dismissed H-1B Case: Business Operations

U.S. Department of Homeland Security 
20 Mass Ave , N.W., Rm. A3042 
Washington, DC 20529 
FILE: WAC 04 03 8 509 10 Office: CALIFORNIA SERVICE CENTER 
Date: S&P 16 2005 
IN RE: Petitioner: 
Beneficiary 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. fj 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, Director 
Administrative Appeals Office 
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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 operates a retirement home. It seeks to employ the beneficiary as a part-time business 
operations analyst. The petitioner, therefore, endeavors to classify the beneficiary as a nonimrnigrant worker in 
a specialty occupation pursuant to section 10 1 (a)( 1 5)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 llOl(a)(l5)(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. 
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. 5 214.2@)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(I) 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) counsel's response to the director's request; (4) the director's 
denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in its 
entirety before issuing its decision. 
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The petitioner is seeking the beneficiary's services as a business operations manager. Evidence of the 
beneficiary's duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the company 
support letter; and counsel's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail participating in formulating and establishing company policies 
and operating procedures; reviewing problems and procedures of each department and recommending 
solutions to the problems and changes in procedures; cooperating with human resources in 
developing/improving employee handbooklmanuals; developing management control systems to aid in 
financial planning and cost analysis, developing wage and salary administration system and assisting human 
resources in enhancing job evaluation programs; conducting feasibility studies for special projects and on 
programs of the petitioner to determine cost effectiveness; developing and implementing methods and 
procedures for monitoring projects, such as preparation of records and expenditures and progress reports in 
order to inform management of current status of each project; analyzing department budget to identify areas 
in which reductions can be made; planning and scheduling workflow for each department and operation to 
standardize time and motion requirements of job duties. The petitioner indicated that the minimum 
requirement for the position was a bachelor's degree in business, industrial engineering, operation science or 
a related field. 
The director requested a detailed description of the work done, including specific job duties, and the 
percentage of time to be spent on each duty. The director requested a description of the information that the 
beneficiary will be required to produce and at what frequency, and a description of how the petitioner will 
utilize this information. The director requested quarterly wage reports and a copy of the facility license. 
In response, the petitioner provided an expanded position description and indicated that the beneficiary would 
spend 100% of his time on the listed duties and would be responsible for the duties and work independently. 
The beneficiary would not supervise anyone. The petitioner provided quarterly wage reports which indicated 
75 employees. The petitioner provided its facility license. 
The director did not classify the offered position as an operations analyst and found that the duties reveal that 
the proffered position is very general in nature and are basically duties that are performed by office and 
administrative support supervisors and managers. The director referred to the Department of Labor's 
Occupational Outlook Handbook (Handbook) which indicated that there is no requirement of a baccalaureate 
or higher degree in a specialized area for employment for office administrative and support staff. The director 
determined that the proposed duties and stated level of responsibility failed to establish that the position 
offered met any of the required criteria for classification as a specialty occupation. 
On appeal, counsel emphasizes that the job duties are similar to the duties of an operations analyst as listed in 
the Department of Labor's Dictionary of Occupational Titles (DOT). Counsel states that for the petitioner to 
require its business operations analyst to have a bachelor's degree is within the "parameter of the SVP." 
Counsel contends that because the proffered position's duties resemble those listed in the DOT and the 
position requires a bachelor's degree it is a specialty occupation. The DOT is not a persuasive source of 
information regarding whether a particular job requires the attainment of a baccalaureate or higher degree in a 
specific specialty, or its equivalent, as a minimum for entry into the occupation. An SVP rating is meant to 
indicate only the total number of years of vocational preparation required for a particular position. It does not \ 
describe how those years are to be divided among training, formal education, and experience, and it does not 
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specify the particular type of degree, if any, that a position would require. For this reason, the AAO does not 
rely on the DOT information. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
$ 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO considers the criteria at 8 C.F.R. §$ 214.2(h)(4)(iii)(A)(l) and (2): a baccalaureate or higher degree 
or its equivalent in a specific specialty is the normal minimum requirement for entry into the particular 
position; a specific 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 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 hom firms or individuals in the industry attest that 
such firms "routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 
1165 (D.Minn. 1999)(quoting Hird/Blaker Cop. v. Sava, 712 F. Supp. 872,1102 (S.D.N.Y. 1989)). 
In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determines, from a review of the duties of the position and any supporting evidence, whether the 
position actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate degree in a specific specialty as the minimum for entry into the 
occupation as required by the Act. 
The AAO routinely consults the Handbook for its information about the duties and educational requirements 
of particular occupations. The Handbook reveals that the beneficiary's duties do not rise to the level of an 
operations analyst, an occupation that qualifies as a specialty occupation. According to the Handbook, the 
duties of the operations research analyst vary according to the structure and management philosophy of the 
employer or client. The Handbook indicates that some firms centralize operations research in one department; 
others use operations research in each division. Operations research analysts also may work closely with 
senior managers to identify and solve a variety of problems. Some organizations contract operations research 
services with a consulting firm. The Handbook notes regardless of the type or structure of the client 
organization, operations research in its classical role entails a similar set of procedures in canying out 
analysis to support management's quest to improve performance. 
The Handbook describes the work procedures of operations analysts as: 
Managers begin the process by describing the symptoms of a problem to the analyst, who 
then formally defines the problem. For example, an operations research analyst for an auto 
manufacturer may be asked to determine the best inventory level for each of the parts needed 
on a production line and to ascertain the optimal number of windshields to be kept in 
inventory. Too many windshields would be wasteful and expensive, while too few could 
result in an unintended halt in production. 
Operations research analysts study such problems, breaking them into their components. 
Analysts then gather information about each of the components from a variety of sources. To 
determine the most efficient amount of inventory to be kept on hand, for example, operations 
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research analysts might talk with engineers about production levels, discuss purchasing 
arrangements with buyers, and examine storage-cost data provided by the accounting 
department. 
With the relevant information in hand, the analyst is ready to select the most appropriate 
analytical technique. Analysts can use any of several techniques, including simulation, linear 
and nonlinear programming, dynamic programming, queuing and other stochastic-process 
models, Markov decision processes, econometric methods, data envelopment analysis, neural 
networks, expert systems, decision analysis, and the analytic hierarchy process. Nearly all of 
these techniques, however, involve the construction of a mathematical model that attempts to 
describe the system being studied. The use of models enables the analyst to assign values to 
the different components and clarify the relationships among them. The values can be altered 
to examine what may happen to the system under different circumstances. 
As described by the petitioner, the duties of the proffered position are general and lack specificity. The 
petitioner does not explain with any details the beneficiary's duty to be "conducting feasibility studies for 
special projects and on programs of the petitioner to determine cost effectiveness" and "developing and 
implementing methods and procedures for monitoring projects, such as preparation of records and 
expenditures and progress reports in order to inform management of current status of each project." The 
petitioner does not identify the projects with any specificity. The petitioner indicated that it had 75 employees 
and refers to different departments in the job duties. However, the petitioner did not provide an 
organizational chart or describe the departments in relation to the beneficiary's duties. Therefore, the 
petitioner has not related the duties such as "analyzing department budget to identify areas in which 
reductions can be made" and "planning and scheduling workflow for each department and operation to 
standardize time and motion requirements of job duties" to the current organizational structure and position 
descriptions of the petitioner. The petitioner does not describe the analytical techniques to be used by the 
beneficiary in performing the job duties. Additionally, job duties such as "cooperating with human resources 
in developing/improving employee handbook/manuals" do not fit the Handbook's description of an 
operations analyst. 
Based on the evidence in the record, the AAO cannot conclude that a baccalaureate or higher degree or its 
equivalent in a specific specialty is the normal minimum requirement for entry into the particular position, 
business operations analyst. The petitioner contends that the proffered position resembles an operations 
analyst position in the Handbook. 
The Handbook describes in detail where operations analysts are commonly employed; it states: 
Operations research analysts held about 61,700 jobs in 2002. Major employers include 
telecommunication companies, aerospace manufacturers, computer systems design firms, 
financial institutions, insurance carriers, engineering and management services firms, and 
Federal and State governments. More than 4 out of 5 operations research analysts in the 
Federal Government work for the Department of Defense, and many in private industry work 
directly or indirectly on national defense. About 1 out of 5 analysts works in architectural, 
engineering, or related services; computer systems design and related services; management, 
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scientific, and technical consulting services; and scientific research and development firms 
that offer consulting services in the field of operations research. 
The Handbook's quoted passage does not mention that the petitioning entity, a retirement home with 
approximately 75 employees that provides nursing services, would be a likely employer of an operations analyst 
management consultant. This passage supports the AAO's determination that it cannot conclude that the duties 
of the proposed position correspond to those of an operations analyst. 
Based on the evidence in the record, the AAO cannot conclude that a baccalaureate or higher degree or its 
equivalent in a specific specialty is the normal minimum requirement for entry into the particular position, 
business operations analyst of a retirement home. 
There is no evidence in the record to establish the second criterion - that a specific degree requirement is 
common to the industry in parallel positions among similar organizations or that the proffered position is so 
complex or unique that only an individual with a degree can perform it. 
Nor is there evidence in the record to establish the third criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A): that the 
petitioner normally requires a degree or its equivalent for the position. 
The fourth criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is usually 
associated with the attainment of a baccalaureate or higher degree. On appeal, counsel contends that the 
proffered position requires a minimum of a bachelor's degree in order to attract clientele. Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter of laureano, 19 I&N Dec. 1 (BM 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503,506 (BIA 1980). 
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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.