dismissed H-1B Case: Architecture

U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
?I,,, 
FILE: WAC 03 140 54754 Office: CALIFORNIA SERVICE CENTER Date: 2 ! ~JU 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S .C. § 1 10 1 (a)( 15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 03 140 54754 
Page 2 
DISCUSSION: The service center director denied the nonirnrnigrant visa petition and the matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is a staffing company that seeks to employ the beneficiary as an architectural drafter. The 
petitioner endeavors to classify the beneficiary as a nonirnrnigrant worker in a specialty occupation pursuant to 
section lOl(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101(a)(l5)(H)(i)(b). 
The director denied the petition because the petitioner did not establish that the proffered position was a 
specialty occupation. The director also stated that the petitioner had not complied with the terms of its 
previously approved petitions. On appeal, the petitioner submits a letter. 
Section 214(i)(l) of the Immigration and Nationality Act (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. 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. 
§ 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: (1) 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 
director's notice of intent to deny the petition; (5) the petitioner's response to the director's notice; (6) the 
WAC 03 140 54754 
Page 3 
director's denial letter; and (7) 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 computer programmer. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's March 28, 2003 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: drafting architectural design plans and detailed construction working drawings; 
producing plans and details of foundation, building frames, floors, roof framing, electrical layout and other 
structural elements; preparing a set of master plan drawings and a set of blueprints for bidding and 
construction site use; and assisting architects and engineers to determine conformance to the plans. The 
petitioner indicated that a qualified candidate for the job would possess a bachelor's degree in architecture or 
civil engineering. 
The director found that the proffered position was not a specialty occupation. The director found further that 
the petitioner failed to establish any of the criteria found at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal, the petitioner states that it would be the actual employer of the beneficiary. The petitioner also 
states that its record of filing numerous petitions relates to its business of staffing other organizations, and that 
it has a high turnover rate. The petitioner states that a bona fide position exists. The petitioner further asserts 
that previous petitions, which were identical to the current petition, were approved. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns fust to the criteria at 8 C.F.R. 5 214.2 (h)(4)(iii)(A)(l) and (2): a baccalaureate or higher 
degree or its equivalent is the nonnal 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 
fm or individuals in the industry attest that such fms "routinely employ and recruit only degreed individuals." 
See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.Minn. 1999)(quoting HirdIBlaker 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. No evidence in the Handbook indicates that a baccalaureate or higher degree, or its 
equivalent, is required for an architectural drafter job. The Handbook states, "Employers prefer applicants who 
have completed postsecondary school training in drafting, which is offered by technical institutes, community 
colleges, and some 4-year colleges and universities." This clearly states that a bachelor's degree in a specific 
specialty is not required for entry into the occupation. 
WAC 03 140 54754 
Page 4 
The petitioner submitted five Internet job listings, two of which stated that a bachelor's degree in architecture 
was required, and one that stated that "ideal candidates" would have a degree in architecture. The remaining 
two listings only stated that a bachelor's degree was required, with no specialty noted. There is no evidence to 
show that the employers issuing those postings are similar to the petitioner's client, or that the advertised 
positions are parallel to the instant position. Thus, the advertisements have little relevance. 
The petitioner did not submit any evidence from professional associations regarding an industry standard, or 
documentation to support the complexity or uniqueness of the proffered position. The petitioner has, thus, not 
established the criteria set forth at 8 C.F.R. 214.2(h)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. The petitioner listed three individuals it states were previously employed 
as architectural drafters and provided copies of their diplomas. There is no evidence in the record regarding the 
petitioner's client's past hiring practices. In Defenror v. Meissner, 201 F. 3d 384 (5" Cir. 2000), the court held 
that the Immigration and Naturalization Service, now CIS, reasonably interpreted the statute and the regulations 
when it required the petitioner to show that the entities ultimately employing the foreign nurses require a 
bachelor's degree for all employees in that position. The court found that the degree requirement should not 
originate with the employment agency that brought the nurses to the United States for employment with the 
agency's clients. 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(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. 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
Regarding the petitioner's assertion that identical petitions were previously approved, the record of proceeding 
does not contain copies of the visa petitions that the petitioner claims were approved. If the previous 
nonirnrnigrant petitions were approved based on the same unsupported and contradictory assertions that are 
contained in the current record, the approvals would constitute clear and gross error on the part of CIS. CIS is 
not required to approve applications or petitions where eligibility has not been demonstrated, merely because 
of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 
I&N Dec. 593, 597 (Cornm. 1988). It would be absurd to suggest that CIS or any agency must treat 
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery 825 F.2d 1084, 1090 (6th Cir. 
1987); cert. denied 485 U.S. 1008 (1988). 
WAC 03 140 54754 
Page 5 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between the court of 
appeals and the district court. Even if a service center director had approved the nonimrnigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afSd 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
The director also found that the petitioner had not actually employed many of the individuals for whom it had 
previously received approval, and when it did employ them, they were frequently paid at a significantly lower 
rate than had been asserted on the Form 1-129 at the time of filing. The petitioner did not directly address this 
issue on appeal, and did not overcome the director's findings. 
An H-1B alien is coming temporarily to the United States to perform services in a specialty occupation. 
Section 10l(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. 5 lOl(a)(lS)(H)(i)(b). 8 C.F.R. 5 214.2(h)(l)(ii)(B). In this 
case, the petitioner did not establish that the beneficiary would be coming to the United States to perform 
services in a specialty occupation. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.