dismissed H-1B Case: Software Consulting

(LllbLyb~ldekbdto 
CMlll mwmted 
trmka of pnsonaf privacy 
PUBLlC COPY 
U.S. Deparlmerrt of Homeland Security 
20 Mass. Ave., N.W.. Rrn. 3000 
Washington, DC 20529 
- 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 146 50446 Office: CALIFORNIA SERVICE CENTER Date: 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 lOl(a)(lS)(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. 
WAC 04 146 50446 
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 software consulting firm that seeks to employ the beneficiary as a market research analyst 
and to classify him as a nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) 
of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the basis that the petitioner did not establish that the proposed position is a 
specialty occupation and that the beneficiary is not qualified to perform the duties of a specialty occupation. 
On appeal, the petitioner submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. 9 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: 
(1) 
 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. 
8 214.2(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: (1) Form 1-129 with supporting documents; (2) the 
director's request for additional evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's 
denial letter; (5) Form I-290B with additional documents. The AAO reviewed the record in its entirety before 
issuing its decision. 
The petitioner lists the proposed position as a market research analyst. Evidence of the beneficiary's duties 
includes the Form 1-129 with accompanying company support letter, the response to the RFE, and the 
WAC 04 146 50446 
. Page 3 
petitioner's brief on appeal. According to this evidence, the beneficiary's duties would include: conducting 
effective research coverage of regional markets with limited resources to identify and target consumer 
behavior, attitude, trends, companies and potential competitors within the Arab markets; identifying and 
studying segments/study samples of interested Arab users in different computer software services; 
determining the specific procedure to obtain and classify the relevant information; presenting the results of a 
marketing research study to management; assisting the general manager in assessing near and long term plans 
and strategies; performing analytical evaluations of competitors' products and their technical and financial 
capabilities within the Arab markets; monitoring market conditions, identifying market segments and 
determining cost benchmarks; preparing monthly and quarterly business reports regarding the results of the 
research and making recommendations on adjusting and modifying campaigns to achieve higher levels of 
performance; establishing methods and procedures in obtaining and updating large sets of market related data; 
vities and managing web-site content modifications; providing 
b marketing analysis and recommendations on regional e-commerce 
not only a growing Arabic news portal site, but also a unique source of 
managed information regarding the region's business activities. 
 The petitioner stated that the position 
required a bachelor's degree in business administration and/or marketing. 
The director found that the petitioner failed to establish that it was engaged in the type of business that 
typically required a full- or part-time market research analyst or that the petitioner had a staff to support the 
gathering of data for a market research analyst to analyze. The director also found that the petitioner had no 
staff to implement the suggestions of the market research analyst and that the position was more similar to 
that of a marketing manager. The director noted that the petitioner did not state how long the market research 
and analysis project would last and found that once the project was complete, the beneficiary would most 
likely perform the duties of a basic sales or marketing manager. The director further found that although the 
petitioner meant to increase its staff size in the future to implement any future marketing campaigns, the 
petitioner did not establish eligibility for the H-1B petition at the time of filing; and that the proposed position 
did not qualify as a specialty occupation. Finally, the director found that the beneficiary was not qualified to 
perform the specific duties of the position because he held a generalized degree in business administration. 
On appeal, the petitioner asserts that the proposed position is that of a market research analyst. The petitioner 
asserts that the position will not require the beneficiary to engage in detailed pricing and marketing strategies, 
to ensure customer satisfaction, or to determine the demand for products. The petitioner asserts that the duties 
of the proposed position are substantially similar to those listed for market research analysts in the 
Department of Labor's Occupational Outlook Handbook (Handbook). The petitioner further asserts that the 
AAO has approved petitions in the past for market research analysts. The petitioner also contends that once 
the marketing project is over, the beneficiary will not engage in basic sales marketing duties. The petitioner 
states that the size of the petitioner's business and the newness of the position should not determine whether a 
position qualifies as specialty occupation. Finally, the petitioner submits a re-evaluation of the beneficiary's 
academic credentials that finds the beneficiary to hold a bachelor's degree in business administration with a 
major in marketing. 
The petitioner need only satisfy one of the criteria at 8 C.F.R. 214.2(h)(4)(iii)(A) to establish that a position is 
a specialty occupation. Upon a thorough review of the record, the AAO concludes that the petitioner has 
failed to establish that the proposed position meets any of the four criteria outlined in 8 C.F.R. 
$2 14.2(h)(4)(iii)(A). Therefore, the proposed position is not a specialty occupation. 
As a preliminary matter, the AAO finds the director to have erred in concluding that the petitioner is not 
engaged in the type of business that would require a market research analyst. In that the Handbook indicates 
WAC 04 146 50446 
Page 4 
that the work of marketing research analysts is concerned with the potential sales of products or services and 
that they provide a company's management with information needed to make decisions on the promotion, 
distribution, design and pricing of products or services, market research is applicable to a broad range of 
industries and businesses seeking to improve their market share and profits. The fact that the petitioner is 
engaged in software development and consulting does not preclude it from engaging in the type of market 
research activities described by the Handbook as a means of increasing its business opportunities and 
earnings. Accordingly, the AAO withdraws the director's finding in this regard. 
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. 
The AAO routinely consults the Handbook for information about the duties and educational requirements of 
particular occupations. Based on the petitioner's description and a thorough review of the Handbook, the 
AAO concurs with the petitioner that the description of the proposed position reflects the duties of market 
research analysts, who, according to the Handbook, devise methods for obtaining data on past sales to predict 
future sales. According to the petitioner's description, the beneficiary will "identify market segments" and 
"establish methods and procedures to obtain and update large sets of market related data." Notwithstanding 
this, the AAO finds that the petitioner has not established that the proposed position is a specialty occupation. 
The petitioner has failed to demonstrate that the position is one that qualifies as a specialty occupation under 
the criterion at 8 C.F.R. 214.2(h)(4)(iii)(A)(I), 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. To determine 
whether the proposed position is a specialty occupation under this criterion, the AAO turns to the Handbook's 
discussion of the educational requirements for market research analysts. The Handbook indicates that 
employers require bachelor's degrees for market research analysts but not in any specific specialty. Thus, the 
petitioner has failed to establish that a bachelor's degree or its equivalent, in a specific field of study, is 
normally the minimum requirement for entry into the proposed position. 
The AAO turns next to the first alternative prong of the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2) - 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 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/BIaker Corp. v. Sava, 7 12 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). The job announcements the petitioner 
has submitted are not sufficient to establish a degree requirement in parallel market research analyst positions 
among similar software development companies. The jobs described in these announcements are distinct from 
the instant position in several significant ways. The announcements either do not describe the job duties with 
sufficient particularity to determine if they are similar to the proposed duties, or are not from companies similar to 
the petitioner in their type of operations, number of employees, and amount of gross income. Accordingly, the 
AAO does not find the petitioner to have established that a degree requirement is common to the industry in 
parallel positions among similar organizations. Therefore, the proposed position does not qualify as a 
specialty occupation under the first alternative prong at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
The AAO now turns to the third criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) - the employer normally requires at 
least a bachelor's degree or its equivalent, in a specific field of study, for the position. To determine if a 
WAC 04 146 50446 
Page 5 
petitioner has established this criterion, the AAO generally reviews the petitioner's past employment 
practices, including the histories of those employees who previously held the position, as well as their names, 
dates of employment, and copies of their diplomas. In the instant case, the petitioner has submitted no 
evidence to establish its normal hiring practices for the proposed position. In the absence of an employment 
history for the proposed position, the petitioner cannot establish that its proposed position qualifies as a 
specialty occupation under the criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A)(3). 
Finally, the AAO turns to the criteria related to the complexity and uniqueness of the proposed position and 
the specialized nature and complexity of the proposed duties. A petitioner satisfies the second alternative 
prong of the 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. tj 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. The petitioner 
submitted a list of the job duties for the proposed position but provided no further detail as to the unique or 
complex nature of the proposed position. This list submitted by the petitioner is not sufficient to establish that 
the proposed position is unique compared with other similar, but non-degreed, positions within the same 
industry or that its duties are normally associated with the attainment of a degree in a specific specialty. 
Neither has it provided the opinions of experts in the field or professional groups to support its assertions 
regarding the position's degree requirements. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of Cali&ornia, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
No evidence contained in the record demonstrates that the proposed position is a specialty occupation. The 
petitioner has not overcome the director's decision in this regard. As to the beneficiary's qualifications, the 
AAO has determined that the petition cannot be approved on the basis that the proposed position is not a 
specialty occupation. 
 Therefore, it will not address the issue of the beneficiary's qualifications. 
 A 
beneficiary's credentials to perform a particular job are relevant only when a job is found to be 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. 5 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.