dismissed H-1B Case: Education

U.S. Citizenship 
and Immigration 
Services 
In Re: 7282653 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 20, 2020 
The Petitioner, a Chinese immersion school, seeks to employ the Beneficiary as a "Mandarin Chinese 
instructor/curriculum developer" under the H-1 B 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 of the California Service Center denied the petition, concluding that the evidence of 
record does not establish that the proffered position qualifies as a specialty occupation . On appeal, 
the Petitioner asserts that the Director erred in the decision. 
Upon de nova review, we will dismiss the appeal. 1 
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: 
1 We follow the preponderance of the evidence standard. Matter ofCha wathe, 25 I&N Dec. 369, 375-76 (AAO 2010) . 
(]) 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. 
8 C.F.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.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. See Royal Siam Corp. v. Chertojf, 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-lB petition, the Petitioner stated that the Beneficiary will serve as a "Mandarin Chinese 
instructor/curriculum developer." The Petitioner initially provided the position's description, and 
repeated those duties in response to the Director's request for evidence (RFE). For the sake of brevity, 
we will not quote the description; however, we note that we have closely reviewed and considered the 
duties. According to the Petitioner, the proffered position requires a Bachelor's degree in education, 
TESOL, linguistics, or a closely related field. 
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. 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 2 
For H-lB approval, the Petitioner must demonstrate a legitimate need for an employee exists and 
substantiate that it has H-lB caliber work for the Beneficiary for the period of employment requested 
in the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient work to require the 
services of a person with at least a bachelor's degree in a specific specialty, or its equivalent, to perform 
duties at a level that requires the theoretical and practical application of at least a bachelor's degree 
2 The Petitioner submitted documentation to support the H- IB 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. 
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level of a body of highly specialized knowledge in a specific specialty for the period specified in the 
petition. 
In this matter, the Petitioner indicated that the Beneficiary will be employed in-house as a Mandarin 
Chinese instructor/curriculum developer. However, we find that the Petitioner did not provide 
sufficient, credible evidence to establish in-house employment for the Beneficiary for the validity of 
the requested H-lB employment period. 
The Petitioner stated that the Beneficiary's "primary responsibilities is teaching Mandarin Chinese as 
a foreign language to American students," ranging in age from toddlers (2 years old) through 
elementary (up to 10 years of age). The Petitioner also stated that "in addition to Mandarin Chinese 
classes, our school also contains a full day accredited pre-school and kindergarten." The Beneficiary 
will "contribute to this program by teaching art and music to 22 pre-k and kinder students for several 
hours each week." The Petitioner did not provide sufficient information of its business operations. 
For example, it does not provide sufficient information regarding the Mandarin Chinese classes with 
the elementary age students such as the number of children, the hours needed to teach those students 
and the teachers required to teach them. In addition, it appears that the preschool has 22 students but 
the Petitioner did not provide information regarding students at all levels and the amount of classes 
offered for the additional students that are older than the preschool level. In addition, according to the 
organizational chart, the Petitioner employs 12 individuals, including 9 teachers. It is not clear how 
the Petitioner employs 9 teachers for 22 children. The Petitioner did not provide sufficient information 
regarding the school day structure, the specific classes for all age types, or the specific classes that will 
be taught by the Beneficiary. Without additional information and documentation establishing the 
specific duties the Beneficiary will perform on this project, and the required knowledge to perform 
these duties, we are unable to discern the substantive nature of the position and whether the position 
indeed qualifies as a specialty occupation. 
The record of proceedings lacks sufficient documentation regarding the Petitioner's business activities 
and the actual work that the Beneficiary will perform to sufficiently substantiate the claim that the 
Petitioner has H-lB caliber work for the Beneficiary for the period of employment requested in the 
petition. The Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, which therefore precludes a finding that the proffered position satisfies any criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the 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 proffered 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 proffered 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. 
Nevertheless, assuming, for the sake of argument, that the proffered duties as described in the record 
would in fact be the duties the Beneficiary would perform, we will analyze them and the evidence of 
record to determine whether the proffered position as described would qualify as a specialty 
occupation pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A). On appeal, the Petitioner discusses the 
position's qualification as a specialty occupation mainly under the criterion in 8 C.F.R. § 
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214.2(h)(4)(iii)(A)(3), and very briefly discussed the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) and 
( 4). \It does not provide new documentary evidence, or otherwise challenge the Director's 
determination of ineligibility, under the criteria in subsection (2) of 8 C.F.R. § 214.2(h)(4)(iii)(A). 
A. First Criterion 
We tum 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. We recognize the U.S. Department of Labor's (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) 4 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Teachers and Instructors, All 
Other" corresponding to the Standard Occupational Classification (SOC) code 25-3099. We note that 
there are occupational categories which are not covered in detail by the Handbook. The Handbook 
suggests that for at least some of the occupations, little meaningful information could be developed. 
When the Handbook does not support the proposition that a proffered position is a specialty 
occupation, it is the Petitioner's responsibility to provide probative evidence (e.g., documentation from 
other objective, authoritative sources) that indicates whether the particular position in question 
qualifies as a specialty occupation. 
In support of its assertion that the proffered position is a specialty occupation, the Petitioner submitted 
an "expert testimony on the specialty occupation" froml IPrincipal otl I 
Early Childhood Center in the.__ __ ~~---' School District. The letter included verbatim the 
job duties of the Beneficiary as listed in the petition. I I stated that the "position is typical 
for a unique assignment at a school of the caliber of [the Petitioner]," and that a "minimum of 
Bachelor's Degree in Education, TESOL, or a closely related field is typical for such a position, where 
the candidate is responsible for the development and delivery of an innovative curriculum." 
~---,-----~I does not reference, cite, or discuss any studies, surveys, industry publications, 
authoritative publications, or other sources of empirical information which she may have consulted to 
complete the evaluation. In addition,! ldid not provide much information about her 
own credentials, outside of her titles, to indicate that she is qualified to provide an "expert testimony." 
Further! I did not discuss the duties of the proffered position in any substantive detail. 
To the contrary, it simply listed the identical tasks provided by the Petitioner.I I asserts 
3 We do not 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 we regularly review 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 ofproofremains 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 is required to submit a certified LCA to U.S. Citizenship and Immigration Services (USCTS) to demonstrate 
that it will pay the Beneficiary 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. Section 212(n)(l) of the Act; 20 C.F.R. § 655.731(a). 
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a general industry educational standard for the proffered position without referencing any supporting 
authority or any empirical basis for the pronouncement. Her opinion does not relate her conclusion to 
specific, concrete aspects of the Petitioner's business operations to demonstrate a sound factual basis 
for the conclusion about the educational requirements for the particular position here at issue. 
In summary, and for each and all of the reasons discussed above, we conclude that the opinion letter 
rendered bvl lis not probative evidence to establish the proffered position as a specialty 
occupation. The conclusion reached byl I lacks the requisite specificity and detail and 
is not supported by independent, objective evidence demonstrating the manner in which she reached 
such conclusion. There is an inadequate factual foundation established to support the opinion and the 
opinion is not in accord with other information in the record. Therefore, the letter from I I 
does not establish that the proffered position is a specialty occupation. 
We may, in our discretion, use advisory opinion statements submitted as expert testimony. However, 
where an opinion is not in accord with other information or is in any way questionable, we are not 
required to accept or may give less weight to that evidence. Matter of Caron International, 19 I&N 
Dec. 791 (Comm'r 1988). As a reasonable exercise of our discretion we discount the advisory opinion 
letter as not probative of any criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). 
We conclude that the Petitioner has not established that the proffered position is located within an 
occupational category for which the Handbook, or any other relevant, authoritative source, indicates 
that the normal minimum entry requirement is at least a bachelor's degree in a specific specialty, or 
the equivalent. Moreover, the Petitioner has not provided documentation from another probative 
source to substantiate its assertion regarding the minimum requirement for entry into this particular 
position. The Petitioner therefore has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. 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. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 
See Defensor, 201 F.3d at 387-88. Were we limited solely to reviewing a petitioner's claimed self­
imposed requirements, an organization could bring any individual with a bachelor's degree to the 
United States to perform any occupation as long as the petitioning entity created a token degree 
requirement. Id. Evidence provided in support of this criterion may include, but is not limited to, 
documentation regarding the Petitioner's past recruitment and hiring practices, as well as information 
regarding employees who previously held the position. 
The Petitioner submitted the current organizational chart, and it presented paystubs and educational 
credentials for 10 of its current employees, and two prior employees. In review of the credentials, the 
Petitioner provided credentials for two employees that were from China, and it did not submit 
credential evaluations to indicate the education earned abroad was the equivalent to a U.S. Bachelor's 
degree. In addition, two other individuals had obtained a Master's degree in East Asian Studies and a 
Doctor of Philosophy, and the Petitioner did not explain how these degrees are closely related to the 
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required degree for the position. A petitioner must demonstrate that the proffered position requires a 
precise and specific course of study that relates directly to the position in question. To prove that a 
job requires the theoretical and practical application of a body of highly specialized knowledge as 
required by section 214(i)(l) of the Act, a petitioner must establish that the position requires the 
attainment of a bachelor's or higher degree in a specialized field of study or its equivalent. As 
explained above, we interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a 
degree in a specific specialty that is directly related to the proposed position. 
Further, the Petitioner was established in 2006 and it cannot be determined how representative the 
Petitioner's claim regarding the current employees and two former employees who hold a similar 
position to the proffered position ( over a 13 year period of time) is of the Petitioner's normal recruiting 
and hiring practices. 
Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
C. 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 stated that the Beneficiary "will not only be performing the normal duties of 
a pre-school teacher, but will also be teaching pre-school students Mandarin Chinese." In support of 
the petition, the Petitioner provided information regarding the proffered position and its business 
operations. The generalized description of the Petitioner's overall business operations does not give 
sufficient insight into the particular duties of the proffered position as it will be performed with the 
students. The Petitioner's description does not convey the substantive nature of the work that the 
Beneficiary would actually perform, or any particular body of highly specialized knowledge that 
would have to be theoretically and practically applied to perform it. 
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. That is, the Petitioner failed to establish 
how the Beneficiary's responsibilities and day-to-day duties are so complex or unique that the position 
can be performed only by an individual with a bachelor's degree in a specific specialty, or its 
equivalent. 
As the Petitioner did not sufficiently develop relative specialization and complexity as an aspect of 
the duties of the position, it has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
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ORDER: The appeal is dismissed. 
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