dismissed H-1B Case: Aviation

U.S. Citizenship
and Immigration
Services
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
PUBLIC COpy
FILE: SRC 03 056 51007 Office: TEXAS SERVICE CENTER Date: SEP 2 1 ZOOl
INRE: Petitioner:
Beneficiary:
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:
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.
~1{Aii~~
lKobert P. Wiemann, Chief
VAdministrative Appeals Office
www.uscis.gov
SRC 03 056 51007
Page 2
DISCUSSION: The Director, Texas Service Center denied the Form 1-129 nonimmigrant visa petition,
which the petitioner had filed to extend the H-IB employment of the beneficiary. The Administrative
Appeals Office (AAO) dismissed a subsequent appeal on May 3, 2004 and a motion to reopen on May 16,
2005. The petitioner and the beneficiary filed a complaint in the U.S. District Court for the Northern District
of Georgia, Rome Division, seeking relief requiring Citizenship and Immigration Services (CIS) to approve
the beneficiary's H-IB petition. Phoenix Air Group, Inc., and Rodolfo Guillermo Pena and Hector De Sousa
Ribeiro v. United States Department of Homeland Security, Citizenship and Immigration Services, No.4 06
CV 147 HLM (filed June 27,2006). Upon review, the AAO, on its own motion, reopened the proceeding to
reconsider its previous decisions pursuant to 8 C.F.R. § 103.5(a)(5)(ii). On January 29, 2007 it issued a
request for evidence to which the petitioner responded on June 18, 2007. The AAO will affirm its prior
decision denying the petition.
The petitioner is a U.S. airline that owns and operates Learjets and Gulfstream G-159 turbo prop aircraft, and
provides charter and air cargo services, as well as aircraft services to military and defense contractors. The
petitioner employs approximately 100 individuals. It seeks to extend its employment of the beneficiary as an
aircraft pilot in command pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the
Act), 8 U.S.C. § 110I(a)(15)(H)(i)(b).
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the
director's December 30, 2002 request for evidence; (3) counsel's response to the director's request; (4) the
director's April 2, 2003 denial of the petition; (5) the Form 1-290B and supporting documentation; (6) the
AAO's May 3, 2004 dismissal of the appeal; (7) counsel's May 28,2004 Motion to Reopen; (8) the AAO's
May 16,2005 dismissal of the Motion to Reopen; (9) the AAO's January 29,2007 request for evidence; and
(10) counsel's June 14, 2007 response to the AAO's request. The AAO reviewed the record in its entirety
before reaching its decision.
The initial issue before the AAO is whether the petitioner's proffered position qualifies as a "specialty
occupation. "
The Immigration and Nationality Act (the Act) provides for the nonimmigrant classification of aliens coming
temporarily to the United States to perform services in a specialty occupation. See section 101(a)(15)(H)(i)(b)
of the Act, 8 U.S.C. § 1101. Pursuant to the statutory definition at section 2l4(i) of the Act, 8 U.S.C. §
1184(i), the term "specialty occupation" means an occupation that requires:
(1) the theoretical and practical application of a body of highly specialized knowledge,
and
(2) 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. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a position must meet one of
the following criteria:
SRC 03 056 51007
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(1) A baccalaureate or higher degree or its equivalent IS nonnally 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 perfonned only by an individual with a
degree;
(3) The employer nonnally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties is so specialized and complex that ~owledge
required to perfonn the duties is usually associated with the attainment of a
baccalaureate or higher degree.
Citizenship and Immigration Services (CIS) interprets the tenn "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 detennine 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 detennine whether the position qualifies as a specialty occupation. Cf Defensor v. Meissner, 20 I
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 seeks the beneficiary's services as an aircraft pilot in command. Evidence of the beneficiary's
duties includes: the Fonn 1-129; the petitioner's December 9, 2002 letter in support of the petition; and
counsel's June 14,2007 response to the AAO's request for evidence, including two letters from the petitioner,
both dated June 7, 2007.
At the time of filing, the petitioner stated that the proffered position would require the beneficiary to:
• Pilot airplanes to transport passengers, mail or freight or for other commercial purposes;
• Review a ship's papers to ascertain factors such as load, weight, fuel supply, weather
conditions, flight route and schedule;
• Order changes in the fuel supply, load, route or schedule to ensure the safety of the flight;
• Pilot airplanes to destinations, adhering to flight plans, and the regulations and procedures of
the federal government, company, and airports; and
• Log infonnation, such as time in flight, altitude flown and fuel consumed.
These duties, the petitioner contended, require the beneficiary to hold at least a baccalaureate degree or the
equivalent gained through practical experience in aviation management, aeronautical science/engineering or a
SRC 03 056 51007
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field commonly associated with commercial pilots. The petitioner also stated that the proposed employment
requires the beneficiary to have at least 5,000 flight hours in a type Grumman-Gulfstream G-159 turbo prop
aircraft.
In response to the AAO's January 29,2007 request for evidence, counsel submits an amended description of
the duties associated with the proffered position. The duties described at the time of filing are not, counsel
states, the only duties to be performed by the beneficiary. Citing information provided in the petitioner's June
7, 2007 letters, counsel contends that, in addition to the duties described at the time of filing, aircraft pilots in
command are also required to:
• Manage their aircraft, including all aspects of maintenance for their aircraft;
• Manage personnel, including fellow pilots, flight attendants and mechanics when posted
to remote bases;
• Make business decisions on behalf of Phoenix Air when dealing with clients face-ta-face;
• Understand and apply foreign and U.S. military protocol;
• Participate in covert military operations;
• Participate in military training operations;
• Understand and apply all U.S. Federal Aviation Regulations and Phoenix Air operational
regulations;
• Understand and apply all International Civil Aviation Organization (lCAO) regulations;
• Understand complex electronic payload systems and other systems on board G-l aircraft;
and
• Understand complex special mission electronic equipment that may be onboard the
aircraft during certain types of operations.
Counsel states that the duties performed by aircraft pilots for the petitioner are not duties that are routinely
performed by aircraft pilots and that aircraft pilots who work at U.S. military bases under the petitioner's
defense contracts are required to take management responsibility for all operations at their location and make
day-to-day business decisions on behalf of the petitioner. In its June 7,2007 letters, the petitioner states that
aircraft pilots in command are expected to be much more than just pilots, they must be skilled aviators, office
managers, public relations managers, maintenance managers, systems managers and that, away from base,
they must be able to manage an aircraft and associated crewmembers in a "nonsupervised autonomous
manner."
The AAO notes that the purpose of a request for evidence is to elicit further information that clarifies whether
eligibility for the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). Therefore, when responding
to a request for evidence, a petitioner may not offer a new position to the beneficiary, or materially change a
position's title, its level of authority within the organizational hierarchy, or its associated job responsibilities.
The petitioner must establish that the position offered to the beneficiary when the petition was filed merits
classification as a specialty occupation. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg.
Comm. 1978).
SRC 03 056 51007
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In the present case, the amended description of the proffered position that counsel provides in response to the
AAO's request for evidence does not offer additional detail about the nature of the duties originally listed by
the petitioner. Instead, it introduces new duties that appear to expand the position's responsibilities
significantly, including managing personnel and maintenance; participating in military training operations and
covert military operations; understanding the electronic payload and other systems on board the aircraft, and
the special electronic equipment onboard the aircraft during certain unidentified operations; making business
decisions on behalf of the petitioner; and understanding and applying foreign and U.S military protocol.
The AAO acknowledges that the petitioner's letter in support of the petition indicated that it provided aircraft
services to the U.S. military and defense contractors, including testing and evaluation support for the U.S.
Navy Aegis program and advanced air-to-air Electronic Attack training for the U.S. Air Force's front line
weapons systems. However, the duties of the proffered position listed at the time of filing did not reflect that
the beneficiary would be involved in any aspect of its business other than the piloting of Gulfstream aircraft to
transport passengers, mail or freight or for other commercial purposes. While the AAO reaches no conclusion
as to which description is the more accurate recounting of the proffered position's duties, new claims that the
proffered position requires the beneficiary to participate in such activities as covert military operations and
making business decisions on behalf of the petitioner will not be considered in this proceeding. The AAO
will accept the expanded description of the proffered position offered in response to its request for evidence
only as it relates to the duties listed by the petitioner at the time of filing.
Therefore, for its analysis of the proffered position under the requirements at 8 C.F.R. § 214.2(h)(4)(iii)(A),
the AAO will rely on the duties described by the petitioner at the time of filing and the following duties listed
by counsel in his June 14,2007 response: understand and apply all U.S. Federal Aviation regulations, as well
as those of the petitioner; and understand and apply all ICAO regulations, both of which directly relate to the
duties listed at the time of filing.
The AAO notes that one of the petitioner's June 7, 2007 letters expresses concerns for the safety of the
beneficiary should he return to Venezuela. Such concerns, however, are outside the scope of this proceeding.
Instead, they would be appropriately raised in the context of an asylum claim under section 208 of the Act,
8 U.S.C. § 1158 or in removal proceedings before an immigration judge.
The AAO now turns to a consideration of the duties of the proffered position.
To determine whether the duties just described are those of a specialty occupation, the AAO first considers
the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) and (2): a baccalaureate or higher degree or its equivalent is
the normal minimum requirement for entry into the particular position; and 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 considered by the AAO when
determining these criteria include: whether the Department of Labor's (DOL) Occupational Outlook
Handbook (Handbook), on which the AAO routinely relies for the educational requirements of particular
occupations, 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 firms or individuals in the
industry attest that such firms "routinely employ and recruit only degreed individuals." See Shanti, Inc. v.
SRC 03 056 51007
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Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095.
1102 (S.D.N.Y. 1989)).
The duties of the proffered position establish it as that of an aircraft pilot, employment discussed by the 2006­
2007 edition of the Handbook under the occupational title of aircraft pilots and flight engineers. (Handbook at
page 629). With regard to the preparation required for employment as a pilot, the Handbook reports the
following:
All pilots who are paid to transport passengers or cargo must have a commercial pilot's
license with an instrument rating issued by the FAA . . .. To qualify for these licenses,
applicants must be at least 18 years old and have at least 250 hours of flight experience. The
experience required can be reduced through participation in certain flight school curricula
approved by the FAA. Applicants also must pass a strict physical examination to make sure
that they are in good health and have 20/20 vision with or without glasses, good hearing, and
no physical handicaps that could impair their performance. They must pass a written test that
includes questions on the principles of safe flight, navigation techniques, and FAA
regulations, and must demonstrate their flying ability to FAA or designated examiners.
To fly during periods oflow visibility, pilots must be rated by the FAA to fly by instruments.
Pilots may qualify for this rating by having the required hours of flight experience, including
40 hours of experience in flying by instruments; they also must pass a written examination on
procedures and FAA regulations covering instrument flying and demonstrate to an examiner
their ability to fly by instruments. Requirements for the instrument rating vary depending on
the certification level of [the] flight school.
Airline pilots must fulfill additional requirements. Pilots must have an airline transport
pilot's license. Applicants for this license must be at least 23 years old and have a minimum
of 1,500 hours of flying experience, including night and instrument flying, and must pass
FAA written and flight examinations. Usually, they also have one or more advanced ratings
depending on the requirements of their particular job ....
Although some small airlines 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. [Handbook, page
630].
Based on the above discussion, the AAO concludes that the proffered position of aircraft pilot would not
impose a degree requirement on the beneficiary. While the Handbook reports that employers seeking aircraft
pilots prefer to hire college graduates and that many are making a college degree a job requirement,
employers' preference for degreed job candidates is not synonymous with the normally required language of
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the first criterion. Employer preference indicates only that employers find degrees desirable. It is, therefore,
insufficient to establish that a baccalaureate or its equivalent is normally the minimum requirement for entry
into the particular position. Moreover, the Handbook does not indicate that employers seeking degreed pilots
require these individuals to hold degrees in fields that are directly related to their employment, as required for
classification as a specialty occupation. In that the Handbook does not indicate that a baccalaureate or higher
degree in a specific specialty is the normal requirement for entry-level employment as an aircraft pilot, the
AAO finds that the position does not qualifY as a specialty occupation under the first criterion at 8 C.F.R.
§ 214.2(h)(4)(iii)(A) - a baccalaureate or higher degree or its equivalent is normally the minimum
requirement for entry into the particular position.
In reaching this conclusion, the AAO has noted the discussion of the occupation of chief pilot provided by the
Department of Labor's Dictionary of Occupational Titles (DOT). As proof that the proffered position
qualifies as a specialty occupation, the petitioner points to the Specific Vocational Preparation (SVP) code of
9 that the DOT assigns to the occupation, a rating that, the petitioner asserts, indicates the performance of the
position normally requires more than ten years of training in a school, work, military, institutional or
vocational environment. The DOT is not, however, a persuasive source of information as to whether a job
requires the attainment of a baccalaureate or higher degree (or its equivalent) in a specific specialty. It
provides only general information regarding the tasks and work activities associated with a particular
occupation. Moreover, as stated by the petitioner, an SVP rating indicates only the total number of years of
vocational preparation required for a particular occupation. It does not describe how those years are to be
divided among training, fonnal education and experience, and it does not specifYthe particular type of degree,
if any, that a position would require. Accordingly, it does not establish that a baccalaureate or higher degree
or its equivalent is nonnally the minimum requirement for entry into the proffered position.
The AAO has also reviewed the "G-I Training Manual," published by Flight Safety International, and the
Gulfstream I cockpit diagram, which are included in the record. While it finds these materials to establish that
.the operation of a G-I aircraft would require significant training, they do not demonstrate that a G-I pilot
would require a baccalaureate or higher degree in a directly-related field, as required for classification as a
specialty occupation. Counsel in his March 18, 2003 response to the director's request for evidence also
references his submission of the licensing requirements for airline transport pilots, material from the Air Line
Pilots Association establishing the air transport license as the highest rating for a pilot; an excerpt from a
Federal Aviation Administration (FAA) advisory circular on the certification for pilots, and flight and ground
instructors; and an FAA publication entitled, "Practical Test Standards for the Air Transport Pilot and Aircraft
Type Rating." The AAO acknowledges counsel's claim, but does not find these materials to be part of the
record of proceeding before the AAO.
The AAO also notes counsel's contention on appeal that the skills and experience required to obtain the air
transport pilot's certificate required by the petitioner and at least 5,000 hours in a type Grumman-Gulfstream
G-159 turbo prop aircraft would easily translate into the type of effort required to attain a baccalaureate
degree. However, a petitioner may establish a proffered position as a specialty occupation on the basis of
educational equivalency only when a specific degree does not exist in the occupational field. Tapis Int'l v.
INS, 94 F. Supp. 2d (D. Mass. 2000). As the petitioner indicates that the duties of the proffered position may
be perfonned by someone with a degree in aviation management, aeronautical science/engineering or another
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field commonly associated with commercial pilots, the AAO will not consider whether the training required
for FAA certification as an airline transport pilot and 5,000 flight hours in a Grumman-Gulfstream G-159
turbo prop aircraft are equivalent to or exceed a bachelor's degree in an academic field directly related to the
proffered employment. Moreover, the petitioner has submitted no documentation to support its claim
regarding the degree equivalency provided by fulfilling FAA certification requirements. Going on record
without supporting documentation is not sufficient to meet the burden of proof in these proceedings. Matter
o/Soffici, 221&N Dec. 158, 165 (Comm. 1998) (citing Matter o/Treasure Craft o/California, 14 I&N Dec.
190 (Reg. Comm. 1972».
To establish a proffered position as a specialty occupation under the second criterion at 8 C.F.R.
§ 214.2(h)(4)(iii)(A), a petitioner must prove either that a specific degree requirement is common to the
industry in parallel positions among similar organizations, or, alternately, that the proffered position is so
complex or unique that it can be performed only by an individual with a degree in the specific specialty.
In support of its motion to reopen, the petitioner submitted position descriptions and requirements for pilot
positions at Delta Air Lines, Inc., Southwest Airlines, American Eagle, FedEx Express, and American
Express; and material from Florida International University's (flU) and Southwest Texas Junior College's
websites on careers in aeronautics. The record also includes an FlU listing of colleges and universities
providing degrees in aeronautics and materials from the websites of Embry-Riddle Aeronautical University,
Southwest Texas Junior College, Arizona State University East, Auburn University, the CoHegeof
Aeronautics and Daniel Webster College describing their aeronautics programs. The AAO finds these
materials to be sufficient to establish that U.S. air passenger and air transport organizations, nationally and
regionally, either prefer or require degreed pilots. However, the discussion of the position of pilot at Delta Air
Lines, Southwest Airlines, American Eagle, FedEx Express and American Express do not establish that the
duties of a pilot within these organizations are parallel to those of the proffered position. Only the description
of the position of chief pilot at American Express indicates the specific duties to be performed, and these
duties differ significantly from those described by the petitioner at the time of filing. The FlU and Southwest
Texas websites, which list the educational requirements and salaries for a range of jobs within the U.S.
aeronautics industry, also fail to offer a description of the duties associated with the various types of
employment listed. Moreover, the organizations relied upon by the petitioner to establish an industry-wide
degree requirement are not similar to the petitioner, a U.S. airline providing charter and air cargo services,
with 100 employees. The degree requirements or preferences expressed are those of major national or
regional airline carriers, an air cargo and courier enterprise, and a credit, travel and financial management
business. Accordingly, the record does not establish that a degree requirement is the norm within the
petitioner's industry, in parallel positions among similar organizations, as required by the first prong of the
criterion. The AAO also notes that, although the submitted materials demonstrate that Delta Air Lines,
Southwest Airlines, American Eagle, FedEx Express and American Express require or prefer their pilots to
hold degrees, they do not indicate that the degree be held in a directly-related field, as required for
classification as a specialty occupation. The flU and Southwest Texas websites also fail to report a specific
degree requirement or preference for employment as a pilot within the aeronautics industry.
In response to the AAO's request for evidence the petitioner submits a June 12,2007 letter from a professor
of aeronautical science at Embry-Riddle Aeronautical University in Daytona Beach, Florida in which he
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states that he has been requested to provide an "industry standard" letter verifying that the proffered position
of pilot in command of a Gulfstream I aircraft requires a baccalaureate degree. However, the professor's letter
does not address the hiring practices of the petitioner's industry. Instead, it responds to the second prong of
the criterion, focusing on the unique nature of the proffered position.
The professor states that performing as a pilot in command of an aircraft does not in itself require a
baccalaureate degree, but that the proffered position requires an understanding of systems on board the
Gulfstream I, the ability to manage and supervise other crewmembers and maintenance personnel, make
business decisions on behalf of the petitioner and be aware of U.S. and ICAO regulations and operating
procedures. The professor also indicates that an important element to the degree requirement for the
proffered position is the petitioner's business model. He indicates that the petitioner's pilots must be skilled
aviators, office managers, public relations managers, aircraft maintenance managers and systems managers,
and must be able to operate and manage an aircraft and associated crewmembers at home and away from
home in a non-supervised autonomous manner. While the AAO acknowledges the professor's expertise in the
field of aeronautical engineering and his experience as a pilot, it notes that his opinion is based on the
description of the proffered position's duties provided by the petitioner in response to the AAO's request for
evidence, the majority of which, as previously discussed, the AAO does not accept for the purposes of
determining whether the proffered position qualifies as a specialty occupation. In that the professor's opinion
does not rely on the duties described by the petitioner at the time of filing, it does not establish the proffered
position as a specialty occupation on the basis of its complexity or unique nature.
Moreover, the AAO finds the professor's opinion to lack an adequate factual foundation. It notes that the
opinion does not indicate that, in reaching his conclusions concerning the proffered position, the professor
reviewed the petitioner's operations or interviewed the petitioner regarding the position's requirements.
Instead, the professor's opinion appears to rely upon the petitioner's response to the AAO's request for
evidence, paraphrasing or using language identical to that found in the petitioner's June 7, 2007 letter and,
thereby, undermining its evidentiary value.! The AAO in its discretion may use statements submitted as
expert testimony as advisory opinions. However, where an opinion is not in accord with other information or
is in any way questionable, the AAO is not required to accept that evidence or may give it less weight.
Matter of Caron International, 19 I&N Dec. 792 (Comm. 1988). Accordingly, the record does not establish
the proffered position as a specialty occupation under either prong of the second criterion.
The AAO next considers the criteria at 8 C.F.R. §§ 214.2(h)(4)(iii)(A)(3) and (4): the employer normally
requires a degree or its equivalent for the position; and 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 determine a petitioner's ability to meet the third criterion, CIS often reviews the position's employment
history, including the names and dates of employment of those employees with degrees who previously held
the position, as well as the petitioner's hiring practices with regard to similar positions. In the present case,
1 The professor's description of the duties of the proffered position is also at odds with his description of the
duties performed by the beneficiary in his December 9,2002 evaluation of the beneficiary's qualifications.
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the petitioner has offered no evidence to demonstrate that it normally requires the minimum of a
baccalaureate degree when filling the proffered position. Therefore, the petitioner has not established the
proffered position as a specialty occupation based on its normal hiring practices?
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4) requires a petitioner to demonstrate that the nature of the
proffered position's duties is so specialized and complex that the knowledge required to perform them is
usually associated with the attainment of a baccalaureate or higher degree. Therefore, to establish the
proffered position as a specialty occupation, the petitioner must distinguish the duties to be performed by the
beneficiary from those typically performed by aircraft pilots, employment that the Handbook indicates does
not normally impose a degree requirement.
The duties of the proffered position, as described by the petitioner at the time of filing, are those routinely
performed by aircraft pilots. Although as previously discussed, the petitioner has submitted an opinion from a
professor of aeronautical engineering at Embry-Riddle Aeronautical University that finds the proffered
position's duties to require a baccalaureate degree in aeronautics or aeronautical science, the duties on which
the professor bases his opinion are not established as those of the proffered position. The AAO, instead, finds
the professor's opinion, which states that the position of an aircraft pilot in command does not require a
baccalaureate degree, to undermine the petitioner's assertion that the proffered position may be established as
a specialty occupation based on the duties listed at the time of filing. As the record does not demonstrate that
the proffered position would require the beneficiary to have greater knowledge or skill than that possessed by
atypical aircraft pilot, it has not been established as a specialty occupation under the criterion at 8 C.F.R.
§ 214.2(h)(4)(iii)(A)(4).
Although the record does not establish the proffered position as a specialty occupation, the AAO will,
nevertheless, proceed with an analysis of the beneficiary's qualifications to perform the duties of a specialty
occupation under the regulatory requirements at 8 C.F.R. § 214.2(h)(4)(iii)(C).
In determining whether an alien is qualified to perform the duties of a specialty occupation, CIS looks to the
petitioner to establish that the beneficiary meets one of the requirements set forth at section 214(i)(2) of the
Act, 8 U.S.c. § 1184(iX2)-- full state licensure to practice in the occupation, if such licensure is required;
2 The AAO notes that the Form ETA 750, Application for Alien Employment Certification, underlying the
Form 1-140, Immigrant Visa Petition (A98 551 677) filed by the petitioner on behalf of the beneficiary does
not indicate that the petitioner fmds the duties of an aircraft pilot in command to require the minimum of a
baccalaureate degree in a directly-related field. Instead, it states that the beneficiary must hold an FAA
Airline Transport Pilot Certificate and have at least 5,000 flight hours in G-159 turbo prop aircraft. The
record does not establish that an air transport pilot certificate and 5,000 flight hours are the equivalent of a
baccalaureate degree in aeronautical science. The petitioner has not attempted to establish such equivalency.
Further, as discussed above with regard to Tapis Int '/ v. INS, the petitioner may not establish the position as a
specialty occupation based on educational equivalency, as a degree in aviation management, aeronautical
science/engineering or another field commonly associated with commercial pilots will prepare a worker for a
career as a pilot. The duties listed on the Form ETA 750 are identical to those listed by the petitioner at the
time of filing in the present case.
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Page II
completion of a degree in the specific specialty; or experience in the specialty equivalent to the completion of
such a degree and recognition of expertise in the specialty through progressively responsible positions relating to
the specialty.
Further discussion of how an alien qualifies to perform services in a specialty occupation is found at 8 C.F.R.
§ 214.2(h)(4XiiiXC), and requires the individual to:
(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; or
(4) Have education, specialized training, andlor 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.
For the purposes of 8 C.F.R. § 2I4.2(h)(4)(iii)(C)(4), a petitioner may establish that the beneficiary holds the
equivalent of a U.S. baccalaureate or higher degree by submitting evidence to meet one or more of the
foHowing requirements at 8 C.F.R. § 214.2(h)(4)(iii)(D):
(1) An evaluation from an official who has authority to grant college-level credit for
training andlor experience in the specialty at an accredited college or university which
has a program for granting such credit based on an individual's training andlor work
experience;
(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 evaluation of education by a 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;
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(5) A detennination by the Service that the equivalent of the degree required by the
specialty occupation has been acquired through a combination of education,
specialized 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.
To establish that the beneficiary is qualified to perform the duties of a specialty occupation, the petitioner has
submitted an evaluation of the beneficiary's training and experience that finds him to hold the equivalent of a
baccalaureate degree in aviation technology. The evaluation of the beneficiary's qualifications is provided by the
same Embry-Riddle professor who provided the evaluation of the proffered position's duties.
The professor states that he is authorized to grant college-level credit for Embry-Riddle Aeronautical University
based on foreign credentials, training and/or employment experience in jet transport systems and related fields,
and that Embry-Riddle has a program for granting such credit. While the professor's opinion is relevant to this
proceeding, there is no independent evidence in the record of his authority to grant college-level credit for
work experience or that Embry-Riddle has a program that grants college-level credit based on foreign
educational credentials, training and/or employment experience. Although a June 14, 2007 memorandum
from the chair of the Department of Aeronautical Sciences at Embry-Riddle accompanies the professor's
evaluation of the beneficiary's qualifications, it fails to indicate either that the professor has the authority to
grant college-level credit for employment experience or training, or that Embry-Riddle operates a program in
which academic credit is offered for experience or training. Instead, it states only that the professor holds a
tenured position, that he has taught a variety of undergraduate and graduate courses and that he currently
serves as a monitor for Embry-Riddle courses in electronic flight management systems and advanced
avionics, overseeing their development and quality. In the absence of a letter from someone in a position of
authority at Embry-Riddle supporting the professor's assertions, the record does not establish his authority to
detennine whether the beneficiary has the equivalent of a U.S. degree as required by 8 C.F.R.
§ 214.2(hX4)(iii)(D)(l). Where an opinion is not in accord with other infonnation or is in any way
questionable, the AAO is not required to accept that evidence or may give it less weight. Matter of Caron
International, 19 I&N Dec. 792 (Comm. 1988).
As the record provides no other evidence that would allow the petitioner to establish the beneficiary's
qualifications under the first four criteria at 8 C.F.R. § 214.2(hX4XiiiXD), the AAO will conduct its own
evaluation of the beneficiary's training and employment history under the requirements of the fifth and final
criterion. When evaluating a beneficiary's qualifications under the fifth criterion, CIS considers three years
of specialized training and/or work experience to be the equivalent of one year of college-level training. In
addition to documenting that the length of the beneficiary's training and/or work experience is the equivalent
of four years of college-level training, the petitioner must also establish that the beneficiary's training and/or
work experience has included the theoretical and practical application ofthe specialized knowledge required
by the specialty occupation, and that the experience was gained while working with peers, supervisors, or
subordinates who have degrees or the equivalent in the specialty occupation. The petitioner must also
document recognition of the beneficiary's expertise in the specialty, as evidenced by one of the following:
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recognition of expertise in the specialty occupation by at least two recognized authorities in the same
specialty occupation; membership in a recognized foreign or u.s. association or society in the specialty
occupation; published material by or about the alien in professional publications, trade journals, books or
major newspapers; licensure or registration to practice the specialty in a foreign country; or achievements
which a recognized authority has detennined to be significant contributions to the field of the specialty
occupation.
At the time of filing, the petitioner submitted documentation that the beneficiary's holds an FAA airline
transport pilot certificate, was previously licensed as an airline transport pilot in Venezuela, and has
completed a range of training courses related to his profession. The petitioner also provided a copy of the
beneficiary's resume and its own profile of his pilot ratings. The AAO notes that the beneficiary's resume
indicates that he has been employed as a pilot since 1983, first in Venezuela and then in the United States.
The AAO finds that the combination of the beneficiary's 24 years of employment experience as a pilot along
with the skills required to obtain an FAA airline transport certificate provide the beneficiary with the
equivalent of four years of college-level training in a related field. However, the record provides no
documentation that would establish that the beneficiary's experience was gained while working with peers,
supervisors or subordinates who had degrees or the equivalent in directly-related academic fields or that his
expertise in the field of aeronautics has received the type of recognition required by the regulation at 8 C.F.R.
§ 214.2(hX4)(iii)(D)(5).
In reaching its conclusions regarding the beneficiary's qualifications, the AAO has also reviewed the
evaluation completed by the Embry-Riddle professor who found the beneficiary's experience to be the
equivalent of a baccalaureate degree. However, the professor's evaluation of the beneficiary's experience
between 1983 and February 2000 appears to be based solely on the beneficiary's resume. Further the duties
he indicates the beneficiary has perfonned while employed by the petitioner are not those described by the
petitioner at the time of filing. Accordingly, the AAO again finds the professor's opinion to lack an adequate
factual foundation and will discount its conclusions regarding the beneficiary's employment experience. The
AAO in its discretion may use statements submitted as expert testimony as advisory opinions. However,
where an opinion is not in accord with other infonnation or is in any way questionable, the AAO is not
required to accept that evidence or may give it less weight. Matter of Caron International, 19 I&N Dec. 792
(Comm. 1988). Therefore, the record fails to establish that the beneficiary is qualified to perfonn the duties
of a specialty occupation under any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(C).
The AAO acknowledges that the petitioner has been employing the beneficiary as an H-IB worker in the
proffered position, based on a previously approved petition. CIS' approval of the earlier petition does not,
however, establish a basis for approving the present Fonn 1-129.
CIS is not bound 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 (Comm. 1988). The AAO notes that a petition approved on the basis of
evidence substantially similar to the evidence contained in this record of proceeding would have been
erroneous. Further, each petition filing is a separate proceeding with a separate record and CIS is limited to
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the infonnation contained in that record in reaching its decision. 8 C.F.R. §§ 103.2(b)(l6)(ii) and 103.8(d).
The AAO's authority over the director is comparable to the relationship between a court of appeals and a
district court. Even if a director had approved a previous nonimmigrant petition on behalf of a beneficiary,
the AAO would not be bound to follow that decision. Louisiana Philharmonic Orchestra v. INS, 2000 WL
282785 (E.D.La.), aff'd, 248, FJd 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).
For reasons previously discussed, the petitioner has not established the proffered position as a specialty
occupation or the beneficiary as qualified to perfonn the duties of a specialty occupation. 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 not met that burden. Accordingly, the AAO will affirm its prior decision.
ORDER: The decisionof the AAO is affinned. The petitionis denied.