dismissed H-1B Case: Construction

identifyingdatadeletedto
prevent .wsrranted
invasionofpersonalprivacy
PUBLIC COpy
u.s.Department of Homeland Security
20 Massachusetts Avenue NW, Room 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
FILE: SRC 0611751999 Office: TEXAS SERVICE CENTER Date: OCT 2 9 2001
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.s.c. § 1101(a)(l5)(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, Chief
Administrative Appeals Office
www.uscis.gov
SRC 0611751999
Page 2
DISCUSSION: The director 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
dismissed.
The petitioner is a development and construction finn that seeks to employ the beneficiary as an
architectural project director. The petitioner, therefore, endeavors to extend the beneficiary's
nonimmigrant classification as a 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 record of proceeding before the AAO contains(1) the Form 1-129and supporting documentation; (2) the
director's denial letter; (3) the director's request for additional evidence; (4) the petitioner's response to the
director's request; and (5) the Form I-290B and supporting documentation. The AAO reviewed the record in
its entirety before issuing its decision.
The director denied the petition on the basisof her determination that the petitioner had failed to establish that
the proposed position qualifies for classification as a specialty occupation.
Section 214(i)(1) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1184(iX1),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 term "specialty occupation" is further defmed at 8 C.F.R. § 214.2(hX4Xii)as:
An occupation which 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
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)(4XiiiXA),to qualification for classification as a specialty occupation, the
proposed position must meet oneof the following criteria:
(1) A baccalaureate or higher degree or its equivalent is nonnally 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
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(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
baccalaureateor higher degree.
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at
8 C.F.R. § 214.2(h)(4)(iiiXA) to mean not just any baccalaureate or higher degree, but one in a specific
specialty that is directly related to the proposed position.
The petitioner is a development and construction firm. It was established in 2002, has one employee, and
a gross annual income of $462,752. According to the petitioner's February 21, 2006 letter of support, the
duties of the proposed position would include providing guidance to architecture and construction firms
regarding AutoCAD design while also providing technical and professional support, including guiding
clients through the process of obtaining construction permits from Miami-Dade and Broward Counties;
providing clients with expert knowledge on how to effectively supervise construction sites to ensure
compliance with safety and building construction standards; creating, designing, and presenting
architectural plans to clients; and helping clients develop architecture and construction plans for various
. projects, including building and construction budgets, selection of vendors and subcontractors, creating
and submitting bid proposals, and developing and creating construction observation reports.
In determining whether a proposed 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
Department of Labor's Occupational Outlook Handbook (the Handbook) for its information about the
duties and educational requirements of particular occupations.
In her September 14, 2006 denial, the director likened the duties of the proposed position to those of a
construction manager, as such positions are described in the Handbook. The AAO has reviewed the
2006-2007 edition of the Handbook, and agrees. As discussed in the Handbook:
Construction managers plan, direct, and coordinate a wide variety of construction
projects, including the building of all types of residential, commercial, and industrial
structures, roads, bridges, wastewater treatment plants, and schools and hospitals.
Construction managers may oversee an entire project or just part of a project and,
although they usually play no direct role in the actual construction of a structure, they
typically schedule and coordinate all design and construction processes, including the
selection, hiring, and oversight of specialty trade contractors.
Construction managers are salaried or self-employed managers who oversee construction
supervisors and workers. They often go by the job titles program manager, constructor,
construction superintendent, project engineer, project manager, construction supervisor.
general contractor, or similar designations. Construction managers may be owners or
salaried employees of a construction management or contracting firm, or may work under
contract or as a salaried employee of the property owner, developer, contractor, or
management firm overseeing the construction project.
Construction managers coordinate and supervise the construction process from the
conceptual development stage through the final construction, making sure that the project
SRC 06 117 51999
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gets done on time and within budget. They often work with owners, engineers,
architects, and others who are involved in the construction process. Given the designs for
buildings, roads, bridges, or other projects, construction managers oversee the planning,
scheduling, and implementation of the project to execute those designs.
Construction managers oversee the selection of general contractors and trade contractors
to complete specific pieces of the project ....
Construction managers direct and monitor the progress of construction activities,
sometimes through construction supervisors or other construction managers. They
oversee the delivery and use of materials, tools, and equipment; and the quality of
construction, worker productivity, and safety. They are responsible for obtaining all
necessary permits and licenses and, depending upon the contractual arrangements, direct
or monitor compliance with building and safety codes and other regulations. And they
continually track and control construction costs to avoid cost overruns. They may direct
the work of several subordinates, such as assistant managers or superintendents, field
engineers, or crew supervisors.
Having determined that the duties of the proposed position are similar to those of a construction manager,
the AAO next turns to the Handbook's discussion of the position's training requirements in order to
determine whether the occupation normally requires a baccalaureate or higher degree, or its equivalent,
for entry into the profession. The Handbook sets forth the following educational requirements for those
seeking employment as a construction manager:
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 ....
For construction manager jobs, employers increasingly prefer to hire individuals with a
bachelor's degree in construction science, construction management, or civil engineering,
as well as industry work experience. Practical industry experience is very important,
whether it is acquired through an internship, a cooperative education program, or work
experience in a trade or another job in the industry.
Traditionally, persons advanced to construction management positions after having
substantial experience as construction craftworkers-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, as construction processes become increasingly complex,
employers are placing a growing importance on postsecondary education.
The AAO notes that the Handbook specifically states that employers "increasingly prefer" a bachelor's
degree, and that they are placing "a growing importance on" postsecondary education. However, the
statement that employers "increasingly prefer" a bachelor's degree is not synonymous with the "normally
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required" standard imposed by the first criterion. Nor does the statement that employers are placing a
growing importance on postsecondary education satisfy the first criterion, either, as postsecondary
education does not necessarily equate to a bachelor's degree; the Handbook notes that a number of 2-year
colleges offer construction management programs.
In his October 5, 2006 memorandum, counsel contends that the proposed position is not that of a
construction manager, and that the director erred in drawing the comparison:
This is a purely discretionary decision made by the Service. It is the duty of the Service
to take the job description as given by the Petitioner and decide if such is a specialty
occupation, not to decide if that is the job the Beneficiary will actually be performing. It
is an error for the Service to assume that the job the Beneficiary will be performing is
anything other than what the Petitioner has described it to be. Therefore, the Service
must accept the job of the Beneficiary in this case as an Architectural Project Director,
and decide if such is a "specialty occupation" within the meaning of
Section 214(h)(4)(iii)(A) of the Act.
As noted previously, the AAO looks beyond the title of the proposed 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. In this case,
the duties of the proposed position are similar to those of a construction manager, as such positions are
described in the Handbook. The director did not, as asserted by counsel, "assume that the job the
Beneficiary will be performing is anything other that the Petitioner has described it to be." Rather, the
director looked beyond the petitioner's title of the position and looked to its duties, which are similar to
those of construction managers, which according to the Handbook, are also referred to as program
managers, project engineers, project managers, and other, similar designations.
Although counsel asserts that the responsibilities of the proposed position are "much more complex" than
those of construction managers, he has failed to demonstrate that such is the case. Although counsel
states that construction managers are required only to plan, direct, and coordinate a variety of construction
projects, as noted previously, the duties of construction managers entail many responsibilities beyond
those delineated by counsel. The record fails to distinguish the proposed position from that of a
construction manager.
As such, the proposed position does not qualify for classification as a specialty occupation under the first
criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A), that a baccalaureate or higher degree or its equivalent is normally
the minimum requirement for entry into the particular position.
Nor does the proposed position qualify as a specialty occupation under either prong of
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). The first prong of this regulation requires a showing that a specific degree
requirement is common to the industry in parallel positions among similar organizations.
In determining whether the proposed position qualifies as a specialty occupation under the first prong of
8 C.F.R. § 214.2(h)(4)(iii)(A)(2), the AAO determines whether the requirement of a bachelor's degree is
actually the industry standard. Factors often considered by CIS when determining the industry standard
include: whether theHandbook 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."
SRC 06 117 51999
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Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.Minn. 1999)(quoting HirdiBlaker Corp. v. Sava,
712 F. Supp. 1095, 1102 (S.D.N.Y. 1989».
The Handbook does not report that the industry normally requires a bachelor's degree as a minimum
qualification. Nor is there evidence that the industry's professional associations have made a degree a
minimum requirement for entry.'
The AAO has reviewed the job postings submitted by counsel in response to the director's request for
additional evidence. Counsel, however, has failed to consider the specific requirements at
8 C.F.R. § 214.2(h)(4)(iiiXA)(2)for establishing a baccalaureate or higher degree as an industry norm. To
meet the burden of proof imposed by the regulatory language, a petitioner must establish that its degree
requirement exists in parallel positions among similar organizations.
Counsel has submitted no evidence to demonstrate that any of these job postings are from companies
"similar" to the petitioner. For example, there is no evidence that the advertisers are similar to the
petitioner in size and scope of operations, business efforts, and expenditures. Simply 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. 1998) (citing Matter of Treasure
Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972».
Gryphon Networks appears to be a computer services finn. AppleOne is an engineering finn, and its
advertisement does not indicate what duties the position would entail. AIG is an insurance finn, and the
advertised position does not appear similar to the proposed position. Brickman is a landscaping company.
Marriott International is a hospitality company. Although Big-D Construction is a construction company,
the petitioner has submitted no evidence to establish that it is similar to the petitioner in size, scope, and
scale of operations. Moreover, the AAO notes that not all of these job postings require a bachelor's degree,
or its equivalent. For example, the posting from AppleOne states only that a degree is preferred. As noted
previously, employer preferences are not synonymous with employer requirements. Nor do the job postings
establish that the advertised positions are "parallel" to the proposed position. As they are limited to sparse,
generalized, and generic information about the nature of the duties of their positions, these advertisements
do not provide a factual basis for a meaningful comparison with the duties proposed for the beneficiary.
Finally, the AAO notes that these job postings are too few to establish an industry-wide standard,
especially in light of the evidence from the Handbook and the Construction Management Association of
America pointing to the opposite conclusion. Thus, while relevant to this proceeding, the job postings
submitted by counsel are insufficient to establish the petitioner's degree requirement as an industry norm in
parallel positions among similar organizations, and they do not satisfy the requirements of the first prong of
8 C.F.R. § 214.2(h)(4)(iii)(AX2). Accordingly, the AAO finds that the proposed position does not qualify
for classification as a specialty occupation under the first prong of8 C.F.R. § 214.2(hX4XiiiXAX2).
The second prong of 8 C.F.R. § 214.2(hX4XiiiXAX2)requires the petitioner to prove that the duties of the
proposed position are so complex or unique that only an individual with a degree can perform them. The
Handbook reveals that the duties of the proposed position are similar to those of a construction manager as
I See Construction Management Association of America, select Career
Headquarters; select CM as a Career (accessed October 2, 2007). "Some people become professional
CMs [sic] after years of experience in one of the building trades. However, the job today increasingly
requires specific academic preparation as well as construction knowledge." The site notes that two-year,
bachelor's, and master's-level academic preparation is offered by colleges and universities. It does not
indicate that a four-year degree is the normal minimum requirement in the industry.
SRC 0611751999
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outlined in the Handbook,which does not require a degree as a minimum entry requirement. The record
contains no evidence that would support a finding that the position proposed here is more complex or unique
than such positions at organizations similar to the petitioner.
The record does not develop information about the proposed position and its duties with sufficient specificity
and detail to demonstrate uniqueness, complexity, or specialization that would distinguish them from
construction manager positions and attendant duties that neither require nor are associated with at least a
baccalaureate degree in a specific specialty. Therefore, the petitioner has not established that the proposed
position qualifies for classification as a specialty occupation under either prong of
8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
The proposed position does not qualify as a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(3),
which requires a showing that the petitioner normally requires a degree or its equivalent for the position. To
determine a petitioner's ability to meet this criterion, the AAO normally reviews the petitioner's past
employment practices, as well as the histories, including names and datesof employment, of those employees
with degrees who previously held the position, and copies of those employees' diplomas. However, no such
evidence has been presented.
The fourth criterion requires the petitioner to establish that the nature of the specific duties of its proposed
position is so specialized and complex that the knowledge required to perform them is usually associated
with the attainment of a baccalaureate or higher degree. To the extent that they are described, the
proposed duties do not indicate the specialization and complexity required by this criterion. As previously
discussed, the Handbook indicates that a baccalaureate degree in a specific specialty is not the normal
minimum entry requirement.
As already discussed, no evidence has been submitted to demonstrate that the duties of the proposed position
are more specialized and complex than those performed by members of the construction management
occupational groups described in the Handbook which do not hold at least a baccalaureate degree, or the
equivalent, in a specialty occupation. A baccalaureate degree in a specific specialty is not the minimum entry
requirement for this position, and the petitioner has not demonstrated that its position is so specialized and
complex that the knowledge required to perform its duties is usually associated with the attainment ofa
baccalaureate or higher degree.
Thus, the proposed position does not qualify for classification as a specialty occupation under
8 C.F.R. § 214.2(h)(4)(iii)(A)(4).
The petitioner has failed to establish that the proposed position qualifies for classification as a specialty
occupation under any of the criteria set forth at 8 C.F.R. §§ 214.2(h)(4)(iii)(A)(l), (2), (3), and (4).
Accordingly, the AAO will not disturb the director's denial ofthe petition.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act,
8 U.S.C. § 1361. The petitioner has not sustained that burden.
ORDER: The appeal is dismissed. The petition is denied.
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