dismissed H-1B Case: Education

MATTER OF C-A-P-C-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 1, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a non-profit provider of education, social, and community serv1ces, seeks to 
temporarily employ the Beneficiary as a part-time "Assistant Teacher" under the H-lB 
nonimmigrant classification. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, California Service Center, denied the petition and 
affirmed the denial decision on motion. The matter is now before us on appeal. Upon de novo 
review, we will dismiss the appeal. 
I. ISSUE 
The issue before us is whether the proffered pos1t1on qualifies as a specialty occupation m 
accordance with the applicable statutory and regulatory provisions. 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ ( 1)] 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 [(2)] requires the 
Matter ofC-A-P-C-, Inc. 
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, a proposed 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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F .R. § 214.2(h)( 4 )(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter o.fW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently 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 proffered 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"). Applying this standard, USCIS regularly approves H-1B petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
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Matter ofC-A-P-C-, Inc. 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS 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. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or 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. 
B. The Proffered Position 
The Petitioner claims in the labor condition application (LCA) that the proffered "Assistant Teacher" 
position corresponds to Standard Occupational Classification (SOC) code and title 25-2021, 
Elementary School Teachers, Except Special Education. 
In its November 7, 2013, letter of support, the Petitioner stated that it needs the assistant teacher "to 
be responsible for strengthening the teaching of English as a second language to multicultural groups 
of students including immigrants and international students coming from different countries." 
In a letter dated May 13, 2014, the Petitioner stated that the Beneficiary will be "devoted to these 
duties and responsibilities": 
a. Coach, mentor and assist Teachers and/or Group Leaders to instruct student basic 
academic, social, and other formative skills in public school at the elementary level 
(50%). 
b. Prepare Lesson Plans to educate students on subjects such as reading, writing, math, 
science, and cultural arts aligned with NYS Common Core Learning Standards and 
self esteem, character development, and social skills (15%). 
c. Evaluate students' assignments and performance development to monitor their 
progress. Keep accurate records of student attendance (1 0% ). 
d. Work with individual students to challenge them to overcome their weaknesses in 
English Literacy using TESOL strategies (10%). 
e. Supervise children outside of the classroom during field trips, and recreational 
activities (5%). 
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Matter ofC-A-P-C-, Inc. 
f. Assist Teachers and Administrators to translate or communicate with parents orally 
and in writing about their child's progress in the public school and after school 
classes ( 1 0%). 
In the letter of support, the Petitioner stated that the proffered position requires "a minimum of a 
Bachelor's degree in Education, English, Language Arts or other related field of study" and that each 
of its assistant teachers "hold[ s] a baccalaureate degree in an acceptable course of study." In a letter 
dated April 25, 2014, the Petitioner stated that the proffered position requires a minimum of a 
bachelor's degree in "an acceptable course of study, such as education and/or related field .... " The 
Petitioner stated in a letter dated June 24, 2014, and an "Affidavit" submitted on motion, dated 
January 15, 2015, that the proffered position requires "a baccalaureate degree in Teaching English to 
Speakers of Other Languages ('TESOL')." 
C. Analysis 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will first discuss the record of proceedings in relation to the four criteria at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A), 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. 
We recognize the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook 
(Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
of occupations that it addresses. 1 As was noted above, the Petitioner claims in the LCA that the 
proffered position is an "Assistant Teacher" position, but that it corresponds to SOC code and title 
25-2021, Elementary School Teachers, Except Special Education, from O*NET. The Handbook 
states the following about the duties of Teacher Assistant positions: 
What Teacher Assistants Do 
Teacher assistants work under a teacher's supervision to give students additional 
attention and instruction. 
Duties 
Teacher assistants typically do the following: 
• Reinforce lessons presented by teachers by reviewing material with 
students one-on-one or in small groups 
1 The Handbook, which is available in printed form, may also be accessed on the Internet, at http://www.bls.gov/oco/. 
Our references to the Handbook are to the 2016-2017 edition available online. 
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Matter ofC-A-P-C-, Inc. 
• Enforce school and class rules to help teach students proper behavior 
• Help teachers with recordkeeping, such as tracking attendance and 
calculating grades 
• Help teachers prepare for lessons by getting materials ready or setting 
up equipment, such as computers 
• Supervise students in class, between classes, during lunch and recess, 
and on field trips 
Teacher assistants also are called teacher aides, instructional aides, 
paraprofessionals, education assistants, and paraeducators. 
Teacher assistants work with or under the guidance of a licensed teacher. Generally, 
teachers introduce new material to students while teacher assistants help reinforce the 
lessons by working with individual students or small groups of students. For example, 
after the teacher presents a lesson, a teacher assistant may help a small group of 
students as they try to master the material. 
Teachers may seek feedback from assistants to monitor students' progress. Some 
teachers and teacher assistants meet regularly to discuss lesson plans and student 
development. Teacher assistants sometimes help teachers by grading tests and 
checking homework. 
Some teacher assistants work only with special education students. Some of these 
students attend regular classes, and teacher assistants help them understand the 
material and adapt the information to their learning style. Teacher assistants may 
work with students who have more severe disabilities in separate classrooms. They 
help these students with basic needs, such as eating or personal hygiene. With young 
adults, they may help students with disabilities learn skills necessary for them to find 
a job or live independently after graduation. 
Some teacher assistants work in specific locations in the school. For example, some 
work in computer laboratories, teaching students how to use computers and helping 
them use software. Others work as recess or lunchroom attendants, supervising 
students during these times of the day. 
Although most teacher assistants work in elementary, middle, and high schools, 
others work in preschools and childcare centers. Often, one or two assistants work 
with a lead teacher to provide the individual attention that young children need. They 
help with educational activities. They also supervise the children at play and help 
with feeding and other basic care. 
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Matter ofC-A-P-C-, Inc. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Teacher Assistants," http://www.bls.gov/ooh/education-training-and-library/teacher­
assistants.htm#tab-2 (last visited Feb. 29, 2016). 
The duties of the proffered position are consistent with the duties the Handbook attributes to teacher 
assistant positions. Further, the Petitioner's organizational chart indicates that "Asst. 
Teacher[s]/Counselors/Tutors" are one level below "Group Leaders/Teachers." On the balance, we 
find that the proffered position is a teacher assistant position as described in the Handbook. 
The Handbook states the following about the educational requirements of teacher assistant positions: 
Education 
Most school districts require applicants to have completed at least 2 years of college 
coursework or have earned an associate's degree. Teacher assistants in schools that 
have a Title 1 program (a federal program for schools with a large proportion of 
students from low-income households) must have at least a 2-year degree, 2 years of 
college, or pass a state or local assessment. 
Associate's degree programs for teacher assistants prepare the participants to develop 
educational materials, observe students, and understand the role of teachers and 
teaching assistants in the classroom. 
Most states require instructional aides who work with special-needs students to pass a 
skills-based test. 
!d. at http://www.bls.gov/ooh/education-training-and-library/teacher-assistants.htm#tab-4 (last 
visited Feb. 29, 2016). 
The Handbook indicates that teacher assistant positions do not normally require a minimum of a 
bachelor's degree in a specific specialty or its equivalent. The Handbook does not, therefore, 
support the proposition that the proffered position is a specialty occupation by virtue of requiring a 
minimum of a bachelor's degree in a specific specialty or its equivalent. 
In certain instances, the Handbook is not determinative. When the Handbook does not support the 
proposition that a proffered position is one that meets the statutory and regulatory provisions of a 
specialty occupation, it is incumbent upon the Petitioner to provide persuasive evidence that the 
proffered position more likely than not satisfies this or one of the other three criteria, 
notwithstanding the absence of the Handbook's support on the issue. In such case, it is the 
Petitioner's responsibility to provide probative evidence (e.g., documentation from other objective, 
authoritative sources) that supports a finding that the particular position in question qualifies as a 
specialty occupation. Whenever more than one authoritative source exists, an adjudicator will 
consider and weigh all of the evidence presented to determine whether the particular position 
qualifies as a specialty occupation. 
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Matter ofC-A-P-C-, Inc. 
In this case, the Petitioner has not established that the proffered position falls under an occupational 
category for which the Handbook, or other authoritative source, indicates that normally the 
minimum requirement for entry is at least a bachelor's degree in a specific specialty, or its 
equivalent. The record lacks sufficient evidence to support a finding that the particular position 
proffered here, would normally have such a minimum, specialty degree requirement or its 
equivalent. The duties and requirements of the position as described in the record of proceeding do 
not indicate that this particular position proffered by the Petitioner is one for which a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions 
that are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered position, and 
also (3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by US CIS 
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 (or other independent, authoritative sources) reports an industry-wide requirement 
for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. Also, there are no submissions from the industry's 
professional association indicating that it has made a degree a minimum entry requirement. 
Furthermore, the Petitioner did not submit any letters or affidavits from similar firms or individuals 
in the Petitioner's industry attesting that such firms "routinely employ and recruit only degreed 
individuals." 
Based upon a complete review of the record, we conclude that the Petitioner has not established that 
a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common to 
the Petitioner's industry in positions that are (1) in the Petitioner's industry, (2) parallel to the 
proffered position, and also (3) located in organizations that are similar to the Petitioner. For the 
reasons discussed above, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
Matter ofC-A-P-C-, Inc. 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
The evidence of record also does not satisfy the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). A review of the record of proceedings indicates that the Petitioner has not 
credibly demonstrated that the duties the Beneficiary will be responsible for or perform on a day-to­
day basis constitute a position so complex or unique that it can only be performed by a person with 
at least a bachelor's degree in a specific specialty, or its equivalent. 
For instance, 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 
of the proffered position. While a few related courses may be beneficial, or even required, in 
performing certain duties of the proffered position, the Petitioner has not demonstrated 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 particular position here. 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. Also, the evidence of record does not establish that this position is significantly different 
from other teacher assistant positions such that it refutes the Handbook's information that a 
bachelor's degree in a specific specialty or its equivalent is not required for the proffered position. 
The Petitioner did not establish that its particular position is so complex or unique that it can only be 
performed by an individual with at least a bachelor's degree in a specific specialty, or its equivalent. 
Therefore, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a minimum of a bachelor's degree in a specific specialty or its equivalent, for the 
position. To this end, we usually review a petitioner's past recruiting and hiring practices, as well as 
information regarding employees who previously held the position. 
To merit approval of the petition under this criterion, the record must also establish that a 
petitioner's imposition of a degree requirement is not merely a matter of preference for high-caliber 
candidates but is necessitated by performance requirements of the position. While a petitioner may 
assert that a proffered position requires a specific degree, that statement 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 
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Matter ofC-A-P-C-, Inc. 
degree could be brought to the United States to perform any occupation as long as the petitioner 
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 P.3d at 388. In other words, if a petitioner's stated degree requirement is 
only designed to artificially meet the standards for an H-lB visa and/or to underemploy an 
individual in a position for which he or she is overqualified and if the proffered position does not in 
fact require such a specialty degree or its equivalent, to perform its duties, the occupation would not 
meet the statutory or regulatory definition of a specialty occupation. See section 214(i)(l) of the 
Act; 8 C.P.R.§ 214.2(h)(4)(ii) (defining the term "specialty occupation"). 
The Petitioner provided a list of its assistant teachers and their claimed educational credentials as 
well as transcripts and diplomas for those assistant teachers. Those transcripts and diplomas are in a 
wide array of fields and the evidence does not demonstrate the subjects that the assistant teachers 
teach. While the evidence indicates that the Petitioner requires its assistant teachers to have a 
minimum of a bachelor's degree, it does not establish that the Petitioner requires a minimum of a 
bachelor's degree in a specific specialty or its equivalent for those positions. 
The record of proceeding does not demonstrate that the Petitioner normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the proffered position. Accordingly, the 
Petitioner has not established the referenced criterion at 8 C.P.R.§ 214.2(h)(4)(iii)(A)(3). 
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 in a specific specialty, or its equivalent 
The fourth criterion at 8 C.P.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. 
Upon review of the record of the proceedings, we find that the Petitioner has not provided sufficient 
evidence to satisfy this criterion of the regulations. The proposed duties have not been described 
with sufficient specificity to establish that they are more specialized and complex than positions that 
are not usually associated with at least a bachelor's degree in a specific specialty, or its equivalent. 
The evidence of record does not establish that the duties which collectively constitute this position 
are significantly different from those of other teacher assistant positions that the Handbook indicates 
only typically require two years of college coursework or an associate's degree. The record does not 
distinguish the proffered position as unique from or more complex than other closely related 
positions that can be performed by persons without at least a bachelor's degree in a specific specialty 
or its equivalent. 
Upon review of the totality of the record, the Petitioner has not established that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is 
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Matter ofC-A-P-C-, Inc. 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. For these reasons, the evidence of record does not satisfy the fourth criterion at 
8 C.P.R.§ 214.2(h)(4)(iii)(A). 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.P.R.§ 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. 
III. CONCLUSION 
As set forth above, we find the evidence of record insufficient to establish that the proffered position 
qualifies as a specialty occupation. Accordingly, the appeal will be dismissed and the petition 
denied. 
In visa petition proceedings, the burden is on the Petitioner to establish eligibility for the benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 
2013) (citing Matter ofBrantigan, 11 I&N Dec. 493,495 (BIA 1966)). 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-A-P-C-, Inc., ID# 16016 (AAO Mar. 1, 2016) 
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