted, product brochures, commercials, and rebates and
giveaways, seem intended to target the general consumer and would thereby require common words and
phrases. No evidence in the record suggests that the sales plan would require extensive knowledge or writing
or comprehension skills in a technical area.
The record contains a document entitled "Pathways to Careers in Communication" by the National
Communication Association. This document discusses the communications field in a general manner, and it
states that colleges and universities offer majors in communications. Nonetheless, this statement does not
signify that employers normally require a bachelor's degree for a job in communications. Nor does the
document specifically address the educational requirements of the proposed position.
Based on the evidence of record and the Handbook's information, the beneficiary's marketing research and
translation duties do not demonstrate employment that would normally not require a baccalaureate degree in a
specific academic field. Thus, the petitioner fails to satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l),
which is 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 petmoner submits job advertisements to establish the first alternative prong at
8 C.F.R. § 214.2(h)(4)(iii)(A)(2) - that a specific degree requirement is common to the industry in parallel
positions among similar organizations. The AAO finds that the job advertisements and their associated
documents are not persuasive, ~ner submitted job postings from Soniya Technology
International, Inc.; a letter from ~fSoniya Technology International, Inc., dated March
8,2005, which states that she is the company's communication specialist; the H-IB approval notice issued to
Soniya Technology International, Inc. and reflectin~as the beneficiary; and the document entitled
"Executive Summary," that indicates that Soniya Technology International, Inc. develops technology
products such as its patent-pending UDSp™ and DSE technologies. The petitioner is a wireless products
retailer with 15 employees, not a developer of technology; consequently, Soniya Technology International,
Inc. differs in nature from the petitioner. The posting by Edutainment Media, Inc. does not describe the
nature of Edutainment Media, Inc.; for this reason, the AAO cannot determine whether it is a similar
enterprise to the petitioner. The ATX Communications' posting reveals that it is a communications company
that is publicly traded; it does not however, offer sufficient information to establish it as a similar organization
to the petitioner. In addition, the duties of the ATX Communications' position are not parallel to those of the
offered position; the beneficiary will not handle customer service issues, the major aspect of the ATX
WAC 05 10754571
Page 8
Communications job. Gerdau Ameristell, a steel producer, is also dissimilar in nature from the petitioner.
For these reasons the job advertisements do not prevail in establishing that a specific degree requirement is
common to the industry in parallel positions among organizations that are similar to the petitioner.
The petitioner has not satisfied the second alternative prong at 8 C.F.R. § 2l4.2(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 degree. As described by the petitioner, the beneficiary's translator duties entail drafting
bilingual product brochures, commercials, and product promotions; and rewriting advertising and promotional
materials. On appeal, the petitioner submits documents that it labels as "Sample of the cell phone materials
needs [sic] translation work." The documents that are in the English language are written by Nokia and Sony
Ericsson Mobile Communications AB and seem to instruct on the use and specifications of the cell phone.
Collectively, the documents that would be translated by the beneficiary, as described by the petitioner, target
the general public, and would not require a thorough understanding of concepts and vocabulary in a technical
area such as computer science, science, engineering, finance, law, or localization. Instead, the documents
would involve the translation of common words and phrases. The Handbook conveys that translators usually
do not require a baccalaureate degree in a specific specialty. The AAO finds that the petitioner has not
explained the relevance of the submitted Motorola booklets concerning the operation of the mobile telephone
and personal communicator and the technical information sheets from other cell phone providers as the
petitioner has not established that the beneficiary will translate this type of document. The submitted
contractor agreements carry little evidentiary value as they are proposals that have not been signed by all
parties. For the reasons stated here, the petitioner fails to establish the second alternative prong at
8 C.F.R. § 2l4.2(h)(4)(iii)(A)(2).
No evidence in the record establishes the regulation at 8 C.F.R. § 2l4.2(h)(4)(iii)(A)(3): that the petitioner
normally requires a degree or its equivalent for the position. At the time of filing, the petitioner stated that the
proffered position is newly created. Accordingly, it has no hiring history regarding the offered position.
To satisfy the regulation at 8 C.F.R. § 2l4.2(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. As described by the petitioner, the
beneficiary's translator duties entail drafting bilingual product brochures, commercials, and product
promotions; and rewriting advertising and promotional materials. On appeal, the petitioner submits
documents that it labels as "Sample of the cell phone materials needs [sic] translation work." The documents
that are in the English language are written by Nokia and Sony Ericsson Mobile Communications AB and
seem to instruct on the use and specifications of the cell phone. Collectively, the documents that would be
translated by the beneficiary target the general public, and would not require a thorough understanding of
concepts and vocabulary in a technical area such as computer science, science, engineering, finance, law, or
localization, as the documents would involve common words and phrases. As previously stated, the petitioner
does not explain the relevance of the Motorola booklets and the technical information sheets as the petitioner
does not indicate that the beneficiary would translate this type of document. The submitted contractor
agreements carry little evidential value as they are unsigned proposals. Furthermore, the Handbook reports
that translators normally do not require a baccalaureate degree in a specific specialty. According to the
WAC 05 10754571
Page 9
petitioner, the beneficiary would assist a market research analyst; the Handbook indicates that a market
research analyst does not require a bachelor's degree in a specific field. Accordingly, no evidence of record
demonstrates that the proposed duties have a specialization or complexity that would require the services of a
person with a baccalaureate degree in a specific specialty. The petitioner therefore fails to establish the
criterion at 8 C.F.R. § 2l4.2(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 on this
ground.
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.