dismissed H-1B Case: Business Administration

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U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
PUBLIC COpy
FILE: SRC 0521251409 Office: TEXAS SERVICE CENTER Date: SEP 0 52001
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l 5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(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, Chief
Administrative Appeals Office
www.uscis.gov
SRC 0521251409
Page 2
DISCUSSION: The director of the service center 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 shoe wholesaler and retailer that seeks to employ the beneficiary as a part-time contract
administrator. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a
specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act),
8 U.S.C. § 1101(a)(15)(H)(i)(b). The director denied the petition because the proffered position is not a
specialty occupation and the beneficiary is not qualified to perform the duties of a specialty occupation.
The record of proceeding before the AAO contains: (1) the Form 1-129 and supporting documentation; (2) the
director's request for evidence (RFE); (3) counsel's response to the director's request; (4) the director's denial
letter; and (5) the Form I-290B, with counsel's brief. The AAO reviewed the record in its entirety before
reaching its decision.
The first issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet
its burden of proof in this regard, the petitioner must establish that the job it is offering to the beneficiary
meets the following statutory and regulatory requirements.
Section 214(i)(1) of the Act, 8 U.S.C. § 1184(i)(1), 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 term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as:
An occupation which requires theoretical and practical application of a body of highly
specialized knowledge in fields of human endeavor including, but not limited to, architecture,
engineering, mathematics, physical sciences, social sciences, medicine and health, education,
business specialties, accounting, law, theology, and the ,arts, and which requires the
attainment of a bachelor's degree or higher in a 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;
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(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) consistently interprets the term "degree" in the above criteria to
mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the
proffered position.
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a
position's title. The specific duties of the proffered position, combined with the nature of the petitioning
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the
alien, and determine whether the position qualifies as a specialty occupation. Cf Defensor v. Meissner, 20 I F.
3d 384 (5th Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed
standards, but whether the position actually requires the theoretical and practical application of a body of
highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty
as the minimum for entry into the occupation, as required by the Act.
The petitioner seeks the beneficiary's services as a part-time contract administrator. Evidence of the
beneficiary's duties includes: the petitioner's July 26, 2005 letter in support of the petition and counsel's
October 28,2005 response to the director's RFE. As stated by the petitioner's president in a letter dated July.
26, 2005, the proposed duties are as follows:
1. Overall responsibility for entering into contracts regarding the sale and purchase of shoes and
accessories; review delivery schedules to ensure proper delivery and stocking at the petitioner's
outlets;
2. }lrepare bids and process specific requirements; review bids for conformity to contract
requirements in determining acceptable bids; analyze pricing, fmancial reports, and other data
to determine price proposals and bids;
3. Plan and direct sales programs to promote new markets, improve competitive position in area
and provide fast and efficient customer service;
4. Negotiate contracts with manufacturers and suppliers; formulate and coordinate proposals and
establish internal control and procedures; amend and/or extend contracts as needed;
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5. Direct activities of personnel in sales, collections and logistical control, record keeping,
receiving and shipping operations to execute the contracts; and
6. Liaise between customers and manufacturers to resolve issues regarding contracts.
In response to the director's RFE, counsel further describes the proposed duties as follows:
The beneficiary would perform services in areas of marketing, personnel, accounting, and
financial matters. She would apply principles of employee and finance management as well as
manage fund flows and perform analysis of financial management. Specifically, the proffered
position is a contract administrator and sales manager. Her duties would be to manage
marketing, sales accounting,· and human resources administration and management; provide
specialized administration relating to contracts for purchasing, sale, and administrative
accounting and management controls; analyze sales statistics to formulate policy and to assist
dealers in promoting sales. She would coordinate sales distribution by establishing sales
territories, quotas and goals; advise dealers, distributors, and clients concerning sales and
advertising techniques. She would prepare bids, process specific requirements, test and prepare
progress reports; review bids for conformity to contract requirements in determining acceptable
bids. He [sic] will negotiate contract with bidders, request and approve amendments and/or
extensions to contracts and advise management of the contract rights and obligations; He [sic]
will have overall responsibility for contracts with shoe manufacturers and distributors regarding
sales, purchase, and delivery; examine performance requirements, delivery schedules, and cost
estimates to ensure completeness and accuracy.
He [sic] would examine order requirements and delivery schedules. He [sic] would have
managerial responsibility over staff, including promotions and benefits management. ·He [sic]
would prepare reports and provide recommendations and procedures to reduce absenteeism and
turnover; conduct training and need analysis, and evaluate training programs as well as prepare
the budget of personnel operations. He [sic] would provide management leadership related to
establishing human resources policies and procedures and to administer employee health,
insurance, savings and hiring programs. She would also provide management training related to
record keeping of insurance coverage and personnel movements, such as hiring, firing,
promotions, and transfers.
The director found that the proposed duties do not require a bachelor's degree. The director also found that in
response to the RFE, counsel radically changed the proffered position from its original description. The
director concluded that the petitioner failed to establish any of the criteria found at 8 C.F.R.
§ 214.2{h)(4)(iii)(A).
On appeal, counsel asserts, in part, that the proffered position is a contract administrator/sales manager, and
that the position has not been radically changed from its original description. Counsel also asserts that the
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duties of a contract administrator are specialized and professional requiring the attainment of a bachelor's
degree in business administration, management, or a related field. Counsel cites a court decision to state that
whether a position is professional is unrelated to the company's size, salary, or prior company history of
maintaining the position.
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. §§ 214.2(h)(4)(iii)(A)(J) and (2): a baccalaureate or higher
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree
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 Department of Labor's (DOL)
Occupational Outlook Handbook (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
fmns or individuals in the industry attest that such fmns "routinely employ and recruit only degreed individuals."
See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999)(quoting HirdIBlaker Corp. v. Sava, 712 F.
Supp. 1095, 1102 (S.D.N.Y. 1989».
The AAO routinely consults the Handbook for its information about the duties and educational requirements of
particular occupations. Although a review of the Administrative Services Managers training requirements in
the Handbook, 2006-07 edition, finds that a manager of contract administration may qualify as a specialty
occupation, the AAO does not concur with cOlIDselthat the proffered position is a specialty occupation. In this
matter, neither the petitioner nor counsel describes duties requiring at least a bachelor's degree in business,
human resources, or finance indicated in the Handbook. While the job duties generally refer to the petitioner's
contracts for the purchase and sale of shoes, the petitioner has failed to delineate specific duties of contract
administrator in the context of its wholesale and retail shoe business. Portions of counsel's brief clearly apply
to a different petitioner and a different beneficiary, as counsel uses "he" and "she" interchangeably when
referring to the beneficiary in the October 28, 2005 letter.! In addition, although information on the petition
indicates that the petitioner has a projected gross annual income of $1.5 million, the record contains no evidence
in support of this claim, such as federal income tax returns. Simply going on record without supporting
documentary evidence is not sufficient for the purpose of meeting the burden of proof in these proceedings.
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14
I&N Dec. 190 (Reg. Comm. 1972».
The AAO finds that the proffered position is that of a sales manager. No evidence in the Handbook, 2006-07
edition, lIDder the category of Advertising, Marketing, Promotions, Public Relations, and Sales Managers,
I The description of duties is almost identical to the duties described in another petition by a different
petitioner represented by cOlIDsel: SRC 05 204 50479. Thus, the AAO must question the accuracy of the
description of duties. The record provides no explanation for these inconsistencies. Doubt cast on any aspect
of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the
remaining evidence offered in support of the visa petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988).
SRC 0521251409
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indicates that a baccalaureate or higher degree in a specific specialty is required for a sales manager position.
A wide range of educational backgrounds is suitable for entry into sales manager jobs, but many employers
prefer individuals with related experience and a broad liberal arts background. Accordingly, the petitioner has
not established the proffered position as a specialty occupation under 8 C.F.R. § 214.2(h)(iii)(A)(l).
The AAO acknowledges counsel's citation of a court decision to state that whether a position is professional is
unrelated to the company's size, salary, or prior company history of maintaining the position. However, the
director's decision does not rely on the nature or size of the petitioner to conclude that the proffered position
does not meet M.y of the requirements for a specialty occupation. Moreover, the complexity of the duties in
relation to the petitioner's business must be analyzed. As discussed above, the petitioner has not established
that the complexity of the proposed duties requ~es a baccalaureate degree in the specialty. Going on record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Corom. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Corom. 1972~).
Regarding parallel positions in the petitioner's industry, the record contains Internet job postings for contract
administrators, sales managers, and related posmons. The AAO acknowledges counsel's assertion that even
though these postings do not stipulate a bachelor'S degree in a specific specialty, as demonstrated by job postings
for positions such as civil engineers and software engineers, a possible explanation for the omission of a specific
degree requirement is to .limit the text size of each advertisement The record contains job postings for ~e
following positions: a sales representative for Harley Davidson Footwear, a retaiVwholesale planner for a global
fashion corporation founded in 1924; a vice president of sales with qualifications that include being an
experienced executive in the high-end luxury market; a senior vice president for footwear sales and marketing for
a well-established footwear company with duties that include overseeing the growth of its core customers and
expanding mainstream independents throughout the United States; a vice president of footwear sales for a global
apparel and footwear company; an account sales.analyst for Adidas, which has approximately 16,000 employees
worldwide; and a senior sales forecast analyst for Russell Athletic, an internationally branded apparel and
sporting equipment company. The listings provided rely on duties unlike the duties listed by the petitioner and the
businesses publishing the advertisements are not similar to the petitioner in size, number of employees, or level of
revenue. The petitioner has not established that the duties listed in the advertisements are parallel to those
described for the proffered position. The record also does not include any evidence from individuals, firms, or
professional associations regarding an industry standard. Accordingly the petitioner has not established that the
degree requirement is common to the industry in parallel positions among similar organizations.
In the alternative, the petitioner may show that the proffered position is so complex or unique that only an
individual with a degree can perform the work associated with the position. In the instant petition, the
petitioner has submitted insufficient documentation to distinguish the proffered position from similar but
non-degreed employment. The petitioner has failed to establish the proffered position as a specialty
occupation under either prong ofthe criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
SRC 0521251409
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The AAO now twns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3) - the employer nonnally requires a
degree or its equivalent for the position. As counsel does not address this issue on appeal, it will not be
discussed further. The evidence ofrecord does not establish this criterion.
Finally, the AAO turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iiiXA)(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.
Counsel states, on appeal, that the duties of a contract administrator are specialized and professional requiring
the attainment of a bachelor's degree in business administration, management, or a related field. As discussed
above, however, the petitioner has not established that the proposed duties exceed in scope, specialization, or
complexity those duties usually performed by sales managers, an occupational category that does not require
a baccalaureate or higher degree in a specific specialty. Further, as indicated earlier in this decision, in light ofthe
petitioner's unsupported assertions regarding basic financial information for its business and the generalized
nature of the job duties described by the petitioner without reference to its daily business operations, the record
does not establish a requirement for the level of knowledge requisite for this criterion. Therefore, the evidence
does not establish that the proffered position is a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(AX4).
As related in the discussion above, the petitioner has failed to establish that the proffered position is a
specialty occupation.
Section 214(i)(2) of the Act, 8 U.S.C. § I I84(i)(2), states that an alien applying for classification as an H-IB
nonimmigrant worker must possess full state licensure to practice in the occupation, if such licensure is
required to practice in the occupation, and completion of the degree in the specialty that the occupation
requires. If the alien does not possess the required degree, the petitioner must demonstrate that the alien has
experience in the specialty equivalent to the completion of such degree, and recognition of expertise in the
specialty through progressively responsible positions relating to the specialty.
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, an alien
must meet one of the following criteria:
(1) 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
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(4) Have education, specialized training, and/or 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.
The director also found that the beneficiary was not qualified for the proffered position because the
beneficiary's foreign education and employment experience did not qualify her for a specialty occupation. On
appeal, counsel states, in part, that the beneficiary is qualified for the position because her combined
education and employment experience are equivalent to a U.S. bachelor's degree in management, as
demonstrated by the credentials evaluation.
The record contains the following documentation pertaining to the beneficiary's qualifications:
• A credentials evaluation from Worldwide Education Evaluators, Inc., dated July 26, 2005,
based on the beneficiary's foreign education and work experience, concluding that the
beneficiary holds the U.S. equivalent of a bachelor's degree in sales management;
• Copies of the beneficiary's Bachelor of Science degree and corresponding transcript reflecting
a major course of study in physiology, conferred by a university in Pakistan;
• Copies of the beneficiary's Master of Science degree in physiology and corresponding
transcript, conferred by a university in Pakistan;
• A letter, dated July 14, 2005, from the Pakistani business Pick n Pack, certifying that the
beneficiary worked at the said business from August 1991 to August 1998, as a sales manager,
performing the following duties: preparing and reviewing bids, price analysis, financial
reports, and other data to determine price proposals; and
• A second letter, dated November 5, 2005, from the Pakistani business Pick n Pack, certifying
that the beneficiary began her employment with the said business in August 1991 as a sales
manager having authority over the spending and allocation of funds, and performing the
following duties: submitting financial reports, supervising the business's finance, preparing
cash flow statements, participating in formulating policies, assisting executive management
with planning budgets for internal units and departments, establishing standards for personnel
administration and performance, advertising, and marketing; as a senior sales manager
beginning in January 1993, the beneficiary performed the following duties: established new
business contracts, negotiated with clients and purchasers, administered new and existing
business contracts, trained sales personnel, prepared and reviewed bids, and coordinated sales
distribution.
Upon review of the record, the petitioner has failed to establish that the beneficiary is qualified to perform an
occupation that requires a baccalaureate degree in business, human resources, fmance, or a related field. The
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beneficiary holds a foreign Bachelor of Science degree and a foreign Master of Science degree in physiology.
The beneficiary, however, does not hold a baccalaureate degree from an accredited U.S. college or university
in business, human resources, finance, or a related field, or a foreign degree detennined to be equivalent to a
baccalaureate degree from a U.S. college or university in business, human resources, finance, or a related
field. Therefore, the petitioner must demonstrate that the beneficiary meets the criterion at 8 C.F.R.
§ 214.2(h)(4)(iii)(C)(4).
When determining a beneficiary's qualifications under 8 C.F.R. § 214.2(h)(4)(iii)(C)(4), the AAO relies upon
the five criteria specified at 8 C.F.R. § 214.2(h)(4)(iii)(D). A beneficiary who does not have a degree in the
specific specialty may still qualify for an H-1B nonimmigrant visa based on:
(1) An evaluation from an official who has authority to grant college-level credit for training and/or
experience in the specialty at an accredited college or university 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 (PONS!);
(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, and/or
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.
As noted above, the petitioner submitted a July 26, 2005 evaluation of the beneficiary's academic
qualifications and experience.
The academic evaluation is based on the beneficiary's employment experience, her foreign Bachelor of Science
degree, and her foreign Master of Science degree in physiology. The evaluator notes that the beneficiary
completed three years of coursework toward a four-year bachelor's degree from a regionally accredited U.S.
university. The corresponding transcript reflects coursework related primarily to physiology. The evaluator also
notes that the beneficiary completed a one-year program of study and examinations and was awarded a Master of
Science degree which, coupled with her three-year bachelor's degree, is equivalent to the completion of a four­
year bachelor's degree from a regionally accredited U.S. university. As noted above, the beneficiary's foreign
master's degree is in physiology. As such, the beneficiary's concentration of academic study is not related to
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business, human resources, finance, or a related field.
The AAO observes that the author of the prepared evaluation notes that the conclusion that the beneficiary has
obtained the equivalent of a U.S. bachelor's degree in sales management is based on the beneficiary's foreign
bachelor and master's degrees and seven years of "progressively more responsible professional work experience."
However, when attempting to establish that a beneficiary has the equivalent of a degree based on his or her
combined education and employment experience under the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(C)(4), a
petitioner may not rely on a credentials evaluation service. A credentials evaluation service may evaluate only a
beneficiary's educational credentials. See 8 C.F.R. § 214.2(h)(4)(iii)(D)(3). To establish an academic equivalency
for a beneficiary's work experience, a petitioner must submit an evaluation of such experience from an official
who has the authority to grant college-level credit for training and/or experience in the specialty at an accredited
college or university that has a program for granting such credit. See 8 C.F.R. § 214.2(h)(4)(iii)(D)(l). In this
matter, the petitioner has not submitted such documentation.
Thus, the AAO must consider whether the beneficiary's work experience coupled with her education is sufficient
to establish that she is qualified to perform the duties of the specialty occupation. In this matter it is not. When
evaluating a beneficiary's qualifications under the fifth criterion, CIS considers three years of specialized training
and/or work experience to be the equivalent of one year of college-level training. In addition to documenting that
the length of the beneficiary's training and/or work experience is the equivalent of four years of college-level
training, the petitioner must also establish that the beneficiary's training and/or work experience has included the
theoretical and practical application of the specialized knowledge required by the specialty occupation, and that
the experience was gained while working with peers, supervisors, or subordinates who have degrees or the
equivalent in the specialty occupation. The petitioner must also document recognition of the beneficiary's
expertise in the specialty, as evidenced by one of the following: recognition of expertise in the specialty
occupation by at least two recognized authorities 2 in the same specialty occupation; membership in a recognized
foreign or U.S. association or society in the specialty occupation; published material by or about the alien in
professional publications, trade journals, books or major newspapers; licensure or registration to practice the
specialty in a foreign country; or achievements which a recognized authority has determined to be significant
contributions to the field of the specialty occupation.
On appeal, counsel for the petitioner references a letter from the beneficiary's previous employer that was
submitted in response to the director's RFE and asserts that this letter shows the beneficiary has gained
knowledge and experience from her employment from August 1991 to August 1998 at the Pakistani business
Pick n Pack Super Store. As noted above, the record contains two letters from Pick n Pack Super Store, dated
July 14, 2005 and November 5, 2005, respectively. It is noted that the second letter from Pick n Pack,
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 opinion,
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. § 214.2(h)(4)(i)(C)(ii).
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submitted in response to the director's RFE, contains more complex duties than those duties described for the
beneficiary in the initial letter from Pick n Pack. For example, the initial description of the beneficiary's
duties included preparing and reviewing bids, price analysis, financial reports, and other data to determine
price proposals, while the second letter described the beneficiary's duties as participating in formulating
policies, assisting executive management with planning budgets for internal units and departments,
establishing standards for personnel administration and performance, advertising, and marketing, establishing
new business contracts, negotiating with clients and purchasers, administering new and existing business
contracts, and training sales personnel. Additionally, some of the text of the November 5, 2005 Pick n Pack
letter is identical to the text of the petitioner's July 26, 2005 letter. Thus, the AAO must question the
authenticity of the contents of the November 5, 2005 Pick n Pack letter. Doubt cast on any aspect of the
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). The
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may
not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts.
Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Moreover, neither employment letter
from the beneficiary's former employer describes the beneficiary's peers, supervisors, or subordinates'
credentials. Further, the record contains no evidence to indicate that the beneficiary's expertise has been
recognized in one of the. ways discussed above. Thus, the record is insufficient to establish that the
beneficiary's training and/or work experience includes the theoretical and practical application of specialized
knowledge required by a specialty occupation; that the beneficiary's experience was gained while working
with peers, supervisors, or subordinates who have a degree or degree equivalent in a specialty occupation; or
that the beneficiary's "expertise" in a specialty occupation has been recognized.
The petitioner has not submitted argument or documentation on appeal sufficient to overcome the director's
decision on this issue. The petitioner has not established that the beneficiary has the requisite qualifications to
perform the duties of a specialty occupation. For this additional reason, the petition will not be approved.
Accordingly, the AAO shall not disturb the director's denial of the petition.
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an
independent and alternative basis for the decision. In visa petition proceedings, the burden of proving
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361..
Here, that burden has not been met.
ORDER: The appeal is dismissed. The petition is denied.