dismissed H-1B Case: Education

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-A-S-C- INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 26.2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an educational and learning institution. seeks to temporarily employ the Beneficiary 
as an ··education administrator'" under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(JI)(i)(b). 8 U.S.C. 
§ 110l(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 of the Vermont denied the petition. concluding that the record did not establish that 
proffered position qualities as a specialty occupation. 
On appeaL the Petitioner asserts that the Director's decision was in error. 
Upon de novo review, we will dismiss the appeal. 
I. 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) 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: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position: 
Matter of A-A-S-C- Inc 
(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 
(.f.) 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.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term '"degree .. 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''): Defensorv. Meissner. 201 F.3d 384. 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the letter of support, the Petitioner provided the following description of the proffered position· s 
job duties: 
[The Petitioner] has otTered temporary employment to [the Beneficiary] to use her 
specialized skills, education, and expertise as a [sic] ·'Education Administrator... Briefly. her 
specific job duties and responsibilities include: monitor students' and teachers· progress, and 
provide students and teacherwith [sic] assistance in resolving any problems; confer with 
parents and staff to discuss educational activities and policies and students' behavioral or 
learning problems; set educational standards and goals, and help establish policies. 
procedures. and programs to carry them out: plan. direct. and monitor instructional methods 
and content of educational. vocational, or student activity programs: prepare and maintain 
attendance. activity. or direct preparation and maintenance activities: determine allocations of 
funds for staft: supplies, materials, and equipment, and authorize purchases: determine the 
scope of educational program offerings, and prepare drafts of program schedules and 
descriptions. to estimate staffing and facility requirements: maintain school inventory: 
prepare balance sheets, profit and loss statements, and other reports to summarize the current 
and the projected institute's financial position. using a computer: establish. modify. 
document, and coordinate implementation of the accounting control procedures; improve the 
computer system for general accounting; analyze and prepare documents, entries and/or 
accounts relating to accounts payable; analyze financial data, hours worked of employees, 
insurance, etc.: prepare payroll checks and reports; and assist with payroll. 
In response to the Director's RFE, the Petitioner provided the following job description and 
percentages of time spent on the duties, as follows: 
2 
Matter ofA-A-S-C- Inc 
Specifically, the professional ""Education Administrator"' must monitor students· and 
teachers' progress, and provide students and teachers and support staff with assistance 
in resolving any problems (1 0% of time): confer with parents and staff to discuss 
educational activities and policies and students' behavioral or learning problems 
(15%); set educational standards and goals. and help establish policies. procedures. 
and programs to carry them out (1 0%): plan, direct. and monitor instructional 
methods and content of educational. vocational. or student activity programs ( 5% ): 
prepare and maintain attendance. activity, planning, accounting, or personnel reports 
and records for officials and agencies, or direct preparation and maintenance activities 
(1 0% ); determine allocations of funds for staff. supplies, materials. and equipment. 
and authorize purchases (5%); determine the scope of educational program ofTerings. 
and prepare drafts of program schedules and descriptions. to estimate staffing and 
facility requirements (1 0%); prepare: analyze and/or review balance sheets. profit and 
loss statements, and other reports to summarize the current and the projected 
company's financial position, using a computer: establish. modify. document, and 
coordinate implementation of the accounting control procedures. and improve the 
computer system for general accounting. and analyze and review documents. entries 
and/or accounts relating to accounts payable (20%): analyze financial data. hours 
worked of employees, insurance. etc.; review and analyze payroll checks and reports. 
and assist with payroll (15%). 
According to the Petitioner, the proffered positiOn requires at least a bachelor's degree 111 
·'Commerce. Business Administration, Management or ... a related field"' (or 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 qualities as a specialty occupation. 
Specifically. the Petitioner (1) has not established that the proffered position requires an educational 
background, or its equivalent, commensurate with a specialty occupation and (2) does not describe 
the position's duties with sut1icient detail and consistency. 1 
First, the Petitioner's claim that a bachelor's degree in "Commerce. Business Administration. 
Management or ... a related field"' (or the equivalent) is a sufficient minimum requirement for entry 
into the profTered position is inadequate to establish that the proposed position qualities as a 
specialty occupation. If the Petitioner's degree requirement can be satisfied by a general bachelor's 
degree in business administration. without further specialization. then it is inadequate to establish 
that the proposed position qualifies as a specialty occupation. A petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly and closely to 
the position in question. There must be a close correlation between the required specialized studies 
and the position: thus. the mere requirement of a general business administration degree, without 
1 
While we may not discuss every document submitted, we have reviewed and considered each one. 
Matter (~f A-A-S'-C- Inc 
further specification, will not justify a finding that a pmiicular position qualifies for classification as 
a specialty occupation. See Royal Siam Corp., 484 F.3d at 147 (recognizing a business 
administration degree as a '·general-purpose bachelor's degree .. ): cf. A1atter of Michael Hertz 
Assoc.s· .. 19 l&N Dec. 558. 560 (Comm'r 1988) ("The 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."). 
On the basis of this position· s educational requirement alone. we cannot find that the proffered 
position qualifies as a specialty occupation. 
Further, upon review of the Petitioner's descriptions of the duties of the profTered position, we find 
that most of the provided job duties are virtually identical to those listed in the Occupational 
Information Network (O*NET) Summary Report for ''Education Administrators. Preschool and 
Childcare Center/Program'· corresponding to Standard Occupational Classification (SOC) code 
11-9031. 2 For example, the first three job duties listed in O*NET for this occupation ("monitor 
students' progress and provide students and teachers with assistance in resolving any problems ... 
''confer with parents and staff to discuss educational activities and policies and students' behavioral 
or learning problems.'' and "set educational standards and goals and help establish policies. 
procedures, and programs to carry them ouC) are also the first three job duties listed almost verbatim 
by the Petitioner.' 
While a generic description may be appropriate when defining the range of duties that are performed 
within an occupation. the Petitioner cannot generally rely on such a description when discussing the 
duties attached to specific employment for H-1 B approval. In order to establish that the position 
qualities as a specialty occupation, the description must sufficiently communicate the actual work 
the Beneficiary will perform for the Petitioner, including the complexity, uniqueness, or 
specialization of the tasks, and the correlation between that work and the need for a particular level 
of knowledge in a specific specialty. See Defensor. 201 F.3d at 387 (a ·'common sense reading .. of 
the regulations indicates an intention to fully implement the definition of "specialty occupation .. ): 
see general~v 8 C.F.R. § 214.2(h)(4)(i)(A)(1 ), (iii)(B)(2), and (iv)(A). 
Not only did the Petitioner provide generic descriptions, but we also find that some of the proffered 
job duties appear inconsistent with a position under the "Education Administrators. Preschool and 
Childcare Center/Program" occupational category. That is, the Petitioner indicated that the 
Beneficiary will perform a variety of bookkeeping duties such as preparing records relating to 
accounts payable, processing data related to employee working hours and insurance. preparing 
2 
See O*NET Summary Report for ·'Education Administrators, Preschool and Childcare Center/Program," 
https:l /www.onetonline.org/link/summarylll-9031.00 (last visited Dec. 22, 20 17). 
3 
In fact, the Petitioner's initial letter is identical to the letter submitted in support of the Beneficiary's prior H-1 B 
petition for a different employer (a copy of which is included in this filing). More specifically, the letter is copied 
verbatim, including grammatical and punctuation errors. The only difference is the section regarding information about 
the Petitioner. When letters are worded the same (and include identical errors). it indicates that the words are not 
necessarily those of the authors and may cast some doubt on the letters· validity. 
4 
Matter qfA-A-S-C- Inc 
payroll checks and reports, and assisting with payroll.-1 The Petitioner also indicated that she will 
perform some accounting duties, including establishing and coordinating implementation of the 
accounting control procedures, improving the computer system for general accounting, and 
analyzing financial data and reports. 5 In fact, several of the proffered duties appear to have been 
copied directly from the Dictionary of Occupational Titles (DOT) for the "'Accountant" profession.r, 
The Petitioner has not explained how these bookkeeping and accounting duties - which cumulatively 
account for 35% of the Beneficiary's time - are consistent with an entry-level ""Education 
Administrators, Preschool and Childcare Center/Program"' position. 
It is noted that, where a petitioner seeks to employ a beneficiary in two or more distinct occupations. 
the petitioner should file separate petitions, requesting concurrent, part-time employment for each 
distinct occupation. While it may not be the case here, if a petitioner does not tile separate petitions 
and if only one aspect of a combined position qualities as a specialty occupation. U.S. Citizenship 
and Immigration Services (USCIS) would be required to deny the entire petition as the pertinent 
regulations do not permit the partial approval of only a portion of a proffered position or the limiting 
of the approval of a petition to perform only certain duties. See Kenera/~y 8 C.F.R. 
§ 214.2(h). Furthermore, the petitioner would need to ensure that it separately meets all 
requirements relevant to each occupation and the payment of wages commensurate with the higher 
paying occupation. See Reneral(v 8 C.F.R. § 214.2(h): U.S. Dep't of Labor, Emp't & Training 
Admin., PrevailinR WaRe Determination Policy Guidance, Nonagric. Immigration Programs (rev. 
Nov. 2009). available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_ Guidance 
Revised_11_2009.pdf Thus, filing separate petitions would help ensure that a petitioner submits the 
requisite evidence pertinent to each occupation and would help eliminate confusion with regard to 
the proper classification of the position being offered. 
The Petitioner did not file separate petitions. and did not otherwise explain this ""education 
administrator" position· s performance of substantive bookkeeping and accounting duties. Thus, 
without additional evidence. we find the record insufficient to demonstrate the substantive nature of 
the work to be performed by the Beneficiary. We are therefore precluded from finding that the 
protTered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). because it is the 
4 
According to O*NET, positions under the ·'Bookkeeping, Accounting. and Auditing Clerks" occupation generally 
perfom1 duties including "[c]ompile statisticaL financial, accounting. or auditing reports and tables pertaining to such 
matters as cash receipts. expenditures. accounts payable and receivable. and profits and losses." and ··r p ]repare and 
process payroll information." O*NET Summary Report for "Bookkeeping. Accounting. and Auditing Clerks," 
~ttps://www.onetonline.org/link/summary/43-3031.00 (last visited Dec. 22. 20 17). 
'Accountants generally "la]nalyze financial information and prepare financial reports to determine or maintain record of 
assets. liabilities. profit and loss, tax liability. or other financial activities within an organization." O*NET Summary 
Report for '"Accountants," https://www.onetonline.org/link/summary/ 13-2011.0 I (last visited Dec. 22, 20 17). We note 
that according to the submitted education evaluation, the Beneficiary holds the equivalent to a bachelor's degree in 
accounting. 
<> Dictionary of Occupational Titles for "Accountant,'' https://occupationalinfo.org/16/160 1620 IS.html (Dec. 22, 20 17). 
While the Petitioner may have copied these duties from DOT about the ·'Accountant'· profession. we nevertheless 
maintain that some of the proffered job duties are bookkeeping or accounting clerk duties better classified under the 
''Bookkeeping, Accounting. and Auditing Clerks" occupation as described in O*NET. 
Matter of A-A-S-C-Ine 
substantive nature of that work that determines ( 1) the normal minimum educational requirement for 
entry into the particular position, which is the focus of criterion 1: (2) industry positions which are 
parallel to the profTered position and thus appropriate for review for a common degree requirement, 
under the first alternate prong of criterion 2: (3) the level of complexity or uniqueness of the 
profTered position, which is the focus of the second alternate prong of criterion 2: ( 4) the factual 
justification for a petitioner normally requiring a degree or its equivalent, when that is an issue under 
criterion 3; and (5) the degree of specialization and complexity of the specific duties, which is the 
focus of criterion 4. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A), it also cannot be found that the proffered position qualifies for classification as 
a specialty occupation. 
IV. LABOR CONDITION APPLICATION 
For the reasons discussed below, we also find that the Petitioner has not established that the petition 
is supported by a labor condition (LCA) which supports and corresponds with the petition. 
While the Department of Labor (DOL) is the agency that certifies LCA applications before they are 
submitted to USCIS, DOL regulations note that the Department of Homeland Security (i.e., its 
immigration benefits branch, USCIS) is the department responsible for determining whether the 
content of an LCA filed for a particular Form I-129 actually supports that petition. 20 C.F.R. 
§ 655. 705(b ). The Petitioner is required to submit a certified LCA to demonstrate that it will pay an 
H-1 B worker the higher of either the prevailing wage for the occupational classification in the '·area 
of employment'" or the actual wage paid by the employer to other employees with similar experience 
and qualifications who are performing the same services. See 1i1atter of'Simeio S'olutions. !.LC, 26 
I&N Dec. 542,545-546 (AAO 2015). 
Again, in this matter, the Petitioner indicated that the Beneficiary will spend 35% of her time 
performing a mix of bookkeeping and accounting duties. The issue here is with the Beneficiary's 
performance of accounting duties. The DOL's "Prevailing Wage Determination Policy Guidance" 
provides clear guidance for selecting the most relevant O*NET occupational code classification. as 
follows: 
In determining the nature o(thejoh off'er. the first order is to review the requirements 
of the employer's job offer and determine the appropriate occupational classification. 
The O*NET description that corresponds to the employer's job offer shall be used to 
identify the appropriate occupational classification . . . . If the employer's job 
opportunity has worker requirements described in a combination of O*NET 
occupations, the NPWHC should default directly to the relevant O*NET-SOC 
occupational code for the highest paying occupation. For example. if the employer's 
job offer is for an engineer-pilot, the NPWHC shall use the education. skill and 
.
Matter of A-A-S-C- Inc 
expenence levels for the higher paymg occupation when making the wage level 
determination. 
The Petitioner classified the position on the LCA as a Level I (entry) position under the ''Education 
Administrators. Preschool and Childcare" occupation with a prevailing wage of $39.395 per year. 
The prevailing wage (in the same area and time period as the intended employment) for the 
occupation of "Accountants'' at a Level I wage. however. is significantly higher at $55.4 74 per year 7• 
and exceeds the proffered wage of $39,395 per year. In order for the LCA to be found to correspond 
with the petition, it would appear that the Petitioner needed to provide a certified LCA at the time of 
filing for the SOC code 13-2011.01 for "Accountants:· Thus. the Petitioner has not established that 
it submitted a certified LCA that supports and conesponds with the claimed duties of the proffered 
position. 
V. FILING REQUIREMENTS 
General requirements for tiling immigration applications and petitions are set forth at 8 C.F.R. 
§ 
1 03.2(a)(l ). in pertinent part. as follows: 
Every benefit request or other document submitted to DHS must be executed and 
filed in accordance with the form instructions . . . and such instructions arc 
incorporated into the regulations requiring its submission. . . . [and] must be tiled 
with fee(s) as required by regulation. 
The Petitioner indicated on the Form I-129, H-1 B and H-1 B 1 Data Collection and Filing Fee 
Exemption Supplement, that it was exempt trom the American Competitiveness and Workforce 
Improvement Act (ACWIA) fee, as required by section 214(c)(9)(A) of the Act, because it is "a 
primary or secondary education institution.'' Based on the submitted evidence, however. it appears 
that the Petitioner is a daycare facility. For example, the Petitioner identified itself with the North 
American Industry Classification System code of 624410, which "comprises establishments 
primarily engaged in providing day care of infants or children." 8 The Petitioner also used the SOC 
code and prevailing wage for "Education Administrators, Preschool and Childcare Center/Program." 
rather than the SOC code 11-9032 for "Education Administrators. Elementary and Secondary 
School.·· The Petitioner stated in its support letter that it provides .. developmentally-appropriate 
programs for children on a tull-time or part-time basis for children aged 6 weeks to school age." and 
submitted letters trom other self-described ''daycare centers" to support this petition. Therefore. it 
would appear from the documentation of record. the Petitioner. a daycare facility, was not eligible 
for the exemption to the ACWIA fee. In other words, the petition was not properly tiled because the 
Petitioner failed to pay the applicable ACWIA fee.9 
7 
See http://www.flcdatacenter.com/OesQuickResults.aspx?area= code= 13-20 II &year= 16&source= I (last visited 
Dec. 22, 20 17). 
:See ~ttps://w~_w.census.gov~econ/isp/~ampler.php?naicscode=62441 O&naicsleve1=6 (last visited Dec. 122. 20 17). 
Or, If the PetitiOner was eligible for tillS fee exemption because it is a primary or secondary education institution. then it 
.
Matt er of A-A-S-C- Inc 
VI. CONCLUSION 
The Petitioner has not established eligibility for the requested classification. 
ORDER: The appeal is dismissed . 
Cite as Matter qfA-A-S-C- Inc. ID# 810681 (AAO D ec. 26, 201 7) 
should have used the relevant prevailing wage for '' Education Administrators, Elementary a nd Secondary School'' of 
$71 ,070. See http://www. flcdatacenter.com/OesQuickResults.aspx?area=. code= I l-90 32&year= 16&sourcec I 
(last visited Dec. 22. 20 17). This would constitute another reason why the LCA does not support and correspond with 
the position.