dismissed H-1B Case: Child Care

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: f£8 2 6 2015 OFFICE: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not tile a motion directly with the AA O. 
�� 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The service center director (hereinafter "director") denied the nonimmigrant visa 
petition, and the matter is now before the Administrative Appeals Office on appeal. The appeal will 
be dismissed. The petition will be denied. 
I. PROCEDURAL AND FACTUAL BACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a six­
employee "Child Care Facility" established in 1 In order to employ the beneficiary in what it 
designates as a part-time "Health Consultant, Child Development and Safety" position, the petitioner 
seeks to classify her 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, finding that the petitioner failed to establish that it would employ 
the beneficiary in a specialty occupation position. On appeal, the petitioner asserts that the director's 
basis for denial is erroneous and contends that the petitioner satisfied all evidentiary requirements. 
As will be discussed below, we have determined that the director did not err in her decision to deny 
the petition on the specialty occupation issue. Accordingly, the director's decision will not be 
disturbed. The appeal will be dismissed, and the petition will be denied.2 
We base our decision upon our review of the entire record of proceeding, which includes: (1) the 
petitioner's Form I-129 and the supporting documentation filed with it; (2) the service center's 
request for additional evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the director's 
denial letter; and (5) the Form I-290B and the petitioner's submissions on appeal. 
II. THE LAW 
The issue before us is whether the petitioner has demonstrated that the proffered position qualifies as 
a specialty occupation. Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term 
"specialty occupation" as an occupation that requires: 
1 We note that the petitioner designated its business operations on the Labor Condition Application (LCA) 
under the North American Industry Classification System (NAICS) code 62441. This NAlCS code is 
designated for "Child Day Care Services." 
See U.S. Dep't of Commerce, U.S. Census Bureau, 2012 NAICS Definition, NAICS Code 62441, at 
http://www.census.gov/cgi -bin/sssd/naics/naicsrch?code=62441&search=2012 NAICS Search (last visited 
Feb. 25, 2015). According to the U.S. Census Bureau, the NAICS is used to classify business establishments 
according to type of economic activity and each establishment is classified to an industry according to the 
primary business activity taking place there. /d. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
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(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 regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] 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 [(2)] 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, a proposed position must 
also 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; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so speci�lized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
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necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.P.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.P.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.P.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.P.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. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty or its equivalent directly related to the duties and responsibilities of the 
particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS 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. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. 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. 
III. EVIDENCE 
The LCA submitted to support the visa petition states that the proffered position is a "Health 
Consultant, Child Development & Safety" position, and that it corresponds to Standard 
Occupational Classification (SOC) code and title 21-1091, Health Educators, from the Occupational 
Information Network (O*NET). The LCA further states that the proffered position is a Level I, 
entry-level, position. 
With the visa petition, the petitioner submitted evidence that the beneficiary received a master's 
degree in biotechnology from the in Poland, 
an associate's degree in business administration from and a bachelor's 
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degree in nursing from also in Georgia. An evaluation in the record states that 
the beneficiary's degree Polish degree is equivalent to a U.S. master's degree in biotechnology. 
The petitioner also submitted (1) a letter, dated August 29, 2013, from 
petitioner's president; and (2) a letter, dated September 4, 2013, from 
Immigration Legal Office in New York. 
In her August 29, 2013 letter, stated: 
signing as the 
of the 
In [the proffered] position, [the beneficiary] will be responsible for the following 
professional tasks: 
• Provide consultation, guidance, technical assistance, training and 
support on child care issues and early education of all children 
including those with special health or developmental needs; 
• Assist in responding to issues of childhood communicable disease, 
child development, safety and inquiry prevention, nutrition, and family 
health; 
• Administer and coordinate referrals and provide up-to-date 
immunizations for children; 
• Provide guidance and support and care coordination for children and 
families to access mental health consultation and educational services 
for the family and children; 
• Advise and coordinate child care providers in developing general 
policy statements and an annual plan for the child care program such 
as: management of infectious diseases, fevers, and use of medications; 
• Help obtain, understand and use information about health status of 
individual children; 
• Educate children , their family members, and child care providers 
about child development, mental and physical health, safety, nutrition, 
and oral health issues; 
• Link staff, families, and children with community health resources; 
• Identify and implement improvement plans; 
• Increase interactions that promote child's brain development; 
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• Decrease the incidence of injuries; check for proper playground 
equipment, supervision during active play and recruitment of 
competent staff; 
• Decrease the spread of infection; 
• Facilitate child preventative care; Evaluate the information on the 
child health, identify children who are due for immunization, child 
examinations, and other routine care; 
• Provide professional medical knowledge when training staff such as: 
how to interpret the information on the child health records as they 
receive them; 
• Identify necessary changes that can be made to the physical 
environment to accommodate children with special needs; 
• Develop an individualized treatment plan and specific guidelines for 
injuries or conditions of any child with special needs; 
• Provide guidance on children's cultural diversity and meeting their 
needs; [and] 
• Refer children whose behavior, school progress, or mental or physical 
impairement [sic] indicate need for assistance[.] 
As to the educational requirement of the proffered position, stated: 
Due to the complex nature of the [proffered] position we require a Bachelor's Degree 
in Public Health or Nursing. These requirements are consistent with our staff 
requirements for this and similar positions with our company in the United States and 
worldwide. 
September 4, 2013 letter states that entry into the proffered position requires a 
bachelor's degree. 
We observe that signed the Form I-129 visa petition as preparer. However, the 
record contains no indication that participated in filing the instant appeal. For this 
reason, will not be recognized as the petitioner's representative or counsel of record. 
On January 22, 2014, the service center issued an RFE in this matter. The service center requested, 
inter alia, evidence that the petitioner would employ the beneficiary in a specialty occupation. The 
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service center provided a non-exhaustive list of items that might be used to satisfy the specialty 
occupation requirements. 
In response, the petitioner submitted: (1) a vacancy announcement posted by the petitioner; (2) 
vacancy announcements posted by other companies; (3) a portion of the chapter of the U.S. 
Department of Labor's Occupational Outlook Handbook (Handbook) pertinent to health educators; 
( 4) a list of people in the petitioner's employ and their educational credentials; (5) an organizational 
chart showing the hierarchy of the petitioner's operations; (6) a copy of the petitioner's Employee 
Handbook; and (7) a letter, dated April 14, 2014, from 
The petitioner's vacancy announcement which appears to have been posted in a Spanish language 
publication is for bilingual teachers and states no educational requirement. It is of no apparent 
relevance in determining the educational requirements of the proffered position. 
Among the positions listed on the petitioner's employee list and organizational chart are executive 
director, child care director, lead teacher, assistant teacher, and the beneficiary's position. The 
petitioner's organizational chart shows that the beneficiary's position is "Health Care Consultant, 
Child Development & Safety." The petitioner's employee list shows that it is an 
"Administrative/Nurse" position. 
The petitioner's Employee Handbook contains a description of its Executive Director position, its 
child care director position, its lead teacher positions, and its assistant teacher positions. It does not 
list the proffered position. 
In her April 14, 2014 letter, stated that the petitioner provides group child care for 
children from six weeks to five years old. She further stated: 
(The beneficiary] holds Bachelor of Science (sic] degree from 
from Georgia. Moreover she holds a Registered Professional Nurse License, 
no: As well as a Neonatal Resuscitation Certificate, Adult IV Therapy 
· Certificate, and APNEC - Low Risk Labor & Birth Certificate and CRP and AED 
American Heart Association Certificate, as well as Radiologic Technology 
Certificate. (The beneficiary] is a member of an American Nurses Association. 
The director denied the petition on May 6, 2014, finding, as was noted above, that the petitioner had 
not demonstrated that the proffered position qualifies as a position in a specialty occupation by 
virtue of requiring a minimum of a bachelor's degree in a specific specialty or its equivalent. More 
specifically, the director found that the petitioner had satisfied none of the supplemental criteria set 
forth at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
On appeal, the petitioner submitted (1) an additional vacancy announcements, and (2) a letter, dated 
May 13, 2014, from 
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In her May 13, 2014 letter, stated that, in the proffered position, the beneficiary would 
"advise of various topics such as child care, child oral health, nutrition, physical activity, 
immunizations, medical issues, child development and wellness promotion." She further stated: 
[The proffered position] probably falls under the broader category of child, family, 
school social workers. We believe there are also related careers like: Behavioral 
Counselor's, Educational, Guidance, School Counselors, Mental Health Counselors, 
Rehabilitation Counselor's, or Healthcare Social Workers, Public Health Education 
Promoters, Mental Health Social Workers, Health Educators, Social and Human 
Service Assistants, Community Health Workers, Community and Social Service 
Specialist that could resemble ours. 
IV. ANALYSIS 
We find that despite the director's request for additional evidence demonstrating that the proffered 
position is a specialty occupation under any criterion at 8 C.P.R. § 214.2(h)( 4)(iii)(A), the record is 
devoid of substantial documentary evidence as to the specific duties of the proffered position. Given 
the lack of detail and corroborating evidence, we cannot determine that the proffered position 
substantially reflects the duties of a "Health Consultant, Child Development & Safety." The 
petitioner did not submit sufficient documentary evidence demonstrating that it would employ a 
"Health Consultant, Child Development & Safety" for 20 hours a week. When the petitioner filed 
the visa petition, it reported that it was then a six-employee "child care facility" and would employ 
the beneficiary as a "Health Consultant, Child Development & Safety," corresponding to SOC code 
and title 21-1091, Health Educators, from O*NET, for 20 hours per week. There are factors 
suggesting that the petitioner would not employ the beneficiary as a "Health Consultant, Child 
Development & Safety." The petitioner's employee list indicates that the beneficiary's position is 
Administrative/Nurse. The petitioner cares for children between the ages of six weeks and five 
years, and it has not shown with sufficient documentary evidence that it, a daycare, has a need for a 
"Health Consultant, Child Development & Safety." Further, places significant 
importance on the beneficiary's bachelor's degree in nursing, a registered professional nurse license, 
and a neonatal resuscitation certificate. These seemingly conflicting pieces of information and 
assertions, as well as the lack of evidence corroborating the petitioner's claim that the beneficiary 
will work as a "Health Consultant, Child Development & Safety," preclude a determination of what 
the beneficiary will actually do. 
The record is devoid of substantial documentary evidence as to the specific duties of the proffered 
position. Given the lack of detail and corroborating evidence, we cannot determine that the 
proffered position substantially reflects the duties of a "Health Consultant, Child Development & 
Safety" corresponding to SOC code and title 21-1091, Health Educators, from O*NET, for 20 hours 
per week. Moreover, the petitioner also has not adequately explained why it requires the beneficiary 
to perform the duties of a "Health Consultant, Child Development & Safety." 
Thus, the record, as constituted, precludes a determination that the duties of the proffered position are 
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those of a "Health Consultant, Child Development & Safety." There is insufficient basis upon which 
it can be determined that the petitioner has demonstrated a need for a "Health Consultant, Child 
Development & Safety" and that the beneficiary will be performing the claimed duties of a health 
educator. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 
1972)). Furthermore, 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 regulation at 8 C.P.R.§ 214.2(h)(4)(iv) provides that "[a]n H-1B petition involving a specialty 
occupation shall be accompanied by [ d]ocumentation ... or any other required evidence sufficient 
to establish ... that the services the beneficiary is to perform are in a specialty occupation." There 
must be sufficient, corroborating evidence in the record that demonstrates not only actual, non­
speculative employment for the beneficiary, but also enough details and specificity to establish that 
the work the beneficiary will perform for the petitioner will more likely than not be in a specialty 
occupation. While the petitioner provides a description of the proffered position's claimed duties, 
there is insufficient evidence in the record that the petitioner, a child care provider with six 
employees, requires a "Health Consultant, Child Development & Safety." USCIS regulations 
affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. See 8 C.P.R. 103.2(b)(1) and 103.2(b)(12). 
The petitioner's failure to establish the substantive nature of the work to be performed by the 
beneficiary precludes a finding that the proffered position satisfies any criterion at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for a 
common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity or 
uniqueness of the proffered position, which is the focus of the second alternate prong of criterion 2; 
( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is an 
issue under criterion 3; and (5) the degree of specialization and complexity of the specific duties, which 
is the focus of criterion 4. 
Accordingly, as the petitioner has not established that it has satisfied any of the criteria at 8 C.P.R. § 
214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty occupation. 
The appeal will be dismissed and the petition denied for this reason. 
V. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
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