dismissed H-1B Case: Construction

identifying data deleted to 
prevent clearly unwmmted 
invasion of persod pi- 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20536 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 256 51396 Office: CALIFORNIA SERVICE CENTER Date: APR 2 6 2006 
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. 1 1 Ol(a)(lS)(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 
WAC 04 256 5 1396 
Page 2 
DISCUSSION: The service center director denied the nonimrnigrant 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, a general contractor, seeks to employ the beneficiary as a construction project engineer 
and to classify him as a nonirnrnigrant worker in a specialty occupation pursuant to section 
10 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 1 10 1 (a)(l 5)(H)(i)(b). 
The director denied the petition on the basis that the proposed position is not a specialty occupation. On 
appeal, counsel submits a brief and additional evidence. 
Section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
tj 1 lOl(a)(l5)(H)(i)(b), provides, in part, for the classification of qualified nonimmigrant aliens who are 
coming temporarily to the United States to perform services in a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. tj 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. 3 214.2(h)(4)(iii)(A), to qualify 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. 
tj 214.2(h)(4)(iii)(A) to mean not just any bachelor's or higher degree, but one in a specific specialty that 
is directly related to the proposed position. 
The record of proceedings before the AAO contains: (1) Form 1-129 and supporting documentation; (2) 
the director's request for further evidence (RFE); (3) the petitioner's response to the RFE; (4) the 
WAC 04 256 51396 
Page 3 
director's denial letter; and (5) the Form I-290B with brief and supporting documentation. The AAO 
reviewed the record in its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a construction project engineer. Evidence of the 
beneficiary's duties includes the Form 1-129 petition with attachment, the petitioner's response to the 
RFE and the petitioner's revised support letter submitted on appeal. The petitioner listed the following 
proposed duties in the initial petition: 
1. Analyze, research and design engineering specifications, drawings and 
schematics of construction projects including costs, time estimates for 
construction bidding projects. 
2. Analyze and review construction requirements, data and blueprints to plan and 
design construction projects. 
3. Develop detailed engineering analysis and calculations to determine feasibilitjl of 
projects based on analysis of collected data applying knowledge and techniques 
of construction engineering and mathematics. 
4. Prepare engineering construction plans, reports, specifications, safety and 
environmental impact analysis and designs for projects. 
5. Monitor and inspect construction site to monitor progress and ensure compliance 
with engineering plans, specifications and construction and safety standards. 
6. Prepare engineering and design plans using computer-aided software. 
7. Prepare construction report on all projects with emphasis on engineering, safety, 
and costs projections. 
The petitioner stated that the position required the beneficiary to possess a bachelor's degree in 
engineering. 
In response to the RFE the petitioner submitted this list of proposed duties: 
Act as project engineer for construction work. 
Manage and coordinate construction projects and prepare construction schedules. 
Plan, organize, direct, control and evaluate construction projects from start to finish 
according to schedule, specifications, and budget. 
Ensure construction plans meet guidelines and specifications of building codes and other 
regulations. 
Establish and monitor construction work schedules. 
Prepare contract documents and review and evaluate tenders for construction projects. 
Prepare and submit construction project estimates. 
Prepare bids for construction and renovation projects. 
Prepare estimates of probable costs of materials, labor and equipment for construction 
projects based on contract bids, quotations, schematic drawings and specifications. 
WAC 04 256 5 1396 
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On appeal, the petitioner submits another list of proposed duties divided between "pre-construction" 
duties, "construction" duties, and "post-construction'' duties. The list of duties is as follows: 
Confer with clients and other members of the engineering team and conduct 
research to determine project requirements 
Conduct site inspections 
Prepare contract documents and review and evaluate tenders for construction 
projects 
Review engineering plans and specifications, prepare material take-off and cost 
estimates 
Prepare and submit construction project budget estimates 
Prepare bid proposals 
Plan and prepare construction schedules and milestones 
Prepare contracts and negotiate revisions, changes, and additions to contractual 
agreements with architects, consultants, clients, suppliers, and subcontractors 
Represent company on matters such as business services 
Develop construction specifications and procedures 
Construction: 
Plan, organize, direct, control and evaluate construction projects from start to 
finish according to schedule, specifications and budget 
Ensure construction plans meet guidelines and specifications of building codes 
and other regulations 
Establish and monitor construction work schedules 
Act as project engineer for construction work 
Prepare progress reports and issue progress schedules to clients 
Coordinate with the General Contractor/Owner/Construction Manager and other 
Engineering Disciplines (Electrical/Sanitary/Mechanical/Etc.) during all phases 
of construction 
Post Construction: 
Review and supervise implementation of punch lists 
Prepare value engineering report for each project 
Under the description of the proposed position, the petitioner listed the names of nine members of the 
engineering crew, presumably who would work under the construction project engineer. The complete 
job description of the engineering crew was as follows: "install and service flooring products in 
residential and commercial properties." 
WAC 04 256 51396 
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The director found that the proposed position was not an engineering position but that of a construction 
manager that oversaw the installation of flooring, a position that did not qualify as a specialty occupation 
and failed to meet any of the criteria of 8 C.F.R. $ 214.2(h)(4)(iii)(A). 
On appeal, counsel asserts that the position of construction manager is in transition to that of a specialty 
occupation. Counsel asserts that the submitted job announcements show that a bachelor's degree in civil 
engineering is the normal minimum requirement for the proposed position and that the complexity of 
construction management projects is increasing and that employers are increasingly seeking individuals 
with bachelor's degrees in construction management, civil engineering, or related fields. Counsel asserts 
that the petitioner does not only install flooring but also works in conjunction'with other construction 
professionals to plan, organize, and complete buildings. Finally, counsel asserts that the petitioner's 
revised company support letter submitted on appeal shows that the proposed position involves several 
duties associated with civil engineers and that the position of civil engineer requires a bachelor's degree 
in that specialty. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
$ 214.2(h)(4)(iii)(A). Therefore, the proposed position is not a specialty occupation. 
To determine whether or not 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 bachelor's degree in a specific field of study as the 
minimum for entry into the occupation as required by the Act. 
The AAO routinely consults the Handbook for its information about the duties of particular occupations. 
Based on a thorough review of the file and the Handbook's discussion of occupations involving 
construction, the AAO finds that the proposed position most resembles that of a carpet and flooring 
installer/carpenter supervisor, not those of a construction manager. The record reflects that the 
beneficiary will supervise a crew of nine in the installation of a variety of floor coverings and in the 
remodeling of individual residential apartment units. Although the petitioner describes the job duties of a 
construction manager, no evidence of record demonstrates that the beneficiary's duties would exceed the 
competency of a carpet and floor installer/carpenter supervisor. 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 (Cornm. 1998) (citing Matter of Treasure Craft of California, 
14 I&N Dec. 190 (Reg. Comm. 1972)). 
In response to the RFE, the petitioner asserted that it was a general contractor specializing in the sales, 
distribution, and installation of all types of floor covering materials. The petitioner further asserted that it 
was "venturing into large private and government projects." The documentation the petitioner submitted 
with the RFE indicates that it installs a variety of flooring. The documents the petitioner submits on 
appeal reveals that the petitioner has expanded into remodeling individual residential condominium units. 
These documents do not establish that the petitioner handles large private and government projects that 
require the services of a construction manager with a degree in construction management, civil 
engineering, or a related field. See Matter of Sofici. On appeal, counsel asserts that the petitioner "works 
in conjunction with other construction professionals and contractors on a project site to plan, organize, 
and complete buildings." Again, the supporting documentation only reveals that the petitioner installs 
WAC 04 256 5 1396 
Page 6 
flooring materials and renovates individual apartments by removing and disposing of plumbing fixtures, 
installing shower glass doors, and installing lighting. There is no documentation to support the assertion 
that the petitioner is involved in the construction of buildings. Without documentary evidence to support 
the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 
1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
Counsel asserts on appeal that the proposed position includes duties associated with civil engineers, such 
as the review and analysis of construction specifications and ensuring compliance with safety codes and 
other regulations, but does not submit documentation to support that assertion. See Matter of Obaigbena. 
The petitioner need only satisfy one of the criterion at 8 C.F.R. 214.2(h)(4)(iii)(A) to show that a position 
is a specialty occupation. To determine whether the position is a specialty occupation, the MO first 
turns to the first criterion at 8 C.F.R. 214.2(h)(4)(iii)(A) - a bachelor's or higher degree or its equivalent, 
in a specific field of study is normally the minimum requirement for entry into the particular position. 
The Handbook's discussion of the educational requirements for carpeting and flooring installers and 
carpenters indicates that no fonmal education is needed to become a caryet or flooring installer or 
carpenter. Most skills necessary to perform the duties of these jobs can be acquired on the job. 
Individuals in those positions may advance to carpentry supervisor or general construction supervisor 
positions. As those without bachelor's degrees may be promoted into the position of carpet and flooring 
installerlcarpenter supervisor, the petitioner fails to establish that a bachelor's or higher degree in a 
specific field of study is the normal minimum requirement for entry into the proposed position. The 
petitioner has not, therefore, satisfied the first criterion of 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
The MO turns next to the first alternative prong of the second criterion at 8 C.F.R. 214.2(h)(4)(iii)(A) 
-a specific degree requirement is common to the industry in parallel positions among similar 
organizations. To determine if a position is a specialty occupation under this criterion, CIS generally 
considers whether or not letters or affidavits from companies or individuals in the industry attest that such 
companies "routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 
2d 1151, 1165 (D.Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 
1989)). The petitioner did not submit a letter from a national association, survey results, or other such 
documents to establish an industry-wide requirement for a bachelor's degree in a civil engineering or a 
related field. The job announcements the petitioner submits either do not describe the duties with sufficient 
particularity to determine if they are similar to the proposed position, or are from companies dissimilar to the 
petitioner, a general contractor specializing in flooring and residential apartment remodeling with a 
construction crew of nine. Going on record without supporting documentation is not sufficient to meet the 
burden of proof in these proceedings. See Matter of SofJici. 
The MO now turns to the third criterion at 8 C.F.R. $214.2(h)(4)(iii)(A) - the employer normally 
requires at least a bachelor's degree or its equivalent, in a specific field of study, for the position. To 
determine a petitioner's ability to meet the third criterion, the AAO normally reviews the petitioner's past 
employment practices, as well as the histories, including the names and dates of employment, of those 
employees with degrees who previously held the position, and copies of those employees' diplomas. 
However, there is no evidence in the record to suggest, nor does the petitioner contend, that the proposed 
position qualifies for classification as a specialty occupation under this criterion. As such, the position 
does not qualify as a specialty occupation under 8 C.F.R. 9 214.2(h)(4)(iii)(A)(3). 
WAC 04 256 5 1396 
Page 7 
Finally, the AAO turns to the criteria related to the complexity, uniqueness, or specialized nature of the 
proposed position. A petitioner satisfies the second alternative prong of the second criterion at 8 C.F.R. 
4 214.2@)(4)(iii)(A)(2) if it establishes that a particular position is so complex or unique that it can be 
performed only by an individual with a bachelor's degree in a specific field of study. The criterion at 
8 C.F.R. fj 214.2(h)(4)(iii)(A)(4) requires a petitioner to 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 bachelor's or higher degree in a specific field of study. On appeal, counsel asserts that the 
nature of the specific duties of the proposed position is so specialized and complex that the knowledge 
required to perform the duties is usually associated with the attainment of a bachelor's degree or its 
equivalent. Counsel did not submit evidence establishing that the proposed position is a specialty 
occupation based on its complexity, uniqueness, or specialized nature. Without documentary evidence to 
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. Matter of 
Obaigbena. The duties of the proposed position are standard in the industry for supervisory carpeting and 
flooring installers/carpenters. They are not so complex or unique that only an individual with a degree in 
civil engineering or a related field can perform them. Nor are they so specialized and complex that 
knowledge required to perform them is usually associated with the attainment of a bachelor's or higher 
degree in civil engineering or a related field. The documentary evidence submitted, including bid 
proposals for flooring and remodeling jobs, shows that the beneficiary will supervise a crew that will rip 
out floors, install carpet and vinyl, and replace shower doors and kitchen sinks. Although the 
docun~entation shows that the beneficiary is qualified to perform the duties of a specialty occupation, i.e., 
civil engineer, none of the documentation establishes that the position being offered to him requires a 
bachelor's degree in that specialty. The petitioner has not satisfied the criteria at 8 C.F.R. 
9 214.2(h)(4)(iii)(A)(2) or (4). 
The petitioner has failed to establish that the proposed position qualifies for classification as a specialty 
occupation under any of the four criteria set forth at 8 C.F.R. 214.2(h)(4)(iii)(A). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
4 1361. The petitioner has not sustained that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.