dismissed H-1B Case: Budget Analysis

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PPJBLItC COPY 
- 
FILE: WAC 04 206 50277 Office: CALIFORNIA SERVICE CENTER Date: pR 0 5 2006 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 I (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(l S)(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. 
& Robert P. Wiemann, rect 
U 
Administrative Appeals Qffice 
WAC 04 206 50277 
Page 2 
DISCUSSION: The director denied the nonimmigrant visa petition and the matter is now before the 
Administrative Appeals Office (MO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner, a company that imports and exports locks and automotive parts, seeks to employ the 
beneficiary as budget analyst. The petitioner, therefore, endeavors to extend the beneficiary's classification 
as a nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 1 (a)(l 5)(H)(i)(b). 
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation; (2) the 
director's requests for evidence; (3) the petitioner's responses to the director's requests; (4) the director's 
denial letter; and (5) the Form I-290B and supporting documentation. The AAO reviewed the record in its 
entirety before issuing its decision. 
The director denied the petition on the basis that the petitioner had failed to establish that the beneficiary 
qualifies to perform the duties of a specialty occupation. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, an 
alien must meet one of the following criteria: 
(I) 
 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. 
According to the Department of Labor's Occupational Outlook Handbook (the Handbook), a resource 
which the MO routinely consults for its information about the duties and educational requirements of 
particular occupations, a bachelor's degree is the minimum educational requirement for employment as a 
budget analyst. 
In malung its determination as to whether the beneficiary qualifies to perform the duties of a specialty 
occupation, the AAO turns to the criteria at 8 C.F.R. ij 214.2(h)(4)(iii)(C), as described above. The 
beneficiary does not qualify under the first criterion, as her bachelor's degree was not obtained from a 
United States institution of higher education. Although the record contains a copy of a master's degree in 
business administration that the beneficiary earned from Ivy University (now California American 
WAC 04 206 50277 
Page 3 
University), this degree was not earned at an accredited college or university, as required by the 
regulation.' As such, this degree cannot be considered. 
On appeal, the petitioner states the following: 
Although the university [the beneficiad has graduated from is not an accredited school, 
we believe this shouldn't be the reason for her denial since the H-1B regulations didn't 
emphasize [that] the accreditation of the school is essential regarding the eligibility and 
qualification of a[n] H-1B candidate. 
However, 8 C.F.R. 3 214.2(h)(4)(iii)(C)(I), cited above, specifically states that in order to qualify under 
this criterion, the beneficiary's United States degree must have come from an accredited college or 
university. 
Accordingly, the beneficiary does not qualify under the first criterion. 
Nor does the beneficiary qualifL under the second criterion, which requires a demonstration that the 
beneficiary's foreign degree has been determined to be equivalent to a United States baccalaureate or 
higher degree required by the specialty occupation from an accredited college or university. The record 
contains an evaluation from Academic and Professional International Evaluations, Inc. (APIE), dated 
September 9, 2004. The APIE evaluator did not determine that the beneficiary's foreign degree is 
equivalent to a degree from an accredited college or university in the United States. Rather, the APIE 
evaluator found the beneficiary's foreign education equivalent to an associate's degree. 
As such, the beneficiary does not qualify under the second criterion, as there is no evidence in the record 
to demonstrate that her foreign degree is equivalent to a bachelor's degree from an accredited college or 
university in the United States. 
The record does not demonstrate, nor has the petitioner contended, that the beneficiary holds an 
unrestricted state license, registration or certification to practice the specialty occupation, so she does not 
qualify under the third criterion, either. 
The fourth criterion, set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(C)(4), requires a showing that the 
beneficiary's education, specialized training, and/or progressively responsible experience is equivalent to 
the completion of a United States baccalaureate or higher degree in the specialty occupation, and that the 
beneficiary also has recognition of that expertise in the specialty through progressively responsible 
positions directly related to the specialty. 
Thus, it is the fourth criterion under which the petitioner must classify the beneficiary's combination of 
education and work experience in order to demonstrate that she qualifies to perform the duties of a 
specialty occupation. Pursuant to 8 C.F.R. 3 214.2(h)(4)(iii)(D), equating a beneficiary's credentials to a 
United States baccalaureate or higher degree is determined by one or more of the following: 
(I) 
 An evaluation fi-om an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
I 
 The record contains a letter from the university that confirms it is not accredited. 
WAC 04 206 50277 
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which has a program for granting such credit based on an individual's training 
and/or 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; 
(5) 
 A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, andlor 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. 
The beneficiary cannot satisfy 8 C.F.R. $ 214.2(h)(4)(iii)(D)(l), as no evaluation of training and work 
experience has been submitted. 
No evidence has been submitted to establish, nor has counsel contended, that the beneficiary satisfies 
8 C.F.R. 9 214.2(h)(4)(iii)(D)(2), which requires that the beneficiary submit 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). 
Nor does the beneficiary satisfy 8 C.F.R. $ 214.2(h)(4)(iii)(D)(3). As was the case under 8 C.F.R. 
$ 214.2(h)(4)(iii)(C)(2), the beneficiary is unqualified under this criterion because the APIE evaluator did 
not determine that the beneficiary's foreign degree is equivalent to a bachelor's degree from an accredited 
college or university in the United States. As noted previously, the MEIS evaluator determined that the 
beneficiary's foreign degree is equivalent to an associate's degree. 
No evidence has been submitted to establish, nor has counsel contended, that the beneficiary satisfies 
8 C.F.R. 9 214.2(h)(4)(iii)(D)(4), which requires evidence of the beneficiary's certification or registration 
by 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. 
The AAO next turns to the fifth criterion. When CIS determines an alien's qualifications pursuant to 
8 C.F.R. 3 214.2(h)(4)(iii)(D)(5), three years of specialized training and/or work experience must be 
demonstrated for each year of college-level training the alien lacks. It must be clearly demonstrated that 
the alien's training and/or work experience included the theoretical and practical application of 
specialized knowledge required by the specialty occupation; that the alien's experience was gained while 
working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty 
WAC 04 206 50277 
Page 5 
occupation; and that the alien's expertise in the specialty has been recognized, as evidenced by at least 
one of the following types of documentation: 
(i) 
 Recognition of expertise in the specialty occupation by at least two recognized 
authorities in the same specialty occupation2; 
(ii) 
 Membership in a recognized foreign or United States association or society in the 
specialty occupation; 
(iii) 
 Published material by or about the alien in professional publications, trade 
journals, books, or major newspapers; 
(iv) 
 Licensure or registration to practice the specialty occupation in a foreign country; 
or 
(v) 
 Achievements which a recognized authority has determined to be significant 
contributions to the field of the specialty occupation. 
As the evaluation submitted by the petitioner did not determine that the beneficiary possesses the 
equivalent of a bachelor's degree, it must therefore establish that the beneficiary is qualified to perform 
the duties of the proposed position under 8 C.F.R. 9 214.2(h)(4)(iii)(D)(5). As previously noted, the 
formula utilized by CIS is three years of specialized training andlor work experience for each year of 
college-level training that the alien lacks. A baccalaureate degree from a United States institution of 
higher education would require at least four years of study, and the beneficiary possesses the equivalent 
of an associate's degree. Accordingly, the record must demonstrate that the beneficiary has at least six 
years of qualifying work experience in order to establish an equivalency to the remaining two years it 
would take to earn a four-year degree. 
The AAO now turns to the beneficiarv's arior work ex~erience. and whether it included the theoretical 
a. 
and practical application of specialized knowledge required by the specialty. A letter from the 
I indicates that the beneficiary worked for the company in 
ril 1997. 
However, there is no evidence in the record that would allow the AAO to determine whether this work 
experience included the theoretical and practical application of specialized knowledge required by budget 
analysts; whether it was gained while worlung with peers, supervisors, or subordinates who held a degree 
or its equivalent in a field related to budget analysis; and whether the beneficiary achieved recognition of 
expertise in the specialty evidenced by at least one of the five types of documentation delineated in 
sections (i), (ii), (iii), (iv), or (v) of 8 C.F.R. 5 214.2(h)(4)(iii)(D)(5). 
2 
 Recognized authority means a person or organization with expertise in a particular field, special skills 
or knowledge in that field, and the expertise to render the type of opinion requested. 
 A recognized 
authority's opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience 
giving such opinions, citing specific instances where past opinions have been accepted as authoritative 
and by whom; (3) how the conclusions were reached; and (4) the basis for the conclusions supported by 
copies or citations of any research material used. 8 C.F.R. ij 214.2(h)(4)(ii). 
WAC 04 206 50277 
Page 6 
The record also contains a letter from Imux, Inc., which states that the beneficiary worked there as a 
management analyst from April 1999 until at least August 2004. However, there is no evidence in the 
record that would allow the AAO to determine whether this work experience included the theoretical and 
practical application of specialized knowledge required by budget analysts; whether it was gained while 
working with peers, supervisors, or subordinates who held a degree or its equivalent in a field related to 
budget analysis; and whether the beneficiary achieved recognition of expertise in the specialty evidenced 
by at least one of the five types of documentation delineated in sections (i), (ii), (iii), (iv), or (v) of 
8 C.F.R. $ 214.2(h)(4)(iii)(D)(5). 
As such, the beneficiary does not qualify under any of the criteria set forth at 8 C.F.R. 
$9 214.2(h)(4)(iii)(D)(I), (2), (3), (4), or (5), and therefore by extension does not qualify under 8 C.F.R. 
$ 214.2(h)(4)(iii)(C)(4). 
The AAO notes that the beneficiary is currently in H-1B status. However, each nonimmigrant petition is 
a separate proceeding with a separate record. See 8 C.F.R. $ 103.2(b)(16)(ii). If the previous petitions 
were approved based upon the same evidence contained in this record, their approval would constitute 
material and gross error on the part of the director. The AAO is not required 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). It would be absurd to suggest that CIS or any agency must treat acknowledged errors as binding 
precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 
1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director did approve a nonirnmigrant petition 
similar to the one at issue here, the AAO would not be bound to follow the contradictory decision of a 
service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afyd, 248 F.3d 
1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
The petitioner has not demonstrated that the beneficiary qualifies to perform the duties of a specialty 
occupation. Accordingly, the AAO will not disturb the director's denial of the petition. 
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 sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.