dismissed H-1B Case: Sales And Distribution

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 U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
PUBLIC COPY 
U.S. Citizenship 
and Immigration 
FILE: WAC 02 254 52121 Office: CALIFORNIA SERVICE CENTER Date: HAW 3 0 2006 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(lS)(H)(i)(b) of the 
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Immigration atid Nationality Act, 8 U.S.C. 8 1 lOl(a)(lS)(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, Director 
Administrative Appeals Office 
WAC 02 254 52121 
Page 2 
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DISCUSSION: The service center director 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 and wholesaler of leather garments and accessories that seeks to employ the 
beneficiary as a manager- sales and distribution. The petitioner endeavors to classify the beneficiary as a 
nonimmigrant 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. $ 1 101(a)(l5)(H)(i)(b). 
The director denied the petition because the proffered position does not qualifL as a specialty occupation. On 
appeal, counsel submits a brief and additional information stating that the offered position qualifies as a specialty 
occupation. 
The issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty 
occupation. 
Section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b), provides, in part, for the 
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform 
services in a specialty occupation. 
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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. 
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, 
engineemg, mathematics, physical sciences, social sciences, medicine and health, education, 
business specialties, accounhng, 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(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; 
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WAC 02 254 52 12 1 
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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 are 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. 
8 214.2(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. 
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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; and (5) the Form I-290B with supporting documentation. The AAO reviewed 
the record in its entirety before issuing its decision. 
The petitioner is seeking'the beneficiary's services as a manager - sales and distribution. Evidence of the 
beneficiary's duties includes the Form 1-129 petition with attachment and the petitioner's response to the 
director's request for evidence. According to this evidence the beneficiary would: 
Manage sales activities; 
Direct staffing, training, and performance evaluations to develop and control the sales program; 
Coordinate sales distribution by establishing sales territories, quotas, and goals, and advi~e~dealers, 
distributors, and clients concerning sales and advertising techniques; 
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Assign sales territories to sales personnel; 
Analyze sales statistics to formulate policy and assist dealers in promoting sales; 
Review market analysis to determine customer needs, volume potential, price schedules, discount 
rates, and develop sales campaigns to accommodate company goals; 
Direct product simplification and standardization to eliminate unprofitable items from sales lines; 
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Represent the company at trade association meetings to promote products; 
Attend sales exhibitions, conventions, seminars, and forums nationally and internationally to 
determine current product and sales trends, market research methodologies; 
Connect and network with suppliers after having liaised through information from relative data bases; 
Coordinate liaison between the sales department and other sales related units; 
WAC 02 254 52 12 1 
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Control expenditures of the division to conform to budgetary curtailments; 
Assist other departments in preparing manuals and technical publications; 
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 Prepare sales reports to show sales volume and potential sales; 
Direct sales for wholesale and retail jobbers; 
Direct product research and development; and 
Recommend or approve budget expenditures and appropriations for research and work development. 
The petitioner requires a minimum of a bachelor's degree in commerce or business administration for entry 
into the proffered position. 
Upon review of the record, the petitioner has failed to establish that a baccalaureate or higher degree or its 
equivalent is. normally the minimum requirement for entry into the offered position, or that a degree 
requirement is common to the industry in parallel positions among similar organizations, as asserted by the 
petitioner. Factors often considered by CIS when determining these criteria include: whether the Department 
of labor's Occupational Outlook Handbook (Handbook) reports that the industry requires a degree; whether 
an industry 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. 1999) (quoting 
Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
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The AAO routinely consults the Handbook for information about the duties and educational requirements of 
particular occupations. The duties of the proffered position are varied, but essentially those noted for 
advertising, marketing, promotions, public relations, and sales managers. These managers coordinate market 
research, marketing strategy, sales, advertising, promotion, pricing, product development, and public relations 
activities. The Handbook notes that a wide range of educational backgrounds is suitable for entry into the 
aforementioned positions, but that many employers prefer related experience plus a broad liberal arts 
background. Bachelor's degrees in sociology, psychology, literature, journalism, philosophy, or other 
subjects are suitable. Requirements will vary, however, depending on the duties of a particular position. For 
example, some employers prefer a bachelor's or master's degree in business administration with an emphasis 
in marketing, for marketing, sales, and promotion management positions. In highly technical ~ndustries such 
as computer and electronics manufacturing a degree in'engineering or science combined with a business 
degree may be preferred. In public relations management positions some employers prefer a bachelor's or 
master's .degree in public relations or journalism. The Handbook further notes that most advertising, 
marketing, promotions, public relations, and sales management positions are filled by promoting experienced 
staff or related professional or technical personnel. 
 Many managers are former sales representatives, 
purchasing agents, or promotions specialists. A baccalaureate or higher degree in a specific specialty or its 
equivalent is not, therefore, the minimum requirement for entry into the position. A degree m a wide range of 
disciplines will suffice. The petitioner has, accordingly, failed to establish the first criterion of 8 C.F.R. 
g 2 14.2(h)(4)(iil)(A). 
WAC 02 254 52 12 1 
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The petitioner asserts that a degree requirement in a specific specialty, or its equivalent, is common to the 
industry in parallel positions among similar organizations. In support of this assertion the petitioner 
submitted copies of five job advertisements for sales managementJmarketing positions. The advertisements 
submitted are, however, not fi-om organizations similar to that of the petitioner. Further, three of the 
advertisements state that a bachelor's degree is required, but do not state that the degree need be in any 
particular educational discipline. One advertisement indicates that 'a degree in such unrelated areas as 
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communications, business or engineering is preferred. The final advertisement requires a bachelor's degree in 
business administration or a related field. The advertisements submitted do not establish the petitioner's 
assertion, but in fact confirm the Handbook's statements concerning the educational requirements for the 
offered position, that positions requiring degrees find acceptable degrees in a wide range of educational 
disciplines. 
The petitioner notes that the Dictionary of Occupational Titles (DOT) assigns an SVP rating of 8 to the 
offered position in an attempt to establish that a degree is common to the industry for the position. An SVP 
rating is meant to indicate only the total number of years of vocational preparation required for a particular 
position. The SVP classification does not describe how those years are to be divided among training, formal 
education, and experience, nor does it'specify the particular type of degree, if any, that a position would 
require. Finally, the petitioner refers to competitor organizations in the industry who employ sales and 
distribution managers with bachelor's degrees in business administration. The petitioner did not, however, 
submit proof in support of this assertion. Simply going on the 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 of California, 14 I&N 190 (Reg. 
Comm. 1972)). The petitioner has not established the referenced criterion at 8 C.F.R. 5 2 14.2(h)(4)(iii)(A)(2). 
The petitioner does not assert that it normally requires a degree or its equivalent in a specific specialty for the 
proffered position and offers no evidence in this regard. The petitioner has not established the criterion at 
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8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
Finally, the duties to be performed by the beneficiary are not so specialized or complex that lmowledge 
required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a 
specific specialty, or the equivalent thereof. Nor are the duties so complex or unique that they can be 
performed only by an individual with a degree in a specific specialty or its equivalent. The duties are routine 
for the proffered position in the industry. The petitioner contends that the duties of the position are 
sufficiently complex to require a degree because the petitioner would supervise another employee with a 
college degree, and in fact actually exercise limited supervisory authority over the.company's president (also 
a degree holder.) This assertion does not establish that the duties of the position would require a degree in a 
specific specialty to supervise these individuals. As previously noted, degrees in several unrelated 
educational disciplines are suitable for the offered position. The petitioner has failed to establish' the 
referenced criteria at 8 C.F.R. tj 5 2 14.2(h)(4)(iii)(A)(2) or (4). 
As related in the discussion above, the petitioner has failea to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
WAC 02 254 52 12 1 
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The burden of proof in these proceedings rests solely with the pet~tioner. Section 291 of the Act, 8 U.S.C. $ 1361. 
The petitioner has failed to sustain that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.