dismissed H-1B Case: Assisted Living Facility Management

(b)(6)
DATE: JUL 0 9 2015 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service! 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.P.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the 
AAO. 
Thank you, 
R 
n Rosenberg 
ief, Administrative Appeals Office 
REV 3/2015 www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURALBACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the California 
Service Center. In the supporting documentation, the petitioner describes itself as a company, 
established engaged in the management and operations of assisted living facilities. 1 In order 
to employ the beneficiary in what it designates as an executive director position, the petitioner seeks 
to classify her as a nonimmigrant worker in a specialty occupation pursuant to section 
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The Director denied the petition, concluding that the petitioner did not establish that the proffered 
position qualifies as a specialty occupation in accordance with the applicable statutory and 
regulatory provisions. 
The record ofproceeding contains: (l)the petitioner's Form I-129 and supporting documentation; 
(2) the Director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the 
Director's decision; and (5) the Notice of Appeal or Motion (Form I-290B) and supporting 
documentation. We reviewed the record in its entirety before issuing our decision. 2 
For the reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. 
II. ANALYSIS 
For an H-lB petition to be granted, the petitioner must provide sufficient evidence to establish that 
it will employ the beneficiary in a specialty occupation position. To meet its burden of proof, the 
petitioner must establish that the employment it is offering meets the applicable statutory and 
regulatory requirements. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
1 Although required by the Form I -129, the petitioner did not state its type of business and its net annual 
mcome. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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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. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ ( 1)] 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 [(2)] 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. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed 
position 
must meet one of the following criteria: 
(1) 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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.F .R. 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be 
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read as providing supplemental criteria that must be met in accordance with, and not as alternatives 
to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently 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. See 
Royal Siam Corp. v. Chertojf, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement 
in a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H -1 B visa category. 
In ascertaining the intent of a petitioner, US CIS looks to the Form I -129 and the documents filed in 
support of the petition. It is only in this manner that the agency can determine the exact position 
offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 C.F.R. 
§ 214.2(h)(9)(i), the Director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or she may independently require to assist his or her 
adjudication. Further, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-1B petition 
involving a specialty occupation shall be accompanied by [d]ocumentation ... or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." 
B. Proffered Position 
In the Form I-129, the petitioner states that it wishes to employ the beneficiary as an executive 
director at its business location in Minnesota. 3 In response to the RFE, the petitioner 
explained that the beneficiary would be responsible for performing the following duties: 
1. Overseeing the recruitment, retention, supervision, disciplinary action, and 
termination of employees (20% of overall time). 
2. Overseeing the overall job performance of the above-referenced professional 
personnel (15% of overall time). 
3 It must be noted that the petitioner has provided inconsistent information regarding the beneficiary's work 
site. For instance, in the Form I-129, the petitioner states that the beneficiary will work in Minnesota. 
However, the Labor Condition Application (LCA) indicates that the beneficiary will work in 
Minnesota and in Minnesota. No explanation for this variance was provided by the 
petitioner. 
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3. Developing and coordinating staff education and related training programs in 
areas such as OSHA compliance, infection control, emergency procedures, and 
related areas (15% of overall time). 
4. Developing appropriate management procedures for residency requirements, 
tenant documentation, and related service delivery areas (including procedures to 
investigate tenant, staff and/or country complaints) in compliance with Assisted 
Living Law, Housing-with-Services Contract Act, dementia disclosure laws, and 
related regulations (20% of overall time). 
5. Developing and delivering effective marketing and communications plans to 
increase market share and reputation within the local senior and medical 
communities, county personnel, and the general public ( 15% of overall time). 
According. to the petitioner, the proffered position requires "at least a Bachelor's degree m 
Management or a closely-related field." 
C. Labor Condition Application 
In support of the petition, the petitioner submitted a Labor Condition Application (LCA) attesting 
that the proffered position falls under the occupational category "General and Operations 
Managers"- SOC (ONET/OES) code 11-1021. The petitioner claimed in the LCA that the 
prevailing wage in _ Minnesota) for the 
proffered position was $56,368 per year. 
In response to the RFE, the petitioner provided a printout from the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook regarding the occupational category "Administrative 
Services Managers." The petitioner also referenced 
several other occupational categories in the 
Handbook (i.e., human resources managers, financial managers, training and development 
managers, social and community services managers, and other top managers/executives) and 
asserted that the Handbook's narratives for these occupations were relevant in determining the 
requirements for the proffered position . 
On appeal, the petitioner claimed that "[the] Director's decision is clearly deficient by erroneously 
focusing exclusively on the alleged job qualifications of 'Top Executive' positions per the OOH." 
The petitioner continued by stating that it had explained in the RFE response that the proffered 
position involves numerous occupational categories and that "the correct OOH occupational 
comparison [to the proffered position] is to occupations such as Human Resource Manager, 
Financial Manager, Training/Development Manager, and/or Social/Community Service Manager." 
While these occupational categories may have some general duties in common, they are distinct and 
separate occupational categories. When the duties of the proffered position involve more than one 
occupational category, DOL provides guidance for selecting the most relevant Occupational 
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Information Network (O*NET) code classification. More specifically, the "Prevailing Wage 
Determination Policy Guidance" by DOL states the following: 
In determining the nature of the job offer, the first order is to review the 
requirements of the employer's job offer and determine the appropriate occupational 
classification. The O*NET description that corresponds to the employer's job offer 
shall be used to identify the appropriate occupational classification . . . . If the 
employer's job opportunity has worker requirements described in a combination of 
O*NET occupations, the [determiner] should default directly to the relevant O*NET­
SOC occupational code for the highest paying occupation. For example, if the 
employer's job offer is for an engineer-pilot, the [determiner] shall use the education, 
skill and experience levels for the higher paying occupation when making the wage 
level determination. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www .foreignlaborcert.doleta. gov /pdf/NP WH C _Guidance_ Revised _11_ 2009. pdf. 
Thus, if the petitioner believed its position falls under more than one occupational category, it 
should have chosen the relevant occupational code for the highest paying occupation. 
We reviewed the prevailing wages for Level I positions for each of the occupational categories 
referenced by the petitioner. Notably, the petitioner did not select the occupational category with 
the highest prevailing wage. For example, the prevailing wage for the occupational category 
"Financial Managers" was $76,648 per year- which is a significantly higher prevailing wage than 
the occupational category "General and Operations Managers." Moreover, it is important to note 
that the offered wage to the beneficiary is less than the prevailing wage for the occupational 
category "Financial Managers." 
Under the H-IB program, a petitioner must offer a beneficiary wages that are at least the actual 
wage level paid by the petitioner to all other individuals with similar experience and qualifications 
for the specific employment in question, or the prevailing wage level for the occupational 
classification in the area of employment, whichever is greater, based on the best information 
available as of the time of filing the application. See section 212(n)(l )(A) of the Act, 
8 U.S. C. § 1182(n)(l )(A). 
As such, the petitioner has not established (1) that it submitted a certified LCA that properly 
corresponds to the claimed occupation and duties of the proffered position; and (2) that it would pay 
the beneficiary an adequate salary for her work, as required under the Act, if the petition were 
granted. These issues preclude the approval of the petition. 
Moreover, the petitioner claims that the proffered position falls within a number of occupational 
categories, but has not selected the occupational category with the highest prevailing wage in 
accordance with DOL guidance. Therefore, we cannot conclude that the petition and LCA 
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accurately reflect the substantive nature of the work to be performed by the beneficiary. We are 
therefore precluded from finding that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for a 
common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity 
or uniqueness of the proffered position, which is the focus of the second alternate prong of criterion 2; 
(4) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is an 
issue under criterion 3; and ( 5) the degree of specialization and complexity of the specific duties, which 
is the focus of criterion 4. 
Accordingly, as the petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. The appeal will be dismissed and the petition denied. 
III. CONCLUSION AND ORDER 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143 (noting that the 
AAO conducts appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, affd. 345 F.3d 
683; see also BDPCS, Inc. v
. Fed. Communications Comm'n, 351 F.3d 1177, 1183 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency. so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable.") . 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it 
is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed.