dismissed H-1B Case: Trade Show Organization

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 04 045 52872 Office: VERMONT SERVICE CENTER 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(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: 
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 
EAC 04 045 52872 
Page 2 
DISCUSSION: The Director, Vermont Service Center, approved the December 5, 2003 nonirnrnigrant visa 
petition on December 24,2003. Upon subsequent review, the director issued a notice of intent to revoke approval 
and ultimately revoked approval of the Form 1-129 petition on April 8, 2005. The matter is now before the 
Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The approval of the petition 
will be revoked. 
The petitioner claims to arrange trade shows and exhibitions for participating companies. It seeks to employ 
the beneficiary as a market research analyst. Accordingly the petitioner endeavors to classify the beneficiary 
as a nonirnrnigrant pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. g 1 lOl(a)(lS)(H)(i)(b). 
The record of proceeding includes: (1) the December 5, 2003 Form 1-129 and supporting documents; (2) the 
director's December 16, 2003 request for further evidence (RFE); (3) counsel's December 18, 2003 response 
to the RFE; (4) the director's February 3, 2005 notice of intent to revoke approval of the petition (NOIR); 
(5) the petitioner's March 1, 2005 response to the NOIR and supporting documents; (6) the director's April 8, 
2005 revocation decision; and (7) counsel's May 2, 2005 appeal brief and documents in support of the appeal. 
The AAO reviewed the record in its entirety before rendering its decision. 
On April 8, 2005, the director revoked approval of the petition determining: that the petitioner was newly 
created; that the duties of the proffered position in relation to the petitioner's nature were not of H-1B caliber; 
and that the petitioner was not in business when the petition was filed. On appeal, counsel for the petitioner 
asserts that the proffered position of market research analyst qualifies as a specialty occupation and that the 
petitioner was conducting business when the petition was filed. 
The AAO turns first to the question of the petitioner's status when the petition was filed on December 5, 2003. 
On this issue the record contains the petitioner's registration with the State of New York on September 8, 
2003, the petitioner's Internal Revenue Service (IRS) Form 1120, U.S. Corporation Income Tax Return for the 
2003 year showing a negative income of $290,831 for the last few months of the year, bank statements for 
October and November 2003, telephone statements for services beginning in November 2003, a flyer inviting 
unnamed parties to attend a company introduction at a U.S. hotel on October 20, 2003, and invoices dated in 
October 2003 for services apparently related to initiating a website. These documents are sufficient to 
establish that the petitioner was setting up its business to organize exhibitions at the time the petition was filed 
December 5,2003. 
The petitioner also provides the following information to demonstrate that the petitioner was conducting 
business on December 5,2003: 
An agency agreement signed October 28, 2003 wherein the petitioner appointed an overseas 
agency to assist in developing its business in China and wherein it agreed to assist exhibitors 
with visas and business research; 
A proposed agreement dated October 29, 2003 wherein an individual indicated interest in 
exhibiting luggage commodities; 
EAC 04 045 52872 
Page 3 
An agency agreement signed November 6,2003 wherein the petitioner appointed an overseas 
agency to assist in developing its business in China and wherein it agreed to assist exhibitors 
with visas and business research; 
An agency agreement signed November 19, 2003 wherein the petitioner appointed an 
overseas agency to assist in developing its business in China and wherein it agreed to assist 
exhibitors with visas and business research; 
A proposed agreement dated December 1, 2003 wherein an individual indicated interest in 
exhibiting bath and kitchen fixtures; 
A proposed agreement dated December 1, 2003 wherein an individual indicated interest in 
exhibiting textiles; and 
An agency agreement signed December 5, 2003 wherein the petitioner appointed an agency 
to assist in developing its business in China and wherein it agreed to assist exhibitors with 
visas and business research. 
These documents demonstrate that the petitioner is making contacts and attempting to contract with and 
organize individuals and companies interested in exhibiting products in the United States. The petitioner 
stated in its December 16,2003 letter in response to the director's RFE that it would be opening in April 2004 
to provide exhibition and other related services. The record also contains the petitioner's letter of intent to 
lease space beginning in January 2004. Upon review of the totality of the record, the documentation provided 
is the type of documentation a business would normally generate during a start-up phase. Thus the petitioner 
in this matter has provided sufficient evidence that as a new business it would begin the process of hiring 
appropriate personnel to provide its business services. The director's inferences and determinations to the 
contrary will be withdrawn. Although the petitioner has provided evidence that it was in a start-up phase 
when the petition was filed, the petitioner must still establish that it will employ the beneficiary in a specialty 
occupation at the time of filing. See 8 C.F.R. tj 103.2(b)(12). 
Section 214(i)(l) of the Act, 8 U.S.C. tj 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. tj 214.2(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. 
EAC 04 045 52872 
Page 4 
Pursuant to 8 C.F.R. 3 214.2(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 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. CJ 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 stated in its November 20, 2003 letter in support of the position that the beneficiary would 
assume the position of market research analyst and that the responsibilities of the position include: 
[Rlesearching market conditions in local, regional, or national areas to determine potential 
sales of a product or service; 
[Glathering information on competitors about prices, sales, and methods of marketing and 
distribution; [and] 
[Ulsing survey results to create a marketing campaign based on regional preferences and 
buying habits. 
In a December 16, 2003 response to the director's RFE, the petitioner added that the beneficiary would 
research three fields within the company: Chinese research including identifying and choosing the Chinese 
companies to join the petitioner; American research including identifying and attracting American companies 
EAC 04 045 52872 
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as potential buyers; and competitor's research including analyzing where the competitors are located, their 
services, their strength and weakness, and their development trends. The petitioner noted that the qualified 
candidate for the proffered position would have good computer skills, an understanding of the Chinese and 
American markets, excellent communication, interpersonal, research analytical, and problem solving skills, as 
well as the ability to meet strict deadlines, attention to detail, experience in managing multiple assignments, 
and "consultative" skills. 
In the petitioner's March 1, 2005 response to the director's NOIR, the petitioner stated the beneficiary's job 
duties are: 
1. Research market conditions in local, regional, and national area to determine potential 
sales of product and service: 30% 
2. Establish research methodology and design format for data gathering, such as surveys, 
opinion polls, and questionnaires; 5% 
3. Examine and analyze statistical data to forecast future marketing trends; 8% 
4. Gather data on competitors and analyze prices, sales, and methods of marketing and 
distribution; 25% 
5. Collect data on customer preferences and buying habits; 20% and 
6. Prepare reports of findings. 12% 
The petitioner also noted that it had previously hired an individual for the position of market research analyst 
who had been promoted to the position of marketing director in November 2003 and that the employee 
previously in the position had obtained a bachelor's degree from a foreign university. The petitioner also 
attached several Internet job advertisements for the position of market researcher. The job advertisements 
included: (1) market research analyst for an exhibition center that provided a detailed description of the 
proposed duties of the position and indicated that a bachelor's degree is required; (2) a market analyst for a 
commodities sales center that provided a detailed description of the duties of the position and indicated that a 
bachelor's degree in social science, economics, or statistics is required; (3) a market research analyst position 
for a wholesale group that provided an overview of the duties required of the position and noted that the ideal 
candidate would have a bachelor's degree; (4) a market research analyst position for a consulting company 
that provided an overview of the duties required of the position, the copy of which in the record of proceeding 
redacted the level of education; and (5) a market analyst position for a direct selling center that did not 
provide a description of the duties of the position and did not include the required educational level. 
On April 8, 2005, the director revoked approval of the petition determining that an individual with experience 
alone could perform the duties of the marketing research analyst in this matter and that the newly created 
petitioner could not offer specialty occupation employment, and that it was not clear that the petitioner was in 
business when the petition was filed. 
On appeal, counsel for the petitioner repeats the description of the duties previously provided and lists the 
courses the beneficiary has taken. Counsel asserts that the Department of Labor's Occupational Outlook 
Handbook (Handbook) reports that a baccalaureate degree is a minimum requirement to perform the duties of 
a market research analyst and that the Department of Labor's Dictionary of Occupational Titles (DOT) assigns 
EAC 04 045 52872 
Page 6 
a Specific Vocational Preparation (SVP) rating of 7 to the position of a market research analyst; thus a market 
research analyst position is a specialty occupation. Counsel references an unpublished decision for the 
proposition that a petitioner's size, scope, and newness is not relevant to a determination of granting an H-1B 
petition. 
The Handbook states the following with regard to the employment of marketing research analysts: 
Market, or marketing, research analysts are concerned with the potential sales of a product or 
service. Gathering statistical data on competitors and examining prices, sales, and methods 
of marketing and distribution, they analyze statistical data on past sales to predict future sales. 
Market research analysts devise methods and procedures for obtaining the data they need. 
Often, they often design telephone, mail, or Internet surveys to assess consumer preferences. 
They conduct some surveys as personal interviews, going door-to-door, leading focus group 
discussions, or setting up booths in public places such as shopping malls. 
 Trained 
interviewers usually conduct the surveys under the market research analyst's direction. 
After compiling and evaluating the data, market research analysts make recommendations to 
their client or employer on the basis of their findings. 
 They provide a company's 
management with information needed to make decisions on the promotion, distribution, 
design, and pricing of products or services. The information may also be used to determine 
the advisability of adding new lines of merchandise, opening new branches, or otherwise 
diversifying the company's operations. Market research analysts also might develop 
advertising brochures and commercials, sales plans, and product promotions such as rebates 
and giveaways. 
* * * 
Because of the applicability of market research to many industries, market research analysts 
are employed throughout the economy.. . . 
The Handbook reports that a baccalaureate degree is the minimum educational requirement for many market 
and survey research jobs. It does not however, indicate that the degrees held by candidates must be in a field 
directly related to market research as required for classification as a specialty occupation. Accordingly, the 
title of market research analyst does not establish the proffered position as a specialty occupation under the 
criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A)(l). Moreover, the petitioner's description of the beneficiary's duties 
lacks the specificity and detail necessary to support the petitioner's contention that it is offering the position of 
a market research analyst. 
At the time of filing, the petitioner offered a generic description of the beneficiary's market research duties, 
one that appeared to describe the occupation of market research analyst rather than the proffered position. 
The director found this description insufficient to establish the position as a specialty occupation and asked 
for further information, specifically requesting a description of the beneficiary's typical workweek and a 
detailed statement articulating the beneficiary's proposed duties and day-to-day responsibilities, and the 
EAC 04 045 52872 
Page 7 
percentage of time spent on those duties. In response, counsel provided a similarly generic description of the 
beneficiary's duties, only adding a percentage of time the beneficiary would spend on the various duties. 
A petitioner cannot establish its employment as a specialty occupation by describing the duties of that 
employment in the same general terms as those used by the Handbook in discussing an occupational title, e.g., 
a market research analyst gathers statistical data on competitors and examines prices, sales, and methods of 
marketing and distribution. Neither can the petitioner establish its employment as a specialty occupation by 
making conclusory statements regarding the position, rather than defining the activities associated with the 
position, for example, describing how the beneficiary assesses the market conditions for the petitioner. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). A generalized description is necessary 
when defining the range of duties that may be performed within an occupation, but cannot be relied upon by a 
petitioner when discussing the duties attached to specific employment. In establishing a position as a 
specialty occupation, the petitioner must describe the specific duties and responsibilities to be performed by 
the beneficiary in relation to its particular business interests. 
The AAO acknowledges counsel's reference to the DOT and the SVP level of 7 for a market research analyst. 
However, the AAO does not consider the DOT 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 
DOT 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. An SVP rating is meant to indicate only the total number of years of vocational preparation 
required for a particular occupation. It does not describe how those years are to be divided among training, 
fonnal education, and experience and it does not specify the particular type of degree, if any, that a position 
would require. Again, the record does not demonstrate that the occupation of a market research analyst would 
require the beneficiary to have attained a bachelor's degree or its equivalent in a specific specialty. 
In the instant matter, the petitioner has not offered a description of the duties of its proffered position beyond 
a generalized outline. As previously noted, CIS must examine the actual employment of an alien, i.e., the 
specific tasks to be performed by that alien, to determine whether a position qualifies as a specialty 
occupation. CJ: Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000). The petitioner's description of the 
duties of its position is so generic that it is not possible to identify the actual daily duties required of the 
position and, therefore, whether the position meets the statutory definition of a specialty occupation, that is 
employment requiring the theoretical and practical application of a body of highly specialized knowledge and 
the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for 
entry into the occupation. As a result, the AAO finds the petitioner has failed to establish that the proffered 
position is a specialty occupation under any of the criteria set forth at 8 C.F.R. Lj 214.2(h)(4)(iii)(A). 
The AAO examined the job announcements the petitioner provided to establish the petitioner's degree 
requirement as the norm within its industry. However, the job announcements submitted do not show that the 
advertising businesses are similar to the petitioner in size, number of employees, or level of business, nor can 
the job descriptions provided by these listings be established as parallel to the nonspecific job description 
EAC 04 045 52872 
Page 8 
provided for the proffered position. 
 Moreover, as the record does not establish the actual duties of the 
position as it relates to the petitioner's business, it precludes the petitioner from demonstrating that the 
proffered position is parallel to any degreed position within similar organizations in its industry. A review of 
the totality of the job announcements, the job descriptions contained therein, and the type of organizational 
entities advertising the positions, does not demonstrate that the proffered position is parallel to positions offered 
by organizations similar to the petitioner, which require a bachelor's degree in a specific specialty. 
Likewise, the petitioner's assertion that it had previously employed an individual in the proffered position, who 
had been promoted to the position of marketing director in November 2003 and that the employee previously 
in the position had obtained a bachelor's degree from a foreign university is not substantiated in the record. 
The petitioner does not provide documentary evidence of the prior employee's academic credentials. In 
addition, absent a meaningful description of the position's duties, the prior employee's performance of similar 
duties would not establish the position as a specialty occupation. 
Counsel's reference to an unpublished decision is not probative. Counsel has not furnished evidence to 
establish that the facts of the instant petition are analogous to those in the unpublished decision. While 
8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
Upon review of the totality of the evidence submitted in support of the petition, the petitioner failed to 
establish that the proffered position is a specialty occupation. Although the petitioner has submitted evidence 
to show that it was starting a business when the petition was filed, it has not submitted sufficient evidence to 
define the proffered position as a specialty occupation or otherwise establish the proffered position as a 
specialty occupation when the petition was filed. Accordingly, the AAO shall not disturb the director's 
revocation of the approval of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
tj 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The approval of the petition is revoked.