sustained H-1B Case: Business Management

U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 242 51085 Office: CALIFORNIA SERVICE CENTER Date: f €8 2 3 2~ 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 101(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. 
WAC 04 242 51085 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petition will be 
approved. 
The petitioner is a granite importer and fabricator that seeks to employ the beneficiary as a business manager. 
The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant 
to section IOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 10 1 (a)( 15)(H)(i)(b). 
The director denied the petition because the petitioner did not establish that the proffered position was a 
specialty occupation. On appeal, counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. 
 1 184(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. 
 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. 
fj 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 04 242 5 1085 
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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 business manager. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's August 26, 2004 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, in part: managing the growth of the petitioner's business; negotiating with stone 
companies in Brazil; reviewing Brazilian sales contracts; researching new markets for quality materials; 
designing and implementing a national marketing strategy; reviewing the competition; analyzing economic 
data; making recommendations for increasing productivity; and managing governmental compliance. The 
petitioner stated that a qualified candidate for the position would possess a bachelor's degree in business 
administration, accounting or economics. 
The director found that the proffered position was not a specialty occupation. 
On appeal, counsel states that the director overlooked the business plan, a statement from a local competitor 
and the expert witness statement, all of which indicated that the petitioner's business needs require an 
individual with a bachelor's degree in business management. 
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 (5' Cir. 2000). The critical element is not the 
title of the position or 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. 
Upon review of the record, the petitioner has established one of the four criteria outlined in 8 C.F.R. 
fj 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 8 214.2(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 Department of Labor's 
Occupational Outlook Handbook (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 1 15 1, 1 165 (D. Minn. 1999) (quoting 
Hird/Blaker Corp. v. Suva, 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. The director found that the proffered position was most like a combination of a general 
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manager and an administrative services manager. The AAO concurs that the duties of the position are most like a 
general manager, but disagrees with the director that the position is also like an administrative services manager. 
The Handbook states, "The formal education and experience of top executives varies as widely as the nature of 
their responsibilities. Many top executives have a bachelor's or higher degree in business administration or 
liberal arts." This indicates that a baccalaureate or higher degree, or its equivalent, in a specific specialty is not 
required for a top executive or general manager job. 
Regarding parallel positions in the petitioner's industry, the petitioner submitted a letter from one its 
competitors, who stated that he has a bachelor's degree in business and that it "would be inconceivable to 
[him] to attempt to manage the business" without that degree. He also stated that it is a minimum requirement 
in the stone and tile business for a business manager to have a bachelor's degree. This statement does not 
establish that the overall industry standard is for a business manager to have a bachelor's degree in business 
management or a related field. 
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. 9 214.2(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. This is a new position and the petitioner is not able to meet this criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. 8 214.2(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. 
The petitioner submitted a letter from a professor of business at the University of Arizona South, who also 
works as a consultant assisting companies to achieve their business goals. He based his assessment on an 
on-site inspection, a review of relevant business and financial documents and discussion with the petitioner's 
owner. He stated that the petitioner has a need for a strong management process, which it does not currently 
possess. The evaluator stated that an individual with a bachelor's degree in a business-related field would be 
able to assist the petitioner in supply chain management, marketing, production efficiencies and maximization 
of the company's financial resources. He also stated that it is rare for a business manager not to have a 
bachelor's degree. 
To the extent that they are depicted in the record, and combined with the evidence of record, the duties do 
appear 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. Therefore, the evidence does 
establish that the proffered position is a specialty occupation under 8 C.F.R. 9 2 14.2(h)(4)(iii)(A)(4). 
The beneficiary possesses a bachelor's degree in business administration, with a specialization in business 
management from a United States university. She is qualified to perform the duties of the specialty 
occupation. 
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The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
9 1361. The petitioner has sustained that burden. Accordingly, the appeal will be sustained and the petition 
will be approved. 
ORDER: 
 The appeal is sustained. The petition is approved.