dismissed H-1B Case: Aviation

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PUBLIC COPY 
US. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: EAC 04 149 50058 Office: VERMONT SERVICE CENTER ~ate:NR 0 5 MW)6 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 10 1 (a)(l5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
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. 
Administrative Appeals Office 
EAC 04 149 50058 
Page 2 
DISCUSSION: The director of the Vermont Service Center denied the nonirnmigrant 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 operates a helicopter service. It seeks to hire the beneficiary as a commercial pilot and 
mechanic. The director denied the petition based on his determination that the petitioner had failed to 
establish that its proffered position was a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence; (3) counsel's response to the director's request for evidence; (3) the director's 
denial letter; and (4) Form I-290B, with counsel's statement and additional documentation. The AAO 
reviewed the record in its entirety before reaching its decision. 
The issue before the AAO is whether the petitioner's proffered position qualifies as a specialty occupation. 
To meet its burden of proof in this regard, a petitioner must establish that the job it is offering to the 
beneficiary meets the following statutory and regulatory requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1184(i)(l) defines the term 
"specialty occupation" as one 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. 
The term "specialty occupation" is further defined at 8 C.F.R. 9 214.2(h)(4)(ii) as: 
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. 
Pursuant to 8 C.F.R. 9 214.2(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 
EAC 04 149 50058 
Page 3 
(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 above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a 
position's title. The specific duties of the proffered position, combined with the nature of the petitioning 
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the 
alien, and determine whether the position qualifies as a specialty occupation. Cf Defensor v. Meissner, 201 
F. 3d 384 (5th Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed 
standards, but whether the position actually requires the theoretical and practical application of a body of 
highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty 
as the minimum for entry into the occupation, as required by the Act. 
The petitioner states that it is seeking the beneficiary's services as a commercial pilot and mechanic. 
Evidence of the beneficiary's duties includes: the Form 1-129; a letter of support from the petitioner; and 
counsel's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail patrolling power lines for nine different utilities throughout New England; 
performing aerial applications of economic poisons for crop control; airlifting supplies to various customer 
remote locations and performing air carrier duties as an airline pilot; performing additional duties such as 
inspecting and reporting on aircraft; directing all scheduled maintenance of all helicopters; reading complex 
blueprints; being familiar with all updates and releases from manufacturers so that maintenance performed is 
within FAA regulations; performing all major and minor inspections; developing inspection programs; 
submitting inspection programs to the FAA; assisting, supervising and directing all personnel assigned to the 
repair station; performing the final acceptance of all incoming materials, including new parts, supplies and 
airworthiness of articles on which work has been performed outside the repair station; and conducting the 
preliminary, hidden damage, in progress and final inspection of all articles processed by the repair station and 
recording results. The petitioner stated that the beneficiary is qualified for the position because of his 
bachelor's degree in professional aeronautics. 
The director requested a more detailed job description which the petitioner provided. The director found that 
no evidence had been submitted indicating that the industry requires a bachelor's degree or that it is normally 
the minimum requirement for the position of a commercial pilotJmechanic. The director found that the 
evidence of record does not establish that the job offered qualifies as a "specialty occupation." 
On appeal, counsel submits two letters in support of his assertion that the proffered position is a specialty 
occupation. On the Form I-1290B counsel states that it is inconceivable that this position with duties that include 
training, supervising, and interpretation of federal regulations, does not require a bachelor's degree or the 
equivalent. 
A thorough review of the Handbook discloses that the duties of the proffered position most closely resemble 
the duties of a pilot and an aircraft and avionics equipment mechanic and service technician as defined in the 
Department of Labor's Occupational Outlook Handbook (the Handbook), occupations which do not normally 
EAC 04 149 50058 
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require a baccalaureate level of study. The Handbook's description of training, other qualifications and 
advancement for pilots indicates: 
Although some small airlines will hire high school graduates, most airlines require at least 2 
years of college and prefer to hire college graduates. In fact, most entrants to this occupation 
have a college degree. Because the number of college-educated applicants continues to 
increase, many employers are making a college degree an educational requirement. 
As noted above, the Handbook indicates that most entrants to the occupation of pilot have a college degree 
and many employers are malung a college degree an educational requirement. A degree in a specialty is not 
listed as a preference. 
Furthermore, the Handbook's description of training, other qualifications and advancement for aircraft and 
avionics equipment mechanic and service technicians indicates: 
Most mechanics who work on civilian aircraft are certified by the FAA as an "airframe 
mechanic" or a "powerplant mechanic." Mechanics who also have an inspector's 
authorization can certify work completed by other mechanics and perform required 
inspections. Uncertified mechanics are supervised by those with certificates. 
The FAA requires at least 18 months of work experience for an airframe or powerplant 
certificate. For a combined A&P certificate, at least 30 months of experience working with 
both engines and airframes is required. Completion of a program at an FAA-certified 
mechanic school can substitute for the work experience requirement. Applicants for all 
certificates also must pass written and oral tests and demonstrate that they can do the work 
authorized by the certificate. To obtain an inspector's authorization, a mechanic must have 
held an A&P certificate for at least 3 years, with 24 months of hands on experience. Most 
airlines require that mechanics have a high school diploma and an A&P certificate. 
As stated above, the Handbook does not indicate that a baccalaureate degree is an educational requirement 
into the occupations of aircraft and avionics equipment mechanics and service technicians. 
Counsel relies on two letters submitted on appeal in support of his assertion that the proffered position 
requires a baccalaureate degree in a specific specialty. The first letter is from a professor and Aviation 
Technology program director, at the New Hampshire Community Technical College, Nashua, N.H.' The 
author states that based upon the education, training and experience for the dual capacity position of 
commercial pilot and mechanic, it is the author's position that a baccalaureate degree is required. The author 
notes that the position requires the analysis of training manuals, the instruction to others as to current FAA 
regulation, equipment requirements from the FAA and supervisory responsibility. The author noted that there 
may be others in similar positions without a baccalaureate degree, and these individuals would have the 
equivalent of a baccalaureate degree combining education and work experience. The second letter is from a 
president and CEO of a helicopter sales and service organization. This author opines that persons in positions 
such as the proffered position are required to hold a post-secondary degree in addition to relevant practical 
1 
 Professor John Bany is the aviation technology program director of a two-year community college. He has 
not established his expertise to comment on the occupation of piloting an aircraft, nor any personal 
knowledge of practices of the aviation industry with respect to requiring a four-year degree for aircraft 
mechanics. 
EAC 04 149 50058 
Page 5 
technical and occupational experience. Neither author stated that a degree in a specific specialty is required 
for the position. Neither author described any industry data, surveys, literature or other reference materials on 
which they based their opinion. The AAO may, in its discretion, use as advisory opinion statements 
submitted as expert testimony. However, where an opinion is not in accord with other information or is in 
any way questionable, the AAO is not required to accept or may give less weight to that evidence. Matter of 
Caron International, 19 I&N Dec. 791 (Comm. 1988). Consequently, there is insufficient evidence in the 
record to establish that a baccalaureate or higher degree or its equivalent in a specific specialty is the normal 
minimum requirement for entry into the commercial pilot and mechanic position. 
The petitioner has not provided evidence to establish the first alternative prong of the second criterion - that a 
specific degree requirement is common to the industry in parallel positions among similar organizations. 
Nor has the petitioner established that the particular position is so complex or unique that it can be performed 
only by an individual with a degree in order to satisfy the second alternative prong of the second criterion at 
8 C.F.R. tj 214.2(h)(4)(iii)(A). 
Nor is there evidence in the record to establish the third criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A): that the 
petitioner normally requires a specific degree or its equivalent for the position. The petitioner stated that the 
only other person employed by the petitioner with a degree is the president of the company. The petitioner 
employs 13 - 22 workers. Thus the evidence does not establish that the petitioner normally requires a degree. 
The fourth criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A) requires that the petitioner establish that the nature of the 
specific duties 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. To the extent they are described in the 
record, the duties of the position are not so specialized and complex that the knowledge required to perform 
them is usually associated with the attainment of a baccalaureate or higher degree. The petitioner has not 
distinguished the duties of the proffered position from those normally required in the field. The duties 
parallel those in the Handbook for an aircraft pilot and an aircraft mechanic and technician, occupations that 
do not require a specific baccalaureate degree. The petitioner therefore fails to establish the fourth criterion. 
Therefore, for the reasons related in the preceding discussion, 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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
tj 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.