dismissed H-1B Case: Broadcast Engineering

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PETITION: 
 Petition for a ~on&nigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 lOl(a)(lS)(H)(i)@) 
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. 
Robert P. Wiernann, Chief 
Administrative Appeals Office 
WAC 04 143 51031 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is a non-profit organization that broadcasts religious programs and music. It seeks to employ 
the beneficiary as a broadcast engineering technician. The petitioner endeavors to classify the beneficiary as a 
nonirnmigrant worker in a specialty occupation pursuant to 9 10 1 (a)(l 5)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 8 1 lOl(a)(15)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief and additional evidence, including letters from other Christian broadcasting 
companies. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 
Pursuant to 8 C.F.R. $ 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 
8 C.F.R. 5 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific 
specialty that is directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form 1-2903 and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
WAC 04 143 51031 
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The petitioner is seeking the beneficiary's services as a broadcast engineering technician. Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's April 15, 2004 letter in support of the 
petition; and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would be responsible for the following duties: 
Design and supervise "set up" of soundlrecording room and its equipment; 
Review program schedule with program director and plan and determine type [of] equipment, 
computer program and staffing based on the type of program; 
Supervise "set up" [of] broadcast and audio equipment (outboard gear, compressor, equalizer, 
etc.) required for the particular program and also preprogram computer system in order that a 
digital recording is made directly into computer for later editing through computer software; 
Review recorded program that has already been encoded into computer system and execute 
sound editing techniques using non-linear editing tools (Protools and other editing software 
such as Sound Forge); 
Further edit source material as necessary (i.e. addition of sound effects) using computer and 
other editing tools; 
Educate technical support staff on the use and maintenance of broadcast, audio and other 
equipment and computer software; and 
Carry out other project related technical decisions. 
The petitioner indicated that a qualified candidate for the job would possess a bachelor's degree in music 
production and engineering or an equivalent thereof. 
The director found that the proffered position was not a specialty occupation because the proposed duties are 
not so complex as to require a bachelor's degree in a specific specialty. Citing to the Department of Labor's 
Occupational Outlook Handbook (Handbook), 2004-2005 edition, the director noted that the minimum 
requirement for entry into the position was not a baccalaureate degree or its equivalent in a specific specialty. 
The director found further that the petitioner failed to establish any of the criteria found at 
8 C.F.R. 3 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part: "The entire issue was confused by the incorrect job title initially being 
used." Counsel states further that the most accurate title of the proffered position is that of sound engineer, 
and submits letters from two other Christian broadcasting companies as evidence that the degree requirement 
is industry wide. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. $ 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or9higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
WAC 04 143 51031 
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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 often considered by CIS when determining these criteria include: 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 attest that such firms 
"routinely employ and recruit only degreed individuals." See Shunti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 (D. 
Minn. 1999)(quoting HirdBlaker Corp. v. Suva, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AAO does not concur with counsel that the proffered position is a specialty 
occupation. A review of the Broadcast and Sound Engineering Technicians and Radio Operators category in the 
Handbook, 2006-2007 edition, confirms the accuracy of the director's assessment to the effect that the job duties 
parallel the responsibilities of a broadcast technician/sound engineering technician. 
The Handbook states: 
Broadcast technicians set up, operate, and maintain equipment that regulates the signal 
strength, clarity, and range of sounds and colors of radio or television broadcasts. These 
technicians also operate control panels to select the source of the material. Technicians may 
switch from one camera or studio to another, from film to live programming, or from network 
to local programming. 
Sound engineering technicians operate machines and equipment to record, synchronize, mix, or 
reproduce music, voices, or sound effects in recording studios, sporting arenas, theater 
productions, or movie and video productions. 
Broadcast and sound engineering technicians and radio operators perform a variety of duties in 
small stations. . . . The terms "operator," "engineer," and "technician" often are used 
interchangeably to describe these jobs. 
Chief engineers, transmission engineers, and broadcast field supervisors oversee other 
technicians and maintain broadcasting equipment. 
As shown above, the proffered position and its duties do not exceed those of broadcast and sound engineering 
technicians. Moreover, in the radio-broadcasting context, "engineer" and '"technician" are often used 
interchangeably. No evidence in the Handbook indicates that a baccalaureate or higher degree, or its equivalent, is 
required for a broadcast technicianfsound engineering technician job. 
Regarding parallel positions in the petitioner's industry, the record contains letters from two businesses 
similar to the petitioner's. Both writers assert that sound engineering positions require a bachelor's degree in 
engineering. Neither writer, however, provides evidence in support of his assertions or relies on industry 
surveys, data or other documentation to reach the conclusion that the position requires a bachelor's degree in 
a specific specialty. Moreover, both writers base their conclusion on the title, rather than duties of the 
proffered position. Further, their assertions are not supported by any evidence that would establish the 
authority of these individuals to speak to industry-wide hiring practices. The AAO may, in its discretion, use 
WAC 04 143 51031 
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as advisory opinions statements submitted as expert testimony. However, where an opinion is not in accord 
with other information or is in any way questionable, the AAO is not required to accept or may give less 
weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). 
The record also does not include any evidence from firms, individuals, or professional associations regarding 
an industry standard, or documentation to support the complexity or uniqueness of the proffered position. 
The petitioner, therefore, has not established the criteria set forth at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. On appeal, counsel states that the proffered position is a new position. 
The petitioner, therefore, has not established the criterion set forth at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3). 
Finally, the AAO turns to the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(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. 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. Ij 2 14.2(h)(4)(iii)(A)(4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
Beyond the decision of the director, even if the petitioner had established that the proffered position required an 
engineering degree, the petition would still not be approvable because the current Labor Condition Application 
(LCA) would be rendered ineffective, as a position requiring an engineering degree would have to be 
identified on the LCA as an engineering position. For this additional reason, the petition may not be approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. Ij 1361. 
The petitioner has not sustained 'that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.