dismissed H-1B Case: Customs Brokerage

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
f 
FILE: WAC 04 090 50350 Office: CALIFORNIA SERVICE CENTER Date: s~p 2 1 20135 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
1mmigr2ion 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 
WAC 04 090 50350 
Page 2 
DISCUSSION: The director of the service center denied the nonirnmigrant 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 customs brokerage firm that seeks to employ the beneficiary as a business operations 
specialist. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a 
specialty occupation pursuant to section 10 1 (a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 4 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. 
Section 214(i)(l) of the Act, 8 U.S.C. 4 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: 
(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. 
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 
WAC 04 090 50350 
Page 3 
director's denial letter; and (5) Form I-290B 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 business operations specialist. Evidence of the 
beneficiary's duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's 
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 analyzing, planning, and coordinating logistical functions and 
operations of customs brokerage and related services. The beneficiary will be involved in the entire business 
cycle including review and analysis of operational procedures and operational management, strategic 
planning, acquisition, distribution, internal allocation, and disposition of resources; collecting and analyzing 
data on business operations; developing and implementing plans and programs that improve the efficiency of 
operations and logistics; identifying and analyzing management and work-related problems impacting 
efficiency and profit; determining and developing remedial measures and techniques that improve 
organizational and operational management; developing and conducting training programs that instruct 
management and employees in human relation slulls; and planning and assisting in job-related skills training 
to improve individual and group work performance. The petitioner requires a baccalaureate degree in 
business management for the proposed position. 
The director stated that some of the proposed duties reflect those of an operations research analyst as that 
occupation is described in the Department of Labor's (DOL) Occupational Outlook Handbook (the 
Handbook), and that the Handbook conveys that this occupation is a specialty occupation. But the director 
stated that he was not convinced that the beneficiary would perform the proposed duties. Sole reliance on 
duties resembling those of an operations research analyst as described in the Handbook and the Dictionary of 
Occupational Titles (DOT) is misplaced, and according to the director, the nature and complexity of the 
proposed duties must be evaluated. The director stated that the beneficiary's possession of a degree in a 
related area does not guarantee the position is a specialty occupation, and that performing some incidental 
specialty occupation duties does not establish that the proposed position is a specialty occupation. The 
director stated that the petitioner does not operate the lund of business requiring the full-time or even part- 
time services of an operations research analyst for any length of time. According to the director, the 
petitioner does not have the organizational complexity to require the services of an operational research 
analyst: it has no research division, department, team, or staff to act upon the recommendations of an 
operational research analyst. The director found that the evidence did not show that the job offered could not 
be performed by an experienced person whose educational training fell short of a baccalaureate degree. 
On appeal, counsel states that the proposed position differs from an operations research analyst, and is similar 
to a business operations specialist as described in the Occupational and Employment StatisticsIStandard 
Occupational Classification System (OESISOC). Counsel states that the AAO in prior decisions determined 
that a business operations specialist is a specialty occupation; counsel describes the prior cases and positions. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
3 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
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Counsel asserts that the AAO has already determined that the proffered position is a specialty occupation 
since the AAO has approved other, similar petitions in the past. This record of proceeding does not, however, 
contain the supporting evidence submitted to the service center in the prior cases. In the absence of all of the 
corroborating evidence contained in those records of proceedings, counsel's assertions are not sufficient to 
enable the AAO to determine whether the original H-1B petition was approved in error. Furthermore, each 
nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. tj 103.8(d). In making a 
determination of statutory eligibility, CIS is limited to the information contained in the record of proceeding. 
See 8 C.F.R. 9 103.2(b)(16)(ii). 
The AAO first considers the criteria at 8 C.F.R. $tj 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 indviduals in the industry attest that such firms 
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 
@.Minn. 1999)(quoting Hird/Blaker Corp. v. Suva, 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. 
Counsel's assertion that the proposed position is analogous to a business operations specialist as that 
occupation is described by the OESISOC is not persuasive. The website for the Bureau of Labor Statistics 
(www.bls.nov/oes) conveys that the Occupational Employment Statistics (OES) program produces 
employment and wage estimates for over 800 occupations; and according to the SOC User Guide, the SOC 
was designed solely for statistical purposes. Thus, this information would not discuss whether a particular 
occupation requires a specific baccalaureate degree. 
The AAO routinely consults the Handbook for its information about the duties and educational requirements 
of particular occupations. The Handbook reveals that the proposed position is similar to that of general and 
operations managers. The AAO recapitulates here the Handbook text: 
General and operations managers plan, direct, or coordinate the operations of companies or 
public and private sector organizations. Their duties include formulating policies, managing 
daily operations, and planning the use of materials and human resources, but are too diverse 
and general in nature to be classified in any one area of management or administration, such 
as personnel, purchasing, or administrative services. In some organizations, the duties of 
general and operations managers may overlap the duties of chief executive officers. 
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A general and operations manager plans, directs, or coordinates operations; plans the use of materials and 
human resources; formulate policies; and manages daily operations. The beneficiary's duty to be involved in 
the entire business cycle of the operation, including the review, analysis, and improvement of operational 
procedures and operational management; to collect and analyze data on business operations; develop and 
implement plans and programs that improve the efficiency of operations and logistics; identify and analyze 
management and work-related problems impacting operations and profit; develop and conduct training 
programs to instruct management and employees in human relation skills; and plan and assist in job-related 
skills training that will improve individual and group work performance parallels the description of the 
general and operations manager's duties. 
The Handbook reports: 
The formal education and experience of top executives varies as widely as the nature of their 
responsibilities. Many top executives have a bachelor's or higher degree in business 
administration or liberal arts. 
The Handbook continued: 
Because many top executive positions are filled by promoting experienced, lower level 
managers when an opening occurs, many top managers have been promoted fiom within the 
organization. In industries such as retail trade or transportation, for instance, it is possible for 
individuals without a college degree to work their way up within the company and become 
managers. However, many companies prefer that their top executives have specialized 
backgrounds and, therefore, hire individuals who have been managers in other organizations. 
The Handbook explains that candidates for general and operations manager positions are not required to hold 
a bachelor's degree in a specific specialty; and that employers accept degrees in business administration or the 
liberal arts or promote lower level managers who may not hold degrees. Thus, the proposed position, which 
is similar to an operations and general manager, would not require a bachelor's degree in a specific specialty. 
The AAO notes that the petitioner failed to submit requested evidence of copies of the Form DE-6 (Quarterly 
Wage Reports), a payroll summary, a list of employees, and the petitioner's organizational chart. Absent this 
information, which gives insight into the nature of the proposed duties, the AAO cannot conclude that the 
proposed position would require a bachelor's degree in a specific specialty, and cannot corroborate assertions 
made by the petitioner on the Form 1-129 petition. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
Based on the evidence in the record and the Handbook's information, the petitioner fails to establish the first 
criterion at 8 C.F.R. 214.2(h)(4)(iii)(A): that a baccalaureate or higher degree or its equivalent in a specific 
specialty is the normal minimum requirement for entry into the particular position. 
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The petitioner submits no evidence to establish the first alternative prong at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(2) - 
that a specific degree requirement is common to the industry in parallel positions among similar 
organizations. 
The petitioner has not satisfied the second alternative prong at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(2) as no 
evidence in the record shows the proffered position is so complex or unique that it can be performed only by 
an individual with a degree. As discussed earlier in this decision, the proposed position parallels a general 
and operations manager, which is an occupation that does not require a bachelor's degree in a specific 
specialty. Furthermore, because the petitioner failed to submit requested evidence which gives insight into 
the nature of the proposed duties, the AAO cannot conclude that the proposed position is so complex or 
unique that it can be performed only by an individual with a degree. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SofJici, citing Matter of Treasure Craft of California. 
No evidence in the record establishes the regulation at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3): that the petitioner 
normally requires a degree or its equivalent for the position. 
To satisfy the regulation at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(4), the petitioner must 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. In this decision the AAO has already 
conveyed that the proposed position resembles a general and operations manager, which is an occupation that 
does not require a bachelor's degree in a specific specialty. Furthermore, as discussed earlier, because the 
petitioner failed to submit requested evidence that would have given insight into the nature of the proposed 
duties, the AAO cannot conclude that the proposed duties are so specialized and complex as to require the 
knowledge usually associated with the attainment of a baccalaureate or higher degree in business management 
or a related field. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, citing Matter of Treasure Craft of 
California. Accordingly, the petitioner fails to establish this last criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A). 
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 on this 
ground. 
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.