dismissed H-1B Case: Construction Management

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 226 50803 Office: CALIFORNIA SERVICE CENTER Date: AuG 0 7 
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. 1 10 1 (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, 
WAC 04 226 50803 
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 is a real estate business that seeks to employ the beneficiary as a part-time construction and 
safety manager. The petitioner endeavors to classify the beneficiary as a nonimrnigrant worker in a specialty 
occupation pursuant to 9 10 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 9 1 lOl(a)(l5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. 9 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. § 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. 8 214.2(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 MO 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 
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 seelung the beneficiary's services as a part-time construction and safety manager. Evidence 
of the beneficiary's duties includes: the 1-129 petition; the petitioner's July 29, 2004 letter in support of the 
WAC 04 226 50803 
Page 3 
petition; and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail: planning, coordinating, and overseeing the construction, 
renovation, and maintenance of the petitioner's rental buildings and facilities; coordinating with 
civiVarchitectura1 consultants and property managers relative to the planning and designing of the 
construction, renovation, and maintenance of the petitioner's rental properties; assisting and coordinating with 
property managers regarding the promotion of worksite safety; reviewing, studying, and evaluating plans, 
detailed drawings, structural features of buildings, and topographical maps of the investment properties to be 
purchased and managed by the petitioner; and submitting recommendations related to construction and 
renovation costs. The petitioner indicated that a qualified candidate for the job would possess a bachelor's 
degree in engineering. 
The director found that the proffered position was not a specialty occupation because the proposed duties are 
not so complex as to require a bachelor's degree. Citing to the Department of Labor's Occupational Outlook 
Handbook (Handbook), 2004-2005 edition, the director noted that the minimum requirement for entry into the 
position was not a baccalaureate degree or its equivalent in a specific specialty. The director found further that 
the petitioner failed to establish any of the criteria found at 8 C.F.R. 9 2 14.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the proffered position, which is that of a construction manager, is a 
specialty occupation. Counsel states further that the proposed duties, which entail coordinating with civil 
engineering and architectural consultants relative to planning, designing, and overseeing the construction, 
renovation, and maintenance of the petitioner's rental buildings, are so specialized and complex as to require 
knowledge of civil engineering and geotechnical engineering. Counsel also states that a bachelor's degree is 
the normal, industry-wide minimum requirement for a construction manager position. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. 9 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 9 214.2(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 fms 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 1 15 1, 1 165 (D. 
Minn. 1999)(quoting Hird/Blaker Cop. v. Suva, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AAO does not concur with counsel that the proffered position is that of a construction 
manager, who plans, directs, and coordinates a wide variety of construction projects, including the building of all 
types of residential, commercial, and industrial structures, roads, bridges, wastewater treatment plants, schools, 
and hospitals. See the Handbook, 2006-2007 ed. at 32. The petitioner has not demonstrated that the proposed job 
duties entail the level of responsibility of this occupation. Information on the petitioner's federal income tax 
return reflects the petitioner's principal business activities as management and rental. The record contains no 
evidence that the petitioner will be engaged in activities such as constructing rental buildings and facilities, which 
WAC 04 226 50803 
Page 4 
would require the beneficiary to coordinate with civil engineering and architectural consultants. There are no 
contracts for construction, a portfolio of completed construction projects, or other indicia that the petitioner is 
engaged in construction. Simply going on record without supporting documentary evidence is not sufficient for 
the purpose of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 
(Comrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). While 
some construction manager positions may require a 4 year degree, according to the Handbook, others require 
only experience in the industry. The evidence of record does not establish that the beneficiary will be employed in 
the construction of rental buildings or other construction management requiring a 4 year degree. 
The record does not include any evidence regarding parallel positions in the petitioner's industry. The record 
also does not include any evidence from firms, individuals, or professional associations regarding an industry 
standard, or documentation to support the complexity or uniqueness of the proffered position. 
The petitioner, therefore, has not established the criteria set forth at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. As counsel does not address this issue on appeal, it will not be discussed 
further. The evidence of record does not establish ths criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(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. 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. fj 214.2(h)(4)(iii)(A)(4). 
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.