dismissed H-1B Case: Architecture

U.S. Citizenship 
and Immigration 
Services 
In Re: 11259552 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 8, 2020 
The Petitioner, an architecture and design firm, seeks to employ the Beneficiary temporarily as an 
"architectural drafter" under the H-18 nonimmigrant classification for specialty occupations. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-18 program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both: (a) the theoretical and practical application of a body 
of highly specialized knowledge; and (b) the attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum prerequisite for entry. 
The Vermont Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualifies as a specialty 
occupation. The matter is now before us on appeal. The Petitioner bears the burden of proof to 
demonstrate eligibility by a preponderance of the evidence.1 We review the questions in this matter 
de novo.2 Upon de nova review, we will dismiss the appeal.3 
I. ANALYSIS 
Upon review of the entire record, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. In her decision, the Director thoroughly 
discussed the shortcomings in the submitted evidence and, as a result, the Petitioner's failure to meet 
any of the four regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). Upon consideration of the 
entire record, including the evidence submitted and arguments made on appeal, we adopt and affirm 
the Director's decision with the comments below.4 
1 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
3 A petitioner must establish that it meets each eligibility requirement of the benefit sought by a preponderance of the 
evidence. Matter of Chawathe, 25 I& N Dec. 369, 375-76 (AAO 2010). In other words, a petitioner must show that what 
it claims is "more likely than not" or "probably" true. To determine whether a petitioner has met its burden under the 
preponderance standard, we consider not only the quantity , but also the quality (including relevance, probative value, and 
credibility) of the evidence. Id. at 376; Matter of E-M- , 20 l&N Dec. 77, 79-80 (Comm'r 1989). 
4 See Matter of P. Singh, Attorney, 26 l&N Dec. 623 (BIA 2015) (citing Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 
1994)); see also Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996) ("[l]f a reviewing tribunal decides that the facts and evaluative 
On appeal, the Petitioner argues that the Director erred in consulting the Occupational Outlook 
Handbook (Handbook). First, we do not maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect 
in establishing the general tasks and responsibilities of a proffered position, and we regularly review 
the Handbook as an informative source on the duties and educational requirements of the wide variety 
of occupations that it addresses. Second, the burden of proof remains on the Petitioner to submit 
sufficient evidence to support a conclusion that its particular position meets the statutory and 
regulatory definitions of a specialty occupation and at least one of the four criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii){A)(1-4). Not only was the Petitioner free to submit additional probative evidence 
to establish eligibility for the requested classification, but the petition was not denied solely on the 
basis of the information in the Handbook. 
The Petitioner further asserts that the Handbook is not relevant "because the OOH does not have a 
listing for the Architectural Drafter occupation. Rather, the OOH has a listing for 'Drafters,' which 
presumably combine[s] all types of drafters, including Architectural Drafters with Civil Drafters, even 
while the occupations are distinct in O*NET." While we acknowledge that the Handbook's entry for 
drafters includes architectural, civil, electrical, electronics, and mechanical drafters, it makes clear that 
architectural drafters are included under the general entry. The Handbook also indicates that "[t]he 
American Design Drafting Association {ADDA) offers certification for drafters. Although not 
mandatory, certification demonstrates competence and knowledge of nationally recognized practices. 
Certifications are offered for several specialties, including architectural, civil, and mechanical 
drafting." Notably, a review of the ADDA website does not indicate a minimum education 
requirement of a bachelor's degree in a specific specialty in order to become a certified architectural 
drafter. Regardless, as stated above, the Handbook was not the exclusive source of evidence 
considered. 
The Petitioner also relies on information from O*NET, in part, for its information "that 68% of 
employer respondents in the job classification require a Bachelor's degree." We reference the 
Director's detailed discussion regarding the shortcomings in O*NET, especially regarding the fact that 
it does not include any information to establish that the occupation requires a bachelor's degree in a 
specific specialty, or its equivalent, as required by both the statute and regulations.5 
In addition, the Petitioner asserts that "[i]n accordance with 8 C.F.R. § 214.2(h)(4)(ii), if it is 
determined that the sponsored position corresponds to the occupational category of business specialty 
... it necessarily follows that such position is eligible ... as a 'specialty occupation'." The Petitioner, 
however, appears to misunderstand the plain language of the regulation. The regulation's inclusion of 
the field of architecture does not relieve the Petitioner of its burden to 1) establish that the occupation 
requires both the theoretical and practical application of a body of highly specialized knowledge and 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for 
judgments prescinding from them have been adequately confronted and correctly resolved by a trial judge or hearing 
officer, then the tribunal is free simply to adopt those findings" provided the tribunal's order reflects individualized 
attention to the case). 
5 Although we also acknowledge the Petitioner's reference to the Beneficiary's degree to establish that it "taught her 
specific skills and concepts that directly enable her to perform the duties" of the proffered position, the test to establish a 
position as a specialty occupation is not the skill set or education of a proposed beneficiary, but whether the position itself 
qualifies as a specialty occupation. 
2 
entry and 2) meet at least one of the four criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A).6 The Petitioner 
has not done so here. 
Finally, the Petitioner's reliance on Tapis lnt'I v. Immigration and Naturalization Service, 94 F. Supp. 
2d 172 (D. Mass. 2000), Raj & Co. v. USCIS, 85 F. Supp, 3d 1241, 1247 (W.D. Wash. 2015) and 
Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012) is also misplaced. 7 The 
Director did not conclude that the Petitioner failed to establish that the proffered position qualifies as 
a specialty occupation because it allowed for a degree "in more than one academic discipline," nor did 
she question whether the specialty of architecture was related to the proffered position." For example, 
under the first criterion, the Director explained that the entry in the Handbook stating that "[d]rafters 
typically need an associate of applied science in drafting or a related degree from a community college 
or technical school" and that a "certificate or diploma" may be sufficient indicated that "a range of 
educational credentials, including those less than a bachelor's degree in a specific specialty, may 
qualify an individual to perform the duties." In other words, the "range of educational credentials" 
include an associate degree, a certificate and a diploma, none of which are sufficient to meet the 
requirements of the criterion or the statutory and regulatory definitions of a specialty. 
While not a basis for our decision, we briefly note an additional concern not addressed by the Director. 
The Petitioner provided a "copy of [Petitioner]'s job posting for Architectural Drafter/Designer, 
featuring its degree requirement for the position." According to the posting, the position requires a 
"5-year professional degree and/or a Master's degree from a college/university in architecture." In 
addition, it appears that the position requires "3-5 years of experience." As a result, we are left to 
question whether the Petitioner's selection of a Level 11 wage on the submitted labor condition 
application (LCA) accurately reflects its true minimum requirements and level of responsibilities for 
the proffered position. 
The purpose of the LCA wage requirement is "to protect U.S. workers' wages and eliminate any 
economic incentive or advantage in hiring temporary foreign workers."8 It also serves to protect H-1B 
workers from wage abuses. A petitioner submits the LCA to the Department of Labor (DOL) to 
demonstrate that it will pay an H-1B worker the higher of either the prevailing wage for the 
occupational classification in the area of employment, or the actual wage paid by the employer to other 
employees with similar duties, experience, and qualifications. 9 
6 The provided fields of human endeavor include medicine and health. As opposed to a doctor, for example, occupations 
such as paramedics, pharmacy technicians, dental hygienists, and phlebotomists would not automatically qualify as 
specialty occupations simply because of the inclusion of the general field of medicine and health in the regulation. 
7 In contrast to the broad precedential authority of the case law of a U.S. circuit court, we are not bound to follow the 
published decision of a United States district court in matters arising even within the same district. See Matter of K-S-, 
20 l&N Dec. 715 (BIA 1993). Although the reasoning underlying a district judge's decision will be given due 
consideration when it is properly before us, the analysis does not have to be followed as a matter of law. Id. at 719. 
8 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that 
the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage 
in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] 
with [DOL]."). 
9 Section 212(n)(1) of the Act; 20 C.F.R. § 655.731(a). See also Venkatraman v. REI Sys., Inc., 417 F.3d 418, 422 & n.3 
(4th Cir. 2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal Vojtisek-Lom & Adm'r Wage & Hour 
Div. v. Clean Air Tech. lnt'I, Inc., 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
3 
While DOL is the agency that certifies LCA applications before they are submitted with the petition, 
DOL regulations note that the Department of Homeland Security (OHS) (i.e., its immigration benefits 
branch, USCIS) is the department responsible for determining whether the content of an LCA filed for 
a particular Form 1-129 actually supports that petition. See 20 C.F.R. § 655.705(b), which states, in 
pertinent part (emphasis added): 
For H-1B visas ... OHS accepts the employer's petition (OHS Form 1-129) with the 
DOL-certified LCA attached. In doing so, the OHS determines whether the petition is 
supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1B visa classification. 
11. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. The Petitioner has not 
met that burden here, and the petition will remain denied. 
ORDER: The appeal is dismissed. 
4