dismissed H-1B Case: Childcare

MATTER OF M-E-G- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 30, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a childcare and after school center, seeks to temporarily employ the Beneficiary as an 
"administrator" under the H-IB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-IB program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner did not sufficiently establish that the proffered position qualifies as a specialty occupation. 
Upon review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U .S.C. § 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 regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
Matter of M-E-G- Inc. 
(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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted 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 proposed 
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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as an administrator. In 
response to the Director's request for evidence (RFE), the Petitioner provided the following job 
duties for the proffered position: 
• Planning, organizing, supervising and directing the daily pick-up routes to ensure 
that every student is safely transported from public and private schools to [the 
Petitioner] (the candidate will spend 60% of time on this function); 
Coordinating with public and private schools with respect to bell schedule and 
student pick-u procedures and arrangements (10%); 
Communicating with parents and school administrators regarding schedule 
changes (5%); 
Assuring ready access to an up-to-date route sheet for each scheduled route 
(20%); 
Assuring each scheduled route is appropriately covered by utilizing available 
relief or substitute drivers/assistants ( 10% ); 
Maintaining an accurate daily attendance roster of drivers and assistants (1 0% ); 
Responding to emergency situations in a timely manner (5%); 
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Matter of M-E-G- Inc. 
• Planning and coordinating academic and nonacademic activities (the candidate 
will spend 40% oftime on this function); 
Maintaining students' enrollment, and attendance database (5%); 
Planning, scheduling, and coordinating academic and cultural/language classes 
(5%); 
Planning and coordinating grade-appropriate cultural and extracurricular 
enrichment activities as part of the school year operations and part of the day­
camps while schools are not in session (5%); 
Assisting the Director of [the Petitioner] in scheduling and managing teachers and 
staff (5%); 
First line responsibility under the Director of [the Petitioner] to ensure the smooth 
operation on daily basis by overseeing various administrative functions such as 
scheduling staff; directing/organizing, communicating with parents and public 
schools about student discipline matters, and supervising staff and student 
activities to ensure the safety procedures are proper[l]y followed (1 0%); and 
Assisting in determining and implementing school organization, student language 
and academic proficiency evaluation, class placement and interact with parents to 
meet the needs and expectations of individual students (10%). 
According to the Petitioner, the position requires a bachelor's degree "either in science or any 
humanity discipline where the candidate was exposed to a vigorous academic training through which 
the candidate was prepared for and has demonstrated the requisite intellect necessary to perform the 
jo~." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation.' 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation? 
1 
Although some aspects of the regulatory criteria may overlap, we will address each of the criteri~ individually. 
2 
The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
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Matter of M-E-G- Inc. 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.3 
On the labor condition application (LCA)4 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Education Administrators, 
Preschool and Childcare" corresponding to the Standard Occupational Classification code 11-9031.5 
We reviewed the chapter of the Handbook that corresponds with the standard occupational 
classification code listed on the LCA, which is entitled "Preschool and Childcare Center Directors," 
including the sections regarding the typical duties and requirements for this occupational category. 
Upon review of the job descriptions provided by the Petitioner, we are not persuaded that the 
proffered position falls under the occupational category of "Preschool and Childcare Center 
Directors." 
The subchapter of the Handbook entitled "What Preschool and Childcare Center Directors Do" 
states the following about this occupational category: 
• Supervise preschool teachers and childcare workers 
3 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USC IS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
4 The Petitioner is required to submit a certified LCA to USCIS to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage 
paid by the employer to other employees with similar experience and qualifications who are performing the same 
services. See Matter ofSimeio Solutions, LLC, 26 l&N Dec. 542, 545-546 (AAO 20 15). 
5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: ( 1) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC _Guidance_ Revised _11_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and pr"ogresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. /d. 
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Matter of M-E-G- Inc. 
• Hire and train new staff members 
• Provide training and professional development opportunities for staff 
• Establish policies and communicate them to staff and parents 
• Develop educational programs and standards 
• Ensure instructional excellence 
• Assist staff in resolving conflicts between children 
• Aid staff in communicating with parents I 
• Meet with parents and staff to discuss students' progress 
• Prepare budgets and allocate program funds 
• Ensure facilities are maintained and cleanea according to state regulations· 
Upon review of the job description, it appears that the duties of the proffered position do not 
sufficiently align with the duties of "Preschool and Childcare Center Directors." Specifically, the 
Handbook indicates that "Preschool and Childcare Center Directors" will: "supervise preschool 
teachers and childcare workers;" "hire and train new staff members"; "establish policies and 
communicate them to staff and parents"; and, "develop educational programs and standards." This 
description differs from the duties that will be performed by the Beneficiary, who will spend 60 
percent of her time planning, organizing, supervising and directing the daily pick-up routes. In 
addition, the Beneficiary will assist with planning and scheduling, and maintaining student 
enrollment. It does not appear that the Beneficiary will supervise and train staff or establish policies 
or develop educational programs. In addition, the Petitioner stated that the Beneficiary will assist 
the Director and will work under the Director; thus, the Beneficiary will not be the Director of the 
school. 
Given that the proffered position does not appear to fall within this occupational category, the 
Petitioner did not establish the substantive nature of the work to be performed by the Beneficiary. 
Therefore, we are precluded from finding that the proffered position is a specialty occupation under 
any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), becau~e it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for entry into 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. Thus, the 
petitioner has not satisfied any of the criteria under the applicable provisions at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A). 
Matter of M-E-G- Inc. 
However, even if the Petitioner can establish that the Beneficiary's duties closely align with the 
duties of "Preschool and Childcare Center Director," the Handbook does not support a conclusion 
that this occupation normally requires at least a bachelor's degree in a specific specialty, or its 
equivalent, for entry into the occupation. 
More specifically, the subchapter of the Handbook entitled "How to Become a Preschool and 
Childcare Center Director" states the following about this occupational category: 
Most states require preschool and childcare center directors to have at least an 
associate's or bachelor's degree in early childhood education. These degree programs 
teach students about child development, provide strategies for teaching young 
children, and discuss how to observe and document children's progress. Employers 
may prefer candidates who have a degree, or at least some postsecondary coursework, 
in early childhood education. 
The Handbook states that a worker with an associate's degree may quality for the position; the 
Handbook does not support the assertion that at least a bachelor's degree in a specific specialty, or 
its equivalent, is normally the minimum requirement for entry into this occupational group. 
Moreover, the Petitioner stated that the position requires a bachelor's degree "either in science or 
any humanity discipline:" Thus, the Petitioner does not require at least a baccalaureate degree in a 
specific specialty, or its equivalent. USCIS has consistently interpreted 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 proposed position. See Royal Siam, 484 F.3d at 
147. 
In addition, the Petitioner states that O*NET assigns the occupational category, "Education 
Administrators, Preschool and Childcare Center/Program," a Job Zone Four rating. According to 
O*NET, "[m]ost of these occupations require a four-year bachelor's degree, but some do not." The 
Petitioner also cited to O*NET whereby it indicated that 63% of people in this position have a 
bachelor's degree. Notably, O*NET is not particularly useful in determining whether a 
baccalaureate degree in a specific specialty, or its equivalent, is a requirement for a given position, 
as O*NET's Job Zone designations make no mention of the specific field of study from which a 
degree must come. As was noted previously, we interpret 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. Thus, a designation of Job Zone 
Four does not-demonstrate that at least a bachelor's degree in a spec(fic specialty is normally the 
minimum requirement for entry, and does not, therefore, demonstrate that a position so designated 
qualifies as a specialty occupation as defined in section 214(i)(l) of the Act and 8 C.F.R. 
§ 214.2(h)(4)(ii). 
Upon review of the totality of the evidence in the entire record of proceedings, the Petitioner has not 
provided documentation from another probative source to substantiate its assertion regarding the 
minimum requirement for entry into this particular position. Thus, the Petitioner has not satisfied 
the first criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
Matter of M-E-G- Inc. 
B. Second Criterion 
The second criterion presents two, alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS 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 from 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 1151, 1165 (D.Minn. ' . 
1999)(quotingHird/BlakerCorp. v. Sava, 712F. Supp.1095, 1102(S.D.N.Y.1989)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook reports an industry-wide requirement for at least a bachelor's degree in a specific 
specialty or its equivalent. Nor are there any submissions from a professional association in the 
Petitioner's industry stating that individuals employed in positions parallel to the proffered position are 
routinely required to have a minimum of a bachelor's degree in a specific specialty or its equivalent for 
entry into those positions. 
Thus, the Petitioner has not satisfied therfirst alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. '§ 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
Upon review of all of the documentation submitted, the evidence of record does not satisfy the 
second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is satisfied if the Petitioner 
shows that its particular position is so complex or unique that it can be performed only by an 
individual with at least a bachelor's degree in a specific specialty, or its equivalent. As discussed 
Matter of M-E-G- Inc. 
previously, the Petitioner does not require at least a baccalaureate degree in a specific specialty, or 
its equivalent for the proffered position. 
The record contains several documents regarding the Petitioner's activities; after school program, 
summer program, and the curriculum, as well as its organizational structure. The Petitioner stated 
that the "greatest challenge in [the Petitioner's] operating is the organization of daily pick-up of 
students when they are dismissed ,from public and private school, which is occupied 60% of 
candidate's time in the position of Administrator .... " The Petitioner also stated that it has "more 
than 100 students from around 10 public and private schools in the area that have the same bell 
schedule." However, the Petitioner did not demonstrate how the duties of the proffered position as 
described in the record require the theoretical and practical application of a body of highly 
specialized knowledge such that a bachelor's or higher degree in a specific specialty, or its 
equivalent, is required to perform them. 
The Petitioner stated that the Beneficiary obtained a bachelor's degree in economics and she took 
courses such as "cognitive psychology, developmental psychology, micro-theory, industry 
organization, analysis or economic data, economic development, public finance, etc.," and that all of 
these courses "enhanced [her] understanding and comprehension of the principles and applications 
of statistics and economics, which greatly help her perform duties in this position." However, it is 
not clear how these courses are relate to the proffered position when 60 percent of the Beneficiary's 
job duties1 requires coordinating the pick-up schedule of students. The Petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform the duties it may believe are so complex and unique. 
While a few related courses may be beneficial, or even required, in performing certain duties of the 
position, the Petitioner did not demonstrate how an established curriculum of such courses leading to 
a baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perfom'l the 
duties of the proffered position. The description of the duties does not specifically identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. The 
record lacks sufficiently detailed information to distinguish the proffered position as more complex 
or unique from other positions that can be performed by persons without at least a bachelor's degree 
in a specific specialty, or its equivalent. 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references her 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently develop relative 
complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. 
Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
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Matter of M-E-G- Inc. 
C. Third Criterion 
The third criterion of 8 C.F .R. § 214.2(h)( 4 )(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. The 
record must establish that a petitioner's stated degree requirement is not a' matter of preference for 
high-caliber candidates but is necessitated instead by performance requirements of the position. See 
Defensor, 201 F.3d at 387-88. Were USCIS limited solely to reviewing the Petitioner's claimed 
self-imposed requirements, then any individual with a bachelor's degree could be brought to the 
United States to perform any occupation as long as the Petitioner created a token degree 
requirement. Id. Evidence provided in support of this criterion may include, but is not limited to, 
documentation regarding the Petitioner's past recruitment and hiring practices, as well as 
information regarding employees who previously held the position. 
As mentioned, the Petitioner does not require a bachelor's degree in a specific specialty, or its 
equivalent for the proffered position. In response to the RFE, the Petitioner stated that since it was 
established, every employee serving in the position of administrator held either a master's or a 
bachelor's degree. The Petitioner explained that it currently employs a part-time administrator who 
holds a bachelor's degree in education. In addition, the Petitioner stated that a former administrator 
held a master's degree in history and a bachelor's degree in Chinese modern history. Further, the 
Petitioner stated that it is "actively recruiting new Administrators" and will extend two offers: one 
for a candidate that has obtained a bachelor's degree in literature and the second for a candidate who 
has obtained a bachelor's degree in computer science. Thus, the Petitioner does not require a degree 
in a specific specialty since it has employed and will employ individuals that hold bachelor's degrees 
in very different fields of study. 
The Petitioner did not sufficiently establish that it has a history of hiring administrators with a 
bachelor's degree in a specific specialty, or its equivalent. Therefore, the Petitioner has not satisfied 
the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
I 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher·degree in a specific specialty, or 
its equivalent. 
On appeal, the Petitioner claims that the nature of the proffered position's duties is so specialized and 
complex that the knowledge requireCl to perform them is usually associated with the attainment of a 
baccalaureate or higher degree in the specific specialty, or its equivalent. The Petitioner states that the 
Beneficiary will have supervisory tasks and will be the second-in-command for its operations, and will 
supervise complicated schedules. However, the duties as described lack sufficient specificity to 
distinguish the proffered position from other administrator positions for which a bachelor's or higher 
degree in a specific specialty, or its equivalent, is not required to perform their duties. 
9 
Matter of M-E-G- Inc. 
Moreover, the Petitioner .has designated the proffered position as a Level I position on the LCA, 
indicating that it is an entry-level position fqr an employee who has only basic understanding of the 
occupation. The Petitioner's designation of this position as a Level I, entry-level position 
undermines its claim that the position is particularly complex, specialized, or unique compared to 
other positions within the same occupation. 6 
The Petitioner has not demonstrated in the record that its proffered position is one with duties 
sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
Because the Petitioner has'not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstr.ated that the proffered position qualifies as a specialty occupation. 
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. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-E-G- Inc., ID# 170919 (AAO Jan. 30, 20 17) 
6 Nevertheless, a Level I wage-designation does not preclude a proffered position from classification as a specialty 
occupation, just as a Level IV wage-designation does not definitively establish such a classification. In certain 
occupations (e.g., doctors or lawyers), a Level I, entry-level position would still require a minimum of a bachelor's 
degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not 
reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry 
requirement of at least a bachelor's degree in a specific specialty, or its equivalent. That is, a position's wage level 
designation may be a relevant factor but is not itself conclusive evidence that a proffered position meets the requirements 
of section 214(i)(l) of the Act. 
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