sustained H-1B Case: Market Analysis

identifying data deleted to 
prevent clearly unwarranted 
immion of pod privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 230 50840 Office: CALIFORNIA SERVICE CENTER Date: NAY 0 8 @@ 
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. 5 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
wministrative Appeals Office 
WAC 04 230 50840 
Page 2 
DISCUSSION: The service center director denied the nonimrnigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be sustained. The petition will be 
approved. 
The petitioner is a floor covering company. It seeks to employ the beneficiary as a market analyst and to 
classify him as a nonimrnigrant 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. 3 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the ground that the record failed to establish that the proffered position 
is a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 3 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. 
As provided in 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: (I) Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the notice of decision; 
and (5) Form I-290B and an appeal brief. The AAO reviewed the record in its entirety before issuing its 
decision. 
WAC 04 230 50840 
Page 3 
The petitioner describes itself as a floor covering company, in business since 1957, with 70 employees, 
gross annual income of approximately $25 million, and net annual income of approximately $1.5 million. 
Due to the regional and national boom in housing construction and home improvements, the petitioner 
declares, it is in need of a market analyst to maintain its competitive edge. The duties of the proffered 
position, and the percentage of time required by each duty, are listed by the petitioner as follows: 
Consult newspapers, trade journals and other publications to keep abreast of new 
technologies and innovations in this industry. 
Collect and analyze data on customer demographics, preferences, needs and buying 
habits to identify potential markets and factors affecting product demand. 
Be responsible for all aspects of market research in formulating, conducting, and 
preparing reports of planning and research programs to identify current trends in the 
carpet/decorating/interior design field. 
Study demand in domestic businesses versus residential properties as well as product 
decorative versus functional purposes. 
Be responsible for examination and analysis of statistical data to forecast North American 
market trends for products and services. 
Research competitors' strategies and study economic reports, journals and other resource 
materials to monitor current market conditions. 
Examine and analyze gathered data and determine potential sales as well as future 
marketing and consumer purchasing trends in different demographic areas. 
Provide marketing information to management to make or amend policies and decisions 
for ongoing and future business opportunities. 
According to the petitioner, the minimum educational requirement for the position is a bachelor's degree 
in business administration, marketing, statistics, or a related field. The beneficiary is qualified to perform 
the job, the petitioner declares, by virtue of his bachelor of business administration from Loyola 
Marymount University in Los Angeles, California, granted in August 1997, and his master of business 
administration in human and organizational development from Azusa Pacific University in Azusa, 
California, granted in July 2000. 
In his decision the director determined that the duties of the proffered position, though they included 
some functions of market research and analysis, are primarily those of a marketing manager as described 
in the Department of Labor (D0L)'s Occupational Outlook Handbook (Handbook). The Handbook, as 
the director pointed out, indicates that a baccalaureate level of education in a specific specialty is not a 
normal, industry-wide requirement for entry into the occupation. The record did not establish that a 
degree requirement in a specific field of study is common to the industry in parallel positions among 
similar organizations, the director stated, or that the proffered position is so complex or unique that it 
could only be performed by an individual with a degree in a specific specialty. The director noted that no 
documentation had been submitted showing that the petitioner had previously hired the beneficiary for the 
position or required the beneficiary, or any other individual in the position, to have a degree in a specific 
specialty. Nor did the record establish that the duties of the position are so specialized and complex that 
the knowledge required to perform them is usually associated with a baccalaureate or higher degree in a 
specific specialty. The director concluded that the proffered position did not qualify as a specialty 
occupation under any of the criteria enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
WAC 04 230 50840 
Page 4 
On appeal counsel asserts that the director erred in finding that the petitioner would not be employing the 
beneficiary as a market analyst, and for not advising the petitioner of its doubt in the RFE so that the 
petitioner could address the issue in its response to the RFE. Counsel objects to the director's statement 
that the petitioner lacks a sufficient consumer base to warrant the services of a market analyst, pointing 
out that metropolitan Los Angeles, where the petitioner operates, is a very large market. The previously 
submitted factual and documentary record, counsel contends, establishes the nature of the proffered 
position and the beneficiary's eligibility for H-1B classification. 
In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, 
CIS routinely consults the DOL Handbook as an authoritative source of information about the duties and 
educational requirements of particular occupations. Factors typically considered are whether the 
Handbook indicates a degree is required by the industry; 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 HiraYBlaker COT. v. Sava, 
764 F.Supp. 1095, 1102 (S.D.N.Y. 1989)). CIS also analyzes the specific duties and complexity of the 
position at issue, with the Handbook's occupational descriptions as a reference, as well as the petitioner's 
past hiring practices for the position. See Shanti, Inc. v. Reno, id., at 1165-66. 
In accord with the director's decision, the AAO is not persuaded by the evidence of record that the duties 
of the proffered position are those of a market research analyst. The AAO agrees with the director that 
while the duties appear to involve some research and analysis, the position is that of a marketing manager. 
That occupation is described as follows in the DOL Handbook, 2006-07 edition: 
Marketing managers develop the firm's marketing strategy in detail. With the help of 
subordinates . . . they estimate the demand for products and services offered by the firm 
and its competitors. In addition, they identify potential markets - for example, business 
firms, wholesalers, retailers, government, or the general public. Marketing managers 
develop pricing strategy to help firms maximize profits and market share while ensuring 
that the firm's customers are satisfied. . . . [Tlhey monitor trends that indicate the need 
for new products and services and they oversee product development . . . . 
With respect to the educational requirements of the occupation, the Handbook, id., states the following: 
A wide range of educational backgrounds is suitable for entry into advertising, marketing, 
promotions, public relations, and sales managerial jobs, but many employers prefer those 
with experience in related occupations plus a broad liberal arts background. A bachelor's 
degree in sociology, psychology, literature, journalism, or philosophy, among other 
subjects, is acceptable. However, requirements vary, depending upon the particular job. 
For marketing, sales, and promotions management positions, some employers prefer a 
bachelor's or master's degree in business administration with an emphasis on marketing. 
[Mlost advertising, marketing, promotions, public relations, and sales management 
positions are filled by promoting experienced staff or related professional personnel. 
WAC 04 230 50840 
Page 5 
As the Handbook clearly indicates, a baccalaureate or higher degree in a specific specialty is not the 
normal, industry-wide requirement for entry into a marketing manager position. Many employers give 
favorable consideration to a broad spectrum of degrees, as well as relevant work experience, in hiring for 
such a position. Thus, a marketing manager does not meet the first alternative criterion of a specialty 
occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l), because a baccalaureate degree in a specific specialty is 
not the normal minimum requirement for entry into such a position. 
Based on the evidence of record, however, the AAO determines that the duties of the proffered position 
are so specialized and complex that the knowledge required to perform them is usually associated with a 
baccalaureate or higher degree, which qualifies the position as a specialty occupation under 8 C.F.R. 
5 214.2(h)(4)(iii)(A)(4). The petitioner's description of the job duties, as noted by the director in his 
decision, indicates that the proffered position includes research and analysis functions that exceed the 
scope of a basic marketing manager position. The record includes an organizational chart, which does not 
list any other position or employee with a marketing management function, as well as state and federal 
wage and withholding statements that show the scale of the petitioner's business operations. As indicated 
in the original petition and on appeal, the petitioner's gross annual income is around $25 million and its 
market encompasses metropolitan Los Angeles. Taking these factors into consideration, as well as the 
research and analysis functions of the job, the AAO is persuaded that the duties of the proffered position 
are more specialized and complex than those of a typical marketing manager and that knowledge usually 
associated with the attainment of a baccalaureate degree is required to perform those duties. The AAO 
concludes that the proffered position qualifies as a specialty occupation under 8 C.F.R. 5 214.2 
(h)(4)(iii)(A)(4). 
The director's decision denying the petition on the ground that the proffered position is not a specialty 
occupation shall be withdrawn. 
As provided in 8 C.F.R. 5 214.2(h)(4)(iii)(C), the beneficiary must meet one of the following criteria to 
qualify to perform services in a specialty occupation: 
(1) 
 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, 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. 
WAC 04 230 50840 
Page 6 
The record establishes that the beneficiary earned a bachelor of business administration in August 1997 at 
Loyola Marymount University in Los Angeles, California, and a master of business administration in 
human and organizational development at Azusa Pacific University in Azusa, California, in July 2000. 
The transcript from Azusa Pacific University shows that the beneficiary's master's degree program 
included such courses as international business management; strategy and planning; organizational 
development and change; marketing management and planning; and applied research and analysis. The 
AAO determines that the beneficiary's master's degree meets the criterion of 8 C.F.R. 5 214.2 
(h)(4)(iii)(C)(I) and thereby qualifies the beneficiary to perform services in the specialty occupation. 
Thus, the record establishes that the proffered position is a specialty occupation and that the beneficiary is 
qualified to perform services in that occupation. 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has met that burden. Accordingly, the AAO will sustain the appeal and approve the petition. 
ORDER: 
 The appeal is sustained. The petition is approved.