dismissed H-1B Case: Wholesale/Retail

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preventclearly~w~eQ
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PUBLICCOpy
u.s.Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
FILE: SRC 05 204 50479
SfP D52007
Office: TEXAS SERVICE CENTER Date:
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision ofthe 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, Chie
Administrative Appeals Office
www.uscls.gov
SRC 0520450479
Page 2
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 wholesaler and retailer of groceries and electrical/electronic products. It seeks to employ
the beneficiary as a contract administrator. The petitioner, therefore, endeavors to classify the beneficiary as a
. nonimmigrant worker in a specialty occupation pursuant to section lOl(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 counsel's brief. 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 2l4(i)(l) 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 ofa 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. § 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.
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;
SRC 05204 50479
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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 contract administrator. Evidence of the beneficiary's duties
includes: the petitioner's July 13, 2005 letter in support of the petition and counsel's November 14, 2005
response to the director's request for evidence. As stated by the petitioner, the proposed duties are as follows:
1. Overall responsibility for entering into contracts regarding the sale and purchase of cell phones
and accessories; review delivery schedules to ensure proper delivery and stocking at the
petitioner's outlets;
2. Prepare bids and process specific requirements; review bids for conformity to contract
requirements in determining acceptable bids; analyze pricing, financial reports, and other data
to determine price proposals and bids;
3. Plan and direct sales programs to promote new markets, improve competitive position in area
and provide fast and efficient customer service;
4. Negotiate contracts with manufacturers and suppliers; formulate and coordinate proposals and
establish internal control and procedures; amend and/or extend contracts as needed;
SRC 0520450479
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5. Direct activities of personnel in sales, collections and logistical control, record keeping,
receiving and shipping operations to execute the contracts; and
6. Liaise between customers and manufacturers to resolve issues regarding contracts.
In response to the director's RFE, counsel further describes the proposed duties as follows:
The beneficiary would perform services in areas of marketing, personnel, accounting, and
financial matters. She [sic] would apply principles of employee and finance management as
well as manage fund flows and perform analysis of financial management. Specifically, the
proffered position is a contract administrator and sales manager. His duties would be to manage
marketing, sales accounting, and human resources administration and management. He would
provide specialized administration relating to contracts for purchasing, sale, and administrative
accounting and management controls; analyze sales statistics to formulate policy and to assist
dealers in promoting sales. He would coordinate sales distribution by establishing sales
territories, quotas and goals; advise dealers, distributors, and clients concerning sales and
advertising techniques. He would prepare bids, process specific requirements, and test and
prepare progress reports; review bids for conformity to contract requirements in determining
acceptable bids. He will negotiate contract with bidders, request and approve amendments
and/or extensions to contracts and advise management of the contract rights and obligations; He
will have overall responsibility over contracts with cell phones and accessories, manufacturers
and distributors regarding sale, purchase, and delivery; examine performance requirements,
delivery schedules, and cost estimates to ensure completeness and accuracy.
He would examine order requirements and delivery schedules. He would have managerial
responsibility over staff, including promotions and benefits management. He would prepare
reports and provide recommendations and procedures to reduce absenteeism and turnover;
conduct training and need analysis, and evaluate training programs as well as prepare the
budget of personnel operations. He would provide management leadership related to
establishing human resources policies and procedures and to administer employee he"alth,
insurance, savings and hiring programs. He would also provide management training related to
record keeping of insurance coverage and personnel movements, such as hiring, firing,
promotions, and transfers.
The director found that the evidence of record does not establish that the proffered position is that of a
contract administrator; rather the proposed duties are more similar to those duties of purchasing managers,
buyers, and purchasing agents. Citing 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).
SRC 05 204 50479
PageS
On appeal, counsel disagrees with the director that the proffered position resembles the positions of
purchasing managers, buyers, and purchasing agents. Counsel asserts that the proffered position is a contract
administrator/sales manager. Counsel also asserts that the duties of a contract administrator are specialized
and professional requiring the attainment of a bachelor's degree in business administration or a related field.
Counsel cites a court decision to state that whether a position is professional is unrelated to the company's
size, salary, or prior company history of maintaining the position.
Upon review of the record, the petitioner has established none of the four criteria outlined in
8 C.F.R. § 2l4.2(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. §§ 2l4.2(h)(4)(iii)(A)(l) 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 DOL's 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. 1999)(quoting HirdiBlaker 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. Although a review of the Administrative Services Managers training requirements
in the Handbook, 2006-07 edition, fmds that a manager of contract administration may qualify as a specialty
occupation, the AAO does not concur with counsel that the proffered position is a specialty occupation. Nor
does the AAO concur with the director that the proffered position is similar to purchasing managers, buyers,
and purchasing agents. In this matter, the record is unclear as to the duties of the position in the context of the
petitioner's business. On the petition, the petitioner claims that it a wholesaler and retailer of groceries and
electrical/electronic products, and has four employees and a gross annual income of $310,000. The proposed
duties entail "entering into contracts regarding the sale and purchase of cell phones and accessories,
review[ing] delivery schedules to ensure proper delivery and stocking at the petitioner's outlets." The record,
however, contains no evidence of the petitioner's business activities related to cell phones or
electrical/electronics products, such as purchase contracts and delivery invoices. Nor does the record contain
any evidence that the petitioner has outlet stores.] In addition, the record contains no evidence of the
petitioner's claims that it has four employees and gross annual income of $310,000, such as quarterly wage
reports and federal income tax returns. Simply going on record without supporting documentary evidence is not
sufficient for the purpose of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec.
1 The description of duties in counsel's November 14, 2005 letter is almost identical to the duties described in
another petition by a different petitioner represented by counsel: SRC 05 212 51409. Thus, the AAO must
question the accuracy of the description of duties and whether the duties apply to a different petitioner and a
different beneficiary. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation
of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of
Ho, 19 I&N Dec. 582, 591 (BlA 1988).
SRC 05 204 50479
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158, 165 (Corom. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Corom.
1972)).
Counsel's assertion on appeal that the proffered position is a contract administrator/sales manager is noted.
The record in this matter, however, is insufficient to establish the proffered position as a specialty occupation.
As reflected in the above discussion, the petitioner, which reportedly is a wholesaler and retailer of groceries
and electrical/electronic products, has described the proposed duties in generic terms that are not supported by
documentation about the nature of the petitioner's business. The petitioner has not provided evidence of the
nature of its business activities, described specific work that the beneficiary would perform, or exemplified
how perfonnance of that work upon those matters would require the theoretical and practical application of at
least a bachelor's level of a highly specialized body of knowledge. Consequently, because the proposed duties
are limited to generic terms that do not relate what they involve in actual performance to this specific
petitioner's particular business matters, the petitioner has not provided sufficient information to satisfy any of
the specialty occupation criteria. The petitioner must provide some evidence of the daily tasks the petitioner
requires from the proffered position as it relates to its specific business. To recite generalities, rather than
specifics substantiated by the requirements of the particular petitioner, leads to the absurd result of petitioners
indiscriminately labeling and summarizing positions in an effort to obtain specialty occupation classification.
Each petitioner must detail its expectations of the proffered position and must provide evidence of what the
duties of the proffered position entail on a daily basis. Such descriptions must correspond to the needs of the
petitioner and be substantiated by documentary evidence. To allow otherwise, essentially requires acceptance
of any petitioner's broadly stated description, rather than a detailed, comprehensive description demonstrating
what the petitioner expects from the beneficiary and what the proffered position actually requires.
The petitioner does not relate the duties described to the specifics of the petitioner's business, or define how
these general duties apply to a specific discipline. Nor does the petitioner provide evidence of what the
beneficiary does on a day-to-day basis. Only a detailed job description will suffice to meet the burden of
proof in these proceedings. Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000). As the duties of the proffered
position are ill-defined and do not specifically correspond to the petitioner's business, the petitioner cannot
establish a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry
into the position. Accordingly, the petitioner has not established the proffered position as a specialty
occupation under 8 C.F.R. § 214.2(h)(iii)(A)(1).
The AAO acknowledges counsel's citation of a court decision to state that whether a position is professional is
unrelated to the company's size, salary, or prior company history of maintaining the position. However, the
director's decision does not rely on the nature or si~e of the petitioner to conclude that the proffered position
does not meet any of the requirements for a specialty occupation. Moreover, the complexity of the duties in
relation to the petitioner's business must be analyzed. As the duties of the proffered position are ill-defined
and do not specifically correspond to the petitioner's business, the petitioner has not established that the
proposed duties are so complex as to require a baccalaureate degree in a specialty. Going on record without
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Corom. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
SRC 05 204 50479
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Regarding parallel positions in the petitioner's industry, the record contains Internet job postings for contract
administrators, sales managers, and related positions. The record contains job postings for a variety of
positions, including: a sales representative for Harley Davidson Footwear; a retail/wholesale planner for a
global fashion corporation founded in 1924; and a vice president of sales with qualifications that include
being an experienced executive in the high-end luxury market. The listings provided rely on duties unlike the
duties listed by the petitioner and the businesses publishing the advertisements are not similar to the petitioner
in size, number of employees, or level of revenue. The petitioner has not established that the duties listed in
the advertisements are parallel to those described for the proffered position. The record also does not include
any 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 petitioner has failed to establish the proffered position as a specialty
occupation under either prong ofthe criterion at 8 C.F.R. § 214.2(hX4)(iii)(A)(2).
The AAO now turns to the criterion at 8 C.F.R. § 214.2(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 further. The evidence of record does not establish this criterion.
Finally, the AAO turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iiiXAX4) - 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.
The AAO here incorporates its discussion regarding the lack of concrete evidence substantiating the actual
duties of the proffered position. As indicated in the discussion above, the record of proceeding lacks evidence of
specific duties that would establish such specialization and complexity. To the extent that they are depicted in
the record, the duties do not appear so specialized and complex as to require the highly specialized knowledge
associated with a baccalaureate or higher degree in a specific specialty. Therefore, the evidence does not
establish that the proffered position is a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).
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
SRC 05 204 50479
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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. § 214.2(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.
The director also found that the beneficiary was not qualified for the proffered position because the
beneficiary does not hold a bachelor's degree or an equivalent thereof that qualifies him for the specialty
occupation. On appeal, counsel states, in part, that the beneficiary is qualified for the position because his
education in human resources management and mathematics, and his professional work experience are
equivalent to a U.S. bachelor's degree in human resources management and mathematics, as demonstrated by
the credentials evaluation.
The record contains the following documentation pertaining to the beneficiary's qualifications:
• A credentials evaluation from Worldwide Education Evaluators, Inc., dated July 14, 2005,
based on the beneficiary's foreign education, concluding that the beneficiary holds the U.S.
equivalent of a Bachelor of Science in Human Resource Management and Mathematics
degree;
• Copies of the beneficiary's Bachelor of Science degree and corresponding transcript, conferred
by an Indian university, reflecting coursework in mathematics, statistics, and physics;
• Copies of the beneficiary's Post-Graduate Diploma for Labor Laws and Personnel
Management and corresponding transcript, conferred by an Indian university; and
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• A letter from the financial controller of Elite Express Courier & Cargo L.L.C., dated
September 10, 2004, certifying the beneficiary's ongoing employment as its area manager
from June 1994.
The AAO accepts the credentials evaluation concluding that the beneficiary holds the U.S. equivalent of a
Bachelor of Science in Human Resource Management and Mathematics degree. As discussed above,
however, the petitioner has not provided evidence of the exact nature of its business activities or of the
proposed duties that specifically correspond to the petitioner's business. As such, the AAO is unable to
determine whether the beneficiary is qualified to perform the duties of the proffered position. The petitioner
has not submitted argument or documentation on appeal sufficient to overcome the director's decision on this
issue. 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.
ORDER: The appealis dismissed.The petition is denied.