dismissed H-1B Case: Construction

L 
p~veaaPt detidg unwarranted 
i~vwian of prsonal privacy 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 007 53043 Office: CALIFORNIA SERVICE CENTER Date: 1 1 pm 
IN RE: 
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. 5 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 
WAC 04 007 53043 
Page 2 
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 is a construction and development firm with three employees that seeks to extend the 
employment of the beneficiary as a project engineer. The petitioner, therefore, endeavors to classify the 
beneficiary as a nonimmigrant worker in a specialty occupation pursuant to section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. The petitioner 
submits the Form I-290B, along with 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. 4 214.2(h)(4)(iii)(A), to qualifL 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: (I) 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) Form I-290B and attachments. The AAO reviewed the record in its entirety 
before issuing its decision. 
WAC 04 007 53043 
Page 3 
The petitioner is seeking the beneficiary's services as a project engineer. Evidence of the beneficiary's duties 
includes: the Form 1-129; the attachments accompanying the Form 1-129; the company support letter; and the 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail devising engineering programs for use in maintenance, and repair schedules, and 
design of construction equipment; assigning technical tasks to personnel, and supervising and reviewing their 
work to ensure compliance with set standards and the operation, repair and maintenance of the petitioner's 
heavy machinery; evaluating the function and productivity of machines and systems; advising the company 
on ways of improving productivity; conducting feasibility studies and advising on project costs for bidding 
purposes. The petitioner indicated that the proffered position requires a bachelor's degree in engineering. 
The director requested a more detailed job description including specific job duties, the percentage of time to 
be spent on each duty, and level of responsibility. The director requested evidence to establish that the 
position offered meets one of the above listed criteria. The director requested evidence to establish that the 
beneficiary is qualified to perfonn services in the claimed specialty occupation. Additionally, the director 
requested information about the petitioner including quarterly wage reports and a copy of the petitioner's 
organization chart. 
In response to the director's request regarding the beneficiary's qualifications, counsel explained that the 
beneficiary has the equivalent of a bachelor's degree in mechanical engineering and six years of professional 
experience. The petitioner provided an evaluation of the beneficiary's foreign degree indicating that he had 
the equivalent of a bachelor's degree in mechanical engineering. The petitioner provided a percentage 
breakdown of the beneficiary's duties as a project engineer which included: (1) examining the job site, 
analyzing the numerous parameters and requirements of the project, determining the feasibility of client's 
needs with respect to the petitioner's capabilities, and calculating all related variables in order to advise the 
company regarding an appropriate bid for the job (15% of time); (2) providing a documented report of the 
assets to be devoted to the project, and the nature and extent of outside services required; recommending sub- 
contractors; in collaboration with engineers and professionals representing these parties, planning projects and 
devising a schedule of operations; directing the movement of appropriate machinery and implementing an 
infrastructure at the work site (15% of time); (3) dividing engineering programs for use, maintenance, repair 
schedules and designing construction equipment and systems to meet the project requirements; commercial 
air conditioning systems, centralized heating units; gas, water venting and pressure systems in large multi-unit 
residential and commercial projects (30% of time); (4) providing oversight of projects; overseeing and 
directing the installation of the above listed systems by independent contractors; monitoring the operation, 
repair and maintenance of all related machinery and systems; assigning tasks to sub-contractors, and 
supervising and reviewing their work to ensure compliance with set standards and plans; coordinating the 
project's engineering activities, and providing onsite supervision (25% of time); (5) providing professional 
advice on means of improving productivity to protect the petitioner's financial interest; communicating 
findings and suggestions directly with sub-contractors (15% of time). The petitioner asserted that its previous 
project engineer had a bachelor's degree in engineering and provided his educational credentials. The 
petitioner included a newspaper ad for the proffered position. The petitioner provided its organizational chart, 
which included a construction engineer, the proffered position and the owner. The petitioner indicated that it 
uses subcontractors. The petitioner provided a list of sub-contractors. The petitioner provided a contract with 
a homeowners' association for construction and repairs. 
WAC 04 007 53043 
Page 4 
The director found that the duties of the proffered position described the duties of a construction manager, 
which is not considered a specialty occupation. The director referred to the Department of Labor's 
Occupational Outlook Handbook (Handbook) and stated that the information provided indicates that the 
position of construction manager is an occupation that does not require a baccalaureate level of education in a 
specific specialty as a normal industry-wide minimum requirement for entry into the occupation. The director 
found that the submitted information did not indicate that the petitioner normally requires applicants for the 
position to possess baccalaureate or higher-level degrees in the field. The director determined that the 
proposed duties and stated level of responsibility do not indicate complexity or authority that is beyond what 
is normally encountered in the occupational field. Therefore, the director concluded that the proffered 
position is not a specialty occupation. 
On appeal, the petitioner asserts that Citizenship and Immigration Services (CIS) has already determined that 
the proffered position is a specialty occupation since CIS has approved the previous petition for the same 
beneficiary. This record of proceeding does not, however, contain all of the supporting evidence submitted to 
the service center in the prior case. The AAO notes that counsel has submitted some documentation for a 
different petition in which the beneficiary was the same. In the absence of all of the corroborating evidence 
contained in that record of proceeding, the documents submitted by counsel are not sufficient to enable the 
AAO to determine whether the position offered in the prior case was similar to the position in the instant 
petition. 
Each nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. 5 103.8(d). In 
mahng a determination of statutory eligibility, CIS is limited to the information contained in the record of 
proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). Although the AAO may attempt to hypothesize as to whether the 
prior case was similar to the proffered position or was approved in error, no such determination may be made 
without review of the original record in its entirety. If the prior petition was approved based on evidence that 
was substantially similar to the evidence contained in this record of proceeding, however, the approval of the 
prior petition would have been erroneous. Citizenship and Immigration Services (CIS) is not required to 
approve petitions where eligibility has not been demonstrated, merely because of prior approvals that may 
have been erroneous. See, e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 
1988). Neither CIS nor any other agency must treat acknowledged errors as binding precedent. Sussex Engg. 
Ltd. v. Montgomery 825 F.2d 1084, 1090 (6th Cir. 1987)' cert denied, 485 U.S. 1008 (1988). 
On appeal, the petitioner asserts that the proffered position is that of a construction engineer, not a 
construction manager. The petitioner explains that it relies heavily on independent subcontractors and 
without professional engineering supervision its liabilities would increase. The petitioner contends that the 
proffered position requires a Bachelor of Science in engineering and that all the previous employees in the 
proffered position were required to have engineering degrees. On appeal, the petitioner submits several 
letters from clients and subcontractors attesting to the beneficiary's expertise. Additionally, the petitioner 
submitted a letter from its previous project engineer attesting to his employment with the petitioner and a 
copy of his diploma. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
WAC 04 007 53043 
Page 5 
The AAO considers the criteria at 8 C.F.R. $8 214.2(h)(4)(iii)(A)(l) and (2): a baccalaureate or higher degree 
or its equivalent is the normal minimum requirement for entry into the particular position; a 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 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, 1 165 
(D.Minn. 1999)(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 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 agrees with the director's finding that the proffered position is that of a construction manager. The 
Handbook states that construction managers plan and coordinate construction projects. They may have job 
titles as such as constructor, construction superintendent, general superintendent, project engineer, project 
manager, general construction manager, or executive construction manager. They may plan and direct a 
whole project or part of a project. They are responsible for coordinating and managing people, materials, and 
equipment; budgets, schedules and contracts; and safety of employees and the general public. 
The Handbook reports: 
Persons interested in becoming a construction manager need a solid background in building 
science, business, and management, as well as related work experience within the 
construction industry. They need to understand contracts, plans, and specifications, and to be 
knowledgeable about construction methods, materials, and regulations. Familiarity with 
computers and software programs for job costing, scheduling, and estimating also is 
important. 
Traditionally, persons advance to construction management positions after having substantial 
experience as construction craft workers-carpenters, masons, plumbers, or electricians, for 
example-or after having worked as. construction supervisors or as owners of independent 
specialty contracting firms overseeing workers in one or more construction trades. However- 
employers-particularly large construction firms-increasingly prefer individuals who combine 
industry work experience with a bachelor's degree in construction science, construction 
management or civil engineering. Practical industry experience also is very important, 
whether it is acquired through internships, cooperative education programs, or work 
experience in the industry. 
The petitioner fails to establish the first criterion because the Handbook states that employers of engineering 
technicians and construction managers prefer, but do not require, applicants with bachelor's degrees with a 
construction or engineering emphasis. Accordingly, the petitioner has not established that a baccalaureate or 
WAC 04 007 53043 
Page 6 
higher degree or its equivalent in a specific specialty is the normal minimum requirement for entry into the 
proffered position. 
The petitioner has not provided evidence to establish the first alternative prong of the second criterion - that a 
specific degree requirement is common to the industry in parallel positions among similar organizations. 
The petitioner has also failed to satisfy the second alternative prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2), as 
the evidence of record does not establish that the particular position proffered here is so complex or unique 
that it can be performed only by a person with at least a baccalaureate degree in a specific specialty. 
Nor is there evidence in the record to establish the third criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A): that the 
petitioner normally requires a degree or its equivalent for the position. In support of the third criterion the 
petitioner submitted a translation of a diploma of higher education for a degree in thermal anergetics [sic] and 
nuclear energetics of its previous project engineer. The petitioner did not explain how this degree was related 
to the duties of the proffered position or to its construction firm. This information is insufficient to establish 
that the petitioner normally requires a degree in a specialty 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. To the extent they are described in the 
record, the duties do not appear so specialized or complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree. The list of subcontractors and the 
homeowner's association contract submitted by the petitioner do not distinguish the duties of the proffered 
position from other construction managers. The petitioner has not explained how the duties of the position 
are more complex or specialized than what is normal required for this occupation. The petitioner did not 
provide information that could establish that the scale or complexity of the projects would require a project 
engineer with a degree in a specific specialty. The Handbook reveals that the proffered position is performed 
by a construction manager, an occupation that does not require a bachelor's degree in a specific specialty. 
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.