dismissed H-1B Case: Software Consulting

identifying data deleted to 
prevent clearly unwamnted 
invasion of personal pioacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 800 59309 Office: CALIFORNIA SERVICE CENTER Date: JUN 1 5 20C6 ' 
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. 9 1 lOl(a)(lS)(H)(i)(h~ . . 
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, Chief 
Administrative Appeals Office 
WAC 04 800 59309 
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 company and seeks to employ the beneficiary as a business development 
manager. The petitioner endeavors to classify the beneficiary as a nonimrnigrant 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. 
6 1 10 l(a)(l5)(H)(i)(b). 
The director denied the petition because the position did not qualify as a specialty occupation. On appeal, counsel 
submits a brief asserting that the proffered position is 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. 
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 hrther defined at 8 C.F.R. 8 214.2(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, 
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: 
(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; 
WAC 04 800 59309 
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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. 
9 214.2(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 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 business development manager: Evidence of the 
beneficiary's duties was set forth in the petitioner's support letter dated September 17, 2004. According to 
this evidence the beneficiary would: 
Research the petitioner's past operation records to study problems, gather information from a 
variety of sources to determine a better way to solve the petitioner's problems in business 
management and development areas, and propose solutions to the President; 
Research market conditions in local, regional, national and South American areas to 
determine potential sales of software development services and determine the demand for 
services offered by the petitioner; 
Develop pricing strategies with the goal of maximizing company profits; 
Study market and sales data, initiate promotional strategies, and study clients' business and 
product ranges to develop promotional campaigns for targeted sales territories, trade shows 
and other industry events; 
Review and analyze software project activities, execution strategies for both onsite and 
offshore (India) tasks, and resource deployment; and 
Review and discuss with account/project managers account status and achievement in terms 
of business growth, customer deliveries, software architectures which are implemented and 
resource forecast and needs. 
The petitioner requires a minimum of a bachelor's degree in economics, business administration, 
management, finance, information systems or related fields for entry into the proffered position. 
WAC 04 800 59309 
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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 
counsel. 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 fms "routinely employ and recruit only 
degreed individuals." Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1165 (D. Minn. 1999) (quoting Hird/Blaker 
Corp. v. Suva, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
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 and include duties normally performed 
by advertising, marketing, promotions, public relations, and sales managers, as well as additional duties 
performed by generalloperations managers. The petitioner states that the offered position combines duties 
normally performed by market research analysts, operations-research analysts, management analysts and 
marketing managers. The AAO does not agree. While this position requires some market research, it is not a 
market research analyst position performing pure market research to be used in making corporate business 
decisions. The market research to be performed is the type normally performed by marketing managers and 
similar personnel in establishing marketing/promotional, advertising and sales campaigns. The beneficiary 
would use the research in determining product pricing, and in implementing marketing, sales and promotional 
campaigns. 
The duties to be performed are not those normally performed by management analysts, or operations-research 
analysts. The Handbook states that management analysts are normally employed in the private sector as 
consultants, not employees of companies, and that most analysts/consultants contracted possess a master's 
degree in business administration or a related discipline. Firms providing management analysts range in size 
from a single practitioner to large international organizations employing thousands of consultants. Some 
analysts/consultants specialize in a specific industry, such as healthcare or telecommunications, while others 
specialize by type of business function, such as human resources, marketing, logistics, or information 
systems. The work to be performed will vary with each client and project. Likewise, the duties of the position 
are not normally performed by operations research analysts. Operations research and management science are 
terms that are used interchangeably to describe the discipline of applying advanced analytical techniques to 
help make better decisions and to solve problems. These analysts may be concerned with diverse issues such 
as top-level strategy, planning, forecasting, resource allocation, performance measurement, scheduling, the 
design of production facilities and systems, supply chain management, pricing, transportation and 
distribution, and the analysis of large databases. They work as consultants, and directly for operational 
divisions of private companies. The management duties to be performed by the beneficiary in this instance 
are those normally performed by generalloperations managers within the petitioner's work environment. 
These managers plan, direct, or coordinate the operations of companies or public and private sector 
organizations. They formulate policies, manage daily operations, and plan the use of materials and human 
resources. 
The Handbook notes that a wide range of educational backgrounds is suitable for entry into advertising, 
marketing, promotions, public relations, and sales manager positions, but that many employers prefer related 
WAC 04 800 59309 
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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 industries 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 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 in a wide range of disciplines will suffice. 
The Handbook further notes that the formal education and experience of generalloperations managers varies 
as widely as the nature of their responsibilities. Many have a bachelor's or higher degree in business 
administration or liberal arts, while others obtain their positions by promotion from lower level management 
positions. Thus, it is possible to obtain a position as a general or operations manager without a college degree 
by promotion from within the organization based upon performance alone. It is apparent from the Handbook 
that a baccalaureate or higher degree, in a specific specialty, is not the minimum requirement for entry into 
these management positions. Positions requiring a college degree are filled from a wide range of educational 
disciplines. A degree in a specific specialty, however, is not required. The petitioner has failed to establish 
the first criterion of 8 C.F.R. tj 214.2(h)(4)(iii)(A). 
The petitioner has also failed to establish that a degree requirement, in a specific specialty, is common to the 
industry in parallel positions among similar organizations, or that it normally requires a degree in a specific 
specialty for entry into the position, and offers no evidence in this regard. The petitioner has, therefore, failed 
to establish the referenced criteria at 8 C.F.R. tj 214.2(h)(4)(iii)(A)(2) or (3). 
Finally, the duties to be performed by the beneficiary are not so specialized or complex that knowledge 
required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a 
specific specialty. Nor are the duties so complex or unique that they can be performed only by an individual 
with a degree in a specific specialty. The duties appear to be routine in the industry for marketing manager 
and operations management positions in the petitioner's work environment, and are regularly performed by 
individuals with a wide range of education in a number of different disciplines. The petitioner has, therefore, 
failed to establish the referenced criteria at 8 C.F.R. tjtj 214.2(h)(4)(iii)(A)(2) or (4). 
The petitioner has failed to establish that the offered position meets any of the criteria listed at 8 C.F.R. 
tj 214.2(h)(4)(iii)(A). Accordingly, the AAO shall not disturb the director's denial of the petition. 
WAC 04 800 59309 
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The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
9 136 1. The petitioner has not sustained that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.