dismissed H-1B Case: Dietetics

(b)(6)
DATE: FEB 0 6 2015 OFFICE: VERMONT SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(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: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law. nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion 
(Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
cp;j!;l � 
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�oseklerg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The director revoked approval of the nonimmigrant visa petition, and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
Approval of the petition will remain revoked. 
On the Form I -129 visa petition, the petitioner describes itself as a ten-employee assisted living 
facility1 established in In order to employ the beneficiary in what it designates as a full-time 
dietitian position at a salary of $35,000 per year/ the petitioner seeks to extend her classification 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 initially approved the petition on February 7, 2011. Subsequent to the petition's 
approval, U.S. Citizenship and Immigration Services (USCIS) conducted a site visit at the 
petition er' s reported address. The director reviewed the information from the site visit report and 
issued two notices of intent to revoke (NOIR) approval of the petition, both of which contained a 
statement of the proposed grounds for revocation and stated the time period allowed for rebuttal. 
Counsel for the petitioner responded to the NOIRs by submitting letters and additional evidence. 
The director revoked approval of the petition on April 11, 2014, concluding that the beneficiary did 
not possess the requisite state license to practice as a dietitian. On appeal, counsel submits a letter 
from the petitioner and additional evidence. 
The record of proceeding before us contains: (1) the petitioner's Form I-129 and supporting 
documentation; (2) the director's NOIRs; (3) the petitioner's responses to the NOIRs; (4) the 
director's revocation notice; and (5) the Form I-290B (Notice of Appeal) and supporting 
documentation. We reviewed the record in its entirety before issuing our decision. 
USCIS may revoke the approval of an H-1B petition pursuant to 8 C.P.R. § 214.2(h)(ll)(iii), which 
states the following: 
(A) Grounds for revocation. The director shall send to the petitioner a notice of 
intent to revoke the petition in relevant part if he or she finds that: 
1 The petitioner provided a North American Industry Classification System (NAICS) Code of 623220, 
"Residential Mental Health and Substance Abuse Facilities." U.S. Dep't of Commerce, U.S. Census Bureau, 
North American Industry Classification System, 2012 NAICS Definition, "623220 Residential Mental Health 
and Substance Abuse Facilities," http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last visited November 
19, 2014). 
2 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was certified 
for use with a job prospect within the "Di etitians and Nutritionists" occupational classification, 
SOC (O*NET/OES) Code 29-1031, and a Level I (entry-level) prevailing wage rate, the lowest of the four 
assignable wage-levels. 
(b)(6)
Page 3 
NON-PRECEDENT DECISION 
(1) The beneficiary is no longer employed by the petttwner in the capacity 
specified in the petition, or if the beneficiary is no longer receiving training as 
specified in the petition; or 
(2) The statement of facts contained in the petition was not true and correct, 
inaccurate, fraudulent, or misrepresented a material fact; or 
(3) The petitioner violated terms and conditions of the approved petition; or 
(4) The petitioner violated requirements of section 101(a)(15)(H) of the Act or 
paragraph (h) of this section; or 
(5) The approval of the petition violated paragraph (h) of this section or involved 
gross error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed 
statement of the grounds for the revocation and the time period allowed for the 
petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 
days of receipt of the notice. The director shall consider all relevant evidence 
presented in deciding whether to revoke the petition in whole or in part. If the 
petition is revoked in part, the remainder of the petition shall remain approved 
and a revised approval notice shall be sent to the petitioner with the revocation 
notice. 
Subsequent to the petition's approval, the director issued a NOIR to the petitioner on March 19, 
2013, stating that users had obtained new information regarding the beneficiary's employment 
with the petitioner. Specifically, the director stated that during the site visit, the investigator 
discovered that the petitioner paid the beneficiary less than the prevailing wage in 2010, and the 
director requested evidence to demonstrate that the beneficiary was earning wages consistent with 
the terms and conditions of the approved petition. On February 26, 2014, the director issued the 
second NOIR, noting that the petitioner had submitted documents for the beneficiary's 2011 and 
2012 wages, but not for 2010. The director also stated that the beneficiary is required to be licensed 
in order to practice as a dietitian in Florida, and requested evidence demonstrating that the 
beneficiary possesses such licensure. In response to the NOIR, counsel for the petitioner stated that 
the beneficiary "has always worked in the State of Florida without a state license, which has never 
been an issue up to this point. " The director did not find counsel's argument with regard to the 
licensure issue persuasive, and she revoked approval of the petition on April 17, 2014. 
Upon review of the record, we find that the content of the NOIRs comported with the regulatory 
notice requirements, as they provided detailed statements that conveyed the grounds for revocation 
encompassed by the regulation at 8 C.P.R. § 214.2(h)(ll)(iii)(A), and that they also allotted the 
petitioner the required time for the submission of evidence in rebuttal that is specified in the 
regulation at 8 C.P.R. § 214 .2(h)(ll)(iii)(B). 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
On appeal, neither counsel nor the petitioner identifies any specific erroneous conclusion oftaw or 
statement of fact in the director's decision. The regulation at 8 C.P.R. § 103.3(a)(l)(v) provides that 
an officer to whom an appeal is taken shall summarily dismiss any appeal when the party concerned 
fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal. 
The appeal, therefore, must be summarily dismissed pursuant to 8 C.F.R. § 103.3(a)(1)(v). 
However, in the interest of providing the petitioner with a full adjudication we will nonetheless 
review the merits of the director's April 17, 2014 decision revoking approval of the petition. 
On appeal the petitioner submits a letter from its owner stating that the beneficiary is in compliance 
with "the basic requirement mandated by the Agency for Health Care Administration (AHCA) in 
the State of Florida," and submits copies of certificates and a list of courses that the beneficiary has 
completed. In addition, the petitioner states that the beneficiary "prepare[s] and monitor[s] menus 
that have been approved by a Licensed Dietitian." 
The petitioner has identified the proffered position as a dietitian, and it obtained an LCA certified 
for a position located within the "Dietitians and Nutritionists" occupational category. We find that 
the petitioner has failed to establish that a license is not required for the proffered position in the 
State of Florida under the controlling statutory and regulatory provisions. More specifically, we 
reviewed the Florida Statutes regarding the requirements to practice as a dietitian. The sections 
most relevant to this proceeding are outlined at Fla. Stat. § 468 (2010), "Dietetics and Nutrition 
Practice," which states in relevant parts the following: 
468.504 License required.-No person may engage for remuneration in dietetics 
and nutrition practice or nutrition counseling or hold himself or herself out as a 
practitioner of dietetics and nutrition practice or nutrition counseling unless the 
person is licensed in accordance with the provisions of this part. 
468.517 Prohibitions; penalties.-
(1) A person may not knowingly: 
* * * 
(a) Engage in dietetics and nutrition practice or nutnhon counseling for 
remuneration unless the person is licensed under this part; 
(b) Use the name or title "dietitian," "licensed dietitian," "nutritionist," 
"licensed nutritionist," "nutrition counselor," or "licensed nutrition 
counselor," or any other words, letters, abbreviations, or insignia indicating 
or implying that he or she is a dietitian, nutritionist, or nutrition counselor, or 
otherwise hold himself or herself out as such, unless the person is the holder 
of a valid license issued under this part; 
* * * 
(b)(6)
Page 5 
NON-PRECEDENT DECISION 
(2) A person who violates any provision of this section commits a misdemeanor 
of the first degree, punishable as provided in s. 775.082 or s. 775.083. 
The plain language of these statutes indicates that licensure is required to work as a dietitian in the 
State of Florida. Section 214(i)(2)(A) of the Act, 8 U.S.C. § 1184(i)(2)(A), states that an alien 
applying for classification as an H-lB nonimmigrant worker must possess "full state licensure to 
practice in the occupation, if such licensure is required to practice in the occupation." 
Pursuant to the regulation at 8 C.F.R. § 214.2(h)(4)(v)(A), if an occupation requires a state or local 
license for an individual to fully perform the duties of the occupation, an alien (except an H-lC 
nurse) seeking H classification in that occupation must have that license "prior to approval of the 
petition to be found qualified to enter the United States and immediately engage in employment in 
the occupation." The beneficiary clear I y does not satisfy this criterion. 
Upon review of the record of proceeding, we find that the evidence of record neither 
(1) demonstrates that the beneficiary is licensed to perform the duties of the proffered position nor 
(2) contains sufficient evidence to demonstrate that a license is not required to perform its duties. 
Thus, the petitioner has failed to establish eligibility for the requested benefit under Section 
214(i)(2)(A) of the Act, 8 U.S.C. § 1184(i)(2)(A). 
Consequently, even if 8 C.F.R. § 103.3(a)(l)(v) did not mandate summary dismissal of this appeal, 
the petition could still not be approved because the evidence of record does not establish that the 
beneficiary possesses the appropriate license required by the State of Florida to perform the duties 
of the proffered position, and the director properly revoked approval of this petition. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. Approval of the petition remains revoked.