EFTA00523978.pdf

18 January 2012 USCIS Vermont Services Center Attn: Premium Processing Unit 30 Houghton Street St. Albans, VT 05478-2399 Re: H1-I Petition for Ms. Dear Immigration Officer: We received your well drafted and carefully thought of Request for Evidence. You are questioning (1) whether this position qualifies as a "specialty occupation", (2) if the position is indeed a "specialty occupation" whether or not the Beneficiary qualifies for the classification, and (3) whether the petitioning employer qualifies as a Petitioner under the immigration regulations. With this letter, and the supporting documentation, we will answer your questions one by one. Right off the bat, we believe these questions arose because this is not a traditional position and the employer is not a traditional employer. We believe, what makes this position non- traditional, is actually the petitioning employer. If the petition was filed by a large interior design firm, we believe some of your concerns would have been moot. However, it is filed by an interior designer who very recently incorporated and we sincerely believe this is the main concern in this case. But, as the Adjudicator's Field Manual and the regulations explicitly state, even an individual US person who is not incorporated can be an H-lb Petitioner. Even though they make up only a small minority of all H-lb petitions, the USCIS has consistently approved (and continues to approve) cases where an individual petitions the government for an H-lb classification employer. Provided the position and the beneficiary meets the H-lb criteria, and provided the employer can prove that he or she can pay the required wages for the Beneficiary, the case should be approved. EFTA00523978  Nevertheless, before we delve into the question of "specialty occupation", we would like to start with answering your more simple concerns. We will first answer your question regarding the employer, then the employee, and finally conclude with the issue of "specialty occupation". I. The Employer: Your first concern is regarding the existence of the petitioning employer. Accor in ur RFE, you were not able to verify the existence of through the VIBE system. We are offering a plethora of additional documentation to prove that the business actually exists, including, but not limited to the official EIN letter from the IRS and the business license. As you can see from the attached documentation, truly exists. As we explained in the original petition letter, is the sole-proprietorship of Ms. M ). Because it is a sole-proprietorship, it is natural for I the business to show up in the VIBE system. The VIBE system is designed for checking facts about larger businesses. However, as we stated above, under the current H-lb regulations, the employer does not have to be an organization or a corporation—it can be a real person or a sole-proprietor. 8 CFR 214.2(h)(4)(ii) defines "employer" for H-lb purposes as: United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which: (1) Engages a person to work within the United States; (2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and (3) Has an Internal Revenue Service Tax identification number. [Emphasis Added] Therefore, Ms. , doing business as , could have petitioned for the beneficiary as an individual under the USCIS regulations—she did not need a business entity. Nonetheless, as you can see from the attached EFTA00523979 documentation, she has a business license, an Internal Revenue Tax Identification Number and other business registrations for her sole-proprietorship. Moreover, as the initial petition letter outlines, she will have a traditional "employer-employee" relationship with the beneficiary when the petition is approved. Finally, as the initial bank documentation as well as the new bank statements we are enclosing prove, she has sufficient finances to pay the Beneficiary's salary. Therefore, we believe the initial documentation we submitted, along with the new documentation we are submitting now, satisfies your initial question regarding the "employer". II The Academic Qualifications of the Beneficiary: Your RFE also requests a Foreign Degree Equivalency Evaluation. We are attaching an evaluation from AETS concluding that the Beneficiary has the equivalent of a US Bachelor's degree in Business Administration. Here we would like to offer a sincere mea culpa statement: The Beneficiary, Ms. has a Bachelor of Commerce diploma from Because the diploma was for a "Bachelor's" degree, we incorrectly assumed it was the equivalent of a four r B helor's degree. Turns out it is not. Apparently, in a Bachelor's degree may be a three (3) or four (4) year degree. Therefore, we sought a degree + progressive experience evaluation from a reputed evaluation agency. The agency, using the USCIS' "three for one" rule, concluded that with an obtained three (3) year Bachelor's degree and more than four (4) years of progressive work experience in lieu of the forty (40) credit hours she is missing for a four (4) year Bachelor's degree, Ms. has the equivalent of a US Bachelor's degree in Business Administration. The evaluation, with the evaluator credentials and the supporting documents the evaluator used for the evaluation are attached for your perusal. Again, thanks for bringing the evaluation to our attention—this was an oversight on our part and we sincerely apologize. III. Specialty Occupation: EFTA00523980  This brings us to your last (and major) concern: Whether or not the proposed position qualifies as a specialty occupation. The position in question is "Business Development Manager". As we will discuss in the following pages, this position, in the context of , or for any creative business for that matter, is a highly technical and specialized position and we believe it meets the statutory requirements for a "specialty occupation" to the proverbial "t". According to the US DOL, the position in question, "Business Development Manager", is a reported title of "Market Research Analysts". Business Development Managers is a sub and specialized group of Market Research Analysts. They share many responsibilities and technical skills with Market Research Analysts but require certain additional responsibilities and skills, creating a slight difference. Because it is a sub-group and a reported title of Market Research Analyst, the DOL keeps it under the same title. Therefore, we will start out with a discussion of the main position title, Market Research Analyst, before moving on to its reported sub-title, Business Development Manager. Every business, regardless of size, from mom and pop operations to huge multinationals, needs market research for its success. The required research may be as simple as checking out the competition down the street or as complicated as qualitative analysis of market trends using mathematical modeling. Accordingly, the person undertaking this research for the business can be someone with no special training or a highly trained expert. But, at the end of the day, a business that does not follow the market trends, needs and demands is bound to fail. Market research, may it be simple or complex, is perhaps the most crucial factor in a business' success and sustainability. A business cannot thrive and develop without careful market research. Case studies of businesses failing because of inaccurate market research and analysis are the backbone of any graduate business program. Nevertheless, some businesses, given their financial limitations or their simple business models and needs, let unspecialized persons to undertake the research. Others rely on dedicated researchers for their growth and development. Naturally, some market research analysts perform very specialized duties, others don't. Therefore, traditionally, the Service always looked at the market research analyst positions very carefully to determine whether the particular position for the particular company meets the definition of a "specialty occupation" as defined in 8 CFR 214.2(h)(4): EFTA00523981  Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. We concur that some of the positions in the economy simply titled "market research analyst" may not fit this criteria. To determine whether or not it fits the criteria, one needs to look at the responsibilities and the minimum requirements to get the job done. The OOH indicates that a Market Research Analyst needs a bachelor's degree or higher for entry. But, as prior Service cases held, some market research analyst positions, even though they require a bachelor's degree, do not actually require a bachelor's degree in a specialized field. Therefore, the Service has consistently held, unless the particular position requires a bachelor's degree in a specialized field, barely requiring a bachelor's degree for entry will not make it a specialty occupation. Some Market Research Analyst positions may be fulfilled with people with diverse backgrounds such as social sciences or liberal arts studies, etc. Individuals, who attend training courses, have an undergraduate degree or who have obtained work experience in the areas of consumer behavior and social sciences such as psychology, sociology or economics, may qualify for job positions as public opinion researchers. We fully agree that those are n ' y occupations. But, this particular position for requires a specialized body of knowledge and not any bachelor's degree, but a specific degree in Business Administration. A candidate with a bachelor's degree in liberal arts, or social sciences etc. cannot fulfill the requirements of this position. The DOL, not able to give position descriptions for each and every specific "job title" in the economy, utilizes generic job titles in the Dictionary of Occupational Titles, and, under each generic job title, it offers a sample list of "reported job titles" for that position. This makes perfect sense— employers, for a variety of reasons, use distinct job titles for similar or EFTA00523982 identical positions. The same is true for "market research analysts". As the DOL reports, some of the reported job titles for market research analysts are: Market Research Analyst, Market Analyst, Project Manager, Market Research Consultant, Client Service and Consulting Manager, Market Research Manager, Product Line Manager, Business Development Specialist, Client Services Vice President, and Communications Specialist". As the DOL emphasizes in their Handbook, this is not an exhaustive list but rather a sampling of some of the most frequently used job titles. The duties of the proposed position, Business Development Manager, are extremely similar to the duties for the position of market research analyst as outlined in the Handbook. The Handbook states that market research analysts are responsible for "gathering statistical data on competitors and examining prices, sales, and methods of marketing and distribution, they analyze data on past sales to predict future sales". Let's compare this with the proposed duties of the Beneficiary: "analyze and evaluate international market trends and related data on interior design products"; "evaluate international economic currents and create economic forecast"; and "collect and analyze competitors' data on marketing and sales in the US." The Handbook further states that market research analysts "devise methods and procedures for obtaining the data they need" and "after compiling and evaluating the data, market research analysts make recommendations to their client or employer on the basis of their findings." Again, the Beneficiary's duties, as we listed in the original petition letter are "analyze marketing and sales data as well as sales costs for the Company Products and Services to plan effective international market strategies"; and "plan strategic distribution of the Company Services in the US." We believe the responsibilities are extremely similar and definitely fall under the generic DOL job title of "Market Research Specialist". Accordingly, as we will discuss more in detail below, we believe the proposed position qualifies as a specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4), which requires a showing that the nature of the specific duties of the proposed position is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. The USCIS, under the guidance of Unical Aviation v. INS, 248 F. Supp. 2nd 931 (D.C. Cal. 2002) held time after time that Market Research Analyst positions, if the responsibilities and the requirements of the position is specialized enough, will EFTA00523983 indeed constitute a specialty occupation. And, O0H states that a minimum of a bachelor's degree is the threshold education level for these positions. So, the question is, is the position wishes to hire Ms. for requires a bachelor's degree and a skills set that is specialized. We believe it does. The O0H describes the education requirements for a Market Research Analyst as follows: Education and training. A bachelor's degree is the minimum educational requirement for many market and survey research jobs. However, a master's degree may be required, especially for technical positions. In addition to completing courses in business, marketing, and consumer behavior, prospective market and survey researchers should take other liberal arts and social science courses, including economics, psychology, English, and sociology. Because of the importance of quantitative skills to market and survey researchers, courses in mathematics, statistics, sampling theory and survey design, and computer science are extremely helpful. Market and survey researchers often earn advanced degrees in business administration, marketing, statistics, communications, or other closely related disciplines. While in college, aspiring market and survey researchers should gain experience gathering and analyzing data, conducting interviews or surveys, and writing reports on their findings. This experience can prove invaluable later in obtaining a fulltime position in the field, because much of the initial work may center on these duties. Some schools help graduate students find internships or part-time employment in government agencies, consulting firms, financial institutions, or marketing research firms prior to graduation. The Position—Business Development Manager Now that we concluded that the duties the Beneficiary will perform falls under the generic D0L job title "Market Research Analyst", we will move on to the specifics of the actual proposed position, Business Development Manager. Business development is what drives a company. Without a carefully mapped out business strategy, business would become stagnant. Businesses, to use a crude analogy, are like sharks: Just like sharks must constantly move to survive, not even stopping their movement for sleep, businesses must constantly EFTA00523984 grow. A stagnant business is a dead business. It is that simple. Not every business can (and should) grow the same way. The way it should grow must be mapped out depending on its needs, its market position, its core business, etc. The factors effecting business growth are endless and there is no "one size fits it all" when it comes to business development. Whoever is undertaking the business development responsibility of a business, must assess all these factors and devise the perfect strategy for that particular business. At this juncture, we believe there is prudence in reviewing what a business development professional does for a company. Business development comprises a number of techniques and responsibilities which aim at: 1. Researching new types of business/products/services with an emphasis on identifying gaps (existing and/or expected) in the mitigation of needs of potential clients (existing and/or new ones); 2. Attracting new customers; 3. Penetrating existing markets; Utilizing techniques such as: 1. Intelligence gathering on customers and competitors; 2. Generating leads for possible sales; 3. Advising on, drafting and enforcing sales policies and processes; 4. Follow-up sales activity; 5. Formal proposal and presentation management and writing; 6. Pitch and presentation rehearsals; 7. Business model design; 8. Strategic analysis; 9. Account planning and performance monitoring system; and 10. Proposition development and campaign development. So, in a nutshell, business development involves evaluating a business and then realizing its full potential, using such tools as: 1. Market Research; 2. Market Penetration; 3. Overseeing Advertising and Marketing tools, resources and campaigns; 4. Operations Research; 5. Long and Short Term Growth Strategy Development and Implementation; EFTA00523985  6. Financial Analysis of different growth models; 7. Information management (sometimes conflated with knowledge management); and 8. Customer service Business development is often related to growth although sometimes the optimal marketing strategy and objectives could be about downsizing the activity in an existing market or decreasing the sales volume of a selected line of products or services. It is both sales-oriented and an operational function to support growth and sales. Precise business development strategies lay out a company's "pipeline" to success. The "pipeline" refers to flow of potential clients which a company has started developing. Business-development staff assign to each potential client in the pipeline a percent chance of success, with projected sales- volumes attached. Planners can use the weighted average of all the potential clients in the pipeline to project staffing to manage the new activity when finalized. Business development specialists manage and analyze this data to produce sales management information. Such management information could include: I. Reasons for wins/losses 2. Progress of opportunities in relation to the sales process 3. Top performing sales people/sales channels 4. The services in demand (or vice versa) 5. The services that should be established with the anticipation of demand given the data 6. The direction the company should take for sustained growth For larger and well-established companies, especially in technology-related and creative industries, the term "business development" often refers to setting up and managing strategic relationships and alliances with other, third-party companies. In these instances the companies may leverage each others' expertise, technologies or other intellectual property to expand their capacities for identifying, researching, analyzing and bringing to market new businesses and new products, business- development focuses on implementation of the strategic business plan through equity financing, acquisition/divestiture of technologies, products, and companies, plus the establishment of strategic partnerships where appropriate. Unfortunately, even though their needs are the same, oftentimes small to medium-sized companies do not establish EFTA00523986 procedures for business development, instead relying on their existing contacts. Or people in such companies may assume that because they know people in high places that this will solve any business-development problems and that somehow new financial transactions will come to them. Such thinking can have significant ramifications if one cannot exploit those relationships, which very often may remain personal or weak. Such a situation may result in no new sales and growth in the pipeline, rendering the company stagnant, signing its death warrant. Fortunately Ms. knows better. is a new old business. Ms. is a successful interior designer. Seeing the demand for her skills and innate talent, Ms. decided to establish an interior designer. Fortunately, as we mentioned above, Ms. knows her limitations: She is an artist but not a business person. Therefore, for her successful growth, she realized that she desperately needs someone to handle her business affairs, especially her business development. For other aspects of her business, such as accounting and finances, Ms. works with outside professionals. But, for developing her business, she decided that she needs someone to work with her as an employee, day in, day out, devising her growth strategy, targeting her marketing efforts, overseeing the sustained success and continuity of her business through business modeling and market research. Ms. is an artist. Her canvas is the interior spaces of her clients. Everywhere we go, from a nightclub to an office to our own homes, we are usually surrounded by the same four walls, an inescapable reminder of the square shape of daily life. The true inspiration comes from what is done with the space inside these four walls, how the space is used and modified with fixtures, furniture, lighting. This is where art takes form, where the genius of a design comes to fruition. Interior design is not for the coward; like any art, it takes guts to design an interior in new and exciting ways. Like any art, it is also a skill that cannot be learned. It is an innate ability to understand the space to be utilized and form a design that is both functional and artistic, one that works in the mind of the client and in the mind of the interior design world. An Interior Designer is responsible for the concept, design, planning and implementation of creative and artistic ideas to adapt a space constrained by four walls into a creation that both astounds and delights even the most hardened critic. These artists do not only design interior spaces; they also EFTA00523987 conceptualize and devise suitable lighting, equipment, furniture, and accessories as a vital element in the process to ultimately create a finished environment that exceeds the most exacting standards of interior design set by the client and by architectural design connoisseurs. Interior design is a true art form. It requires following trends and fashions. It requires utmost creativity combined with sharp technical skills. However, interior design, albeit an art form, is also a very demanding business. Therefore, its proper management and development is as important as its artists' creativity and technical skills. It is very rare for this business acumen to be present in a designer. Hence, just like any creative business, interior designers need professionals running business and creative sides of the projects in tandem. An advertising agency would be a very good analogy: Most consumers see the creative output of an ad firm. However, under the hood, the ad firm is divided to two separate units—the business side, consisting of strategic planners, business developers and account/ client representatives and the creative side, consisting of creative and art directors, copywriters, and other artists. A successful interior design business is not any different. It needs both the creative and business professionals. Ms. was prudent enough to recognize this. She emphasized this in her original petition letter: As I mentioned above, I am a very successful and creative designer. However, I am not good at business development, marketing and management. Therefore, I need a highly skilled professional to undertake these responsibilities for me. This is a necessity for my growth and success. Ms. further explained that she needed someone who can share her vision and guide her growth. That "someone" had to understand the ins and outs of an interior design business and be very versed in developing such a business. As coincidence would have it, at that time Ms. was working on a huge design project for a major client, rethinking and designing the client's properties with an Africa inspired theme. And while undertaking this massive project, Ms. ran into Ms. IIIIIIIHa national with immense progressive interior design usiness management experience and a Bachelor of Commerce degree. Ms. , the business expert, literally completed Ms. , the artist. EFTA00523988 Hence, Ms. decided to offer Ms. the position of Business Development Manager at her Interior Design operation. Hence, , in this juncture of its growth, wishes to offer the position of Business Development Manager to the beneficiary. In this position, the beneficiary will be directly responsible for managing all business issues, especially concentrating on business development and marketing. The beneficiary, in this specialized position, will research and analyze the interior design market, target segments, and major competitors. She will establish short-term and long-term goals and develop detailed implementation plans. She will review and analyze the current business model, and streamline business structure and processes. In addition, she will create & develop marketing plans, promotional tools and programs, and action plans; redefine target market and potential clients; and develop an action plan with time schedule in which to obtain new major clients. And Ms. is the perfect candidate for this job. Essentially, as it is stated on the initial letter, Ms. as a Business Development Manager will have overall managerial responsibility for all business decisions relating to strategy planning, finance, marketing, sales plans, advertising and public relations. Ms. duties will be as follows (with percentages added per your request): • Quantitative and qualitative analysis of the interior design market (20%); • Determining new client groups to focus on, based on the result of the analysis (10%); • Prepare market, product, and demographics reports as well as financial forecasts and resource utilization reports based on needs (10%); • Create business proposals in connection with the creative team (15%); • Overall assistance in h r w h strategy through the qualitative analysis of and their competitors' ii e-commerce efforts (20%); • Grow the business to reach financial targets of positive cash flow and profitability (15%); and • Sourcing furniture and home decor materials according to budget (10%). EFTA00523989  These responsibilities are highly technical and demand the services of someone with at least a bachelor's degree in business administration. For instance, to fulfill her responsibilities, she will analyze financial information to prepare reports, which summarize and forecast the company's business activity and financial position in areas of income, expenses, and earnings, based on past, present, and expected operations. The analysis that Ms. is going to perform, will provide all the essential information needs about the tastes, attributes and preferences of their customers and it would go a long way in helping their customers serve better and build a loyal client base for their interior decoration business. This information can also be used to design an effective marketin campaign and a product mix that will be the key to future business fortunes. Moreover, she will need to establish sustained growth strategies for the company by managing its resources and operations efficiently. These responsibilities extend from sourcing materials to coordinatin their installation in a cost- efficient and timely manner. has a wide variety of home-decor design styles from traditional and eclectic styles to ethnic and contemporary styles. Currently, African interior design is one of the hottest ethnic styles. The main features of African interior design are impulsiveness, mystery, and simplicity. uses such materials as: natural wood, ceramics, stone, African fabric and many other natural materials in the African style using various accessories, such as: figurines of gods and animals, various floor and table vases with exotic flowers and much more. Since Ms. is from she will be easily developing strategies for erials, and attending trade fairs, especially in interior design and construction materials, to find and secure vendors and unique building/ decoration materials in Africa. Therefore, her progressive experience in interior design in is an extremely valuable added benefit for III In order to manage these duties, such as sourcing materials, commissioning drawings for the clients, and coordinating the installations and so forth, she must have an immense knowledge of interior design business and market as well. A person who does not understand the business simply cannot develop it. With the US equivalent of a Bachelor's degree in Business Administration and progressive experience in EFTA00523990 interior design business management, Ms. is the perfect person for this job. Ms. has completed a 3-year undergraduate study on Business Administration and Marketing Management in South Africa. The Bachelor of Commerce degree she completed is halfway between a US Associate's and Bachelor's degree. We are attaching the Educational Evaluation Report from American Evaluation and Translation Services. Dr. Lina W. Liken, who is a fulltime faculty member at South University in West Palm Beach, which is a regionally accredited university, evaluated Ms. educational and work experience background. Dr. Liken concluded, "based on the three-for-one rule set up by the Immigration and Naturalization Service (INS), now known as United States Citizenship and Immigration Services (USCIS) within the Department of Homeland Security (DHS), that Ms. education and progressively responsible professional work experience are equivalent to a US degree of Bachelor of Business Administration awarded by a regionally accredited college or university in the United States." As Ms. transcripts demonstrate, her degree consisted predominantly of Business Management courses including Statistical Modeling and Analysis as well as Financial Analysis work. As the job responsibilities above clearly indicate, all of her specialized academic background will be utilized in this position. Furthermore, as the attached employment verification letters attest, Ms. has years of progressive work experience in managing interior design businesses. She was employed by Marlize Watson Interior Design in South Africa from January 2007 to December 2009; and as an Interior Designer/ Project Designer and Business Manager for JC Design in South Africa from January 2010 to April 2011. Your RFE also asks for information on former employees who held the same position. Because this is a new position at a new business, we are not able to offer the documentation you requested. However, based on established Service procedures, we believe such documentation is not necessary for new positions and businesses. Finally, we would like to emphasize that the above listed technical and very complex tasks will make up 100% of Ms. time. Her efforts will be very focused, very specialized and very result oriented, based on Ms. EFTA00523991 needs and she will not be charged with un-qualifying duties: Such assignments would be a waste of Ms. resources. Conclusion: We tried to describe the position wishes to hire Ms. in as great detail as possible. As you can see from the job responsibilities, it is a highly specialized position requiring a highly specialized person. The responsibilities, especially in qualitative research and business analysis, cannot be undertaken by anyone with a Bachelor's degree. To undertake these responsibilities, a person must have the skills and knowledge to gather raw data and compile supply-demand analysis and empirical market research through quantitative and qualitative techniques. This can only be fulfilled by someone trained in Business Administration or Management. A general Bachelor's degree in any other field such as liberal arts or psychology will not suffice in this very case. Hence, a Bachelor's degree is not requested just for the sake of it. Rather, a specific Bachelor's degree is required to fulfill the position's responsibilities. Furthermore, the position requires experience in Interior Design. We believe, given the complex responsibilities Ms. will perform for , and given the 00H, INA and CFR guidance as well as Service precedence, this particular position is a specialty occupation as defined in the regulations. And Ms. easily meets the requirements for performing this specialty occupation: She has the equivalent of a US Bachelor's Degree in Business Administration and she completed a 3 year South African degree with appropriate coursework. We are sending her educational credentials and evaluation. Additionally, she has significant progressive experience in interior design business. We are also enclosing her employment verification letters. Additionally, we are enclosing further documentation about , proving its existence. We understand that III is a new small business and this is a new position. However, as we explained above, even individuals can petition for hiring foreign nationals in the H-lb classification if they can demonstrate the need. And Ms. has a desperate need for a Business Development Manager for the growth of her business. Furthermore, as the attached financial documents demonstrate, she has the ability to afford Ms. EFTA00523992 services. There indly request you to approve this petition so that can achieve its goals. Should you have any questions regarding this case, please feel free to contact me at your convenience. Thanking you in advance for your prompt assistance in this matter, I am Sincerely yours, M. Arda Beskardes Attorney-at-Law EFTA00523993