dismissed H-1B Case: Business Management

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: SRC 04 229 50528 Office: TEXAS SERVICE CENTER Date: AQR 1 2 2006 
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. 9 1 10 l(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
SRC 04 229 50528 
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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 national automobile leasing and rental company and seeks to employ the beneficiary as an 
assistant manager (management trainee/assistant). The petitioner 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. 9 1 101(a)(l5)(H)(i)(b). 
The director denied the petition because the position did not qualify as a specialty occupation. On appeal, counsel 
submits a brief asserting that the proffered position is a specialty occupation. 
The issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty 
occupation. 
Section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 9 1 lOl(a)(lS)(H)(i)(b), provides, in part, for the 
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform 
services in a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 3 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 term "specialty occupation" is hrther defined at 8 C.F.R. 5 214.2(h)(4)(ii) as: 
[A]n 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; 
(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; 
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(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties are 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. 
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) the 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) the Form I-290B with supporting documentation. The AAO reviewed the 
record in its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as an assistant manager (management traineelassistant). 
Evidence of the beneficiary's duties includes the Form 1-129 petition with attachment and the petitioner's 
response to the director's request for evidence. According to this evidence the beneficiary would: 
Provide customer service by helping customers assess their rental needs; 
Assist in the administrative and auditing duties of the branch; 
Conduct follow up with business customers including insurance adjusters, dealerships and auto body 
shops; 
Apply appropriate rental charges and handle all forms of customer payments; 
Collect and receive branch receivables, vehicles and repossessions; 
Sell options and protection products, rental terms and conditions, vehicle features and benefits; 
Assist in branch sales and marketing efforts; and 
Assist in financial administration of the branch. 
The petitioner requires a minimum of a bachelor's degree for entry into the proffered position, with a 
preference for a degree in business, management, finance, marketing, public relations or a similar field. 
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Upon review of the record, the petitioner has failed to establish that a baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry into the offered position, or that a degree 
requirement is common to the industry in parallel positions among similar organizations, as asserted by 
counsel. Factors often considered by CIS when determining these criteria include: whether the Department 
of Labor's Occupational Outlook Handbook (Handbook) reports that the industry requires a degree; whether 
an industry 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." Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker 
Corp. v. Suva, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for information about the duties and educational requirements of 
particular occupations. The duties of the proffered position are essentially those noted for general and 
operations managers (assistant) who plan, direct, or coordinate the operations of companies or public and 
private sector organizations. These managers formulate policies, manage daily operations, and plan the use of 
materials and human resources. The petitioner has not met any of the above requirements to qualify the 
offered position as a specialty occupation. The proffered position requires general managerial skills, and 
those skills do not arise from any particular specialty. Indeed, many management or top executive positions 
are filled by promoting experienced, lower level managers from within an organization. Other top 
executives/managers hold degrees in business administration or a liberal arts degree. A college degree in a 
specific specialty is not a minimum requirement for entry into the field of management. A degree in a wide 
range of disciplines will suffice for positions that do require a college education. The petitioner has, 
therefore, failed to establish the criterion at 8 C.F.R. 
 214.2(h)(4)(iii)(A)(I). 
The petitioner asserts that a degree requirement is common to the industry in parallel positions among similar 
organizations, and in support of this assertion submits copies of job advq-tisements and an opinion letter from 
~r~rofessor of Marketing, Graduate Program Chair, Lubin Graduate School of Business, 
Pace University. The job advertisements submitted are for assistant managerlmanagement trainee positions 
from Wal-Mart and the Hannaford corporation. Both companies require a bachelor's degree for the positions 
advertised, but do not require a degree in a specific educational discipline. This supports the findings in the 
Handbook concerning the educational requirements for the position in the industry, that a college degree in a 
specific specialty is not required. Positions that do require a de ee accept degrees in a wide range of 
educational disciplines, from business to liberal arts. Dr opined that the proffered position is a 
specialty occupation requirin bachelor's level training in business management, management, or a related 
business sub-discipline. Dr. bprovides no basis for his opinion other than his education, training, and 
experience. He does not reference any employment or labor survey or study, or any other source of authority, 
to corroborate his opinion. Simply going on the record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N 190 (Reg. Comm. 1972)). 
His opinion will be given little weight as it conflicts with the findings in the Handbook concerning the 
industry wide educational requirements for entry into the position. The Handbook is a compilation of 
national data gathered from industry surveys, questionnaires, interviews and other sources. CIS may, in its 
discretion, use as advisory opinion statements submitted as expert testimony. Where an opinion is not in 
accord with other information or is in any way questionable, CIS is not required to accept, or may give less 
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weight, to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). The petitioner has 
not established the referenced criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A)(2). 
The petitioner has submitted evidence to establish that its policy is to normally employ individuals with a 
baccalaureate level education for the proffered position. In support of that assertion the petitioner submitted a 
statement from its recruiting manager for Northeast Florida, copies of previous H-1B approval notices for the 
position, and copies of the employment applications of recent hires. The recruiting manager states that 90 per 
cent of the hires for the management trainee position hold a bachelor's degree or greater. The manager does 
not state that the degree need be in a specific specialty, although it prefers a degree in business, finance, 
management, marketing, communications or public relations. Although those applications indicate that the 
applicants are college graduates, the record does not contain independent verification of the applicant's 
degrees, or state what fields the degrees are in. The petitioner must require a degree in a specialty in order to 
meet this requirement. Simply going on the record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N 190 (Reg. Comm. 1972)). The 
petitioner's normal hiring practice alone, however, will not qualify the position as a specialty occupation 
under 8 C.F.R. tj 214.2(h)(4)(iii)(A)(3). CIS must examine the ultimate employment of the alien, and 
determine whether the position qualifies as a specialty occupation. Cf. Defensor v. Meissner, 201 F. 3d 384 
(5" Cir. 2000). The critical element is not the title of the position or 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 ~ct.' To interpret the regulations any other way would lead to 
absurd results: if CIS were limited to reviewing a petitioner's self-imposed employment requirements, then 
any alien with a bachelor's degree could be brought into the United States to perform menial, non- 
professional, or an otherwise non-specialty occupation, so long as the employer required all such employees 
to have baccalaureate or higher degrees. See id at 388. The petitioner has failed to establish the criterion at 
8 C.F.R. tj 214.2(h)(4)(iii)(A)(3). 
The petitioner has not established that the duties of the proffered position are so complex or unique that they 
can be performed only by an individual with a degree in a specific specialty, or that they are so specialized or 
complex that knowledge required to perform them is usually associated with the attainment of a baccalaureate 
or higher degree in a specific specialty. The duties of the position are those that would be routinely 
performed by general or operations managers (assistants/trainees) in the petitioner's industry, and are 
routinely performed both by individuals with less than a baccalaureate level education, and those who hold 
degrees in a wide range of educational disciplines. The petitioner has not established the referenced criteria at 
8 C.F.R. tj 214.2(h)(4)(iii)(A)(2) or (4). 
Finally, the petitioner states that previous H-1B petitions have been approved for the offered position. This 
reference will not sustain the petitioner's burden of establishing H-1B qualification in the petition now before 
I 
 The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387. 
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the MO. This record of proceeding does not contain the entire records of proceedings in the petitions 
referred to by counsel. Accordingly, no comparison of the positions can be made. Each nonimmigrant 
petition is a separate proceeding with a separate record. See 8 C.F.R. § 103.8(d). In making a determination 
of statutory eligibility, the MO is limited to the information contained in the record of proceeding. See 8 
C.F.R. 9 103.2(b)(16)(ii). It warrants noting that Congress intended this visa classification for aliens that are 
to be employed in an occupation that requires the theoretical and practical application of a body of highly 
specialized knowledge. Congress specifically stated that such an occupation would require, as a minimum 
qualification, a baccalaureate or higher degree in the specialty. CIS regularly approves H-1B petitions for 
qualified aliens who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such professions. These occupations all require a baccalaureate degree in the 
specialty occupation as a minimum for entry into the occupation and fairly represent the types of professions 
that Congress contemplated when it created that visa category. In the present matter, the petitioner has 
offered the beneficiary a position as an assistant manager (management traineelassistant). For the reasons 
discussed above, the proffered position does not require attainment of a baccalaureate or higher degree in a 
specific specialty as a minimum for entry into the occupation, and approval of a petition for another 
beneficiary based on identical facts would constitute material error, gross error, and a violation of 8 C.F.R. 
5 2 14.2 paragraph (h). 
The petitioner has failed to establish that the offered position meets any of the criteria listed at 8 C.F.R. 
5 214.2(h)(4)(iii)(A). Accordingly, the AAO shall 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. 
8 1361. The petitioner has not sustained that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.