dismissed H-1B Case: Diesel Mechanics

U.S. Department of Homeland Security 
20 Mass. Ave., N. W., Rrn. A3042 
Washington, DC 20529 
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U.S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: EAC 02 261 52984 Office: VERMONT SERVICE CENTER Date: OCT 1 7 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U:S.C. tj 1 1 Ol(a)(l S)(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 oflice. 
Robert P. Wiemann, Director 
Administrative Appeals Ofice 
EAC 02 261 52984 
Page 2 
DISCUSSION: The service center director 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 repairs heavy duty transport, construction and fire department vehicles, and seeks to employ the 
beneficiary as a Class A Diesel Mechanic. The petitioner endeavors to classify the beneficiary as a nonimmigrant 
worker in a specialty occupation pursuant to section 101 (a)( 1 5)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position does not qualify as a specialty occupation, and 
because the beneficiary is not qualified to perform the duties of a specialty occupation. On appeal, counsel 
submits a brief stating that the offered position qualifies as a specialty occupation and that the beneficiary is 
qualified to perform the duties of a specialty occupation. 
The first issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty 
occupation. 
Section I Ol(a)(l S)(H)(i)(b) of the Act, 8 U.S.C. $ 1 101 (a)(] S)(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. 5 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. 
The term "specialty occupation" is hrther defined at 8 C.F.R. 214.2(h)(4)(ii) as: 
[A]n 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. 
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; 
EAC 02 261 52984 
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(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 are 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. 
2 14.2(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) the 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) the Form I-290B with supporting documentation. The AAO reviewed the 
record in its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a Class A Diesel Mechanic. Evidence of the 
beneficiary's duties was set forth in the Form 1-129 petition and in response to the director's request for 
evidence. According to this evidence the beneficiary would work as a diesel mechanic specializing in CAT, 
Cummins, Mack, International and Detroit engines. The beneficiary is required to have experience in 
electronics, as well as experience in rebuilding components including fuel injection pumps, oil pumps, turbos, 
and air compressors. The beneficiary will also be required to remove, rebuild and install all industrial 
transmissions, including CAT and ZF modelslbrands. 
The petitioner requires a minimum of a BS degree in Mechanical Engineering or its equivalent for entry into 
the proffered position. 
Upon review of the record, the petitioner has failed to establish that a baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry into the offered position, or that a degree 
requirement is common to the industry in parallel positions among similar organizations, as asserted by the 
petitioner. Factors often considered by CIS when determining these criteria include: whether the Department 
of Labor's Occupational Outlook Handbook (Handbook) reports that the industry requires a degree; whether 
an industry 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.Y. 1989)). 
The AAO routinely consults the Handbook for information about the duties and educational requirements of 
particular occupations. The duties of the proffered position fall within those noted for diesel service technicians 
and mechanics. Diesel service technicians and mechanics repair and maintain trucks, buses, and locomotives. 
Some diesel technicians and mechanics also work on heavy vehicles and mobile equipment, including bulldozers, 
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cranes, road graders, farm tractors and combines. Diesel maintenance is becoming increasingly complex as more 
electronic components are used to control the operation of an engine. The Handbook notes that although many 
persons qualify for diesel service technician and mechanic jobs through years of on-the-job training, authorities 
recommend the completion of a formal diesel engine training program as employers prefer to hire graduates of 
formal training programs. Many community colleges and trade and vocational schools offer programs in diesel 
repair, with programs lasting from six months to two years and leading to an associate degree or certificate of 
completion. It is, therefore, apparent that a bachelor's degree in a specific specialty is not required for entry into 
the position. The petitioner has failed to establish the first criterion of 8 C.F.R. 9 214.2(h)(4)(iiiXA). 
The petitioner has also failed to establish that a degree requirement, in a specific specialty, is common to the 
industry in parallel positions among similar organizations. In support of this assertion, the petitioner 
submitted an opinion letter from Dr. Damian Rouson, an Assistant Professor of Mechanical Engineering at 
the City University of New York. Dr. Rouson states that companies seeking to employ Class A Diesel 
Mechanics in the field of mechanical engineering technology require prospective candidates to possess a 
minimum of a bachelor's degree in the area of mechanical engineering technology. Dr. Rouson does not, 
however, provide any basis for his opinion such as an industry or labor survey, study, or other source of 
authoritative information, and his opinion conflicts with the findings noted in the Handbook for the 
educational requirements of the position. In discussing the sophistication of the duties of the proffered 
position, Dr. Rouson refers to duties not assigned to the present position and which are not of record. For 
example, he states that "[tlhe skills required in order to manage and develop projects, oversee architects and 
other engineers, manage and arrange for the application of blueprints, work with bid estimators, schedule and 
provide estimates, meet with company executives, and oversee troubleshooting, are often taught in courses of 
Mechanical Engineering Technology, Production Management, Personnel Management, Operations Research, 
and related areas." These duties are totally unrelated to the requirements of the offered position and bear no 
rational basis to the complexity of the proffered position. Citizenship and Immigration Services (CIS) may, in 
its discretion, use as advisory opinions statements submitted as expert testimony. However, where an opinion 
in 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). Dr. 
Rouson's opinion will, therefore, be given little weight and is of no evidentiary value. The petitioner has 
failed to establish the referenced criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(2). 
The petitioner does not state that it normally requires a degree in a specific specialty for the proffered 
position, and offers no evidence in this regard. The petitioner has failed to establish the referenced criterion at 
8 C.F.R. 9 2 14.2(h)(4)(iii)(A)(3). 
The duties to be performed by the beneficiary are not so specialized or complex that knowledge required to 
perform them is usually associated with the attainment of a baccalaureate or higher degree in a specific 
specialty. Nor are the duties so complex or unique that they can be performed only by an individual with a 
degree in a specific specialty. The duties are routine in the industry for Class A Diesel Mechanics. The 
petitioner has failed to establish the referenced criteria at 8 C.F.R. $8 2 14.2(h)(4)(iii)(A)(2) or (4). 
The final issue to be considered is whether the beneficiary is qualified to perform the duties of a specialty 
occupation. It has been determined that the offered position does not qualify as a specialty occupation, thus, 
there would be no regulatory requirement that the petitioner possess any specific level of education in order to 
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qualify to perform the duties of that position. Suffice it to say that the petitioner deems the beneficiary 
qualified to perform the duties of the position based upon his past education, training, and experience. That 
determination is one over which the petitioner has sole authority and discretion as the position does not 
qualify for H-IB status and is not subject to regulation by CIS. 
As related in the discussion above, the petitioner has failed to establish that the proffkred 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. 8 1361. 
The petitioner has failed to sustain that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.