dismissed H-1B Case: Construction Consulting

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 03 246 52475 Office: CALIFORNIA SERVICE CENTER Date: sEp 8 1 2005 
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. 8 1 lOl(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, Director 
Administrative Appeals Office 
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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 provides insurance and financial services. It seeks to employ the beneficiary as a 
construction/property consultant. 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. 8 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief and previously submitted evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. 8 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. 8 214.2@)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(1) 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: (1) 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 
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director's denial letter; and (5) Form I-290B and supporting documentation. The MO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a construction/property consultant. 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 projecting risk evaluations; handling pre-insurance sales 
inspections; evaluating property and structural damage from water, collapse, and fire losses; conducting real 
estate inspections before selling insurance; carrying out constructability evaluations and developing risk 
models to manage and control schedule and cost risks; implementing process methodologies to 
controllprevent construction claims; handling construction defect cases and preparing repair completion 
reports; maintaining knowledge of construction practices, structural design, and acceptable and satisfactory 
work by trade crews; resolving issues relating to claims, including coverage analysis and delaylimpact 
investigations; and training others on project management methodologies and tools to enhance the petitioner's 
ability to handle large-scale initiatives and maintain profitability. The petitioner stated that the proposed 
position requires at least a bachelor's degree in construction, engineering, or a related discipline and skill and 
experience in construction management, contracts administration andfor procurement, claims processing, cost 
estimating and scheduling, and project controls. 
The director stated that the proposed position resembles a construction manager as that occupation is 
described in the Department of Labor's Occupational Outlook Handbook (the Handbook), and that the 
Handbook reveals that employers do not require a baccalaureate degree in a specific specialty for this 
position. The director found that no evidence established that the proposed position qualifies as a specialty 
occupation. 
On appeal, counsel states that the proposed position combines the functions of an operations research analyst 
and a construction manager, and that the Handbook reveals that employers require at least a master's degree 
for this. Counsel claims that the beneficiary will cany out extensive computer modeling and simulation; and 
that the position requires a rigorous foundation in engineering design and analysis, and knowledge in civil 
engineering, computer science, and management. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO first considers the criteria at 8 C.F.R. $8 214.2(h)(4)(iii)(A)(I) 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 
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"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 
(D.Minn. 1999)(quoting Hird/Blaker COT. 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 routinely consults the Handbook for its information about the 
duties and educational requirements of particular occupations. 
The proposed duties are encompassed within the description of a claims adjuster and appraiser as those 
occupations are depicted in the Handbook. The AAO sets forth the Handbook text about these occupations 
here: 
Adjusters plan and schedule the work required to process a claim that would follow, for 
example, an automobile accident or damage to one's home caused by a storm. They 
investigate claims by interviewing the claimant and witnesses, consulting police and hospital 
records, and inspecting property damage to determine the extent of the company's liability. 
Adjusters may also consult with other professionals, such as accountants, architects, 
construction workers, engineers, lawyers, and physicians, who can offer a more expert 
evaluation of a claim. The information gathered, including photographs and written or taped 
statements, is set down in a report that is then used to evaluate a claim. When the 
policyholder's claim is legitimate, the claims adjuster negotiates with the claimant and settles 
the claim. When claims are contested, adjusters will work with attorneys and expert witnesses 
to defend the insurer's position. 
Another occupation that plays an important role in the accurate settlement of claims is that of 
the appraiser, whose role is to assess the cost or value of an insured item. 
The beneficiary will project risk evaluations; handle pre-insurance sales inspections; evaluate property and 
structural damage from water, collapse, and fire; conduct real estate inspections before selling insurance; 
carry out constructability evaluations and develop risk models to manage and control schedule and cost risks; 
implement process methodologies to controllprevent construction claims; handle construction defect cases 
and prepare repair completion reports; maintain knowledge of construction practices, structural design, and 
acceptable and satisfactory work by trade crews; resolve issues relating to claims, including coverage analysis 
and delaylimpact investigations; and train others on project management methodologes and tools. Similarly, 
an appraiser assesses the cost or value of an insured item; and a claims adjuster plans and schedules the work 
required to process a claim for damage, for example, to a home caused by a storm; investigates claims by 
inspecting property damage to determine the extent of the company's liability; consults with architects, 
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construction workers, engineers, and accountants, who can offer a more expert evaluation of a claim; and 
evaluates, negotiates, and settles the claim. 
The Handbook reports the following about the qualifications required for a claims adjuster and an appraiser: 
Training and entry requirements vary widely for claims adjusters, appraisers, examiners, and 
investigators. Although many in these occupations do not have a college degree, most 
companies prefer to hire college graduates. No specific college major is recommended, but a 
variety of backgrounds can be an asset. A claims adjuster, for example, who has a business or 
an accounting background might specialize in claims of financial loss due to strikes, 
equipment breakdowns, or damage to merchandise. College training in architecture or 
engineering is helphl in adjusting industrial claims, such as those involving damage from 
fires or other accidents. Some claims adjusters and examiners apply expertise acquired 
through specialized professional training to adjust claims. . . . 
In light of the above passage, the Handbook indicates that employers do not require a bachelor's degree in a 
specific specialty for a claims adjuster or an appraiser; and since the proposed position is similar to these 
occupations, it would not require a bachelor's degree in construction, engineering, or a related discipline. 
The AAO notes that the petitioner's job announcement that is placed on Allstate letterhead does not state that 
the petitioner requires a bachelor's degree in construction, engineering, or a related discipline for the position 
of a construction/property consultant. 
For the reasons set for above, the petitioner fails to establish the first criterion at 8 C.F.R. 
8 2 14.2(h)(4)(iii)(A): that a baccalaureate or higher degree or its equivalent in a specific specialty is normally the 
minimum requirement for entry into the particular position. 
The submitted job postings fail to establish the first alternative prong at 8 C.F.R. 214.2(h)(4)(iii)(A)(2): that 
a specific degree requirement is common to the industry in parallel positions among similar organizations. 
Construction Placement does require a bachelor's degree. Zurich North America is a billion dollar insurance 
and financial services company; thus, it is not similar to the petitioner, a small insurance/financial services 
provider with four employees. Therefore, the postings fail to establish that a degree requirement is common 
to the industry in parallel positions among similar organizations. 
No evidence is in the record that would establish the second alternative prong at 8 C.F.R. 
8 214.2(h)(4)(iii)(A)(2), which is that the proffered position is so complex or unique that it can be performed 
only by an individual with a degree. Again, the Handbook discloses that the proposed position is analogous 
to a claims adjuster and an appraiser, which are occupations that do not require a bachelor's degree in a 
specific specialty. 
No evidence establishes the third criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A): that the petitioner normally 
requires a degree or its equivalent for the position. 
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The fourth criterion at 8 C.F.R. 9 214.2(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 them is usually 
associated with the attainment of a baccalaureate or higher degree. The Handbook reveals that the proposed 
position is comparable to a claims adjuster and an appraiser, which are occupations that do not require a 
bachelor's degree in a specific specialty. As such, the petitioner fails to establish this last criterion. 
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. fj 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.