remanded H-1B Case: Market Research

U.S. Citizenship 
and Immigration 
Services 
In Re: 11807767 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC . 11, 2020 
The Petitioner, a high technology company, seeks to temporarily employ the Beneficiary as a "market 
research analyst" under the H-lB nonimmigrant classification for specialty occupations. Immigration 
and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C . § 1101(a)(15)(H)(i)(b). The H-lB 
program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that 
requires both (a) the theoretical and practical application of a body of highly specialized knowledge 
and (b) the attainment of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a 
minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish that the proffered position is a specialty occupation. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 1 
We review the questions in this matter de nova. 2 Upon de nova review, we will remand the petition. 
As presently constituted, the record does not establish that the labor condition application (LCA) 
corresponds with and supports the petition . 3 It is unclear from the record whether "Market Research 
Analysts and Marketing Specialists" SOC code 13-1161, designated on the LCA is the most relevant 
occupational classification for the proffered position . 4 Without additional information, we are unable 
to evaluate whether the proffered position qualifies as a specialty occupation . 
1 Section 291 of the Act; Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
3 While the Department of Labor (DOL) certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines 
whether the LCA's attestations and content corresponds with and supports the H-lB petition . See 20 C.F.R. § 655.705(b) 
("DHS determines whether the petition is supported by an LCA which corresponds with the petition . . .. "). See also 
Matter of Simeio Solutions , 26 I&N Dec. 542, 546 n.6 (AAO 2015). When comparing the standard occupation 
classification (SOC) code or the wage level indicated on the LCA to the claims associated with the petition, USCIS does 
not purport to supplant DOL 's responsibility with respect to wage determinations. There may be some overlap in 
considerations , but USCIS' responsibility at its stage of adjudication is to ensure that the content of the DOL-certified 
LCA "corresponds with" the content of the H-lB petition. 
4 See Emp' t & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. 
Nov. 2009) (DOL guidance), available at http://flcdatacenter.com /download/NPWHC _Guidance_ Revised_ 11 _ 2009 .pd£ 
(providing guidance for selecting the correct SOC code and prevailing wage). 
The Occupational Information Network (O*NET) provided the following description, at the time of 
filing, for "Market Research Analysts and Marketing Specialists": "Research market conditions in 
local, regional, or national areas, or gather information to determine potential sales of a product or 
service, or create a marketing campaign. May gather information on competitors, prices, sales, and 
methods of marketing and distribution." 5 
While the proffered position's duties incorporate functions associated with the "Market Research 
Analysts and Marketing Specialists" occupational category, the Beneficiary's duties regarding 
business development, branding, directing and overseeing appear more directly related to SOC code 
11-2021, "Marketing Managers." 6 For example, the Beneficiary's duties include: "Focus on acquiring 
new dealers by developing, maintaining, and negotiating partner channel relationships and mutually 
beneficiary industry partnership"; "Close new business deals by coordinating requirements; 
developing and negotiating contracts; integrating contract requirements with business operations"; 
"Act as an authority and promoter of the Brand, ensuring consistent brand expression through all 
consumer and cultural touch points, both external and internal"; "Lead the creative development of 
quarterly brand themes that convey the brand point-of-views, and business targets for the quarter"; 
"Develop and direct measurable multi-channel, cross-channel, channel specific, product, promotional, 
and cause-related marketing programs that tie back to brand strategy and business goals"; "Oversee 
the development of literature, web content, videos, and other creative content to be published in 
Accessory Power's online product catalogue"; and "Set priorities and manage deadlines in the creative 
departments, including web design, graphic design, and photography." 
The proffered position's duties incorporate marketing strategy development, leadership, and customer 
acquisition responsibilities that appear to more closely align with O*NET "Marketing Managers" 
tasks: "Identify, develop, or evaluate marketing strategy, based on knowledge of establishment 
objectives, market characteristics, and cost and markup factors"; "Formulate, direct, or coordinate 
marketing activities or policies to promote products or services, working with advertising or promotion 
managers"; "Use sales forecasting or strategic planning to ensure the sale and profitability of products, 
lines, or services, analyzing business developments and monitoring market trends"; "Negotiate 
contracts with vendors or distributors to manage product distribution, establishing distribution 
networks or developing distribution strategies"; "Coordinate or participate in promotional activities . 
. . working with developers, advertisers, or production managers, to market products or service"; and 
"Advise business or other groups on local, national, or international factors affecting the buying or 
selling of products or services." 7 
5 Summary Report for: 13-1161.00 - Market Research Analysts and Marketing Specialists, O*NET OnLine Archives. 
https://www.onetonline.org/ Archive_ ONET-SOC _ 201 O _Taxonomy_ 09 _ 2020/link/summary/13-1161.00 (last visited 
Dec. 10, 2020). 
6 The O*NET provided the following description, at the time of filing, for "Marketing Managers": "Plan, direct, or 
coordinate marketing policies and programs, such as determining the demand for products and services offered by a firm 
... and identity potential customers. Develop pricing strategies ... while ensuring the firm's customers are satisfied. 
Oversee product development or monitor trends that indicate the need for new products and services." Summary Report 
for: 11-2021.00 - Marketing Managers, O*NET OnLine Archives, https://www.onetonline.org/Archive_ONET­
SOC_ 201 O _Taxonomy_ 09 _ 2020/link/summary/11-2021.00 (last visited Dec. 10, 2020). 
7 Summary Report for: 11-2021.00 Marketing Managers, O*NET OnLine Archives, 
https://www.onetonline.org/ Archive_ ONET-SOC _ 201 O _Taxonomy_ 09 _ 2020/link/summary/11-2021.00 (last visited 
Dec. 10, 2020). 
2 
First, if the Petitioner selected the incorrect SOC code on the LCA, we cannot provide a relevant 
analysis of a position as a specialty occupation. The initial issue concerns the statutory and regulatory 
definitions of a specialty occupation and the use of an incorrect occupational code may not properly 
assess the nature of the occupation in which the Beneficiary would engage. 
A related concern is how the educational requirements we consider may differ markedly from one 
occupational classification to the next. For example, under the first criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l), degree requirements to enter an occupation are not the same for all positions 
in a particular field of endeavor. Likewise, when considering 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), the 
degree requirement that is considered common to the industry in parallel positions may also differ. 
Additionally, the "Marketing Managers" occupational classification demands a higher prevailing wage 
than the SOC code designated on the LCA. 8 If the Petitioner did not select the occupational 
classification associated with the higher wage, then it did not follow the DOL guidance. 9 
Accordingly, the matter will be remanded to the Director to consider the LCA issue and enter a new 
decision. The Director may request any additional evidence considered pertinent to the new 
determination and any other issue, including consideration of other possibly relevant SOC codes. As 
such, we express no opinion regarding the ultimate resolution of this case on remand. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
8 Here, the Level TT prevailing wage for "Market Research Analysts and Marketing Specialists" which was indicated on 
the certified LCA submitted by the Petitioner is $63,045 per year. For the same timeframe and location, the prevailing 
wage for a Level TT "Marketing Managers" position is $111,155 per year, which is nearly double the prevailing wage for 
the SOC code on the LCA. To determine the appropriate prevailing wage, see the appropriate location and timeframe on 
the Online Wage Librmy - FLC Wage Search Wizard, Foreign Labor Certification Data Center 
https://flcdatacenter.com/OESWizardStart.aspx. (last visited Dec. 10, 2020). 
9 DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009), available at http://flcdatacenter.com/download/NPWHC _Guidance_ Revised_ 11 _ 2009.pdf 
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