dismissed H-1B Case: Architecture

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PUBUCCQPY
U.S. Department of 110meland Security
20Mass Ave., NW Rm. 3000
. Washington, DC 20529
U.S. Citizenship
and Immigration
Services
FILE: WAC 05 15855324 Office: CALIFORNIA SERVICE CENTER Date: DEC 042006
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:, .
. INS~RUCTIONS:
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.usels.gov
WAC 05 15855324
Page 2
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before
the Administrative Appeals Offic~ (AAO) on appeal. The appeal willbe dismissed. The petition will be denied.
The petitioner is an architectural firm. It seeks to employ the beneficiary as an interior CAD designer and
endeavors to classify him as a nonimmigrant .worker in a specialty occupation pursuant to section
101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1101(a)(l5)(H)(i)(b).
The director denied the petition on the basis that the beneficiary was not qualified to perform the duties of a
specialty occupation. .On appeal, counsel submits a brief and additional information stating that the beneficiary is
qualified to perform the dutiesof a specialty occupation.
The issue to be discussed in this proceeding is whether the beneficiary qualifies to perform the duties of a
specialty occupation. .
Section 101(a)(15)(H)(i)(b) of the Act 8 U .S.G. § 1101(a)(l5)(H)(i)(b), provides, in part, for the classification
of qualified nonimmigrant aliens who are coming temporarily to the United States to perform services in a
.specialty occupation.
Section 2l4(i)(2) of the Act , 8 U.S.C. § 1184(i)(2), states that an alien applying for classification as an H-IB
ri~nimmigrant worker must possess:
(A) full state licensure to practice in the occupation, if such licensure is required to
practice in the occupation ,
(B) completion of the degree described in paragraph (l)(B) for the occupation, or
(C) (i) completion of such experience in the specialty equivalent to the degree, and
(ii) recognition of expertise in the. specialty through progressively responsible
positions relating to the specialty
Pursuant .to 8 C.ER. § 2l4 .2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, the alien
must meet one of the following criteria:
(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; o r .
(4) Have education, specialized training , and/or 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 05 15855324
Page 3
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(D), for purposes of paragraph (h)(4)(iii)(C)(4) of this section,
. equivalence to completion of a United States baccalaureate or higher degree shall mean achievement of a
level oflrnowledge , 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 of the 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
expenence;
(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);
(3) An e ~aluation of education bya reliable credentials evaluation service which specializes
in evaluating foreign educational credentials; .
(4) Evidence of certification or registration from a nationally-recognized professional
association or society for the specialty that is known to .grant certification or
registration to persons in the occupational specialty 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 offered position is that of an interior CAD designer. The U.S. Department of Labor's Occupational
Outlook Handbook (Handbook) notes that a bachelor's degree is required for most entry-level design
positions, except for floral design and visual merchandising . Bachelor's degrees in fine arts are issued at four
year colleges and universities where the curriculum includes art, art history , principles of design, designing
and sketching, and specialized studies for specific design discipliries . The Handbook further notes that
interior design is the only design field subject to government regulation. According to the American Society
of Interior Designers , 22 States and the District of Columbia register or license interior designers.
An educational evaluation report was issued by a credentials evaluation service, the Foundation for International
Services, Inc. (FIS), indicating that the beneficiary's foreign education and work experience was equivalent to a
bachelor's degree in computer aided design from a regionally accredited college or university in the United
.States. PIS noted that the beneficiary held an associate's degree in general liberal arts and sciences, and an
associate's degree in architecture from aregionally accred ited community college in the United States. The
credentials evaluation service then considered the beneficiary's prior employment experience in arriving at its
decision that the beneficiary had the equivalent of a baccalaureate level education. A credentials evaluation
service may only evaluate a beneficiary's education for equivalency purposes, not work experience. A
beneficiary's past work experience may only be evaluated for equ ivalency purposes under 8 C.F.R . §
214.2(h)(4)(iii)(D )(l) by an official who has authority to grani 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. The record does not establish that the FIS evaluator
has this authority. The evaluation is, therefore ; of little evi~entiary value and does not establish that the
WAC 05 15855324
Page 4
beneficiary has the equivalent of a baccalaureate level education related to the offered position.
Citizenship and Immigration Services (CIS) , may itself determine whether the beneficiary is qualified to
perform the duties of the specialty occupation. . That determination may be made pursuant to ·8 C.F .R.
§ 214.2(h)(4)(iii)(D)(5) , which provides:
For purposes of determining equivalency .to a baccalaureate degree in the specialty, three
years of specialized training and/or work experience must be demonstrated for each year of
college-level training the alien lacks ... . It must be clearly demonstrated that the alien's
training and/or work experience included the theoretical and practical application of
specialized knowledge required by the specialty occupation; that the alien's experience was
gained while working with peers, supervisors , or subordinates who have a degree or its
equivalent in the specialty occupation; and that the alien has recognit ion of expertise in the
specialty evidenced by at least one type of documentation such as:
(i) Recognition of expertise in the specialty occupation by at least two recognized
authorities in the same specialty occupation;
(ii) Membership in a recognized foreign or United States .association or society in
the specialty occupation;
(iii) Published material by or about the alien in professional publications, trade
journals , books or major newspapers;
(iv) Licensure or registration to practice the specialty occupation 10 a foreign
country; or
(v) Achievements which a recognized authority has determined to be significant
contributions to the field of the specialty occupation.
The petitioner provided three statements from licensed architects commenting on the beneficiary's work
experience. A letter from_tates that the beneficiary was previously employed by the petitioner
and that Perry supervised~e petitioner 's employees, including the beneficiary. Mr_states
that although he left the petitioner's employ in May of 2004, he has maintained a relationship with firm
personnel arid that he is aware of the beneficiary' continued development within the profession, especially h is
skills with the production of computer aided drawings and computer generated models. Mr. _ further
states that he has observed the beneficiary in large project capacities and that , in his opinion, the beneficiary
has spent his time with the .petitioner effectively gaining the required expertise in order to develop as an
architectural intern, and that the beneficiary is on track for architectural registration within the state of
California.
A second architect , _ with provided a statement indicating that the
beneficiary worked on several ofhis projects and demonstrated expert knowledge on AutCad, Revit , Sketch
Up and other various programs essential to the architecture profession. !he petitioner's president , a
registered architect, states that the beneficiary has worked for him for several years, and that he has attained a
high level of expertise and experience in several forms of architectural programs, Autocad, Revit, Sketch UP
/
..
WAC 0515855324
Page 5
and Photoshop. None of the submitted statements, -however, are sufficient to,establish that the beneficiary has
obtained a baccalaureate level education in a field of study that is closely related to the duties ofthe proffered
~ion. The duties performed by the beneficiary with reference to the statements of Mr. _ and Mr.
_renot set forth in, their opinion letters in sufficient detail to establish' that the beneficiary's work
experience included the theoretical and practical application of specialized knowledge required by the
specialty occupation. ,
Further, while the record contains .letters of recommendation from the beneficiary's 'employers and
co-workers; and evidence of the beneficiary's past work experience, it does not establish that the beneficiary
has recognition ofexpertise in the specialty. 'Recognition of expertise may be established by opinions from at
least two recognized authorities in the same specialty occupation. A recognized authority is defined by
'regulation as a person or organization with expertise in a particular field, special skills or knowledge in that
field, and the expertise to render the type of opinion requested. Such opinions must state: the writer's
qualifications as an expert; the writer's experience giving such opinions, citing specific instances 'where 'past
opinions have been accepted as authoritative, and by whom; how the conclusions were reached; and the basis
for the conclusions supported by copies or citations of any research material used. None of the opinions or
statements submitted. contain sufficient documentation to establish that they were issued' by "recognized
authorities" asdefined by regulation. Furthermore, the record does not establish that the beneficiary has
recognition of expertise under 8 C.F.R. § 214.2 (h)(4)(iii)(D)(5)(ii),(iii),(iv), or (v). As such, the record
does not establish that the beneficiary is qualified to perform the duties of the specialty occupation.'
Beyond the decision of the director, the petitioner has not established that the position qualifies as a specialty
occupation in the state of California. California Business and Professions Code Section 5 801(d) provides that a
person may become a certified interior designer in the State of California with a combination of eight years of
related education and work experience and an examination. As the state of California does -not require a
baccalaureate degree in the specialty for entry intothe' field, the position has not been established 'as a specialty
occupation under 8 C.F.R. § 214.2(h)( 4)(iii)(A)(1): Nor does the evidence of record establish eligibility under
any of the remaining criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). For this additional reason, the petition may not
be approved. '
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361.
The petitioner has failed to sustain that burden and the appeal shall accordingly be dismissed.
ORDER: The appeal is dismissed. The petition is denied.