dismissed H-1B Case: Shoe Wholesale

FILE: 
IN RE: 
U.S. Department of #lomeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of 
the Immigration and Nationality Act, 8 U.S.C. $ 1 10 I (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. Wiernan 
- 
 Administrative ~ppeHs Office 
WAC 04 206 53847 
Page 2 
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 a men's shoe wholesaler and importer that seeks to employ the beneficiary as a 
management analyst and to classify her as a nonimrnigrant worker in a specialty occupation pursuant to 
section lOl(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 10 1 (a>( 15)(H>(i)(b>. 
The director denied the petition on the basis that the position is not a specialty occupation. On appeal, 
counsel submits a brief. 
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. 9 214.2(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. 
tj 214.2(h)(4)(iii)(A) to mean not just any bachelor's or higher degree, but one in a specific field of study 
that is directly related to the proposed position. 
The record of proceeding before the AAO contains, in part: (1) Form 1-129 with supporting documents 
including the petitioner's support letter and an educational equivalency evaluation, and an approved labor 
condition application (LCA); (2) the director's denial letter; (3) Form I-290B with accompanying brief. 
The AAO reviewed the record in its entirety before issuing its decision. 
WAC 04 206 53847 
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The Form 1-129 listed the proposed job title as management analyst. The petitioner's letter of support 
filed with the Form 1-129, indicated that the beneficiary would spend 100% of her time performing the 
following duties: 
Analyzing industry and company to uncover problems and opportunities, 
building and solving mathematical models as needed to gain insights into 
problems and opportunities. 
Developing solutions to problems uncovered and implementing solutions after 
receiving management's approval. 
Developing plan of action and recommending actions to be taken to pursue 
opportunities uncovered. 
Executing and implementing plan of action once it is approved by management. 
Analyzing business and operating procedures to improve efficiency. 
Planning and conducting study of work problems and procedures. 
Analyzing data and organizing and documenting findings of studies. 
Preparing recommendations for implementation of new systems, procedures, or 
organizational changes. 
Installing and implementing new systems and training personnel as appropriate. 
Conducting operational effectiveness reviews to ensure functional or projects 
systems are applied and functioning as designed. 
The petitioner stated that the position required the beneficiary to have a bachelor's degree in business 
administration, preferably with an international business focus. 
The director found similarities between the duties of the proposed position and that of the work performed 
by management analysts, but denied the petition based on his determination that the record failed to 
establish that the proposed duties included the complex or advanced responsibilities normally associated 
with the work of management analysts. The director also noted that the petitioner's operations did not 
have the scope or complexity to require the services of a management analyst and that its business was 
not of the type in which management analysts would be employed on a full- or part-time basis for any 
length of time. 
On appeal, counsel asserts that the director conceded that the proposed position is a management analyst 
position and that this is a specialty occupation. 
The petitioner need only satisfy one of the criterion at 8 C.F.R. 214.2(h)(4)(iii)(A) to show that a position 
is a specialty occupation. Upon review of the record, the AAO finds that the petitioner has not 
established any of the four criteria outlined in 8 C.F.R. 5 214.2(h)(4)(iii)(A). Therefore, the proposed 
position is not a specialty occupation. 
To determine 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 bachelor's degree in a specific field of study as the minimum for entry 
into the occupation as required by the Act. 
WAC 04 206 53847 
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The AAO routinely consults the Department of Labor's Occupational Outlook Handbook (Handbook) for 
its information about the duties and educational requirements of particular occupations. The petitioner 
has identified the proposed position as that of a management analyst. Therefore, the AAO turns first to 
the Handbook's discussion of that occupational title: 
As business becomes more complex, the Nation's firms are continually faced with new 
challenges . . . . Management analysts, often referred to as management consultants in 
private industry, analyze and propose ways to improve an organization's structure, 
efficiency, or profits. For example, a small but rapidly growing company that needs help 
improving the system of control over inventories and expenses may decide to employ a 
consultant. . . . 
Firms providing management analysis range in size from a single practitioner to large 
international organizations employing thousands of consultants. Some analysts and 
consultants specialize in a specific industry, such as healthcare . . . while others specialize 
by type of business function . . . . The work of management analysts and consultants 
varies with each client or employer, and from project to project . . . . In all cases, analysts 
and consultants collect, review, and analyze information in order to make 
recommendations to managers . . . . 
After obtaining an assignment or contract, management analysts first define the nature 
and extent of the problem. During this phase, they analyze relevant data, which may 
include annual revenues, employment, or expenditures, and interview managers and 
employees while observing their operations. The analyst or consultant then develops 
solutions to the problem. In the course of preparing their recommendations, they take 
into account the nature of the organization, the relationship it has with others in the 
industry, and its internal organization and culture . . . . 
Once they have decided on a course of action, consultants report their findings and 
recommendations to the client. These suggestions usually are submitted in writing . . . . 
For some projects, management analysts are retained to help implement the suggestions 
they have made. 
The AAO finds the above discussion to be reflected in the petitioner's description of the duties of its 
proposed position. However, the petitioner's description outlines the type of duties generally performed 
by management analysts, rather than the actual tasks to be performed by the beneficiary in relation to the 
petitioner's shoe business. On appeal, counsel did not specifically break down and describe each of the 
duties in relation to the petitioner's business, but simply listed the same set of general duties, which are 
almost identical to the duties listed for the occupation in the Handbook. The AAO requires information 
regarding the specific responsibilities of a proposed position to make its determination regarding the 
nature of that position and its degree requirements, if any. See Defensor v. Meissner, 201 F. 3d 384 (5~ 
Cir. 2000). Without such information, the AAO is unable to determine the tasks to be performed by a 
beneficiary on a day-to-day basis and, therefore, whether a proposed position's duties are of sufficient 
complexity to require a degree or its equivalent. As the record in the instant case offers no meaningful 
description of the proposed position's responsibilities, the petitioner is unable to establish either that the 
duties of the position are those of a management analyst or that their performance would normally impose 
a degree requirement or its equivalent on the beneficiary. Without documentation of the day-to-day 
services the beneficiary is expected to provide the petitioner, the AAO cannot analyze whether the 
WAC 04 206 53847 
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beneficiary will be performing the duties of a management analyst. Likewise, the lack of meaningful 
information about the substantive work the beneficiary would actually perform precludes the AAO from 
reasonably concluding that the proposed position meets any of the specialty occupation criteria at 
8 C.F.R. $ 214.2(h)(4)(iii)(A). 
Thus, the petitioner has failed to establish that the position is one that qualifies as a specialty occupation 
under the first criterion at 8 C.F.R. 214.2(h)(4)(iii)(A) - a bachelor's or higher degree or its equivalent, in 
a specific field of study is normally the minimum requirement for entry into the particular position. The 
petitioner asserts, without substantiating evidence, that a bachelor's degree or higher is the normal 
minimum requirement for entry into this position. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972)). 
The AAO turns next to the first alternative prong of the second criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A) - 
a specific degree requirement is common to the industry in parallel positions among similar organizations. 
To determine if a position is a specialty occupation under this criterion, CIS generally considers whether 
or not letters or affidavits from companies or individuals in the industry attest that such companies 
"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. Suva, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). As 
already discussed, the information about the proposed duties is too general to align the position with any 
occupation for which the Handbook reports employers normally require at least a bachelor's degree in a 
specific specialty. Also, there are no submissions from individuals, other firms, or professional associations 
in the petitioner's industry. Therefore, the proposed position does not qualify as a specialty occupation 
under the first alternative prong at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2). The petitioner asserts that the 
requirement of a bachelor's degree in a business related field is common to the industry. Again, without 
substantiating evidence, the petitioner has not met its burden of proof. See Matter of Soflci. 
The AAO turns next to the third criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3) - the employer normally 
requires a degree or its equivalent for the position. As the record does not contain any evidence of the 
petitioner's past hiring practices, the petitioner has not met its burden of proof in this regard. See Matter of 
Soflci. 
Finally, the AAO turns to the criteria related to the complexity, uniqueness, or specialized nature of the 
proposed position. A petitioner satisfies the second alternative prong of the second criterion at 8 C.F.R. 
tj 214.2(h)(4)(iii)(A)(2) if it establishes that a particular position is so complex or unique that it can be 
performed only by an individual with a bachelor's degree in a specific field of study. The criterion at 
8 C.F.R. $ 214.2(h)(4)(iii)(A)(4) requires a petitioner to establish that the nature of the specific duties is so 
specialized and complex that the knowledge required to perform the duties is usually associated with the 
attainment of a bachelor's or higher degree in a specific field of study. Again, the petitioner has failed to 
provide concrete information about the specific day-to-day tasks that the beneficiary would perform and 
about the specific slulls and competencies that she would need to apply. The petitioner's company brochure 
describes a shoe wholesaler and importer that specializes in men's shoes. The Form 1-129 indicates the 
petitioner has one employee and grosses about $820,000 per year. The organizational chart of the 
company indicates four named employees and an indeterminate number of sales division staff, 
warehousing staff, and administrative staff. Total wages paid in 2003 are reflected as $20,560 on the 
WAC 04 206 53847 
Page 6 
petitioner's 2003 tax return. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will 
not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591 -92 (BIA 1988). The number of individuals the petitioner employs 
and the amount of money it grosses do not determine whether a position is a specialty occupation, but 
these factors can indicate a particular complexity that might justify an industry-wide requirement for a 
specialized degree. The petitioner asserts that the nature of the proposed duties is so complex and 
specialized that they require an individual with a bachelor's degree in a business-related field. The 
petitioner did not submit evidence to establish that the proposed position is a specialty occupation based 
on its complexity, uniqueness, or specialized nature. See Matter of SofJici. 
No evidence contained in the record demonstrates that the proposed position is a specialty occupation. 
The burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. 4 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.