dismissed H-1B Case: Civil Engineering

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U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 092 52894 Office: CALIFORNIA SERVICE CENTER Date: FEB 2 3 2006 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Petition for a Nonimrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
bddministrative Appeals Office 
WAC 04 092 52894 
Page 2 
DISCUSSION: The director denied the nonirnmigrant 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 construction firm that seeks to employ the beneficiary as a civil engineer. 
 The 
petitioner, therefore, endeavors to classify the beneficiary as a nonimrnigrant 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. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the basis that the petitioner had failed to establish that the beneficiary 
qualifies to perform the services of a specialty occupation. Specifically, the director found that the 
beneficiary's lack of licensure precluded approval of the petition. 
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's RFE response and supporting documentation; 
(4) the director's denial letter; and (5) the Form I-290B and supporting documentation. The AAO reviewed 
the record in its entirety before issuing its decision. 
As a preliminary matter, the AAO notes that the proposed position's status as a specialty occupation is not at 
issue; the AAO accepts the contention that a position as a civil engineer normally qualifies for classification 
as a specialty occupation. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(v), if a state requires licensure in order to work in the specialty occupation, 
the beneficiary must possess such licensure prior to approval of the H-1B petition: 
(A) General. If an occupation requires a state or local license for an individual to fully 
perform the duties of the occupation, an alien (except an H-1C nurse) seeking H 
classification in that occupation must have that license prior to approval of the petition to 
be found qualified to enter the United States and immediately engage in employment in 
the occupation. 
(B) Temporary licensure. If a temporary license is available and the alien is allowed to 
perform the duties of the occupation without a permanent license, the director shall 
examine the nature of the duties, the level at which the duties are performed, the degree 
of supervision received, and any limitations placed on the alien. If an analysis of the facts 
demonstrates that the alien under supervision is authorized to fully perform the duties of 
the occupation, H classification may be granted. 
(C) Duties without licensure. In certain occupations which generally require licensure, a 
state may allow an individual to fully practice the occupation under the supervision of 
licensed senior or supervisory personnel in that occupation. In such cases, the director 
shall examine the nature of the duties and the level at which they are performed. If the 
facts demonstrate that the alien under supervision could fully perform the duties of the 
occupation, H classification may be granted. 
(D) H-1C nurses. For purposes of licensure, H-1C nurses must provide the evidence 
required in paragraph (h)(3)(iii) of this section. 
WAC 04 092 52894 
Page 3 
(E) Limitation on approval of petition. Where licensure is required in any occupation, 
including registered nursing, the H petition may only be approved for a period of one 
year or for the period that the temporary license is valid, whichever is longer, unless the 
alien already has a permanent license to practice the occupation. An alien who is 
accorded H classification in an occupation which requires licensure may not be granted 
an extension of stay or accorded a new H classification after the one year unless he or she 
has obtained a permanent license in the state of intended employment or continues to 
hold a temporary license valid in the same state for the period of the requested extension. 
According to the 2004-2005 edition of the Department of Labor's Occupational Outlook Handbook, "[alll 50 
States and the District of Columbia require licensure for engineers who offer their services directly to the 
public." 
The initial submission made no mention of the beneficiary's qualifications to work as a civil engineer in 
Guam. 
 The director therefore issued a request for evidence, and requested evidence of licensure. In 
response, the petitioner submitted a letter, dated June 22,2004, which did not address whether the beneficiary 
was licensed as an engineer in Guam but indicated only that he would perform his duties under the 
supervision of a licensed civil engineer. 
However, this letter does not satisfy 8 C.F.R. § 214.2(h)(4)(v)(C). While this regulation does permit an alien 
without licensure to work "under the supervision of licensed senior or supervisory personnel in that 
occupation," the petitioner has offered no evidence, as required, that the Territory of Guam allows such a 
practice. Thus, the record does not establish that the beneficiary is able to meet any of the relevant 
requirements at 8 C.F.R. 
 214.2(h)(4)(v)(C). 
 Therefore, the beneficiary does not qualify to perform the 
duties of the specialty occupation. 
Even if the beneficiary were to meet the regulatory requirements regarding licensure the petition would still 
be denied, as the petitioner has failed to establish that the beneficiary meets the threshold baccalaureate 
degree requirement. 
Pursuant to 8 C.F.R. 
 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, an 
alien must meet one of the following criteria: 
(I) 
 Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation from an 
accredited college or university; 
(3) 
 Hold an unrestricted state license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately engaged 
in that specialty in the state of intended employment; or 
(4) 
 Have education, specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree 
in the specialty occupation, and have recognition of expertise in the specialty 
through progressively responsible positions directly related to the specialty. 
WAC 04 092 52894 
Page 4 
In making its determination as to whether the beneficiary qualifies to perform the duties of a specialty 
occupation, the AAO turns to the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(C), as described above. The 
record does not indicate that the beneficiary has earned a degree from a United States institution of higher 
education, so he does not qualify under the first criterion. 
Nor does the beneficiary qualify under the second criterion, which requires a demonstration that the 
beneficiary's foreign degree has been determined to be equivalent to a United States baccalaureate or 
higher degree required by the specialty occupation from an accredited college or university. Although the 
director requested an evaluation of foreign credentials in the request for evidence, such an evaluation was 
not submitted. 
As already discussed, the record does not demonstrate, nor has the petitioner contended, that the 
beneficiary holds an unrestricted state license, registration, or certification to practice the specialty 
occupation, so he does not qualify under the third criterion, either. 
The fourth criterion, set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(C)(4), requires a showing that the 
beneficiary's education, specialized training, and/or progressively responsible experience is equivalent to 
the completion of a United States baccalaureate or higher degree in the specialty occupation, and that the 
beneficiary also has recognition of that expertise in the specialty through progressively responsible 
positions directly related to the specialty. 
Thus, it is the fourth criterion under which the petitioner must classify the beneficiary's combination of 
education and work experience. Pursuant to 8 C.F.R. 3 214.2(h)(4)(iii)(D), equating a beneficiary's 
credentials to a United States baccalaureate or higher degree is determined by one or more of the 
following: 
(I) 
 An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
which has a program for granting such credit based on an individual's training 
and/or work experience; 
(2) 
 The results of recognized college-level equivalency examinations or special 
credit programs, such as the College Level Examination Program (CLEP), or 
Program on Noncollegiate Sponsored Instruction (PONSI); 
(3) 
 An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 
(4) Evidence of certification or registration from a nationally-recognized 
professional association or society for the specialty that is known to grant 
certification or registration to persons in the occupational specialty who have 
achieved a certain level of competence in the specialty; 
(5) 
 A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, andlor work experience in areas related to the specialty and 
that the alien has achieved recognition of expertise in the specialty occupation as 
a result of such training and experience. 
WAC 04 092 52894 
Page 5 
The beneficiary's combination of education and previous experience do not satisfy 8 C.F.R. 
5 214.2(h)(4)(iii)(D)(l), as the record does not contain an evaluation of the beneficiary's foreign training 
and/or work experience. 
No evidence has been submitted to establish, nor has counsel contended, that the beneficiary satisfies 
8 C.F.R. 5 214.2(h)(4)(iii)(D)(2), which requires the submission of the results of recognized college-level 
equivalency examinations or special credit programs, such as the College Level Examination Program 
(CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI). 
Nor does the record offer the evidence required to satisfy 8 C.F.R. 5 214.2(h)(4)(iii)(D)(3). As was the 
case under 8 C.F.R. 5 214.2(h)(4)(iii)(C)(2), the petitioner cannot qualify the beneficiary under this 
criterion because the record does not contain an evaluation of the beneficiary's foreign training andlor 
work experience. 
No evidence has been submitted to establish, nor has counsel contended, that the beneficiary satisfies 
8 C.F.R. 5 214.2(h)(4)(iii)(D)(4), which requires evidence of the beneficiary's certification or registration 
by a nationally-recognized professional association or society for the specialty that is known to grant 
certification or registration to persons in the occupational specialty who have achieved a certain level of 
competence in the specialty. 
The AAO next turns to the fifth criterion. When CIS determines an alien's qualifications pursuant to 
8 C.F.R. 5 214.2(h)(4)(iii)(D)(5), three years of specialized training and/or work experience must be 
demonstrated for each year of college-level training the alien lacks. It must be clearly demonstrated that 
the alien's training and/or work experience included the theoretical and practical application of 
specialized knowledge required by the specialty occupation; that the alien's experience was gained while 
working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty 
occupation; and that the alien's expertise in the specialty has been recognized, as evidenced by at least one 
of the following types of documentation: 
(i) 
 Recognition of expertise in the specialty occupation by at least two recognized 
authorities in the same specialty occupation'; 
(ii) 
 Membership in a recognized foreign or United States association or society in the 
specialty occupation; 
(iii) 
 Published material by or about the alien in professional publications, trade 
journals, books, or major newspapers; 
(iv) 
 Licensure or registration to practice the specialty occupation in a foreign country; 
or 
I 
 Recognized authority means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. A recognized authority's opinion 
must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such opinions, citing 
specific instances where past opinions have been accepted as authoritative and by whom; (3) how the conclusions 
were reached; and (4) the basis for the conclusions supported by copies or citations of any research material used. 8 
C.F.R. § 214.2(h)(4)(ii). 
WAC 04 092 52894 
Page 6 
(v) 
 Achievements which a recognized authority has determined to be significant 
contributions to the field of the specialty occupation. 
As the petitioner did not submit an academic evaluation to establish that the beneficiary's foreign degree 
is equivalent to a degree earned from a United States institution of higher education, it must therefore 
establish that he is qualified to perform the duties of the proposed position under 8 C.F.R. 
5 214.2(h)(4)(iii)(D)(5) based upon his work experience alone. As previously noted, the formula utilized 
by CIS is three years of specialized training andlor work experience for each year of college-level training 
that the alien lacks. A baccalaureate degree from a United States institution of higher education would 
require at least four years of study. Accordingly, the record must demonstrate that the beneficiary has at 
least twelve years of qualifying work experience in order to establish an equivalency in civil engineering. 
The AAO now turns to the beneficiary's prior work experience, and whether it included the theoretical 
owledge required by the specialty. A letter from them 
dicates that the beneficiary worked there as a civil engmeer, 
project manager from May 1997 until at least December 2003. 
 The beneficiary's professional 
identification card from the Philippines indicates that he has been registered as a civil engineer since 
December 198 1. 
However, there is no evidence in the record that would allow the AAO to determine whether this work 
experience included the theoretical and practical application of specialized knowledge required by the 
specialty occupation, whether it was gained while working with peers, supervisors, or subordinates who 
held a degree or its equivalent in civil engineering, and whether the beneficiary achieved recognition of 
expertise in the specialty evidenced by at least one of the five types of documentation delineated in 
sections (i), (ii), (iii), (iv), or (v) of 8 C.F.R. 5 214.2(h)(4)(iii)(D)(5). 
As such, the beneficiary does not qualify under any of the criteria set forth at 8 C.F.R. 
$8 214.2(h)(4)(iii)(D)(1)(2)(3)(4), or (3, and therefore by extension does not qualify under 8 C.F.R. 
3 2 14.2(h)(4)(iii)(C)(4). 
For this additional reason, the beneficiary does not qualify to perform the duties of a specialty occupation. 
The petitioner has failed to establish that the beneficiary qualifies to perform the duties of a specialty 
occupation. The petition was properly denied. Accordingly, the AAO will 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.