dismissed H-1B Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUNE 10, 2024 In Re: 31402455 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
The Petitioner is an aviation and aerospace educational institution that seeks to temporarily employ 
the Beneficiary as an instructor under the H-lB 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-lB program allows a U.S. employer to file a petition with U.S. 
Citizenship and Immigration Services (USCIS) 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 into the position. 
The California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker 
(petition), concluding that the Petitioner did not establish that the position required a bachelor's degree 
( or its equivalent) in a specific specialty. The matter is now before us on appeal. The Petitioner bears 
the burden of proof to demonstrate eligibility by a preponderance of the evidence. Section 291 of the 
Act; Matter ofChawathe , 25 I&N Dec. 369,375 (AAO 2010). We review the questions in this matter 
de novo. Matter ofChristo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we 
will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101 (a)( l 5)(H)(i)(b) of the Act defines an H-1 B nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services . . . in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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) largely restates section 214(i)(l) of the Act, but adds a 
non-exhaustive list of fields of endeavor. 
In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the proffered position must meet one of four 
criteria to qualify as a specialty occupation position. 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with 
the statutory and regulatory definitions of a specialty occupation under section 214(i)(1) of the Act 
and 8 C.F.R. § 214.2(h)(4)(ii). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 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"). Lastly, 8 C.F.R. § 214.2(h)(4)(i)(A)(l) states that an H-lB classification may be granted 
to a foreign national who "will pe1form services in a specialty occupation ... " (emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F .R. § 103 .2(b )(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
II. ANALYSIS 
Within the initial filing the petitioner 
stated the follow for the position's education requirements: "A 
minimum of a bachelor's degree is required for the position by the terms of the applicable collective 
bargaining agreement." We note the Petitioner did not specify any specialization associated with the 
bachelor's degree within their initial filing statement. A review of the collective bargaining agreement 
also does not reveal any additional information relating to the instructor position's prerequisites. 
Based on the initial filing, we conclude that when the Petitioner filed the petition, it did not establish 
that a bachelor's degree in a specific specialty, or its equivalent is normally the minimum requirement 
for entry into the offered position. At that point, the Director could have simply denied the petition 
for not meeting the statutory and regulatory definitions of a specialty occupation under section 
214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
In the request for evidence (RFE), the Director notified the Petitioner that the position did not appear 
to qualify for this nonimmigrant classification. The Director also accessed the Petitioner's website 
and found its posting for an instructor position reflected that the organization required "a bachelor's 
degree in any field for the position. This job posting also does not show that the Instructor position is 
a specialty occupation." A more accurate account of the job posting's content was included in the 
Director's denial: "On August 12, 2023, the job posting stated that a 'Bachelor's Degree is required 
for any full-time employee in the IP-2, IP-3, IP-4, & IP-5 classifications."' We note the collective 
bargaining agreement contained highlighted marks over the IP-2 classification associated with a Step 
1 pay of $24.18. This corresponded with the position's hourly compensation listed on the U.S. 
Department of Labor's ETA Form 9035 & 9035E, Labor Condition Application for Nonimmigrant 
Workers (LCA). 
In the RFE response, the Petitioner again stated: "It has been the long history of [the petitioning 
organization] to require a bachelor's degree for the Instructor Pilot position." They also asserted the 
job announcement the Director mentioned was for a different location and they offered evidence 
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claiming they historically have accepted the degrees concentrations adequate for the position include 
aeronautical science or a degree closely related to that field. The Petitioner provided correspondence 
to USCIS dating back over a decade that reflected over the last 12 months they had hired numerous 
"Instructor pilots, [ each of which] held a minimum of a Bachelor's degree in Aeronautical Science or 
a closely related field of study." 
In the denial decision, the Director discussed the job posting and indicated that the Petitioner amended 
the posting to include an aeronautical science specialty after being notified of the shortcoming through 
the RFE. The Director also noted the Petitioner's historical hiring claims, but indicated their 
preference for those with a particular degree does not equate to a requirement for those position 
prereqms1tes. The Director also acknowledged the Petitioner's claims relating to previous 
administrative and district court decisions, as well as their claims relating to the Handbook. However, 
the Director ultimately concluded that the Petitioner did not show that the position in the petition is a 
specialty occupation. 
Even setting the job posting issues aside, the overarching issue in this appeal is whether the Petitioner 
has preponderantly demonstrated that its position prerequisites meet the requirements of the H-1 B 
program. Based on their correspondence to USCIS both within its initial cover letter and in their letter 
drafted in response to the RFE, we conclude they have not established they required at least a 
bachelor's degree or higher in a specific specialty or its equivalent. The initial filing cover letter 
merely reflected they required a bachelor's degree aligning with the collective bargaining agreement. 
And the collective bargaining agreement did not include any specific degree requirements for the 
position in the petition. 
After the Director put the Petitioner on notice of the degree requirement deficiency in the initial filing, 
the petitioning organization only expressly stated they required a bachelor's degree for the position. 
Even though the Petitioner indicated it had historically hired individuals with an aeronautical science 
focus, the record must establish that a petitioner's stated degree requirement is not a matter of 
preference for high-caliber candidates but is necessitated instead by the position's performance 
requirements. See Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir 2000). 
A preference for a degree does not establish that it is normally the minimum requirement for entry 
into the particular position. Xpress Group Inc. v. Cuccinelli, No. 3:20-CV-00568-DSC, 2022 WL 
433482, at *7 (W.D.N.C. Feb. 10, 2022) (finding that to conclude otherwise would be to conflate the 
hiring preference of a portion of employers with the regulatory requirements). A petitioner must 
demonstrate that its imposed requirements are genuine. Saganvala v. Cissna, 387 F. Supp. 3d 56, 69 
(D.D.C. 2019). Cf Matter ofMichael Hertz Assocs., 19 I&N Dec. 558,560 (Comm'r 1988) (finding: 
(1) the requirement of a degree for the sake of general education, or to obtain what an employer 
perceives to be a higher caliber employee, does not establish eligibility; and (2) an analysis of 
eligibility includes not only the actual requirements specified by the petitioner but also those required 
by the specific industry in question, to determine, in part, the validity of a petitioner's requirements). 
Were USCIS limited solely to reviewing the Petitioner's claimed self-imposed requirements, then any 
individual with a bachelor's degree could be brought to the United States to perform any occupation 
as long as the Petitioner created a token degree requirement. Defensor v. Meissner, 201 F.3d at 
387-88. 
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Because the Director recognized that the Petitioner did not initially require a bachelor's degree in a 
specific specialty they did not evaluate the position under the regulatory requirements at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l)-(4). 
Within the appeal, the Petitioner alleges the Director did not consider the statutory or regulatory 
concepts of an equivalent to a U.S. bachelor's degree in a specific specialty. Even though the appeal 
brief repeatedly refers to such an equivalent, it fails to manifest any explanation of what the 
organization accepts as an equivalent of a U.S. bachelor's or higher degree in the specific specialty for 
the position in the petition. Nor did their correspondence with USCIS or their evidence offered before 
the Director reflect any such an equivalent. 
Next, the Petitioner turns to the statutory and regulatory definitions of a profession and its historical 
similarities to the definition of a specialty occupation. In doing so, the Petitioner equates the 
professions named in the legal resources-and the attendant education requirements-with the 
instructor pilot position in the petition. But this comparison is misplaced. The statute states "[t]he 
term 'profession' shall include but not be limited to architects, engineers, lawyers, physicians, 
surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries." 
Section 10l(a)(32) of the Act. The Petitioner asserts that it seeks to employ the Beneficiary to teach 
university students as an instructor pilot," and because the petitioning organization is a college of 
aviation, "the position of Instructor at a major United States University is a specialty occupation by 
statute." We are not persuaded by this reasoning that the education requirements for the position in 
this petition-a flight instructor for non-airline pilots-is on par with the requirements for teachers in 
elementary or secondary schools, colleges, academies, or seminaries. 
As a side note, if it is the Petitioner's contention that the offered position's duties consist of serving as 
a flight instructor of airline pilots, that occupational classification carries more stringent requirements 
and mandates significantly higher compensation than the Standard Occupational Classificational 
(SOC) code the Petitioner designated. If that is the case, then that would also mean the Petitioner 
specified the incorrect occupational title on the LCA, which would result in a significant increase in 
compensation under the Airline Pilots, Copilots, and Flight Engineers SOC code (53-2011). 
And even if the Postsecondary Teachers, All Other is the most appropriate SOC code, that does not 
mean that every aspect of that occupational profile applies to the position in this petition. For instance, 
the Handbook provides the following description of what Postsecondary Teachers do, which does not 
appear to have any resemblance to the offered position: "Postsecondary teachers instruct students in 
a variety of academic subjects beyond the high school level. They may also conduct research and 
publish scholarly papers and books." So, the fact that the position in this petition does not fit squarely 
within any of the occupational titles within the Handbook, that does not permit the Petitioner to 
extrapolate unrelated but favorable aspects from the Handbook's occupational profile into their 
position. 
Returning to statutory definitions, the salient definition here is that of a specialty occupation. The 
statutory definition constitutes the primary requirement for a position to qualify as a specialty 
occupation. Section 214(i)(l) defines the term "specialty occupation" as an occupation that requires 
"theoretical and practical application of a body of highly specialized knowledge, and attainment of a 
bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the 
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occupation in the United States." Instead of focusing on the definition of a profession, the Petitioner 
must adhere to the controlling statutory term directly applicable to this nonimmigrant classification. 
But we find no appellate argument on this point. 
Finally, the Petitioner relies on a non-precedential decision from our office relating to an H-lB petition 
that was filed in 2004. First, while 8 C.F.R. § 103.3(c) provides that this office's precedent decisions 
are binding on all USCIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. We may consider the reasoning within the unpublished decision; however, the 
analysis does not have to be followed as a matter of law. 
Second, that decision relied on a different version of the Handbook that no longer exists. That decision 
was based on a two-decades old version of the Handbook that the Petitioner did not present for the 
record, and they did not establish that it was sufficiently similar to the current Handbook. Therefore, 
the Petitioner did not demonstrate this case and the one in the 20-year-old sample present adequately 
similar factual circumstances. The regulation repeatedly reflects that an eligibility determination on a 
benefit request will be based on information contained in the record of proceeding. 8 C.F.R. 
§§ 103.2(b)(10), (11), (14), (16)(i)-(ii). Each case must be decided on its own facts with regard to the 
sufficiency of the evidence presented. Matter ofFrentescu, 18 I&N Dec. 244, 24 7 (BIA 1982); Matter 
of Serna, 16 I&N Dec. 643, 645 (BIA 1978). In addition to presenting no precedential effect, the 
Petitioner has also not shown the two cases are adequately corollary. 
Because the Petitioner has not shown it required a bachelor's degree in any specific specialty, both 
the statute and the regulation mandate this petition's denial. Both sources require a petitioner to 
establish that, as its minimum acceptable education level, the position requires a bachelor's degree in 
the specific specialty, or its equivalent. See Section 214(i)(l); 8 C.F.R. § 214.2(h)(4)(ii). These 
definitions constitute the primary statutory and regulatory requirement for a position to qualify as a 
specialty occupation. 
We offer no insight on what this Petitioner has offered in relation to its position prerequisites in other 
cases and whether those presentations were sufficient to demonstrate they require a bachelor's degree 
( or its equivalent) in a specific specialty. As we noted above, a case-by-case evaluation leads us to 
determine that "[o ]ther cases presenting different allegations and different records may lead to 
different conclusions." Twitter, Inc. v. Taamneh, 598 U.S. 471, 507 (2023) (Jackson, J., concurring). 
As the Petitioner has not demonstrated its stated position prerequisites met the statutory or regulatory 
definitions of a specialty occupation, it is unnecessary that we analyze whether the position satisfies 
the regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4), and we reserve those issues. Patel v. 
Garland, 596 U.S. 328, 332 (2022) (citing INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (finding 
agencies are not required to make "purely advisory findings" on issues that are unnecessary to the ultimate 
decision)); see also Matter of Chen, 28 I&N Dec. 676, 677 n. l, 678 (BIA 2023) ( declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
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III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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