dismissed H-1B Case: Wholesale Trade

U.S. Department of Hometand Security 
20 Mass. Ave., N.W., Rm. A3042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
9% 
FILE: EAC 04 147 5033 1 Office: VERMONT SERVICE CENTER Date: ,!\N ; j 1~05 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(l 5)(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, Director 
Administrative Appeals Office 
EAC 04 147 50331 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition by decision dated March 
17, 2005 on the grounds of abandonment pursuant to 8 C.F.R. 5 103.2(b)(13). The petitioner then filed a 
motion to reopen or reconsider that decision on April 4, 2005. By decision dated May 5, 2005, the director 
affirmed its prior decision denying the petition and found that the proffered position did not qualify as a 
specialty occupation. The petitioner than appealed that decision on June 6, 2005, with the appeal being filed 
b- a member of theaw Firm. of the-aw Firm had 
properly filed a Form G-28 designating his firm as the petitioner's representative with the filing of the Form 
1-129 petition. On July 7, 2005, the director rejected the petitioner's appeal on the ground that the person 
filing the appealwas not authorized by the petitioner to represent it in the appeal process. 
The appeal will be dismissed. The petition will be denied. 
The first issue to be considered is the director's decision rejecting the petitioner's appeal on the grounds that 
Mario L. Bejasa was not authorized by the petitioner to represent it in these proceedings. The regulation at 
8 C.F.R. 5 103.3(a)(2)(v)(A)(2) provides that if an appeal is filed by an attorney or representative without a 
properly executed Notice of Entry of Appearance as Attorney or Representative (Form G-28) entitling that person 
to file that appeal, the appeal is considered improperly filed. In this instance, the appeal was filed by a member of 
theaw Firm and a brief submitted in support of the appeal on the law fum's letterhead. A form G-28 
had been properly filed of record designating-(the -aw Firm) as the petitioner's 
authorized representative. As such, the appeal filed by a member of theaw Firm was properly filed by 
the petitioner's authorized representative. The director's decision rejecting the petitioner's appeal shall 
accordingly be withdrawn as the appeal was properly filed. 
The final issue to be considered is whether the proffered position qualifies as a specialty occupation. On appeal, 
counsel submitted a brief and additional mformation stating that the offered position qualifies as a specialty 
occupation. 
The petitioner is an importer and wholesaler in the retail trade industry and seeks to employ the beneficiary as a 
wholesaler buyer. The petitioner endeavors to classifL the beneficiary as a nonimrnigrant worker in a specialty 
occupation pursuant to section 10 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 10 1 (a)(l5)(H)(i)(b). 
Section 10 1 (a)(l S)(H)(i)(b) of the Act, 8 U.S.C. 5 1 10 1 (a)(l 5)(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. 5 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. 3 214.2(h)(4)(ii) as: 
[A]n occupation which requires theoretical and practical application of a body of hghly 
specialized knowledge in fields of human endeavor including, but not limited to, architecture, 
EAC 04 147 50331 
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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. 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 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. 
8 214.2(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 requests for additional evidence; (3) the petitioner's response to the director's requests; (4) the 
director's denial letters; (5) the petitioner's motions to reopen; and (6) 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 wholesale buyer. Evidence of the beneficiary's duties 
includes the Form 1-129 petition with attachment and the petitioner's response to the director's request for 
evidence. According to this evidence the beneficiary would: 
Review requisitions with sales and marketing departments; 
Confer with vendors to obtain product or service information, such as price, availability, and delivery 
schedules; 
Select products for purchase by testing, observing, or examining items; 
Estimate values according to knowledge of market price; 
Determine methods of procurement, such as direct purchase or bid; 
EAC 04 147 50331 
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Prepare purchase orders or bid requests; 
Review bid proposals and negotiate contracts within budgetary limitations and scope of authority; 
Maintain a computerized procurement records system to track items such as goods or services 
purchased, costs, delivery, product quality or performance, and inventories; and 
Discuss defective or unacceptable goods or services with inspection or quality control personnel, 
users, vendors, and others to determine sources of trouble and take corrective action. 
The petitioner requires a minimum of a bachelor's degree in business, economics or a related field for entry 
into the proffered position. 
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 the 
petitioner. 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 firms "routinely employ and recruit only 
degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting 
Hird/Blaker COT. v. Suva, 712 F. Supp. 1095, 1102 (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 essentially those noted for buyers or 
purchasing managers, and are described in the Handbook, 2004-05 edition at p. 61, as follows: 
Purchasing managers, buyers and purchasing agents seek to obtain the highest quality 
merchandise at the lowest possible purchase cost for their employers. In general, purchasers 
buy goods and services for their company or organization, whereas buyers typically buy 
items for resale. Purchasers and buyers determine which commodities or services are best, 
choose the suppliers of the product or service, negotiate the lowest price, and award contracts 
that ensure that the correct amount of the product or service is received at the appropriate 
time. In order to accomplish these tasks successfully, purchasing managers, buyers, and 
purchasing agents study sales records and inventory levels of current stock, identify foreign 
and domestic suppliers, and keep abreast of changes affecting both the supply of and demand 
for needed products and materials. 
Purchasing managers, buyers, and purchasing agents evaluate suppliers on the basis of 
price, quality, service support, availability, reliability, and selection. . . . They research the 
reputation and history of the suppliers and may advertise anticipated purchase actions in order 
to solicit bids. . . . 
.... 
EAC 04 147 50331 
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Experienced buyers may advance by moving to a department that manages a larger 
volume or by becoming a merchandise manager. Others may go to work in sales for a 
manufacturer or wholesaler. 
An experienced purchasing agent or buyer may become an assistant purchasing manager 
in charge of a group of purchasing professionals before advancing to purchasing manager, 
supply manager, or director of materials management. At the top levels, duties may overlap 
with other management functions, such as production, planning, logistics, and marketing. 
The duties associated with the proffered position are essentially those listed above. The Handbook notes that 
qualified individuals for purchasing manager, buyer and purchasing agent positions may begin as trainees, 
purchasing clerks, expediters, junior buyers, or assistant buyers. Retail and wholesale firms prefer to hire 
applicants with a college degree and familiarity with the products they sell, as well as wholesale and retail 
practices. It is also noted, however, that some retail firms promote qualified employees to assistant buyer 
positions, while others recruit and train college graduates. Most employers use a combination of methods for 
filling these positions. Id. at 62. Educational requirements tend to vary with the size of the organization. 
Large stores and distributors prefer applicants who have completed a bachelor's degree program with a 
business emphasis, and many manufacturing firms put a greater emphasis on formal training, preferring 
applicants with a bachelor's or master's degree in engineering, business, economics, or one of the applied 
sciences. The fact remains, however, that while some employers prefer applicants with a bachelor's degree, a 
degree requirement in a specific specialty is not the minimum requirement for entry into the offered position. 
Many employers still fill buyer positions by promoting experienced employees who qualify for the position 
through work experience and training rather than a bachelor's level education in a specific specialty. The 
petitioner has failed to satisEy the criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(I). 
The petitioner contends that a degree i~li a specific specialty is common for the position in the industry in 
parallel positions among similar organizations. In support of that assertion, the petitioner submitted copies of 
numerous job advertisements. The advertisements submitted, however, do not establish this proposition as 
the advertisements are not for positions similar to that of the present petition. Further, the advertisements 
submitted do not appear to be from organizations similar in nature to that of the petitioner, and the majority of 
advertisements do not establish that a degree in a specific specialty is required for the positions advertised. 
The petitioner has failed to establish the referenced criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
The petitioner offers no evidence to establish that it normally requires a degree in a specific specialty for the 
offered position as the duties to be performed by the petitioner have traditionally been performed by a 
long-term employee of the petitioner's parent company. The petitioner states that this employee holds a 
non-business related degree, but has over 28 years experience in wholesale merchandising. The petitioner 
does not submit, however, proof of this individual's educational background or related experience. Simply 
going on the 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 (Comrn. 1998) (citing Matter 
of Treasure Cvafi of California, 14 I&N 190 (Reg. Comm. 1972)). Further, 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 or an employer's 
EAC 04 147 5033 1 
Page 6 
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 ~ct.' To interpret the regulations 
any other way would lead to absurd results: if CIS were limited to reviewing a petitioner's self-imposed 
employment requirements, then any alien with a bachelor's degree could be brought into the United States to 
perform menial, non-professional, or an otherwise non-specialty occupation, so long as the employer required 
all such employees to have baccalaureate or higher degrees. See id at 388. The petitioner has failed to 
establish the criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(3). 
Finally, the petitioner has not established that the duties of the proffered position are so specialized and 
complex that knowledge required to perform them is usually associated with the attainment of a baccalaureate 
or higher degree in a specific specialty, or that they are so complex or unique that they can only be performed 
by an individual with a degree in a specific specialty. The duties to be performed by the beneficiary are 
routine in the industry for the offered position. The petitioner does make reference to the SVP rating assigned 
to the position by the Department of Labor's Dictionay of Occupational Titles (DOT). The petitioner's 
assertions in this regard are unpersuasive. An SVP rating is meant to indicate only the total number of years 
of vocational preparation required for a particular position. The SVP classification does not describe how 
those years are to be divided among training, formal education, and experience, nor does it specify the 
particular type of degree, if any, that a position would require. The petitioner has failed to establish the 
referenced criteria at 8 C.F.R. $ 214.2@)(4)(iii)(A)(2) or (4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
The petitioner has failed to sustain that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied. 
1 The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387.