remanded H-1B Case: Marketing / Translation

U.S. Department of Homeland Security 
20 Mass. Ape. N.W . Rm. A3042 
Wash~ngton, DC 20529 - 
U. S. Citizenship 
and Immigration 
Services 
FILE: LlN 04 01 8 50720 Office: NIEBMSU SERVICE CENTER Date: 
Dd RE: 
PETITION: Pehtion for a Non:mrn~grant Worker Pursuant to Section 101 (a)(15)(H)(i)(b) of the 
1mm1gat;on and Nationality Act, 8 U.S.C. § 1 10 1 (a)(l S)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-RlEPNESBNTED 
INSTRUCTIONS : 
This :s the decls~ma of the AdmannstPat~ve Paspeals Office m your case. All kocuments have been returned to 
the office that orig;cal:y decnded your case. Any further inquiry must Se made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
LHEd 04 018 50720 
Page 2 
DISCUSSION: The sewice center director denied the nonimmigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The director's decision will be withdrawn and 
the matter remanded to the director for the entry of a new decision. 
The petitio3er is a consulting corporation that seeks to employ the beneficiary as a part-time marketing 
manager and Japanese translator and to classify her as a nonimmigrant worker in a specialty occupation pursuant 
to section lOl(a>(l5)(M)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
# I 10 1 (a)(l5)(H>(i)(b>. 
The director denied the petition on the basis that the beneficiary is not qualified 'So perform the duties of the 
proffered position. On appeal, the petitioner submits additional evidence relating to the beneficiary's 
qualifications for the proffered position, The AAO has determined that the beneficiary does qualify for the 
proffered position but that the proffered position is not a specialty occupation. Those two issues are 
addressed below. 
The AAO will firs: address the issue of the beneficiary's qualifications. Section 214(i)(2) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. # 1184(i)(2), states that an alien applying for c2assificatio~ as an M-1B 
nonimmigrant worker must possess full state licensure to practice in the occupation, if such iicensure is 
required to practice in the occupation, and completion of the degree in the specialty that the occupation 
requires. Yf the alien does not possess the required degree, the petitioner must demonstrate that the alien has 
experience in the speciajty equivalent to the ~ompletion of such degree, and recognition of expertise in the 
specialty through progressivePy 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 folEowing criteria: 
(I) Mold 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 staite license, registration or certification whicb authorizes him 
or her to fully practice the specialty occupation and be immediately engaged in that 
specialty in the state of intended employment; or 
(49 Have education, specialized training, andlor 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 record of proceeding before the AAO contains, in part: (I) Form 7-129 and supporting documentation; 
(2) the director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed t:le record in 
its entirety before issuing its decisioc. 
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Page 3 
Although the pet~taoner only lrsts marketang manager as the proffered pos~tlor on t3e 1-129, based or, the 
~etitroner's description, the AAO Ends that the proffered posnt~on ns a dual pos~tior.. mar'xetang manager and 
Japanese translator. Ev~dence of the beneficnay's dutaes ~ncludes Form 1-129 wath attachments, the 
pekboner's response to the director's request for evndence, and add~tional evndence submitted on appeal. 
Accorkcg to trals evldence, the beneficiary's dut~es would include: detem~nnng the demand for products and 
sesvlces, ~dentifying potential customers; tsansiat~ng marketing and advert~sing campalms from Engl~sh to 
Jxpanese, whale rnaknng necessary editorial changes as needed due to cultural d~fferences, travePmg to Szpar. 
and conducang busmess meetmgs in Japanese; develop~ng praclng strategaes to maxAm:ze profits; overseenqg 
product development; locating domestac and mternaaonaI companies concemng Pocalnzat~on servaces; aard 
spec~fically doing market research to see I< a specific company would be viable m the Unrked Stztes. 
The director asked the petitnoner for the followtng evldence: 1) that the proffered posntion net a: least one of 
:he criter~a of spec~alty occxpatnon, 2) that the benefic~ary was actually qualnfied for the pos~t~on, and 3) that 
the job offer the pet~taoner made to the be~ileficlary was bona fide. 
In response, the pet~koner submtted the Departmentoof Labor's Occupztnocal hfonzaat~on Network (O*Net) 
descrnptron of rnarketang manager, a separate detanled descrnpt~on of duhres fop the proffered posltnon, a 
Cescrspt~o-n of the petitloner's dut~es, the company's art~cles of mcorproratlon, a bank statement, an 
e~ployrne~t contract between the petat~oner and the Senefic~ary, the compzny's websnte zddress, the 
beneficlary's 1-20, a copy of the bere5clary7s college d~ploma, and a copy of :he beneficnay's college 
transcript. Orz appeal, the ~etit~oner cltes to the Department of Labor's Occupational Outlook findbook 
(Handbook) descr:pt?on of rnarketmg managers. 
The darecto- zouncl that the be~eficnary did cot qualify for the proffered 2ositaon because the pos~dron requn-.es 
a degree an masketing acd the beneficiary only has a degree in psycho~ogy. h addltnon, the $-rector found the 
beneficaary d~d not qua1:fy for ttae proffered pos~tion because she had not taken alay busmess couses ;n 
college. T3e director dad not analyze whether the proffered posataon was a speclaity occcpatlon t5at req~nared 
a degree an a speclfic specialty. 
The PaaO disagrees wlth the darector that the beneficmy IS not qnainfied for the posatron and finds that the 
benefic~av IS qualified for the proffered marketmg managerlJapanese WansZator pos:t~on. The AAO ro~tnnely 
cons~lts :he Handbook for ~ts mfomatnon about the dutres and educatnonal reqmrements of partlcetla 
occupataons. The dut~es of the proffered position fall wathzn those noted for marketing managers and for 
translators AS the petatloner notes, for marketing rnamger posntnonzs, the Handbook mdncates: "[a] wide 
rmge of educztnonal backgrounds ns sm~table for entry :cto advertismg, marketang, promotaons, publac 
relations, and szles managenel jobs, but many employers prefer those w~th experience zn related occupatnons 
plus a b-oad I~beral a% backgro~nd. A bachelor's degree an soc~ology, psychology, P~terature, journalism, oz 
pklosophy, among other subjects, IS acceptable." (page 24). For the posntion of Japanese translator, the 
Handbook mdlcates: "Aithough traamng reqarements can vary, almost all mk~reters and translators have a 
bachelor's degree . . . jklnownng a laraguage in addition to a natnve lacguage IS a gnvenz." No specnfic course of 
st~dy 1s reqxnrea. The benefic~ary has a (<epee m psychology and IS a native Japanese speaker. Therefore, 
the petitioner 3as establ~shed that the beneficmy is quaiafied for the proffered posntlon. 
The petitnon may not be approved, however, because the MO 5nds that the proffered. positlor. as not a 
specla?@ occupat~on. The AAO w~ll next address the requirements for a specnalty occupation. 
Section 214(i)(B) of the Act, 8 U.S.C. 5 1184(1)(1), defines the tern "specialty occupation" as an occupation 
that reqmres: 
LIN 04 018 50720 
Page 4 
(A) theoretical and practical application of a body of highly specialize6 howledge, and 
(B) attaanment of a bachelor's or Za~gher degree rc the spec~fic specialty (o~ ats equnvalent) 
as a mi3imum for entry mnto the occupai~on an the United States. 
Pcnrsuant to 8 C.F.R. $ 214,2(h)(4)(11n)(A), to quahfy as a specaalty occrrpatlon, the posidzon m~st meet one of 
the folownng cntena: 
(I,) A baccalaureate or higher degree or Its equivalect 1s anomally the mmimurn 
requi~ement for entry into the particular posntion; 
42) The degree reqxrement 1s common to the nndustry nan parallei posntlons among 
s~mnlar organ~zat~o~s or, an the altemat~ve, an employer may show that rts pafilc~lar 
posnkon 1s so complex or unique that nt can be performed only by an rndavadual wnth a 
degree; 
(3) The employer connally requires a degree or its ecpivalent for the position; or 
(4) The nature of the sgeclfic dLlt~es 1s so speclalnzed  an^ co~r~plex that howledge 
requrred to perform the clutres ns ~sually associated w~th the attaanment of a 
bzccala~reate or h~gher degree. 
Cntizenship and Hmm~gration Semlces (CIS) ~cterprets the tern "degree7' in the ~nterrr at 8 C.F.R. 
3 224,2(h)(4>(1:i)(A) to mean not just ary baccalaureate or hlghe: degree, bat one zr, a spec~fic specialty that IS 
directly related to the proffered posit~on. 
The pror"g,~ed po~-:~or, does not meet the first cntenon at 8 C.F.R. 5 214.2(h)(4)(nn)(A)(I) - a baccalaureate or 
hngher degree or ~ts equlvalent 1s nomally the rnlnirnum requirement for entry anto :he partncular pos7hor~ 
The descr~ptnon of d~tles the petnilones provided, together wnth the descr~ption of the posntnons nn the 
Handbook reflects kat t3e a bachelior's degree or ats eqmvalect, nn a specnfic specnalty, ns no: normally the 
mnlmurn requarement for entry into the proffered posit~on. For markekcg razaxager pos~tnons, the BrlankZbook 
specnfically mdlcates that a "wade range of educat~onal backgrounds IS smtable for entry anto . . . rarketxng . . . 
manageraal jobs." (page 23). For translator pos~tnons, the Handbook lndacates thzt "h-aamng requnremen:~ for 
translators cap vary," bct that almost all translators have bachdor's degrees. (page 261). Became no spec~fic 
course of study IS required as the mlnnmunn for en0 mto eather occupat~on, the petakoner cannot establnsh ahas 
first cntenon. 
T9e proffered posit:on does not meet the two altemat~ve prongs of the second cntenon at 8 C.F.R. 
5 214.2(h)(4)(11n)(A)I2) - tne degree requ:renent rs common lo the mdrrstry _c parallel pos~kaons anong 
slmllar organizetnons or a partncular pos~tion as so complex or unique that nt can Se perfomed only by an 
nndlvldraal wlih a degree. The pet~tnoner has not provldecl any ev~dence that the requnremest of a bachelor's 
degree is common an the co~sultmg corpoi-at~on industry an parallel pos~t~ons among s~rnalar companies. In 
addltaon, the employer has not shown; that ths partrcular marketmg manager posnt~on IS SO ~omp1ex or unnqeie 
that only an ~nd~vidual watk a bachelor's degree can perform ~t. 
Tle proffered pos~taon does not meet '.he th~d cnternon at 8 C.F.R. 5 214.2(h)(4)(tni)(A)Q3) - the exployer 
nomally requires a degree or ats equlvalent for the posmon. As the record does not contam any evadence of the 
LIN 04 0 8 50720 
Page 5 
pet~honer's past harir,g practices, the peti~t~oner has not met its burden of proof m 51s regard. See 1dattt.v of 
SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter ofTveasure Craft of Callfsmia, 14 I&N Dec. 190 
(Reg. Comm. 1972)). 
Finally, the evidence does not establish that the proffered position is a specialty occupation cnder the forPrt3 
criterion at 8 C.F.R. 5 214,2(h)(4)(iii)(A)(4): the nature sf the specific duties is so specialized aild complex that 
the knowledge required to perfom the duties is usually associated with the attainment of a baccalafireate or 
higher degree. To the extent that they are depicted in the record, the duties Go not appear so specialized and 
complex as to require the hig~iy specialized knowledge associated with a bacca4aureate or higher degree, or 
its equivalent, in; 2 specific specialty. The petitioner has not presented any evidence to establish that its 
marketing manager13apanese translator position is distinguishable from those of other marketing 
managersltranslators. Again, the Handbook indicates that neither marketing manager positions nor tra~slator 
positions req~ire a degree in a specific field. 
No evidence contained in the record demonstrates that the proffered dual position is a specialty occupation. 
As the director has not made a detemirdation on whether or not the position is a specialty occupation, the 
director's decision will be withdram and this petition will be rem2nded to allow the director to rule on the 
issue. %3e director may afford the petitioner reasonable time to sabmit evidence pertinent to the issue of 
whether :he positioc is a specialty occupatio~ and any other evidence the director may deem necessary. The 
director shall then render a new decision based on the evidence okecord as it relates to the statutory and 
regulatory requirements for eligibility. 
As always, the burden of proving elig~b~lity for the benefit sought rema:ns enhlrezy wrth the petitloner. 
Section 291 of the Act, 8 U.S.C. 5 1361. 
ORDER: The darector's May 10, 21004 decision IS wnthdram. The pet~tzon rs remanded to tke dnrector 
for enPy of a cew dec~snon, wh~ch ~f adverse to the petitnoner, ns to be certlfned to the AAO 
for revaew.