dismissed H-1B Case: Education

identifyingdatadeletedto
preventclearlyunw~nted
invasionofpersonalpnvacy
PUBLIC COpy
U.S. Department of Homeland Security
20 Massachusetts Avenue NW, Room 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
t1A~ 022007
· FILE: SRC 05 213 50679 Office: TEXAS SERVICE CENTER Date:
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(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, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 213 50679
Page 2
DISCUSSION: The 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 is a preschool that seeks to employ the beneficiary as its school director. The petitioner,
therefore, endeavors to extend the beneficiary's status 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 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 petitioner's Form 1-290B and supporting documentation. The AAO
reviewed the record in its entirety before issuing its decision.
The director denied the petition on the basis of his determination that the petitioner had failed to establish that
the proposed position qualifies for classification as a specialty occupation.
Section 214(i)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(1), 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:
[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:
(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
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(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 proposed position.
The petitioner is a preschool with eleven employees. According to the petitioner, there are currently 72
children, divided into six groups, enrolled in its program: (1) infants (eleven children enrolled);
(2) toddlers (thirteen children enrolled); (3) preschool (thirteen children enrolled); (4) pre-kindergarten
(eleven children enrolled); (5) kindergarten (four children enrolled); and (6) after-school students (twenty
children enrolled). According to the petitioner's July 22, 2005 letter of support, the duties of the
proposed position would include directing the petitioner's activities to provide instruction and care for
children; submitting a facility budget to the owner for approval; authorizing the purchase of instructional
materials and teaching aids, such as books and games designed to stimulate learning; interviewing and
recommending the hiring of teachers and service staff; conferring with parents regarding facility
activities, policies, and enrollment procedures; conferring with teaching staff regarding children's
behavioral or learning problems, and recommending methods of modifying inappropriate behavior and
encouraging learning experiences; reviewing and evaluating facility activities to ensure conformance to
state and local regulations; and overseeing the implementation of the Montessori teaching method.
In determining whether a proposed 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. The AAO routinely consults the
Department of Labor's Occupational Outlook Handbook (the Handbook) for its information about the
duties and educational requirements of particular occupations.
The 2006-2007 edition of the Handbook provides the following information regarding the duties of
education administrators:
Smooth operation of an educational institution requires competent administrators.
Education administrators provide instructional leadership as well as manage the day-to­
day activities in schools, preschools, daycare centers, and colleges and universities. They
also direct the educational programs of businesses, correctional institutions, museums,
and job training and community service organizations. (College presidents and school
superintendents are covered in the Handbook statement on general managers and top
executives.) Education administrators set educational standards and goals and establish
the policies and procedures to carry them out. They also supervise managers, support
staff, teachers, counselors, librarians, coaches, and others. They develop academic
programs; monitor students' educational progress; train and motivate teachers and other
staff; manage career counseling and other student services; administer recordkeeping;
prepare budgets; handle relations with parents, prospective and current students,
employers, and the community; and perform many other duties. In an organization such
as a small daycare center, one administrator may handle all these functions. In
SRC 05 213 50679
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universities or large school systems, responsibilities are divided among many
administrators, each with a specific function.
In preschools and childcare centers, education administrators are the director or
supervisor of the school or center. Their job is similar to that of other school
administrators in that they oversee daily activities and operation of the schools, hire and
develop staff, and make sure that the school meets required regulations.
The Handbook provides the following information regarding the educational background necessary for
education administrators in preschools:
Educational requirements for administrators of preschools and childcare centers vary
depending on the setting of the program and the State of employment. Administrators
who oversee preschool programs in public schools are often required to have at least a
bachelor's degree. Child care directors are generally not required to have a degree;
however, most States require a general preschool education credential, such as the Child
Development Associate credential (CDA) sponsored by the Council for Professional
Recognition, or a credential specifically designed for administrators ....
The Handbook's findings are not consistent with a determination that a bachelor's degree, or its
equivalent, is the normal entry requirement for this position. While it does state that administrators who
oversee preschool programs in public schools are often required to have degrees, the Handbook does not
indicate that administrators of such programs in private schools are required to have degrees. Moreover
the Handbook does not state that administrators of preschools programs in public schools are required to
have degrees-it only states that they are often required to possess degrees. The fact that such individuals
are "often required" to possess degrees is not synonymous with degree requirement, and does not rise to
the "normally required" standard imposed by the regulation. Accordingly, the proposed position does not
meet the first criterion required for classification as a specialty occupation under
8 C.F.R. § 214.2(h)(4)(iii)(A)(1).
The AAO now turns to a consideration of whether the petitioner, unable to establish its proposed position
as a specialty occupation under the first criterion set forth at 8 C.F.R. § 214.2(h)(iii)(A), may qualify it
under one of the three remaining criteria: a degree requirement as the norm within the petitioner's
industry or the position is so complex or unique that it may be performed only by an individual with a
degree; the petitioner normally requires a degree or its equivalent for the position; or the duties of the
position are so specialized and complex that the knowledge required to perform them is usually associated
with a baccalaureate or higher degree.
The proposed position does not qualify as a specialty occupation under either prong of
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). The first prong of this regulation requires a showing that a specific
degree requirement is common to the industry in parallel positions among similar organizations. The
AAO has reviewed the job postings submitted by counsel in response to the director's request for
additional evidence and on appeal. Counsel, however, has failed to consider the specific requirements at 8
C.F.R. § 214.2(h)(4)(iii)(A)(2) for establishing a baccalaureate or higher degree as an industry norm. To
meet the burden of proof imposed by the regulatory language, a petitioner must establish that its degree
requirement exists in parallel positions among similar organizations. Counsel has submitted no evidence to
SRC 05213 50679
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demonstrate that any of these job postings are from companies "similar" to the petitioner. For example,
there is no evidence that the advertisers are similar to the petitioner in size, scope, and scale of operations,
enrollment, and expenditures. Simply going on record without supporting documentary evidence is not
sufficient for purposes 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)).
Moreover, the job postings are too few to establish an industry-wide standard. Also, the information
regarding the duties and responsibilities of the advertised positions is general and does not support a
meaningful comparison of their actual performance and knowledge requirements to those of the proposed
position. Thus, while relevant to this proceeding, these job postings submitted by counsel are insufficient to
establish the petitioner's degree requirement as an industry norm in parallel positions among similar
organizations, and they do not satisfy the requirements of the first prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
The second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) requires the petitioner to prove that the duties of the
proposed position are so complex or unique that only an individual with a degree can perform them. The
nature of the duties of the proposed position as set forth in the petition does not support such a finding, as
they are similar to those of education administrators for preschools as discussed in the Handbook, which do
not require a degree. The record contains no documentation to support a finding that the proposed position is
more complex or unique than school administrator positions in other, similar organizations. Therefore, the
petitioner has not established that the proposed position qualifies as a specialty occupation under either prong
of8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
Nor does the proposed position qualify as a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(3),
which requires a showing that the petitioner normally requires a degree or its equivalent for the proposed
position. To determine a petitioner's ability to meet this criterion, the AAO normally reviews the petitioner's
past employment practices, as well as the histories, including names and dates of employment, of those
employees with degrees who previously held the position, and copies of those employees' diplomas.
However, no such evidence has been presented; the petitioner has submitted no information regarding the
educational background of its previous school directors. Accordingly, the petitioner has not established the
proposed position as a specialty occupation under 8 C.P.R. § 214.2(h)(4)(iii)(A)(3): that it normally requires a
degree or its equivalent for the position.
Finally, the AAO turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4), which requires a
demonstration that 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 of the proposed position 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. There is no information in the record to support a finding
that the proposed position is more specialized and complex than the education administrator positions for
which the Handbook indicates no requirement for the highly specialized knowledge associated with the
attainment of at least a bachelor's degree. The evidence of record, as discussed above, does not establish
that the nature of the duties is specialized and complex. Therefore, the evidence does not establish that
the proposed position is a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).
The proposed position does not qualify for classification as a specialty occupation under any of the
criteria set forth at 8 C.F.R. §§ 214.2(h)(4)(iii)(A)(l), (2), (3), and (4), and the petition was properly
denied.
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Beyond the decision of the director, the AAO finds that the petition may not be approved for another reason,
as the record does not establish that the beneficiary qualifies to perform the duties of a specialty occupation.
An application or petition that fails to comply with the technical requirements of the law may be denied
by the AAO even if the Service Center does not identify all of the grounds for denial in the initial
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001),
affd. 345 F.3d 683 (9th Cir. 2003); see also Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting
that the AAO reviews appeals on a de novo basis).
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, an
alien must meet one of the following criteria:
(1) Hold a United States baccalaureate or higher degree required by the specialty
occupation from an accredited college or university;
(2) Hold a foreign degree determined to be equivalent to a United States
baccalaureate or higher degree required by the specialty occupation from an
accredited college or university;
(3) Hold an unrestricted state license, registration or certification which authorizes
him or her to fully practice the specialty occupation and be immediately engaged
in that specialty in the state of intended employment; or
(4) Have education, specialized training, and/or progressively responsible experience
that is equivalent to completion of a United States baccalaureate or higher degree
in the specialty occupation, and have recognition of expertise in the specialty
through progressively responsible positions directly related to the specialty.
In making its determination as to whether the beneficiary qualifies to perform the duties of a specialty
occupation, the AAO turns to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(C), as described above, which
requires a demonstration that the beneficiary holds a United States baccalaureate or higher degree
required by the specialty occupation from an accredited college or university.
The first criterion requires a showing that the beneficiary earned a baccalaureate or higher degree from a
United States institution of higher education. The beneficiary obtained her education abroad, so she does
not qualify under this criterion.
Nor does the beneficiary qualify under the second criterion, which requires a demonstration that the
beneficiary's foreign degree has been determined to be equivalent to a United States baccalaureate or
higher degree required by the specialty occupation from an accredited college or university. The record
contains an evaluation from C.E.I.E. Specialists (CEIE), dated September 11, 2002. While the CEIE
evaluator did determine that the combination of the beneficiary's foreign education and experience are
equivalent to a bachelor's degree in education, this evaluation does not satisfy
8 C.F.R. § 214.2(h)(4)(iii)(C)(2). In order to qualify under this criterion, the evaluation must be based
solely upon the beneficiary's foreign degree; a credentials evaluation service may evaluate educational
credentials only. 8 C.F.R. § 214.2(h)(4)(iii)(D)(3). The CEIE evaluator found the beneficiary's foreign
degree equivalent to an associate's degree in commerce, with thirty credits in education.
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The record does not demonstrate, nor has the petitioner contended, that the beneficiary holds an
unrestricted state license, registration or certification to practice the specialty occupation, so she does not
qualify under the third criterion, either.
The fourth criterion, set forth at 8 C.F.R. § 214.2(h)(4)(iii)(C)(4), requires a showing that the
beneficiary's education, specialized training, and/or progressively responsible experience is equivalent to
the completion of a United States baccalaureate or higher degree in the specialty occupation, and that the
beneficiary also has recognition of that expertise in the specialty through progressively responsible
positions directly related to the specialty.
Thus, it is the fourth criterion under which the petitioner must classify the beneficiary's combination of
education and work experience. Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(D), equating a beneficiary's
credentials to a United States baccalaureate or higher degree is determined by one or more of the
following:
(1) An evaluation from an official who has authority to grant college-level credit for
training and/or experience in the specialty at an accredited college or university
which has a program for granting such credit based on an individual's training
and/or work experience;
(2) The results of recognized college-level equivalency examinations or special
credit programs, such as the College Level Examination Program (CLEP), or
Program on Noncollegiate Sponsored Instruction (PONSI);
(3) An evaluation of education by a reliable credentials evaluation service which
specializes in evaluating foreign educational credentials;
(4) Evidence of certification or registration from a nationally-recognized
professional association or society for the specialty that is known to grant
certification or registration to persons in the occupational specialty who have
achieved a certain level of competence in the specialty;
(5) A determination by the Service that the equivalent of the degree required by the
specialty occupation has been acquired through a combination of education,
specialized training, and/or work experience in areas related to the specialty and
that the alien has achieved recognition of expertise in the specialty occupation as
a result of such training and experience.
The beneficiary does not qualify under 8 C.F.R. § 214.2(h)(4)(iii)(D)(l), as there has been no
demonstration that the CEIE evaluator possesses the authority to grant college-level credit for training
and/or experience in education at an accredited college or university which has a program for granting
such credit based on an individual's training and/or work experience in education or a related field.
No evidence has been submitted to establish, nor has counsel contended, that the beneficiary satisfies
8 C.F.R. § 214.2(h)(4)(iii)(D)(2), which requires that the beneficiary submit the results of recognized
college-level equivalency examinations or special credit programs, such as the College Level
Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI).
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Nor does the beneficiary satisfy 8 C.F.R. § 214.2(h)(4)(iii)(D)(3). As was the case under
8 C.F.R. § 214.2(h)(4)(iii)(C)(2), the beneficiary is unqualified under this criterion because the CEIE
evaluation was based upon both education and experience. In order to qualify under this criterion, the
CEIE evaluation would have to have been based upon foreign educational credentials alone.
No evidence has been submitted to establish, nor has the petitioner contended, that the beneficiary
satisfies 8 C.F.R. § 214.2(h)(4)(iii)(D)(4), which requires that the beneficiary submit evidence of
certification or registration from a nationally-recognized professional association or society for the
specialty that is known to grant certification or registration to persons in the occupational specialty who
have achieved a certain level of competence in the specialty.
The AAO next turns to the fifth criterion. When CIS determines an alien's qualifications pursuant to
8 C.F.R. § 214.2(h)(4)(iii)(D)(5), three years of specialized training and/or work experience must be
demonstrated for each year of college-level training the alien lacks. It must be clearly demonstrated that
the alien's training and/or work experience included the theoretical and practical application of
specialized knowledge required by the specialty occupation; that the alien's experience was gained while
working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty
occupation; and that the alien has recognition of expertise in the specialty evidenced by at least one type
of documentation such as:
(i) Recognition of expertise in the specialty occupation by at least two recognized
authorities in the same specialty occupation';
(ii) Membership in a recognized foreign or United States association or society in the
specialty occupation;
(iii) Published material by or about the alien In professional publications, trade
journals, books, or major newspapers;
(iv) Licensure or registration to practice the specialty occupation in a foreign country;
or
(v) Achievements which a recognized authority has determined to be significant
contributions to the field of the specialty occupation.
The evidence of record traces the beneficiary's work history from 1995 through 2003. As provided by
regulation, the formula utilized by CIS is three years of specialized training and/or work experience for
each year of college-level training that the alien lacks. A baccalaureate degree from a United States
institution of higher education would require four years of study, and the CEIE evaluator determined that
the beneficiary's foreign degree is equivalent to an associate's degree with thirty additional credits. The
1 Recognized authority means a person or organization with expertise in a particular field, special skills
or knowledge in that field, and the expertise to render the type of opinion requested. A recognized
authority's opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience
giving such opinions, citing specific instances where past opinions have been accepted as authoritative
and by whom; (3) how the conclusions were reached; and (4) the basis for the conclusions supported by
copies or citations of any research material used. 8 C.F.R. § 214.2(h)(4)(ii).
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beneficiary must therefore demonstrate at least three years of qualifying work experience in order to
achieve the equivalent of one additional year of study.
The AAO's next line of inquiry is therefore to determine whether at least three years of the beneficiary's
work experience included the theoretical and practical application of specialized knowledge required by
the specialty, whether it was gained while working with peers, supervisors, or subordinates who held a
bachelor's degree or its equivalent in education, and whether the beneficiary achieved recognition of
expertise in the field as evidenced by at least one of the five types of documentation delineated in sections
(i), (ii), (iii), (iv), or (v) of 8 C.F.R. § 214.2(h)(4)(iii)(D)(5).
However, such a demonstration has not been made. The evidence of record does not establish that the
beneficiary's previous work experience was gained while working with peers, supervisors, or
subordinates who held a bachelor's degree or its equivalent in education, and whether the beneficiary
achieved recognition of expertise in the field as evidenced by at least one of the five types of
documentation delineated in sections (i), (ii), (iii), (iv), or (v) of 8 C.F.R. § 214.2(h)(4)(iii)(D)(5).
Accordingly, the beneficiary does not qualify under any of the criteria set forth at
8 C.F.R. §§ 214.2(h)(4)(iii)(D)(l)(2)(3)(4), or (5), and therefore by extension does not qualify under
8 C.F.R. § 214.2(h)(4)(iii)(C)(4).
Therefore, the petitioner has not demonstrated that the beneficiary qualifies to perform the duties of a
specialty occupation. For this additional reason, the petition may not be approved.
The petitioner has failed to demonstrate that the proposed position qualifies for classification as a
specialty occupation. Beyond the decision of the director, the AAO finds that the petitioner has failed to
demonstrate that the beneficiary qualifies to perform the duties of a specialty occupation. Accordingly,
the AAO will not disturb the director's denial of the petition.
Finally, the AAO notes that the beneficiary currently holds H-IB nonimmigrant status. However, each
nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F .R. § 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. § 103.2(b)(l6)(ii). Although the AAO may attempt to hypothesize as to
whether the prior case was similar to the proposed position or was approved in error, no such
determination may be made without review of the original record in its entirety. If the prior petition was
approved based on evidence substantially similar to the evidence contained in this record of proceeding,
however, the approval of the prior petition was erroneous. CIS is not required to approve petitions where
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous.
See, e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). Neither CIS
nor any other agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v.
Montgomery 825 F.2d 1084, 1090 (6th Cir. 1987), cert denied, 485 U.S. 1008 (1988).
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a
court of appeals and a district court. Even if a service center director had approved the nonimmigrant
petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision
of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).
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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 appeal is dismissed. The petition is denied.