sustained H-1B Case: International Trade

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U:s: p~pllrtillent~fHomeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u S~ Citizenship
and Immigration
Services
FILE: LIN0415351499 Office: NEBRASKA SERVICE CENTER Date: MAl. 0 S 'Z001
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
·ON BEHALF OF PETITIONER:.
INSTRUCTIONS:
>.,
-'y.. :_0
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, Chief
Administrative Appeals Office
www'llscis~gov
LIN0415351499
Page 2 .'
DISCUSSION: The service center director denied the nonimmigrant visa petition. 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 technology company that produces friction material for brakes, clutches and other
industrial applications. The petitioner seeks to employ the beneficiary as an Export Trade Specialist, and
endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to section
. 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.c.§ 1101(a)(15)(H)(i)(b) ..
The director determined that the proffered position is not a specialty occupation and -denied the petition
accordingly. On appe~l the petitioner submits further documentation and asserts through counsel, that the
proffered position qualifies as a specialty occupation .
. Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as anoccupation
. 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 8C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty. occupation, a position must meet one 'of the
following criteria:
(1)
(2)
(3)
A baccalaureate or higher degree or its equivalent is normally the minimum requirement .
.for entry into the particular position; ,
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 'itcan be performed only by an individual with adegree;
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,
U.S. Citizenship and Immigration Services (CIS) interprets the term "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 specific specialty that is
directly related to the proffered position.
i
The record of proceeding before the AAO contains: (1) Form 1-129, Petition fora Nonimmigrant Worker
(Form 1-129) and supporting documentation; (2) thepetitioner's letter of support; (3) the director's request for
additionalevidence (RFE); (4) the petitioner's response to the director's RFE request; (5) the director's denial
LIN 04 153 51499
Page 3
letter; and (6) Form 1-290B, 'Notice of Appeal to the Administrative Appeals Unit (Form 1-290B) and
supporting documentati~n. The AAO reviewed the.record in its entirety before issuing its decision.
The petitioner seeks the beneficiary's services as an. export trade specialist. Evidence of the proffered,
position's duties is contained in: the Form 1-129 and supporting documentation; the petitioner's letter of
support; the petitioner's response to the director's RFE; and counsel's brief on appeal and supporting
documentation. According to this evidence,the beneficiary's duties in the proffered position includes
advising the petitioner on all export-related matters, developing the petitioner's export programs, and
coordinating the timely and legal delivery of the petitioner's products to countries belonging to the European
Union. Specifically, the proffered position duties include:
Evaluating the export potential of new products and services by determining pricing, terms of
sale, documentation and shipping requirements; ,
Development of trade plans and foreign marketing programs;
Establish~ent of partnerships with the petitioner's contacts in foreign markets;
Interpreting all relevant export regulations and other government requirements for items to be
exported, including managing -compliance with the EU regulations versus the United States'
regulations;
Management of compliance with export control laws and evaluation of trade sanctions and
embargoes;
Management of requirements and' language for contracts and responsibility for product
preparation customized 'to the needs of the petitioner's clients;
Evaluating and working to minimize credit risk;
Management of all daily export activities including: management of export 'services
providers; review of export-related documentation; evaluation of current enterprise export
processes; identification of risks and requirements; development and implementation , of
solutions and improvements to risk and meet requirements; establishment of export controls
and, maintenance of record system for enterprise export information ill accordance with
government requirements. , '
The petitioner asserts that the proffered position is complex arid unique and:that it is similar to a marketing
manager or management analyst position. The petitioner also asserts that the proffered position's duties are
similar to export specialist positions contained in job announcements and descriptions submitted on appeal.
The petitioner asserts that the minimum requirement for the proffered position is a bachelor's degree with an
area of concentrationin contract administration, international law or international business, and the petitioner
concludes that the beneficiary's Bachelor's Degree in Law qualifies her for the proffered position.
The directordetermined that a baccalaureate degree in a specific specialty was not required for entry into the
described position. The director found that contrary to the petitioner's assertions, the described position was
,not similar to that of a management analyst, and that-instead the position combined the duties of a general
LIN0415351499
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manager,marketing manager, contract specialist/manager, and cargo ~nd freight agent. The director
referenced information contained in the U.S. Department of Labor's (DOL), Occupational Outlook Handbook
. (Handbook), which indicates that a baccalaureate or higher degree,or its equivalent i.n a specialized area is
not normally the minimum requirement for entry into general manager, marketing manager, or contract
specialist manager, positions. The director noted further that a cargo and freight agent position has no
baccalaureate or higher degree requirement at all. On this basis, the director found that the petitioner had
failed to establish any ofthe crite~ia:found at 8 C.F.R. § 214.2(h)(4)(iii)(A). .
The AAO turns first to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) and (2): a baccalaureate or higher
degree or its equivalent is the normal minimum requirement for entry into the particular position; and a
degree requirement is common to the industry in parallel positions among similar organizations, or in the. . \
alternative, a particular position is so complex or u~ique 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, 764 F. Supp. 1095, 1102 (S.D.N.Y. 1989». In the
pr~sent matter, the AAO notes that the Handbook does not contain a description for the position of export
trade specialist. The AAO therefore looks to job descriptions that may contain similar duties to that of the
proffered position. .
The Handbook (2006-07 Edition) discusses the duties of a contract administrator on pages 25-26" stating in
part that:
[A[dministrative services managers who work as contract administrators oversee the
preparation, analysis, negotiation, and review of contracts related to the purchase or sale of
equipment, materials.isupplies, products, or services ....
I
Educational requirements for these managers- vary widely, depending on the size and
complexity of the organization ....
.Managers of highly complex services, such as contract administration, generally need at least
.a bachelor's degree in business, human resources, or finance .. : "
The Handbook discusses the duties of cargo and freight agents on 459, stating in part that:
Cargo and freight agents arrange for and track incoming and outgoing cargo and freight
shipments in airline, train, or trucking terminals or on shipping docks. They expedite
shipments by determining the route that shipments are to take and by preparing all necessary
shipping documents. '.' . "
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Cargo and freight agents arrange cargo according-to its destination. They also determine the
shipping rates and other charges that can sometimes apply to the freight. For imported or
exported freight, they verify that the proper customs paperwork is in order.
Many jobs are entry level and do not require more than a high school diploma ....
The Handbook provides in part on page 27 that a marketing manager develops:
[P]ricing strategy to help firms maximize profits and market share while ensuring that the
firm's customers are satisfied. In collaboration with sales, product development, and other
managers, they monitor trends that indicate the need for new products and services, and 'they
oversee product development.
The Handbook provides on page 28 that a wide range of educational backgrounds is suitable for entry in
marketing managerial jobs, and that "[m]anyemployers prefer those with experience in related occupations
plus a broad liberal arts background." The Handbook adds that, "some employers prefer a bachelor's or
master's degree in business administration with an emphasis on marketing."
The Handbook describes the position ofa management analyst on pages92~93, and states in pertinent part
that:
Management analysts, .often referred to as management consultants in private industry,
analyze and propose ways to improve an organization's structure, efficiency, or profits ....
In all cases, analysts and consultants collect, review, and analyze information in order to
make recommendations to managers. . . . '
. )
After obtaining an assignment or contract,' management analysts first define the nature and
extent of the problem. During this phase, they analyze relevant data ~ ... The analyst or
consultant then develops solutions to the problem ....
Once they have .decided on. a course of action, consultants report their findings and
recommendations to the client. .... For some projects, management analysts are retained to
help implement the suggestions they have made.
The Handbook states on pages 93-94 that: .
Educational requirements for entry-level jobs in this field vary. widely between private
industry and government. Most employers in private industry generally seek individuals with
a master's degree inbusiness administration or a related discipline. Some employers also
require additional years of experience in the field or industry in which the worker plans to
consult, in addition to a master's degree. Some will hire workers with a bachelor's degree as
a research analyst or associate. Research analysts usually need to .pursue a master's degree in
. order to advance to a consulting position ....
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Few universities or colleges offer formal programs of study in management consulting;
however, many fields of study provide a suitable educational background for this occupation
because of the wide range of areas addressed by management analysts ....
The AAO finds first that the proffered position's duties do not contain elements that are materially similar to
those of a management analyst, and that the proffered position is not a management analyst position. The
AAO notes, .however, that the described position duties do include elements contained in the Handbook's
descriptioriof cargo and freight agent, marketing manager and contractor administrator positions. -The
educational requirements for a cargo and freight agent and a marketing manager vary from a high school
diploma to abachelor's degree with a broad liberal arts background. Because these positions lack a specialty
bachelor's degree requirement, they do not qualify as specialty occupations, as set forth in 8 C.F.R. §
214.2(h)(4)(iii)(A). A contract administrator position, however, does meet the definition of a specialty
occupation, as its minimum educational requirements consist of a bachelor's degree in business, human
resources or finance.
TheAAO notes that the fact that a position involves some non-specialty-occupation duties does not preclude
it from being a specialty occ,upation position, and that.a position may require a bachelor's degree or its
equivalent in a specialty field even if some of its duties do not. In the present matter, company and product
evidence contained in the record establishes that the petitioner is engaged in the international export of its
products, and the evidence corroborates the petitioner's assertion jhat the proffered position includes
management of contract language and requirements, as well as the evaluation of the export potential of new
. products and services through pricing, terms of sale, documentation and shipping requirement
. determinations. The AAO finds that these described duties are similar to those contained in the Handbook's
description for a contract administrator. Accordingly, the petitioner has established that the proffered position
'is a specialty occupation pursuant to 8 C.F.R. § 214:2(11)(4)(iii)(A)(l) - which states that a baccalaureate or
higher degree or its equivalent is normally the minimum requirement for entry into the particular position.
The A.AO next turns to the issue of the beneficiary's qualifications. The petitioner indicates that the
beneficiary has the equivalent of a Bachelor's Degree in .Law, and thus satisfies the specialty education
_requirements for the proffered position. The AAO finds that there is a close corollary between the required
specialized studies (law) and the proffered position, and that the field of law-thus qualifies as a related field
for contract administrator educational purposes.
The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D), provides that for 8. C.F.R. § 214.2(h)(4)(iii)(C)(4) purposes,
equivalence to completion of a United States baccalaureate or higher degree shall mean achievement ofa
level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal
.to that of an individual who has a baccalaureate or higher -degree in the specialty and shall be determined by
one or more ofthe following: )
(1) 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
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);
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,,(3) An evaluation of education by a reliable 'credentials e valuation service which specializes in
, evaluating foreign educational 'credentials ; ,.' .'.
, ' (4 ) Eviderice of certification or registration from ' a nationall y-recognized professional
, association or society for the specialty that is known to grant certification or registration to
. persons in the occupationalspecialty 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.
The record c~ntains 'an Educational Evaluation by Morningside Evaluations "and Consulting , a credentials
evaluation service. ,The evaluation states that the b eneficiary 's 'education in Romania is equivalentto a
Bachelor of Law degree from an accredited institution of higher education in the United States. The AAO
accepts the' evaluation of the beneficiary 's education. ' Accordingly , the petitioner has established that the .
beneficiary is qualified for emplo yment in the proffered position .
The burden of proof in these proceedings rests solely with the petitioner . Section 291 of the Act, 8 U.S.c. § 136i.
In the present matter ; thepetitioner has sustained that burden. The appeal will therefore be sustained.. , ' , . . . . , ' .' . "
.... -
ORDER:
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The appeal is "s~ stained , The petition is a~proved.
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