dismissed H-1B Case: Business Management

identifying data deleted tb 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 02 148 50833 Office: CALIFORNIA SERVICE CENTER Date: RAP 2 2 20[)F 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 
 1 10 1 (a)(l 5)(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. 
WAC 02 148 50833 
Page 2 
DISCUSSION: The Director of the California Service Center denied the nonimmigrant visa petition and the 
Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is again before the AAO 
on motion to reopen or reconsider. The motion will be granted. The previous decision shall be affirmed. The 
petition will be denied. 
The petitioner is a distributor of Karaoke equipment who seeks to employ the beneficiary as a business office 
manager. The petitioner, therefore, endeavors to classify the beneficiary 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. $ 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the basis that the proffered position is not a specialty occupation. 
On September 15, 2004, the AAO denied the petition, finding that the proposed position failed to qualify as a 
specialty occupation. The AAO stated that the Department of Labor's Occupational Outlook Handbook (the 
Handbook) reveals that the duties of the offered position are essentially those of top executives/general and 
operations managers, and that the Handbook reports that the formal education and experience of top 
executives varies as widely as the nature of their responsibilities. The AAO stated that the Handbook 
indicates that: 
Many top executives have a bachelor's or higher degree in business administration or liberal 
arts. Other executive positions, however, are filled by promoting experienced, lower level 
managers. 
Based on the Handbook's information, the AAO concluded: 
[I]t is possible to obtain a position as a general or operations manager without a college 
degree by promotion from within the organization based upon performance alone. 
The AAO determined that the petitioner failed to establish one of the criteria under 8 C.F.R. 
6 2 14.2(h)(4)(iii)(A). 
On motion to reconsider, counsel states that the director misclassified the proposed position and that the 
criteria under 8 C.F.R. $ 214.2(h)(4)(iii)(A) were misapplied. Counsel refers to Young China Daily vs. 
Chappell, 742 F. Supp. 552 (N.D. Cal. 1989) and states that the case indicates that the size of an employer 
bears no rational relationship to the need for a professional. Counsel references Unico American Corp. v. 
Watson, 1991 WL 11002594 (C.D. Cal. Mar 19, 1991) and states that it conveys that the employer's job 
duties and needs must be addressed in determining whether a position requires the services of a professional. 
Referencing Matter of Portugues do Atlantic0 Information Bureau, Inc. 19 I&N Dec. 194 (Comm. 1984), 
counsel asserts that it indicates that a baccalaureate degree is not always required for an alien to qualify for H- 
1B status as long as the alien possesses the combination of education and experience that is needed for the 
particular position. 
WAC 02 148 50833 
Page 3 
The MO grants the motion to reconsider. 
Counsel's reference to Unico American Corp. is not persuasive, as the district court's decision is unpublished. 
In contrast to the broad precedential authority of the case law of a United States circuit court, the AAO is not 
bound to follow the published decision of a United States district court in cases arising within the same 
distnct. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning underlying a district judge's 
decision will be given due consideration when it is properly before the MO; however, the analysis does not 
have to be followed as a matter of law. Id. at 719. In addition, as the published decisions of the district courts 
are not binding on the MO outside of that particular proceeding, the unpublished decision of a district court 
would necessarily have even less persuasive value. 
Nevertheless, the AAO will consider the relevance and merits of Unico American Corp. to the instant 
petition. The issue in Unico American Corp. concerned whether the management information systems (MIS) 
programmer position offered to the beneficiary required the services of a professional in the computer 
industry. The MO found that the MIS programmer position was not professional in nature, as it involved 
only routine programming and duties. In reaching its conclusion, the AAO relied on the Department of 
Labor's Occupational Outlook Handbook's (the Handbook) description of specific vocational preparation 
(SVP) levels. According to the MO, the SVP level revealed that the proposed position did not require a 
bachelor's degree holder. The plaintiff said that the submitted evidence demonstrated that it is a 
sophisticated company with sophisticated data processing needs, procedures, and equipment. The district 
court agreed with the plaintiff, finding that the submitted job description and company letters established the 
need for a professional MIS programmer with a baccalaureate degree in computer science. The court stated 
that the letter from the plaintiffs vice-president of the data processing division described the MIS 
programmer position as requiring a "bachelor[']s degree in computer science or related field and at least 3 
years of programming experience"; and that the letter stated that the position required a wide range of 
analysis and design responsibility. In the decision, the court stated that in denying the petition the AAO had 
applied a rigid standard in determining the plaintiffs needs, and failed to consider the overwhelming evidence 
demonstrating that the plaintiff needed "someone highly skilled in the computer science field." The court 
discussed the appropriateness of second-guessing the plaintiffs business judgment. 
The facts in the instant petition are distinguishable from Unico American Corp. In Unico American Corp., 
the plaintiff required a baccalaureate degree in a focused area of study: computer science or a related field. 
With the proposed position, the educational requirement is not in a concentrated area of study, as it 
encompasses the humanities or the sciences. 
The petitioner's November 15, 2002 letter relayed that the office manager position requires a bachelor's 
degree in the "humanities or sciences." The document entitled "Job Announcement" listed this educational 
requirement as well as the requirement of at least five years of related experience. The AAO notes that the 
humanities, also referred to as the liberal arts, encompass the branches of knowledge such as philosophy, 
literature, and art, which are concerned with human thought and culture. The petitioner's requirement of a 
bachelor's degree in the "sciences" is not specific, as the sciences include diverse fields such as computer 
science, animal science, atmospheric science, biology, biotechnology, horticulture, astronomy, chemistry, 
WAC 02 148 50833 
Page 4 
geosciences, physical science and physics, and food science. By accepting a baccalaureate degree in the 
humanities or the sciences, the petitioner does not require a narrow and concentrated field of study for the 
proposed position. In addition, the petitioner does not explain how a baccalaureate degree in the humanities 
or the sciences would directly relate to the duties of a business office manager.' 
On motion, counsel states that Unico American Corp. indicates that the job duties and the needs of the 
employer must be addressed in determining whether a position requires the services of a professional. In the 
September 15, 2004 decision, the AAO reviewed the proposed job duties, finding that they resemble those of 
top executives/general and operations managers, and that the Handbook conveys that "[mlany top executives 
have a bachelor's or higher degree in business administration or liberal arts." 
After reviewing the record, the AA0 finds that the petitioner does not explain how a baccalaureate degree in 
the humanities or the sciences is related to a business office manager for a distributor of Karaoke equipment. 
An educational requirement of a bachelor's degree in the humanities or the sciences comport with the 
Handbook's information about the educational background of top executives/general and operations 
managers. As such, the AAO correctly concluded that based on petitioner's job description, the proposed 
position does not need a baccalaureate degree in a specific specialty. 
Counsel's reference to Young China Daily is not persuasive, as the AAO's decision was not based on the 
petitioner's size. It was based on an evaluation of the proposed duties, which the AAO concluded did not 
qualify the proffered position as a specialty occupation. 
With respect to Matter of Portugues do Atlantico Information Bureau, Inc., counsel states: 
The petitioner submits that in Matter of Portugues do Atlantico Information Bureau, [ Inc.], 
supra, "it was clear from earlier cases that a baccalaureate degree is not required in every 
case in order for an alien to qualify for H-1 status, as long as the alien possesses a 
combination of education and experience which equip him or her with the 'knowledge of an 
advanced type' that is essential to perform the duties of the profession in question." 
The above paragraph relates to the beneficiary's qualifications for the proposed position. This is similar to 
Tapis Int'l vs. INS, 94 F.Supp. 2d 172 (D. Mass. 2000). In Tapis Int'l, the petitioner sought to employ a 
' As stated in the AAO's September 15, 2004 decision, section 214(i)(l) of the Act, 8 U.S.C. 9 1184(i)(l), 
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). In the decision, the AAO stated that the petitioner must establish that the 
proposed position qualifies as a specialty occupation under 8 C.F.R. 4 214.2(h)(4)(iii)(A), and that 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
3 214.2(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. 
WAC 02 148 50833 
Page 5 
showroom manager and required a bachelor's degree in business administration or marketing in addition to 
specialized experience or training in the design field. The petitioner sought to qualify the proposed position 
as a specialty occupation under the "or its equivalent" language of the statute and the regulations. In the case, 
the district court found that the petitioner's educational and work experience requirement together constituted 
the equivalent of a specialized baccalaureate degree. The court reached this conclusion because a specific 
degree was not available in "interior design showroom management." According to the court: 
[B]y including the "or its equivalent" language, the statute and regulations recognize that the 
needs of a specialty occupation can be met through education, experience, or some 
combination of the two. 
In Tapis Int'l, the petitioner required a bachelor's degree in business administration or marketing, which 
relate to the showroom manager position. With the instant petition, the petitioner requires a bachelor's degree 
in the humanities or sciences; however, the petitioner does not explain how its educational requirement relates 
to a business office manager for a distributor of Karaoke equipment. Thus, the petitioner cannot establish that 
the proposed position qualifies as a specialty occupation under the "or its equivalent" language of the statute 
and the regulations. 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. 
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 petition is denied. The previous decision of the AAO, dated September 15,2004, is affirmed.