dismissed H-1B Case: Behavioral Therapy

MATTER OF C-C-
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY3,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a company providing developmental services, seeks to temporarily employ the 
Beneficiary as an "applied behavioral analysis (ABA) therapist" under the H-IB 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-IB program allows a U.S. 
employer 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 Vermont Service Center denied the Form I-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish that the proffered position qualified as a 
specialty occupation. On appeal, the Petitioner submits a brief and asserts that the proffered position 
is a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the offered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter ofC-C-
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
The Petitioner stated that the Beneficiary will serve as an "applied behavioral analysis (ABA) 
therapist" and provided a list of the. tasks that she will perform. 
Responsibility Percentage 
of Time 
• Prepare for data collection. 25% 
• Implement continuous measurement procedures (e.g., frequency, 
duration). 
• Implement discontinuous measurement procedures (e.g., partial & 
whole interval, momentary time sampling). 
• Implement permanent product recording procedures . 
• Enter data and update graph . 
• Describe behavior and environment in observable and 
measureable terms. 
• Conduct preference assessments . 
• Assist with individualized assessment procedures (e.g., 
curriculum-based, developmental, social skills). 
• Assist with functional assessment procedures . 
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Matter of C-C-
Responsibility Percentage 
of Time 
• Identify the essential components of a written skill acquisition 75% 
plan. 
• Prepare for the session as required by the skill acquisition plan . 
• Use contingencies of reinforcement (e.g., 
conditioned/unconditioned reinforcement, continuous/intermittent \ 
schedules). 
• Implement discrete trial teaching procedures . 
• Implement naturalistic teaching procedures (e.g., incidental 
teaching). 
• Implement task analyzed chaining procedures . 
• Implement discrimination training . 
• Implement stimulus control transfer procedures' . 
• Implement stimulus fading procedures . I 
• Implement prompt and prompt fading procedures . 
• Identify the essential components of a written behavior reduction 
plan. 
• Describe common functions of behavior, establishing operations 
and discriminative stimuli. 
• Implement extinction procedures . 
• Implement crisis/emergency procedures according to protocol. 
Responsibility Percentage 
of Time 
• Generate objective session notes by describing what occurred 15% 
during sessions. 
• Comply with applicable legal, regulatory and workplace reporting 
requirements (e.g., mandatory abuse and neglecting reporting). 
• Comply with applicable legal, regulatory and workplace reporting 
requirements for d<l;ta collection, storage and transportation. 
Responsibility Percentage 
of Time 
• Respond appropriately to feedback and maintain or improve 100% 
performance according! y. ' 
• Communicate with stakeholders (e.g., family, caregivers, other 
professionals) as authorized social media contacts. 
• Maintain client dignity . 
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Matter of C-C-
On appeal, the Petitioner states that it normally requires a degree or its equivalent for the position. 1 
III. ANALYSIS 
We have reviewed the entire record of proceedings before us.2 For the reasons discussed below, we 
determine that the Petitioner has not demonstrated that the proffered position qualifies as a specialty 
occupation. 3 Specifically,' we find that the record does not establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation. 4 
A. Criterion One 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the 
duties and educational requirements of the wide variety of occupations that it addresses. 5 
On the labor condition application (LCA),6 the Petitioner presented in support of this petitiOn, it 
classified the proffered position under the occupational title "Substance Abuse and Behavioral Disorder 
Counselors," corresponding to the Standard Occupational Classification code 21-1 011.7 
1 
Importantly, the degree requirement set by the statutory and regulatory framework of the H-1 B program is not just a 
bachelor's or higher degree, but a bachelor's degree in a specific specialty that is directly related to the duties of the 
position. See section 214(i)(l )(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). The Petitioner's statement that a degree 
(without further specification) does not satisfy the legal requirements. 
2 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the duties of the proffered position 
such that we may discern the nature of the position. The Petitioner has not done so here. For example, the Petitioner did 
not explain its calculations for the percentages it provided. The record lacks sufficient information with regard to the 
order of importance or frequency of occurrence (e.g., regularly, periodically, or at irregular intervals) with which the 
Beneficiary will perform the duties. For example, the Petitioner claims that the Beneficiary will communicate with 
stakeholders during I 00 percent of her working hours, however, this appears unlikely. 
3 
Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
4 
The Petitioner submitted documentation to support the petition, including evidence regarding the position and its 
business operations. While we may not discuss every document submitted, we have reviewed and considered each one. 
5 We do not, however, maintain that the Handbook is the exclusive source of relevant information. All of our references 
are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site http://www.bls.gov/OCO/. 
6 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services (USCIS) to 
demonstrate that it will pay an H-1 B worker the higher of either the prevailing wage for the occupational classification in 
the "area of employment" or the actual wage paid by the employer to other employees with similar experience and 
qualifications who are performing the same services. See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 
(AAO 20 15). ' 
7 
The Petitioner has designated the proffered position as a Level II position on the submitted LCA, indicating that it is a 
position for an employee who has a good understanding of the occupation but who will only perform moderately 
complex tasks that require limited judgment. See DOL, Emp't & Training Admin., Prevailing Wage Determination 
Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta. 
gov/pdf/NPWHC _Guidance_ Revised _11_2009.pdf 
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Matter ofC-C-
The chapter of the Handbook titled "How to Become a Substance Abuse or Behavioral Disorder 
Counselor" states that "depending on the employer, educational requirements can vary from a high 
school diploma and certification to a master's degree."8 Thus, the Handbook reports that there are a 
number of paths for entry into these positions, and g does not support the Petitioner's assertion that a 
bachelor's degree is required for entry into this occupation. 
On appeal, the Petitioner does not claim to qualify under this criterion, and the record does not 
demonstrate that the Petitioner has satisfied the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 
B. Criterion Two 
The second criterion presents two alternative prongs: "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 perfoimed only by an 
individual with a degree .... " 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
concentrates on the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. U.S. 
Citizenship and Immigration Services (USCIS) generally considers the following factors to 
determine whether there is such a common degree requirement: whether the Handbook 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 establish that such firms "routinely employ and recruit only degreed individuals." See 
Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 
712F. Supp.1095, 1102(S.D.N.Y.1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or other authoritative source, reports a requirement for at least a bachelor's degree in 
a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on 
the matter. Also, there are no submissions from the industry's professional association indicating 
that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did not submit 
any letters or affidavits from similar firms or individuals in the Petitioner's industry attesting that 
such firms "routinely employ and recruit only degreed individuals." 
8 See the Handbook, 2016-17 ed, for additional information relating to the occupational category "Substance Abuse and 
Behavioral Disorder Counselors." 
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Matter of C-C-
In response to the Director's request for evidence (RFE), the Petitioner submitted several job 
postings from other employers. However, the Petitioner submitted evidence that does not indicate 
that at least a bachelor's degree in a directly related specific specialty (or its equivalent) is required. 
For example, the documentation includes evidence that a degree is preferred. A preference is not an 
indication of a requirement. Further, one of the postings states that only one year of experience (no 
degree) is required. Some of the postings indicate that a bachelor's degree (in any field) is 
acceptable. The documentation suggests, at best, that although a bachelor's degree is sometimes 
required for these positions, but a bachelor's degree in a spec(fic specialty (or its equivalent) is not. 
Moreover, not all of the advertisements appear to be for parallel positions. For example, some of the 
positions appear to be for more senior, experienced employment than the proffered position. Some 
of the postings lack information regarding the duties and responsibilities for the advertised positions. 
Thus, it is not possible to determine important aspects of the jobs, such as the day-to-day 
responsibilities, complexity of the job duties, supervisory duties (if any), independent judgment 
required or the amount of supervision received. Therefore, the Petitioner has not sufficiently 
established that positions are parallel to the proffered position. 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary.9 That is, not every deficit of every job posting has been addressed. 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's 
degree in a specific specialty, or its equivalent, is common to the industry in parallel positions 
among similar organizations. 
Moreover, on appeal, the Petitioner does not claim to qualify under this criterion, and the record 
does not demonstrate that the Petitioner has satisfied the first alternative prong of 8 C.P.R. 
§ 214.2(h)( 4 )(iii)(A)(2). 
2. Second Prong 
Next, a petitioner may demonstrate the offered position is a specialty occupation if it establishes that 
its particular position is so complex or unique that only an individual with at least a bachelor's 
degree in a specific specialty, or its equivalent can perform it. However, the Petitioner does not 
claim to qualify under this prong of the second criterion and it has not satisfied the regulation at 
8 C.P.R. § 214.2(h)(4)(iii)(A)(2). 
9 The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
6 
• 
Matter ofC-C-
C. Criterion Three 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
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 performance requirements of the position. 
See Defensor v. Meissner, 201 F.3d at 387-88. 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. !d. Evidence provided in support of this criterion may include, but is not 
limited to, documentation regarding the Petitioner's past recruitment and hiring practices, as well as 
information regarding employees who previously held the position . 
The Petitioner offered two of its own job advertisements in support of this criterion. However, the 
job postings were created approximately three months after the petition was filed - and after the 
Director issued the RFE. Evidence that the Petitioner creates after USCIS points out the deficiencies 
in the petition is not independent and objective evidence. Necessarily, independent and objective 
evidence would be evidence that is contemporaneous with the event to be proven and existent at the 
time of the Director's notice. 
Moreover, the job advertisements indicate that the Petitioner requires a bachelor's degree (no 
specific discipline). This evidence further indicates that the proffered position does not satisfy the 
requirements of a specialty occupation since the Petitioner does not necessitate that the degree must 
be in a discipline directly related to the duties of the position. 
The Petitioner also submitted the academic credentials and 2015 IRS Form W-2, Wage and Tax 
Statements, for several of its employees. We note, however, that the Petitioner did not provide the 
job duties and day-to-day responsibilities for these individuals. The Petitioner also did not submit 
any information regarding the complexity of the job duties, supervisory duties (if any), independent 
judgment required, or the amount of supervision received. Accordingly, it is unclear whether the 
. duties and responsibilities of these individuals are the same or similar to the proffered position. 
The Petitioner stated that the Beneficiary would be paid $38,000 per year. The W-2 forms indicate 
that the individuals received annual compensation ranging from $9,314 to $41,130. The Petitioner 
did not provide an explanation for the variances in the salaries, and ~one of the individuals were paid 
$38,000. Without more, the documentation suggests that they are employed in different positions. 
Moreover, the Petitioner was established in 2005. Consequently, it cannot be determined how 
representative the Petitioner's claim regarding these individuals is of its normal recruiting and hiring 
practices over an eleven year period. Without further information, the submission regarding these 
individuals is not persuasive in establishing that the Petitioner normally requires at least a bachelor's 
degree in a specific specialty, or its equivalent, for the proffered position. 
Matter of C-C-
/ 
Therefore, the Petitioner has not satisfied the third criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
D. Criterion Four 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific 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 in a specific specialty, or 
its equivalent. 
While the Petitioner provided a description of the proffered position and information regarding its 
business operations, the evidence does not establish that the duties are more specialized and complex 
than positions that are not usually associated with at least a bachelor's degree in a specific specialty, 
or its equivalent. Again, the Petitioner has designated the proffered position as a Level II position on 
the LCA, indicating that it is a position for an employee who has a good understanding of the 
occupation but who will only perform moderately complex tasks that require limited judgment. 10 
Without further evidence, the Petitioner has not demonstrated that its proffered position is one with 
specialized and complex duties, as such a position within this occupational category would likely be 
classified at a higher-level, requiring a substantially higher prevailing wage.11 
Further, the Petitioner claims that the Beneficiary is well-qualified for the position, and references 
her credentials as evidence that the proffered position is a specialty occupation. For example, in 
response to the Director's RFE, the Petitioner claimed that the Beneficiary uses many of the practical 
skills and knowledge she learned from her bachelor's degree program. While a few related courses 
may be beneficial in performing certain duties of the position, the Petitioner has not demonstrated 
how an established curriculum of such courses is required to perform the duties of the proffered 
position. The test to establish a position as a specialty occupation is not the education or experience 
of a proposed beneficiary, but whether the position itself requires at least a bachelor's degree in a 
specific specialty, or its equivalent. Here, the Petitioner not identified any tasks that only a 
specifically degreed individual could perform them. 
In support of this criterion, the Petitioner references a 2006 unpublished decision 12 originating from 
this office. However, the Petitioner did not submit a copy of the decision, and its reference is too 
vague to establish the relevancy here (stating that an occupational therapy position was determined 
to be a specialty occupation). We observe that the case was filed approximate 10 years prior to the 
10 
See U.S. Dep't of Labor, Emp't & Training Admin., supra. 
11 
In certain occupations (e.g., doctors or lawyers), an entry-level position would still require an advanced degree in a 
specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an 
occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least 
a bachelor's degree in a specific specialty, or its equivalent. That is, a position's wage level designation may be a 
relevant factor but is not itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) 
ofthe Act. 
12 
While 8 C.F.R. §103.3(c) provides that precedent decisions are binding on all USCIS employees in the administration 
of the Act, unpublished decisions are not similarly binding. 
8 
Matter ofC-C-
instant petition for a separate and distinct position from the Petitioner's proffered position. Further, 
the Petitioner did not submit any information or evidence to demonstrate that the case provides 
insights into the current requirements for ABA therapists. 
Without more, we cannot conclude that the evidence, information provided, or the Petitioner's 
reference to a 2006 unpublished decision demonstrates that its profiered position is one with duties 
sufficiently specialized and complex to satisfy 8 C.F .R. § 214.2(h)( 4 )(iii)( A)( 4). 
IV. CONCLUSION 
As the Petitioner has not satisfied at least one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has 
not demonstrated that the proffered position qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-C-, ID# 400821 (AAO July 3, 2017) 
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