dismissed H-1B Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 14, 2024 In Re: 31941988 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner, an aviation and aerospace educational institution, 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 Director of the California Service Center denied the petition, concluding that the record did not 
establish that the proffered position is a specialty occupation. The matter is now before us on appeal 
pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-lB 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)(l), defines 
the term "specialty occupation" as an occupation that requires the "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. § 2 l 4.2(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 2 l 4(i)(l) 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)(I) states that an H-lB classification may be granted 
to a foreign national who "will perform 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 
The issue on appeal is whether the proffered position qualifies as a specialty occupation. The Director 
concluded that it is not; specifically, the Director found that the Petitioner did not establish that it 
requires a degree in a specific specialty, or its equivalent, for the position. For the reasons discussed 
below and upon de novo review, we agree with the Director and conclude that the Petitioner has not 
established that the proffered position is a specialty occupation. 
The proffered position is that of "instructor" in the school's flight training program. The Petitioner 
initially submitted a job description for its "Instructor Pilot IP-4" position which states that a 
bachelor's degree is required, among other requirements. The job description does not state that the 
degree must be in a specific specialty. The job description also provides job duties that include 
conducting flight training for single and multiengine aircraft; ensuring student safety; and preparing 
training records, student progress reports, and lesson plans. As additional evidence regarding the 
position's degree requirement, the Petitioner submitted in response to the Director's request for 
evidence (RFE) copies of emails between employees of the university, a letter from the Petitioner's 
Vice President and Director of Human Resources, and additional historical letters from the Petitioner 
to USCIS regarding its practice of hiring individuals with a degree in aeronautical science or closely 
related field for its instructor pilot position. 
On appeal, the Petitioner contends that the Director improperly concluded that the Petitioner will 
accept a bachelor's degree "in any field" and disregarded evidence of its hiring practices as only a 
"preference" for individuals with a bachelor's degree in aeronautical science. The Petitioner also 
repeats on appeal its assertion, previously presented to the Director, that the position is a specialty 
occupation because of the regulatory and statutory definition of "profession." Finally, the Petitioner 
asserts that an approval is warranted based upon a prior non-precedential decision of the AAO that 
involved the Petitioner. 
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First, we consider the Petitioner's claim that it has sufficiently demonstrated its hiring practice of 
requiring a bachelor's degree in a specific specialty, rather than requiring only a bachelor's degree. 
We conclude based upon the record before us that the Petitioner has not done so. Its own job 
description submitted with the initial petition did not state that any specific specialty for the bachelor's 
degree was required. After the Director put the Petitioner on notice of the degree requirement 
deficiency in the initial filing, the Petitioner submitted additional evidence but still did not sufficiently 
demonstrate the Petitioner's actual, minimum degree requirement. For example, the letter from the 
Chief Human Resources Officer and the historical letters from other human resources managers to 
USCIS are not consistent with each other. Some of the letters state that the position requires a 
bachelor's degree in a specific specialty, based upon the relevant collective bargaining agreement. But 
other letters state that the collective bargaining agreement only requires a bachelor's degree, without 
more specificity. These letters also claim that the Petitioner has historically hired individuals with a 
degree in an aeronautical science focus, but they are not each clear whether this is a position 
requirement. 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). Additionally, the 
internal emails submitted in response to the RFE do not help demonstrate that the Petitioner actually 
requires a specialized degree, as the Petitioner claims. At issue in the emails is whether to proceed 
with an applicant for an instructor pilot position who possesses a bachelor's degree in tourism. The 
human resources staff determine in the emails that the individual would not be eligible to be sponsored 
for an H-JB visa, because the individual does not possess a related degree. Notably, the human 
resources staff do not reach the conclusion that the individual does not meet the Petitioner's own 
degree requirements. This evidence does not go to show that its true hiring practice is to hire only 
those individuals with a specialized degree for its instructor pilot positions, but that the Petitioner 
understands that it cannot file for an H-1 B petition for an instructor pilot without a specialized degree. 1 
We find it notable that, where the question at issue is determining the Petitioner's true educational 
requirement, the Petitioner has primarily submitted copies of its prior statements to USCIS rather than 
documentary evidence of its hiring requirements in practice. For example, although the letters discuss 
the position's requirements as being defined by a collective bargaining agreement, the Petitioner did 
not provide the relevant portions of the agreement to support this claim. This would be probative and 
relevant evidence, particularly since the letters do not describe the agreement's degree requirement in 
a consistent manner. Additionally, although the Petitioner claims that a job posting for an instructor 
pilot position, obtained by the Director from the Petitioner's website and referenced in the decision, 
that lacked the specific degree requirement was "not correctly and fully vetted" before it was placed, 
the Petitioner did not submit other prior job postings or other position descriptions for this or similar 
positions to support the claim that this posting is in error and a specialized degree is required. 2 On 
balance, we conclude that the evidence is insufficient for the Petitioner to demonstrate that a 
specialized degree is a requirement, rather than a preference. 
1 The emails also state that the Petitioner recently had this issue "with another hire," implying that the Petitioner may have 
in fact hired an individual without a related degree for such a position. 
2 Although the Petitioner attempts to characterize this website posting, independently obtained by the Director, as the "sole 
support" for the Director's questions about the degree requirement, we note again that the Petitioner's own job description 
submitted with the initial filing similar stated only a bachelor's degree is required for the position, not one in a specialized 
field. 
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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. Sagarwala 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. 
Second, we consider the Petitioner's claims regarding the statutory definition of "profession" and its 
historical similarities to the definition of a specialty occupation. Section 101(a)(32) of the Act, 
8 U.S.C. § 1101(a)(32), states that the "[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." The Petitioner contends that its proffered position is a 
"profession" because it is for a teacher within a college. But 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) of the Act 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." 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 the Petitioner does not do so. Instead, the Petitioner claims that the 
historical meaning of term "profession" in the Act requires us to consider that this position qualifies 
for the H-1 B program. But without forth er explanation of how the proffered position qualifies for an 
H-lB under the statutory and regulatory definition of "specialty occupation," we conclude that this 
argument is unpersuasive. 
Finally, the Petitioner relies on a non-precedential decision from the AAO 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 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), 
4 
(11), (14), (16)(i)-(ii). Each case must be decided on its own facts with regard to the sufficiency of 
the evidence presented. Matter of Frentescu, 18 I&N Dec. 244, 247 (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 spec[fic 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 presented 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 meet 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.1, 678 (BIA 2023) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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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