dismissed H-1B Case: Sales And Marketing

identifyingdatadeletedto
preventclearlyunwarranted
invasionof personalprivac)'
U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
PUBLICCOpy
FILE: LIN 05 159 52992 Office: NEBRASKA SERVICE CENTER
S£P OS 2007
Date:
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) ofthe
Immigration and Nationality Act, 8 U.S.c. § 1101(a)(15)(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.
RobertP. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
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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 a manufacturer of concrete and masonry products that seeks to employ the beneficiary as a
regional sales manager. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant
worker in a specialty occupation pursuant to section 101(a)(15)(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 and the beneficiary is not qualified to perform a specialty occupation.
The record of proceeding before the AAO contains: (1) the Form 1-129 and supporting documentation; (2) the
director's request for evidence (RFE); (3) counsel's response to the director's request; (4) the director's denial
letter; and (5) the Form 1-290B, with a copy of counsel's response to the director's RFE. The AAO reviewed
the record in its entirety before reaching its decision.
The first issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet
its burden of proof in this regard, the petitioner must establish that the job it is offering to the beneficiary
meets the following statutory and regulatory requirements.
Section 214(i)(I) of 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. § 2l4.2(h)(4)(ii) as:
An 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(h)(4)(iii)(A), 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;
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(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) consistently interprets the term "degree" in the above criteria to
mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the
proffered position.
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a
position's title. The specific duties of the proffered position, combined with the nature of the petitioning
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the
alien, and determine whether the position qualifies as a specialty occupation. Cf Defensor v. Meissner, 201 F.
3d 384 (5th Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed
standards, but whether the position actually requires the theoretical and practical application of a body of
highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty
as the minimum for entry into the occupation, as required by the Act.
The petitioner seeks the beneficiary's services as a regional sales manager. Evidence of the beneficiary's
duties includes: the petitioner's April 18, 2005 letter in support ofthe petition and counsel's January 20,2006
response to the director's request for evidence. As stated by the petitioner, the proposed duties are as follows:
Oversee the petitioner's sales, marketing and advertising functions at a corporate level. Supervise
seven outside sales managers and the staff of the marketing and advertising departments. Oversee
the petitioner's sales distribution and establish related sales programs, advertising, and marketing
campaigns. Centralize the petitioner's sales program and establish new sales territories, sales
quotas, and goals for the petitioner's sales staff.
In response to the director's RFE, the petitioner submitted the followingjob description:
1. Conduct thorough market research and analysis required to identify all prospective customers in
the locally defined territory who fit the profile for purchasing the petitioner's products.
a) Assess the market and create a strategic sales management process that would include
project tracking tools to monitor critical factors such as: market size, volume of work in
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the market by product line, projects bid on, projects not bid on, sales won, sales lost,
and individual sales representative performance.
b) Contribute to and participate in new product development, assessing product demands
in the market and communicating ideas and needs to appropriate employees.
c) Calculate/quantify the expected business in the market/territory and develop
reasonable, but stretch budgets to capture that business by market and product offering.
d) Set specific goals for each sales person regarding product mix, new business
development, and existing customer growth and retention.
e) Establish action plans, timelines, promotional and training activities to support these
objectives.
f) Prepare an annual budget, using appropriate business methods to monitor and take
corrective action on budget variances.
2. Set and manage specific, challenging sales objectives and processes for and with each sales
representative.
3. Lead, manage and motivate a sales team responsible for the petitioner's product sales.
4. Lead and participate in business development and customer relations.
5. Establish standard sales operations to assist the sales representatives and to ensure consistency
and historic tracking of information throughout the organization.
The director found that the proposed regional sales manager position does not require a bachelor's degree.
Citing the Advertising, Marketing, Promotions, Public Relations and Sales Managers Category in the
Department of Labor's (DOL) Occupational Outlook Handbook (Handbook), 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 concluded that the petitioner failed to establish any of the criteria found at 8 C.F.R.
§ 214.2(h)(4)(iii)(A).
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On appeal, counsel states that the director erroneously denied the petition and disregarded the evidence.
Counsel cites the DOL's Bureau of Labor Statistics (referring to the DOL's Handbook), and the O*Net to
state that most employers require a bachelor's degree in a specific field of study for a sales manager position.
Counsel also states that the degree requirement is cornmon to the industry in parallel positions among similar
organizations, and that Middle State University now offers a four-year degree in Concrete Industry
Management. Counsel states further that the proposed duties, which include supervising more than 15
employees, performing the sales and marketing activities in eight of the petitioner's locations, and overseeing
a marketing budget of over $300,000, are so complex as to require a bachelor's degree in sales, marketing, or
a related field.
Preliminarily, the AAO disagrees with counsel's interpretation of the O*Net and the SVP rating and their
applicability to a determination that a position is a specialty occupation. The AAO does not consider the
O*Net to be a persuasive source of information as to whether a job requires the attainment of a baccalaureate
or higher degree (or its equivalent) in a specific specialty. The O*Net provides only general information
regarding the tasks and work activities associated with a particular occupation, as well as the education,
training, and experience required to perform the duties of that occupation. The O*Net and SVP ratings are
meant to indicate the total number of years of vocational preparation required for a particular occupation and
do not describe how those years are to be divided among training, formal education, and experience and do
not specify the particular type of degree, if any, that a position would require. Counsel also acknowledges that
these sources are not primary evidence of a degree requirement.
Upon review of the record, the petitioner has established none of the four criteria outlined m
8 C.F.R. § 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. §§ 214.2(h)(4)(iii)(A)(J) 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 1151, 1165 (D.
Minn. 1999XquotingHirdiBlaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989».
The AAO routinely consults the Handbook for its information about the duties and educational requirements of
particular occupations. The AAO does not fmd that the proffered position is a specialty occupation. No evidence
in the Handbook, 2006-07 edition, under the category of Advertising, Marketing, Promotions, Public
Relations, and Sales Managers, indicates that a baccalaureate or higher degree in a specific specialty is
required for a sales manager position. A wide range of educational backgrounds is suitable for entry into sales
manager jobs, but many employers prefer individuals with related experience and a broad liberal arts
background. In addition, the petitioner did not provide the amounts of its gross alUlualincome and net annual
income, as requested in Part 5 of the petition. Nor did the petitioner provide any evidence in support of its
LIN 05 15952992
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claim of 120 employees, such as federal income tax returns and quarterly wage reports. 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». Accordingly, the petitioner has not established the
proffered position as a specialty occupation under 8 C.P.R. § 214.2(h)(iii)(A)(l).
Regarding parallel positions in the petitioner's industry, counsel submits job descriptions from two of the
petitioner's competitors, which specify the requirement of a bachelor's degree in sales, marketing, or a related
field. Three of the position descriptions are for a residential design specialist, an account manager, and an
engineered wall sales representative for Anchor Block Company, which has numerous manufacturing
facilities and is one of the oldest and largest concrete block manufacturers in the Midwest. The petitioner has
not demonstrated that the business publishing these job descriptions is similar to the petitioner in size, number
of employees, or level of revenue. As discussed above, the record contains unsubstantiated claims regarding
the basic financial information of the petitioner's business and, therefore, the business publishing these job
descriptions may not be established as parallel to the petitioner. Another position description is for an
operations manager, with duties that entail determining manufacturing methods, recommending design
modifications, preparing feasibility studies for purchasing or building manufacturing equipment, and
formulating new manufacturing processes and procedures. The petitioner, however, has not demonstrated that
the proffered position is similar to the operations manager position in the job listing. Again, 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». The record also does not include sufficient evidence from
individuals, firms, or professional associations regarding an industry standard. Accordingly the petitioner has
not established that the degree requirement is common to the industry in parallel positions among similar
organizations.
In the alternative, the petitioner may show that the proffered position is so complex or unique that only an
individual with a degree can perform the work associated with the position. In the instant petition, the
petitioner has submitted insufficient documentation to distinguish the proffered position from similar but
non-degreed employment. The AAO acknowledges counsel's assertion that the four-year degree in Concrete
Industry Management offered by Middle State University is evidence of the degree requirement for a regional
sales manager position. Counsel, however, does not substantiate her assertion with an explanation of how the
proposed duties correspond to or rely upon particular courses in this four-year degree. The petitioner has
failed to establish the proffered position as a specialty occupation under either prong of the criterion at
8 c.P.R. § 214.2(h)(4)(iii)(A)(2).
The AAO now turns to the criterion at 8 c.P.R. § 2l4.2(h)(4)(iii)(A)(3) - the employer normally requires a
degree or its equivalent for the position. As counsel does not address this issue on appeal, it will not be
discussed ftnther. The evidence of record does not establish this criterion.
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Finally, the AAO turns to the criterion at 8 C.F.R. § 2l4.2(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.
Counsel states, on appeal, that the proposed duties, which include supervising more than 15 employees,
performing the sales and marketing activities in eight ofthe petitioner's locations, and overseeing a marketing
budget of over $300,000, are so complex as to require a bachelor's degree in sales, marketing, or a related
field. The petitioner, however, has not established that they exceed in scope, specialization, or complexity
those usually performed by sales managers, an occupational category that does not require a baccalaureate or
higher degree in a specific specialty. Further, as indicated earlier in this decision, the petitioner's claim to employ
120 workers is not substantiated, and no other evidence of record establishes the complexity of the proposed
duties in relation to the petitioner's business.
As related in the discussion above, the petitioner has failed to establish that the proffered position is a
specialty occupation.
Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an alien applying for classification as an H-IB
nonimmigrant worker must possess full state licensure to practice in the occupation, if such licensure is
required to practice in the occupation, and completion of the degree in the specialty that the occupation
requires. If the alien does not possess the required degree, the petitioner must demonstrate that the alien has
experience in the specialty equivalent to the completion of such degree, and recognition of expertise in the
specialty through progressively responsible positions relating to the specialty.
Pursuant to 8 C.F.R. § 2l4.2(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.
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The director also fOlmd that the beneficiary was not qualified to perform the duties of a specialty occupation
because the evidence of record does not establish that her education, training, and/or experience are
equivalent to a U.S. bachelor's degree. On appeal, counsel asserts that the director improperly disregarded the
credentials evaluation. Counsel also asserts that the beneficiary is qualified for the position because her over
29 years of progressive experience is equivalent to a U.S. bachelor's degree, as demonstrated by the
credentials evaluation.
The petitioner has not provided evidence that the beneficiary meets any of the criteria at
8 C.F.R. §§ 214.2(h)(4)(iii)(C)(l), (2), or (3). Thus the AAO turns to the criterion at 8 C.F.R.
§ 214.2(h)(4)(iii)(C)(4).
When determining a beneficiary's qualifications under 8 C.F.R. § 214.2(h)(4)(iii)(C)(4), the AAO relies upon
the five criteria specified at 8 C.F.R. § 214.2(h)(4)(iii)(D). A beneficiary who does not have a degree in the
specific specialty may still qualify for H-1B nonimmigrant visa based on:
(1) An evaluation from an official who has authority to grant college-level credit for training and/or
experience in the specialty at an accredited college or university which has a program for
granting such credit based on an individual's training and/or work experience;
(2) The results of recognized college-level equivalency examinations or special credit programs,
such as the College Level Examination Program (CLEP), or Program on Noncollegiate
Sponsored Instruction (PONS!);
(3) An evaluation of education by a reliable credentials evaluation service which specializes in
evaluating foreign educational credentials;
(4) Evidence of certification or registration from a nationally-recognized professional association or
society for the specialty that is known to grant certification or registration to persons in the
occupational specialty who have achieved a certain level of competence in the specialty;
(5) A determination by the Service that the equivalent of the degree required by the specialty
occupation has been acquired through a combination of education, specialized training, and/or
work experience in areas related to the specialty and that the alien has achieved recognition of
expertise in the specialty occupation as a result of such training and experience.
The petitioner submitted an August 30, 2004 evaluation of the beneficiary's academic qualifications and
experience.
The academic evaluation is based on the beneficiary's 29 years of employment experience, her two credit hours
from the British Columbia Institute of Technology, and her 30 credit hours from Simon Fraser University in
Burnaby, B.C., Canada. The evaluator notes that the beneficiary has the equivalent of one year of university-level
credit from an accredited university/community college in the United States. The evaluator concludes that the
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beneficiary has the equivalent of a U.S. bachelor's degree in business administration with a concentration in
marketing, based on her education and 29 years of progressive employment experience in the field of business
administration.
When attempting to establish that a beneficiary has the equivalent of a degree based on his or her combined
education and employment experience under the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(C)(4), however, a
petitioner may not rely on a credentials evaluation service to evaluate a beneficiary's work experience. A
credentials evaluation service may evaluate only a beneficiary's educational credentials. See 8 C.F.R.
§ 214.2(h)(4)(iii)(D)(3). To establish an academic equivalency for a beneficiary's work experience, a petitioner
must submit an evaluation of such experience from an official who has the authority to grant college-level credit
for training and/or experience in the specialty at an accredited college or university that has a program for
granting such credit. See 8 C.F.R. § 214.2(h)(4)(iii)(D)(1). In this matter, the petitioner has not submitted such
documentation.
Thus, the AAO must consider whether the beneficiary's work experience coupled with her education is sufficient
to establish that she is qualified to perform the duties of the specialty occupation. In this matter it is not. When
evaluating a beneficiary's qualifications under the fifth criterion, CIS considers three years of specialized training
and/or work experience to be the equivalent of one year of college-level training. In addition to documenting that
the length of the beneficiary's training and/or work experience is the equivalent of four years of college-level
training, the petitioner must also establish that the beneficiary's training and/or work experience has included the
theoretical and practical application of the specialized knowledge required by the specialty occupation, and that
the experience was gained while working with peers, supervisors, or subordinates who have degrees or the
equivalent in the specialty occupation. The petitioner must also document recognition of the beneficiary's
expertise in the specialty, as evidenced by one of the following: recognition of expertise in the specialty
occupation by at least two recognized authorities I in the same specialty occupation; membership in a recognized
foreign or U.S. association or society in the specialty occupation; published material by or about the alien in
professional publications, trade journals, books or major newspapers; licensure or registration to practice the
specialty in a foreign country; or achievements which a recognized authority has determined to be significant
contributions to the field ofthe specialty occupation.
On appeal, counsel for the petitioner asserts that the letters from the beneficiary's previous employers show the
beneficiary possessed over 12 years of progressive experience. A review of the July 22, 2004 letter authored by
the president of SF Concrete Technology Inc. reveals a brief description of the beneficiary's responsibilities and
states that the beneficiary is a seasoned professional. A review of the January 13, 2006 letter authored by a
registered professional engineer with Wilbanks King International reveals testimony that he had professional
I Recognized authority means a person or organization with expertise in a particular field, special skills or
knowledge in that field, and the expertise to render the type of opinion requested. A recognized authority's
opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such opinion,
citing specific instances where past opinions have been accepted as authoritative and by whom; (3) how the
conclusions were reached; and (4) the basis for the conclusions supported by copies or citations of any research
material used. 8 C.F.R. § 214.2(h)(4)(i)(C)(ii).
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contacts with the beneficiary since 1997 in her capacities as sales person and sales manager for Westeon of
Langley and that her knowledge is a valuable addition to the professional community. The January 13, 2006 letter
authored by the president of Landscape Centre Inc. contains a description of the beneficiary's job titles and
testimony that the beneficiary is a leader in her field. The November 22, 2005 letter authored by the human
resources specialist of Lafarge North America states that the beneficiary was employed at the business from
January 1,2002 to May 4,2004 as a sales manager. The July 23, 2004 letter authored by the credit manager of
Lafarge North America states that the beneficiary was well versed in the products, a professional in business
affairs, and detail oriented. None of these letters provides the requisite information regarding the beneficiary's
daily duties and the progressively responsible experience gained while working at her place of employment.
Neither do the letters describe the beneficiary's peers, supervisors, or subordinates' credentials. Further, the record
contains no evidence to indicate that the beneficiary's expertise has been recognized in one of the ways discussed
above. Thus, the record is insufficient to establish that the beneficiary's training and/or work experience includes
the theoretical and practical application of specialized knowledge required by a specialty occupation; that the
beneficiary's experience was gained while working with peers,supervisors, or subordinates who have a degree or
degree equivalent in a specialty occupation; or that the beneficiary's "expertise" in a specialty occupation has been
recognized.
The petitioner has not submitted argument or documentation on appeal sufficient to overcome the director's
decision on this issue. The petitioner has not established that the beneficiary has the requisite qualifications to
perfonn the duties of a specialty occupation. For this additional reason, the petition will not be approved.
Accordingly, the AAO shall not disturb the director's denial of the petition.
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an
independent and alternative basis for the decision. In visa petition proceedings, the burden of proving
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.
Here, that burden has not been met.
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.