sustained H-1B Case: Graphic Design

U.S. Department of Hoarmelamd Securi?y 
20 Mass Ave., N.W.. Rm. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Emmigration 
FILE: WAC 03 123 5 1772 Office: CALIFORNIA SERVICE CENTER Date: s$$ 2 6 2205 - 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section B 0 l (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 1(a)(l 5)(W)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. A11 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 
WAC 03 123 53 772 
Page 2 
DISCUSSION: The director of the service center denned the nonimigrant visa petition and the matter is 3ow 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petition will be 
approved. 
The petitioner is a restaurant franchisor that seeks to employ the beneficiary as a graphic designer. The 
petitioner, therefore, endeavors to classi@ the beneficiary as a nonimigrant worker in a specialty sccqation 
pursuant to section IOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 1s ICa)(159(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occ~pation. On appeal, the 
petitioner states the proposed position qualifies as a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(l), defanes the tern "specialty occupation" as an occupation 
that requires: 
(A) theoretical and practical application of a body of highly specialized howledge, 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. 3 214.2(h)(4)(iii)(A), to quali@ as a specialty occupation, the position must meet one of the 
following cnteH-ia: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement 
for entry into the particular position; 
(4 'The degree requirement is common to the indushy in parallel positions among sirnilax 
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 howledge required 
to perfom the duties is usually associated with the attainment of a baccalaureate or 
higher degree. 
Citizenship and Immigration Services (CES) interprets the tern "degree" in the criteria at 8 C.F.R. 
$ 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a speciEc specialty that is 
directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-13 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
WAC 03 123 51772 
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 graphic designer. Evidence of the beneficiary's duties 
includes: the Form 1-129; the attachments accompanying the Fom 1-129; the petitioner's support letter; and 
tF:e petitioner's response to the director's request for evidence. According to this evidence, the beneficiary 
would perform duties that involve on a monthly basis providing gaphics for adverkising/coupon flyer and 
changing flyers for corporate stores; creating posters for stores four times each year; creating mew menus and 
rnerau boards for all stores; designing corporate clothing; providing advertising though magnets, stationary, 
pizza boxes, and paper bags, cups, plates, and napkins; and creating web pages for all stores. The petitioner 
requires a bachelor's degree in applied graphic design, graphic communication, or applied multimedia and 
design for the proposed position. 
The director stated that the proposed position resembles a graphic designer as that occupation is described in 
the Department sf Labor's Occupational Outlook Handbook (the Handbook), and that the Handbook reveals 
that this occupation is a specialty occupation. Nevertheless, the director found that the employer is not a 
likely employer of a graphic designer as small employers usually hire graphic designers on a contract or job 
basis. The director stated that no evidence showed that businesses si~ilar to the petitioner require the full- 
time services of a graphic designer or that the petitioner has a unique and specific need for such full-time 
services. The director therefore concluded that there is no bona fide position. 
On appeal, the petitioner discusses the difficulties involved in conducting a survey. The petitioner states that 
the director has no authority to determine an employer's needs, and asserts that it requires the full-time 
services of a graphics designer. According to the petitioner, it has 45 setail stores; 42 of which are managed 
by independent franchisees. The petitioner slates that it plans to construct 40 stores in 2004, iO stores in 
2005, and will add additional stores for several years. The petitioner asserts that it requires more control over 
design practices, and discusses how the graphic designer's services will be used for marketing, and website, 
logo, and clothing design. The petitioner discusses the cost effectiveness of employing an in-house graphic 
de~i~er, the case of Young China Daily v. Chappell, 742 F. Supp. 552 (N.D. Cal. 1989), and the 
Occzpational Iafovmation Network (O*Net) The petitioner asserts that the proposed position qualifies as a 
specialty occupation. 
Upon review of the record, the petitioner has established that the proffered position is a specialty occupation. 
The petitioner has established the first criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(IP, that a baccalaureate or 
higher degee or its equivalent is the noma8 minimum requirement for entry into the particular position. As 
described by the petitioner, the proposed position is that of a graphic designer; which is an occupation that the 
Ifandbook conveys requires a bachelor's degree in graphic design or a related field. Furthemore, on appeal 
the petltioner adequately explained the reasons for requiring the services of a full-time graphics designer. 
Tne AAO notes that the record refiects that the beneficiary 1s qualified for the proposed pssitlon: he possesses 
a bachelor of arts degree m applied graphncs technology wath mult~med~a, and Global Educataon Group, kc. 
WAC 03 123 5 1772 
Pzge 4 
concluded that this degree is the equivalent to a bachelor's degree in graphic design awarded by a regionally 
accredited university in the United States. 
As related in the discussion above, the petitioner has established that the proffered position is a specialty 
occupation. 
The burden of proof in these proceedings rests sdely with the petitioner. Section 291 of ke Act, 8 U.S.C. $ 1361. 
The petitioner has sustaaned that burden. 
BmER: The appeal is sustained. The petition is approved.