dismissed H-1B Case: Dance

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U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: EAC 03 208 51938
PoBLICCOPY
~1,
S£PO 7 2007
Office: VERMONT SERVICE CENTER Date:
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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
ltv
www.uscis.gov
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EAC 03 208 51938
Page 2
DISCUSSION: The service center director denied the nonimmigrant visa petition and the Administrative
Appeals Office (AAO) dismissed a subsequent appeal. The matter is again before the AAO on motion to
reopen or reconsider. The motion will be granted . The previous decision of the AAO will be affirmed . The
petition will be denied.
The petitioner is a dance studio that seeks to employ the beneficiary as a dance instructor/specialist. The
petitioner endeavors to classify the beneficiary as a nonimmigrant 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 director denied the petition on the basis that the proffered position did not meet the
definition of a specialty occupation. The AAO affirmed the director's findings.
On motion, the petitioner 's president asserts that the proffered position is a specialty occupation and submits a
letter from the First Vice President of Arthur Murray International, Inc., as supporting documentation.
The record of proceed ing before the AAO contains : (1) Form 1-129 and supporting documentation ; (2) the
director's request for e vidence (RFE); (3) the petitioner's response to the director 's request; (4) the director 's
denial letter; (5) Form 1-290B, with the petitioner 's letter; (6) the AAO 's decision to dismiss the appeal ; and
(7) the petitioner 's motion to reopen. The AAO reviewed the record in its entirety before reaching its
decision .
The issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet its
burden of proof in this regard , the petitioner must establish that the job it is offering to the beneficiary meets
the following statutory and regulatory requirements .
Section 214(i)(1) of the Act, 8 U.S.C. § I 184(i)(I) , 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 defined at 8 C .F.R. § 214.2(h)( 4)(ii) 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.
....- -.- - - - - - - - - - - - - - - - - - - - - -1
EAC 03 208 51938
Page 3
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 above criteria to mean not just
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered
position.
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a
position's title. The specific duties of the proffered position, combined with the nature of the petitioning
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the
alien, and determine whether the position qualifies as a specialty occupation. Cf Defensor v. Meissner, 201 F.
3d 384 (5 th Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed
standards, but whether the position actually requires the theoretical and practical application of a body of
highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty
as the minimum for entry into the occupation, as required by the Act.
The petitioner seeks the beneficiary's services as a dance instructor/specialist. Evidence of the beneficiary's
duties includes: the petitioner's June 19,2003 letter in support of the petition and the petitioner's January 12,
2004 response to the director's RFE. As stated by the petitioner, the proposed duties entail: teaching classes
including private lessons and couples; training instructors; formulating lesson plans; preparing for local,
regional, and national dance competition; accounting and bookkeeping functions; conducting program
planning and marketing demonstrations of professional shows including fairs, parties, business functions, and
celebrity shows; and other related duties.
To make its determination whether the employment just described qualifies as a specialty occupation, the
AAO turns to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) and (2): a baccalaureate or higher degree or its
equivalent is the normal minimum requirement for entry into the particular position; and a degree requirement
is common to the industry in parallel positions among similar organizations or a particular position is so
EAC 0320851938
Page 4
complex or unique that it can be performed only by an individual with a degree. Factors considered by the
AAO when determining these criteria include: whether the Department of Labor's Occupational Outlook
Handbook (Handbook), on which the AAO routinely relies for the educational requirements of particular
occupations, reports 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." 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.V. 1989».
The director found that the proffered position did not require a bachelor's degree in a specific specialty. The
director also found that the evidence did not establish that the beneficiary would perform duties that qualified
at the H-lB level or that the dance studio industry routinely required a bachelor's degree in a specific field of
study as a prerequisite for the proffered position.
In its June 2, 2006 decision, the AAO found that the proffered position was that of a dancer and
self-enrichment teacher, positions for which a bachelor's degree is not required. The AAO concluded that the
petitioner failed to establish any of the criteria found at 8 C.F.R. § 214.2(h)(4)(iii)(A).
On motion, the petitioner asserts that the letter from the First Vice President of Arthur Murray International,
Inc., stating that the petitioner normally requires a bachelor's degree for the proffered position, demonstrates
that the proffered position qualifies as a specialty occupation.
Upon review of the record, the petitioner has established none of the four criteria outlined 10
8 C.F.R. § 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. § 214.2(h)(4)(iii)(A)(l) 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
"routinelyemploy and recruit only degreed individuals."See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.
Minn. 1999)(quotingHird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.V. 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 the petitioner that the proffered position is a
specialty occupation. A review of the Dancers and Choreographers and the Teachers - Self Enrichment
Education occupation categories in the Handbook, 2006-07 edition, finds no requirement of a bachelor's degree
for entry into the field. As no specific course of study is the normal minimum requirement for entry into these
occupations and individuals without a bachelor's degree can fill these positions, the petitioner fails to establish
EAC 0320851938
Page 5
that a bachelor's or higher degree in a specific field of study is the normal minimum requirement for entry into
the proffered position. Accordingly, the petitioner has not established the proffered position as a specialty
occupation under the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) - a baccalaureate or higher degree or its
equivalent is normally the minimum requirement for entry into the particular position.
Regarding parallel positions in the petitioner's industry, the petitioner submits a letter from the First Vice
President of Arthur Murray International, Inc., who asserts that positions such as the proffered position
require a related bachelor's degree. The writer, however, does not stipulate that the proffered position requires
a bachelor's degree in a specific specialty. In this matter, the beneficiary holds the U.S. equivalent to a
bachelor's degree in computer science. As such, this educational requirement does not establish that the
proffered position is a specialty occupation, as the requirement must be for a specific bachelor's degree
related to the proffered position. CIS may, in its discretion, use as advisory opinions statements submitted as
expert testimony. However, where an opinion is not in accord with other information or is in any way
questionable, CIS is not required to accept or may give less weight to that evidence. Matter of Caron
International, 19 I&N Dec. 791 (Comm. 1988). In view of the foregoing, the writer's opinion is not
probative.
The record does not include sufficient evidence from firms, individuals, or professional associations regarding an
industry standard. In the alternative, the petitioner may show that the proffered position is so complex or unique
that only an individual with a degree can perform the work associated with the position. The petitioner has not
provided sufficientevidence to demonstrate the work associated with the position is so complex or unique that an
individualmust have degree in a specific disciplineto perform the duties. The petitioner has failed to establish the
profferedposition as a specialty occupation under either prongofthe criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
The AAO now turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3) - the employer normally requires a
degree or its equivalent for the position. On motion, the First Vice President of Arthur Murray International,
Inc., asserts that the petitioner routinely employs and recruits only degreed individuals for the proffered
position. Again, he does not specify the requirement of a bachelor's degree in a specific specialty related to
the proffered position. In addition, the record contains no evidence in support of the first vice president's
assertion, such as copies of the degrees and corresponding transcripts for the petitioner's employees. 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 Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972». In this regard, the petitioner fails to
establish that the proffered position entails the theoretical and practical application of a body of highly
specialized knowledge attained by a bachelor's degree, or the equivalent, in a specific specialty.
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
attainmentof a baccalaureate or higher degree.
The petitioner has not provided sufficient documentary evidence that the duties of the proffered position
contain elements different from that of a dancer and a self-enrichment teacher, positions for which a
EAC 03 208 51938
Page 6
bachelor's degree is not required. 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 in a specific specialty. Therefore, the evidence does not establish that the proffered position is a
specialty occupation under 8 C.F.R. § 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. § 1361.
The petitioner has not sustained that burden.
ORDER: The previous decision of the AAO, dated June 2, 2006, is affirmed. The petition is denied.