sustained H-1B Case: Marketing

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 140 50124 Office: CALIFORNIA SERVICE CENTER Date: JAN 6 2g& 
IN RE: 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(l J)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 I lOl(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, Director 
Administrative Appeals Office 
WAC 04 140 50124 
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 software development company that seeks to employ the beneficiary as a marketing 
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. 
5 1 lol(a>( lS)(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. 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. 3 214.2(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. 
3 214.2(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 additional evidence; (3) the petitioner's response to the director's request; (4) the 
WAC 04 140 50124 
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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 marketing manager. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's March 11, 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: monitoring market developments and analyzing industry trends; conducting 
competitive analyses on both corporate and product line levels; developing and implementing overall 
marketing strategies and product integration into payer market segments; directing market analysis and 
research projects to form and validate strategies; analyzing market trends and market opportunities, customer 
segmentation and determination of the target markets with the greatest potential; analyzing competitive 
intelligence; and performing statistical analysis of the client-specific healthcare data to determine the 
opportunity areas for the additional services and new product development. The petitioner stated that a 
qualified candidate for the position would possess a bachelor's degree in marketing. 
The director found that the proffered position was not a specialty occupation. 
On appeal, counsel states that the director overlooked the job description, which included extensive analysis 
of marketing information, including statistical data. Counsel states that the beneficiary would be engaged in 
sophisticated marketing analysis and marketing planning for the petitioner. Counsel also states that almost 
every employee of the company holds a degree in his or her area of employment. 
CIS must examine the ultimate employment of the alien. and determine whether the position qualifies as a 
specialty occupation. Cf. 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. While the petitioner calls the proffered position a marketing manager, and the director 
found that a marketing manager is not a specialty occupation, the AAO finds that the duties of the position are 
most like those of 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. 
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 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 
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degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting 
HiraBlnker 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 Handbook indicates that the qualifications for a market research analyst generally 
include a master's degree in economics, business administration, marketing, statistics, or a closely related 
discipline. The position, therefore, is a specialty occupation. 
The beneficiary possesses a master's degree in business administration from a United States university. She 
is qualified to perform the duties of a market research analyst. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
3 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 director's order is withdrawn and the petition is 
approved.