remanded H-1B Case: Marketing

U.S. Department of Homeland Securitv 
20 ~as'achusetts Avenue, NW, Rm. ~$42 
Washington, DC 20529 
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 U.S. Citizenship 
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FILE: WAC 03 153 53992 Office: CALIFORNIA SERVICE CENTER Date: MAR 0 6 @@ 
IN RE: 
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. $ 1 10 l(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, 
WAC 03 153 53992 
Page 2 
DISCUSSION: The service center director denied the nonirnrnigrant 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 The director's decision will be withdrawn and the matter 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 for entry of a new decision. 
The petitioner is a manufacturer and distributor of portable computers and notebooks that seeks to extend 
employment of the beneficiary as a marketing analyst. The petitioner endeavors to classify the beneficiary as a 
nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position was not a specialty occupation. On appeal, 
counsel submits a brief. 
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. 
Pursuant to 8 C.F.R. 5 214.2(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 criteria at 8 C.F.R. 
5 214.2(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) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
WAC 03 153 53992 
Page 3 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a marketing analyst. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's April 14, 2003 letter in support of the petition; and the 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: analyzing market conditions for international and domestic trading of portable 
computers, and notebooks to aid management of manufacturing and distribution of the products; researching 
international and domestic market conditions to determine market needs for portable computers and 
notebooks, as related to models, quality, and quantity; collecting data on customers' preferences and opinions 
regarding function, efficiency and effects of the products, prices, and reliability; analyzing data gathered to 
provide advisory opinion in purchasing, distribution, manufacturing and forecasting future market trends in 
order to develop new products to improve sales, increase market share and expand the petitioner's business; 
gathering data on competitors and analyzing their prices, sales, products and methods of marketing and 
distribution; and preparing reports and making recommendations to management on strategies for the 
improvement of sales and services. The petitioner stated that a qualified candidate for the position would 
possess a bachelor's degree in business administration with a specialization in marketing or its equivalent. 
The director found that the proffered position was not a specialty occupation, because the position is an 
operations research analyst rather that a market research analyst, and the petitioner is not the type of business 
that would need an operations research analyst. 
On appeal, counsel states that the position is a marketing research analyst, and that the petitioner has no need 
for an operations research analyst. Counsel states that the duties of the proffered position have nothing to do 
with operations research, and are clearly within comparable position descriptions for market research analysts 
in the Department of Labor's Occupational Outlook Handbook (Handbook). 
The AAO concurs with counsel that the position is not an operations research analyst, but is rather a market 
research analyst. The director's remarks on this issue are withdrawn. 
Upon review of the record, the petitioner has established one of the four criteria outlined in 8 C.F.R. 
5 214.2(h)(4)(iii)(A). Therefore, the proffered position is a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) 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 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 Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
WAC 03 153 53992 
Page 4 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The Handbook states: 
A bachelor's degree is the minimum educational requirement for many market and survey 
research jobs. However, a master's degree may be required, especially for technical positions, 
and increases opportunities for advancement to more responsible positions. Also, continuing 
education is important in order to keep current with the latest methods of developing, 
conducting, and analyzing surveys and other data. Market and survey researchers may earn 
advanced degrees in business administration, marketing, statistics, communications, or some 
closely related discipline. . . . 
In addition to completing courses in business, marketing, and consumer behavior, prospective 
market and survey researchers should take other liberal arts and social science courses, 
including economics, psychology, English, and sociology. Because of the importance of 
quantitative skills to market and survey researchers, courses in mathematics, statistics, 
sampling theory and survey design, and computer science are extremely helpful. 
While the Handbook indicates that a bachelor's degree is normally required for a market research analyst, it is 
not clear that the degree must be in a specific specialty. 
The petitioner did not submit evidence regarding parallel positions in the petitioner's industry. The record 
also does not include any evidence from professional associations regarding an industry standard or 
documentation to support the complexity or uniqueness of the proffered position. The petitioner has, thus, not 
established the criteria set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. Beyond the beneficiary, who is currently employed in the proffered 
position, there is no evidence in the record regarding the employer's past recruiting or hiring practices for market 
research analysts. 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(h)(iii)(A)(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. 
To the extent that they are depicted in the record, the duties do appear to be so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. The petitioner submitted two position evaluations from professors at the University of 
Georgia and Saint Louis University, stating that the duties of a marketing analyst require the theoretical and 
practical application of a body of highly specialized knowledge that would be gained through a bachelor's 
degree in marketing. In addition, the petitioner deals in a technical, international market, which increases the 
complexity of the position. Therefore, the evidence establishes that the proffered position is a specialty 
occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
WAC 03 153 53992 
Page 5 
The petition still may not be approved, however. Section 214(i)(2) of the Act, 8 U.S.C. 5 1184(i)(2), states 
that an alien applying for classification as an H-1B 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 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. 5 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, an alien 
must meet one of the following criteria: 
(I) 
 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 petitioner is seeking the beneficiary's services as a marketing analyst. The petitioner indicated that it 
wished to hire the beneficiary because she possessed the equivalent of a bachelor's degree in marketing, 
through a combination of education and work experience. 
Upon review of the record, the petitioner has failed to establish that the beneficiary is qualified to perform an 
occupation that requires a baccalaureate degree in marketing or a related field. The beneficiary does not hold 
a baccalaureate degree from an accredited U.S. college or university in any field of study, or a foreign degree 
determined to be equivalent to a baccalaureate degree from a U.S. college or university in any field of study. 
Therefore, the petitioner must demonstrate that the beneficiary meets the criterion at 8 C.F.R. 
5 2 14.2(h)(4)(iii)(C)(4). 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(D), equating the beneficiary's credentials to a United States 
baccalaureate or higher degree shall be determined by one or more of the following: 
(I) An evaluation from an official who has authority to grant college-level credit for training 
and/or experience in the specialty at an accredited college or university which has a 
WAC 03 153 53992 
Page 6 
program for granting such credit based on an individual's training and/or work 
experience; 
(2) The results of recognized college-level equivalency examinations or special credit 
programs, such as the College Level Examination Program (CLEP), or Program on 
Noncollegiate Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service which specializes 
in evaluating foreign educational credentials; 
(4) Evidence of certification or registration from a nationally-recognized professional 
association or society for the specialty that is known to grant certification or registration 
to persons in the occupational specialty who have achieved a certain level of competence 
in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the specialty 
occupation has been acquired through a combination of education, specialized training, 
and/or work experience in areas related to the specialty and that the alien has achieved 
recognition of expertise in the specialty occupation as a result of such training and 
experience. 
evaluating academic credentials. The evaluator concluded that the beneficiary possesses the equivalent of an 
associate's degree in business administration from an accredited U.S. college or university. The evaluator 
also determined that the beneficiary's 9.5 years of experience, combined with her education, was equivalent 
to a bachelor's degree in marketing. However, a credentials evaluation service may not evaluate an alien's 
work experience or training; it can only evaluate educational credentials. 8 C.F.R. $5 214,2(h)(4)(iii)(D)(I) 
and (3). The AAO will accept that portion of the evaluation that analyzes the beneficiary's foreign education 
as equivalent to a U.S. associate's degree in business administration. With respect to that portion of the 
evaluation analyzing the beneficiary's work experience, the evaluation carries no weight in these proceedings. 
CIS uses an evaluation by a credentials evaluation organization of a person's foreign education as an advisory 
opinion only. Where an evaluation is not in accord with previous equivalencies or is in any way questionable, 
it may be discounted or given less weight. Matter of Sea, Inc., 19 I&N Dec. 817 (Cornrn. 1988). 
When CIS determines an alien's qualifications pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(D)(5), three years of 
specialized training and/or work experience must be demonstrated for each year of college-level training the 
alien lacks. It must be clearly demonstrated that the alien's training andlor work experience included the 
theoretical and practical application of specialized knowledge required by the specialty occupation; that the 
alien's experience was gained while working with peers, supervisors, or subordinates who have a degree or its 
equivalent in the specialty occupation; and that the alien has recognition of expertise in the specialty 
evidenced by at least one type of documentation such as: 
WAC 03 153 53992 
Page 7 
(i) 
 Recognition of expertise in the specialty occupation by at least two recognized authorities 
1 
in the same specialty occupation ; 
(ii) 
 Membership in a recognized foreign or United States association or society in the 
specialty occupation; 
(iii) 
 Published material by or about the alien in professional publications, trade journals, 
books, or major newspapers; 
(iv) 
 Licensure or registration to practice the specialty occupation in a foreign country; or 
(v) Achievements which a recognized authority has determined to be significant 
contributions to the field of the specialty occupation. 
There is no evidence in the record from two recognized authorities regarding the beneficiary's qualifications, 
nor is there any evidence regarding any of the other regulatory criteria. In addition, none of the work 
experience letters state that the alien's experience was gained while working with peers, supervisors, or 
subordinates who have a degree or its equivalent in the specialty occupation, as required by the regulation. 
The director must afford the petitioner reasonable time to provide evidence pertinent to the issue of whether 
the beneficiary is qualified to perform the duties of the specialty occupation, and any other evidence the 
director may deem necessary. The director shall then render a new decision based on the evidence of record 
as it relates to the regulatory requirements for eligibility. As always, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
ORDER: 
 The director's April 14, 2004 decision is withdrawn. The petition is remanded to the director for 
entry of a new decision, which if adverse to the petitioner, is to be certified to the AAO for 
review. 
' Recognized authority means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. A recognized authority's 
opinion must state: (I) the writer's qualifications as an expert; (2) the writer's experience giving such 
opinions, citing specific instances where past opinions have been accepted as authoritative and by whom; (3) 
how the conclusions were reached; and (4) the basis for the conclusions supported by copies or citations of 
any research material used. 8 C.F.R. 5 214.2(h)(4)(ii).