dismissed H-1B Case: Education

MATTER OF MNC-D-C-&L-C-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 29, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a Chinese day care and learning center, seeks to temporarily employ the Beneficiary as 
an "early childhood creative programs director" under the H-lB nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner did not sufficiently establish that the proffered position qualifies as a specialty occupation. 
Thereafter, the Petitioner filed a timely motion to reconsider, and the Director affirmed its decision 
to deny the petitio~. The matter is now before us on appeal. 
Upon review, we will dismiss the appeal. 
I. LAW 
Section 214(i)(l) of the Act, 8 U.S.C. § 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 regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
Matter of MNC-D-C-&L-C-
(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. 
8 C.P.R.§ 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.P.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. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as an "early childhood 
creative programs director." The Petitioner provided the following job duties for the position: 
(Education Related Tasks) (40%) 
• Monitor, evaluate, or record artistic and creative training activities or program 
effectiveness, by assessing the feedback of parents, referral sources, and 
inquiries for future clients as a result of these activities 
• Obtain feedback and constantly communicate with clientele's families, teachers, 
and instructors as future creative and artistic programs are developed, and 
current programs improved. Reports and spreadsheets are created to assess 
which issues and concerns should be addressed. An analysis also of what works 
are also something she would report on so that we could focus on that. We aim 
to zone in on programs and strategies that work. And she's there to analyze and 
report these as we tweak our program structure. 
• Coordinate our company's afterschool creative courses and programs, making 
sure they are properly ran efficiently (the time of the programs as they tie to 
common dismissals of children from their respective schools, weather and 
school year related events and possibilities) 
• Evaluate training materials prepared by instructors, such as outlines, text, 
flashcards, videos, and handouts; 
2 
Matter of MNC-D-C-&L-C-
(Art Related Tasks) (20%) 
• Review Chinese historical documents, art, Chinese calligraphy, photos, and 
videos for new course material development; 
• Plan and develop for our company's annual Summer Day Camp arts program; 
• Organize and develop, or obtain, training procedure manuals and guides and 
course material such as handouts and visual materials; 
• Develop after-school creative and artistic courses by doing extensive research 
on developments, but also involving an understanding of art history, and by 
contacting various professional and teachers for the course planning. 
(Supervisory Related Tasks - "Director") (20%) 
• Supervise all teachers in various artistic and creative programs, ensuring that 
course and lesson plans are followed and implemented. 
• Assess training need through surveys, interviews with employees, focus groups, 
or consultation with managers, instructors, or parents; 
• Develop alternative training methods if expected improvements are not seen; 
• Present information using a variety of instructional techniques or formats, such 
as role playing, simulations, team exercises, group discussions, videos, or 
lectures; 
• Select and assign instructors to conduct training. 
According to the Petitioner, the position requires a bachelor's degree m art education or its 
equivalent. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 1 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation.2 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
2 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 
Matter of MNC-D-C-&L-C-
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.3 
On the labor condition application (LCA) submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Training and Development 
Specialists" corresponding to the Standard Occupational Classification code 13-1151.4 
We reviewed the chapter of the Handbook entitled "Training and Development Specialists," 
including the sections regarding the typical duties and requirements for this occupational category. 
However, the Handbook does not indicate that "Training and Development Specialists" comprise an 
occupational group for which at least a bachelor's degree in a specific specialty, or its equivalent, is 
normally the minimum requiremen! for entry into the occupation. 
The subchapter of the Handbook entitled "How to Become a Training and Development Specialist" 
states the following about this occupational category: 
Training and development specialists need a bachelor's degree. Specialists may have 
a variety of education backgrounds, but many have a liachelor' s degree in training 
and development, human resources, education, or instructional design. Others may 
have a degree in business administration or a social science, such as educational or 
organizational psychology. 
In addition, as technology continues to play a larger role in training and development, 
a growing number of organizations seek candidates who have a background in 
information technology or computer science. 
3 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USC IS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
4 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (1) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _11_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering th~ experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
4 
Matter of MNC-D-C-&L-C-
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Training and Development Specialists," http://www. bls.gov/ooh/business-and- financial/training­
and-development-specialists.htm#tab-4 (last visited Sept. 28, 2016). 
The Handbook does not indicate that at least a bachelor's degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into this occupation. Rather, the 
occupation accommodates other paths for entry, including less than a bachelor's degree in a specific 
specialty. While the Handbook states that training and development specialists need a bachelor's 
degree, it also states that "may have a variety of education backgrounds." The Handbook further 
states that "many have a bachelor's degree in training and development, human resources, education, 
or instructional design." It also states that "[ o ]thers may have a degree in business a social science, 
such as educational or organizational psychology." The Handbook's recognition that general, non­
specialty "background" in various fields is sufficient for entry into the occupation suggests that a 
bachelor's degree in a specific specialty is not normally the minimum entry requirement for this 
occupation. 
A petitioner lflUSt demonstrate that the proffered position requires a precise and specific course of 
study that relate~ directly to the position in question. See Royal Siam Corp. v. Chertof]; 484 F.3d at 
14 7. There must be a close correlation between the required specialized studies and the position; 
thus, the mere requirement of a degree, without further specification, does not establish the position 
as a specialty occupation. Cf Matter of Michael Hertz Associates, 19 I&N Dec. 558 (Comm'r 1988) 
(stating that "[t]he mere requirement of a college degree for the sake of general education, or to 
obtain what an employer perceives to be a higher caliber employee, also does not establish 
eligibility"). Thus, while a general-purpose degree or a degree in any discipline may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a finding 
that a particular position qualifies for classification as a specialty occupation. See Royal Siam Corp. 
v. Chertoff, 484 F.3d at 147. 
Thus, the Handbook does not support the claim that the occupational category of training and 
development specialists is one for which normally the minimum requirement for entry is a 
baccalaureate degree (or higher) in a specific specialty, or its equivalent. Even if it did (which it does 
not), the record lacks sufficient evidence to support a finding that the particular position proffered here 
(an entry-level training and development specialist position relative to others within the occupation- as 
indicated on the LCA), would normally have such a minimum, specialty degree requirement, or its 
equivalent. 
In addition, in response to the request for evidence (RFE), the Petitioner states that O*NET assigns the 
training and development specialist occupation a Job Zone Four rating. According to O*NET, 
"[m]ost of these occupations require a four-year bachelor's degree, but some do not." Notably, 
O*NET is not particularly useful in determining whether a baccalaureate degree in a specific 
specialty, or its equivalent, is a requirement for a given position, as O*NET's Job Zone designations 
make no mention of the specific field of study from which a degree must come. As was noted 
previously, we interpret 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 
5 
Matter of MNC-D-C-&L-C-
the proffered position. Thus, a designation of Job Zone Four does not demonstrate that at least a 
bachelor's degree in a spec(fic specialty is normally the minimum requirement for entry, and does 
not, therefore, demonstrate that a position so designated qualifies as a specialty occupation as 
defined in section 214(i)(l) of the Act and 8 C.F .R. § 214.2(h)( 4)(ii). 
Upon review of the totality of the evidence in the entire record of proceedings, the Petitioner has not 
provided documentation from another probative source to substantiate its assertion regarding the 
minimum requirement for entry into this particular position. Thus, the Petitioner has not satisfied 
the first criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS 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 "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)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook reports an industry-wide requirement for at least a bachelor's degree in a specific 
specialty or its equivalent. Nor are there any submissions from a professional association in the 
Petitioner's industry stating that individuals employed in positions parallel to the proffered position are 
routinely required to have a minimum of a bachelor's degree in a specific specialty or its equivalent for 
entry into those positions. 
Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
6 
Matter of MNC-D-C-&L-C-
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent., 
The Petitioner states it "has shown that its particular position is so complex and unique that it can be 
performed only by an individual with a degree, based not just on the initial evidence that was 
submitted, but on the evidence submitted on the Request for Evidence." Upon review of all of the 
documentation submitted, the evidence of record does not satisfy the second alternative prong of 8 
C.F.R. § 214.2(h)(4)(iii)(A)(2), which is satisfied if the Petitioner shows that its particular position is 
so complex or unique that it can be performed only by an individual with at least a bachelor's degree 
in a specific specialty, or its equivalent. 
The Petitioner submitted several documents regarding its school activities; after school program, 
summer program, curriculum, and organizational structure to "show the scope and complexity of the 
position." The Petitioner states that the Beneficiary will supervise lead teachers and assistant 
teachers. In addition, the Beneficiary will view the school program in a "macro perspective -
looking at developing learning tools, the psychology of children in understanding various art 
exercises, specific activities that stimulate thinking etc." However, the Petitioner did not 
demonstrate that the duties of an early childhood creative programs director for this day care 
program is so complex that it would require the Beneficiary to hold a bachelor's degree in a specific 
specialty. 
In addition, the Petitioner did not demonstrate how the duties of the proffered position as described 
in the record require the theoretical and practical application of a body of highly specialized 
knowledge such that a bachelor's or higher degree in a specific specialty, or its equivalent, is 
required to perform them. The Petitioner stated that 60 percent of the job duties are art and 
education related and for that reason it is very important that the Beneficiary obtain a degree in art 
education. However, the Petitioner did not submit information relevant to a detailed course of study 
leading to a specialty degree and did not establish how such a curriculum is necessary to perform the 
duties it may believe are so complex and unique. While a few related courses may be beneficial, or 
even required, in performing certain duties of the position, the Petitioner did not demonstrate how an 
established curriculum of such courses leading to a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is required to perform the duties of the proffered position. The 
description of the duties does not specifically identify any tasks that are so complex or unique that 
only a specifically degreed individual could perform them. The record lacks sufficiently detailed 
information to distinguish the proffered position as more complex or unique from other positions 
that can be performed by persons without at least a bachelor's degree in a specific specialty, or its 
equivalent. 
Consequently, as the Petitioner did not demonstrate how the proffered position is so complex or 
unique relative to other training and development specialist positions that can be performed by a 
Matter of MNC-D-C-&L-C-
person without at least a baccalaureate degree in a specific specialty or its equivalent for entry into 
the occupation in the United States, the Petitioner has not satisfied the second alternative prong of 8 
C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references her 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently develop relative 
complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. 
Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
On appeal, the Petitioner also states that it has a "practice of hiring teachers who have a Bachelor's 
Degree, and such, it is reasonable to hire someone with at least a Bachelor's Degree for the position 
of Early Childhood Creative Program Director, a position that would actually manage 
teachers/instructors, all of whom have Bachelor's Degrees themselves." The Petitioner submitted 
educational credentials for two current lead teachers and one assistant teacher. Upon review of the 
educational certificates, it appears that the assistant teacher received a bachelor's degree in 
. economics and the two lead teachers received a bachelor's degree in early childhood education and 
broadcasting. Thus, it appears that the Petitioner does not require a degree in a specific specialty. In 
addition, the Petitioner submitted the educational certificates obtained abroad and did not submit a 
credential evaluation for each individual. Further, the Petitioner submitted educational certificates 
for two out of three lead teachers, and only one out of five assistant teachers, thus the Petitioner has 
not established that it requires a bachelor's degree for all lead teachers and assistant teachers. 
Finally, the educational certificates for the two previous teachers are also lacking a credential 
evaluation and the Petitioner did not submit any corroborating evidence that these individuals were 
employed by the Petitioner and the positions they held for the Petitioner. "[G]oing 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'r 1998) (citing Matter 
ofTreasure CraflofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
While a petitioner may believe or otherwise assert that a proffered position requires a specific 
degree, that opinion alone without corroborating evidence cannot establish the position as a specialty 
occupation. Were USCIS limited solely to reviewing a petitioner's claimed self-imposed 
requirements, then any individual with a bachelor's degree could be brought to the United States to 
perform any occupation as long as the employer artificially created a token degree requirement, 
whereby all individuals employed in a particular position possessed a baccalaureate or higher degree 
in the specific specialty or its equivalent. See Defensor v. Meissner, 201 F. 3d at 387. In other 
8 
Matter of MNC-D-C-&L-C-
words, if a petitioner's assertion of a particular degree requirement is not necessitated by the actual 
performance requirements of the proffered position, the position would not meet the statutory or 
regulatory definition of a specialty occupation. See§ 214(i)(l) ofthe Act; 8 C.F.R. § 214.2(h)(4)(ii) 
(defining the term "specialty occupation"). The Petitioner did not provide evidence of its hiring 
history for the position of training and development specialist. The Petitioner claimed that the some 
of the employees supervised by the Beneficiary obtained a bachelor's degree but it did not provide 
specific information regarding the proffered position itself. 
Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to 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 a specific specialty, or 
its equivalent. 
On appeal, the Petitioner also claims that the nature of the proffered position's 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 the specific specialty or its equivalent. The Petitioner states that "as 
an early childhood educator, [the Beneficiary] will be in a position to shape the children's cognitive, 
social and emotional development during their formative years - helping them build a foundation of 
learning that will support them as they progress through their education." The Petitioner further states 
that the Beneficiary will have supervisory tasks and will be second in command of the operations. The 
Beneficiary will supervise three lead teachers and five assistant teachers, and teachers· from the after 
school program. 
We incorporate our earlier discussion and analysis regarding the duties of the proffered position, and 
the designation of the position in the LCA as a Level I position (the lowest of four assignable wage­
levels) relative to others within the same occupational category.5 The Petitioner has not 
demonstrated in the record that its proffered position is one with duties sufficiently specialized and 
complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
5 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
9 
Matter of MNC-D-C-&L-C-
( 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe 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. 
Cite as Matter of MNC-D-C-&L-C-, ID# 123301 (AAO Sept. 29, 2016) 
10