dismissed H-1B Case: Education

U.S. Department of Homeland Security 
20 Mass Ave., N.W.. Rm. A3042 
Washtngton, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 04 017 53620 Office: VERMONT SERVICE CENTER Date: SEP 2 1 m5 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
, EAC0401753620 
Page 2 
DISCUSSION: The director of the service center denied the nonirnrnigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a childcare facility that seeks to employ the beneficiary as a teacher (preschool). The 
petitioner, therefore, endeavors to classify the beneficiary as a nonimrnigrant worker in a specialty occupation 
pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 10 l(a)(l5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits additional evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 
Pursuant to 8 C.F.R. $ 214.2@)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum requirement 
for entry to 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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
5 214.2(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. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
EAC04017 53620 
Page 3 
director's denial letter; and (5) Form I-290B and supporting documentation. The MO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a teacher (preschool). Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; and the petitioner's response 
to the director's request for evidence. According to this evidence, the beneficiary would perform duties that 
entail creating lesson plans and implementing them in the classroom; following the activity schedule; 
developing parentlteacher interactions; changing and creating bulletin boards and decorating the classroom; 
maintaining developmental progress records and assessments of children; and complying with the Department 
of Social Service regulations governing classroom teachers. The petitioner seeks to employ the beneficiary 
because she possesses the equivalent to a U.S. bachelor's degree in education, has one year of graduate-level 
credit in education fi-om an accredited college or university in the United States, and has experience teaching. 
The director determined that the proffered position is not a specialty occupation. According to the director, 
counsel's assertion that the petitioner offers meaningful education to preschoolers through fifth graders is not 
supported by the record as no independent evidence establishes that the petitioner's clientele includes students 
beyond preschool age. The director found the degree certificates of former and present employees 
unpersuasive in establishing that the petitioner normally requires a bachelor's degree for the proposed 
position, and discussed the court's decision in Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000). Referring 
to the Department of Labor's Occupational Outlook Handbook (the Handbook) and the Dictionaly of 
Occupational Titles (DOT), the director stated that they reveal that employers do not require a bachelor's 
degree in a specific specialty for a preschool teacher. 
On appeal, counsel states that the proffered position is a specialty occupation as it is fundamentally a teaching 
position; that the petitioner normally requires a bachelor's degree for the proposed position; and that the state 
of Virginia requires at least a bachelor's degree for a teacher (preschool). Counsel submits a February 26, 
2004 letter fi-om the petitioner. 
Upon review of the record, the petitioner has not established that the proffered position is a specialty 
occupation under 8 C.F.R. fj 214.2(h)(4)(iii)(A)(4). 
The MO first considers the criteria at 8 C.F.R. fjfj 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. Factors often 
considered by CIS when determining these criteria 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, 1 102 (S.D.N.Y. 1989)). 
EAC0401753620 
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In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determines, fi-om a review of the duties of the position and any supporting evidence, whether the 
position actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate degree in a specific specialty as the minimum for entry into the 
occupation as required by the Act. 
The Form 1-129 petition describes the proposed position of "teacher preschool," and the petitioner's February 
26, 2004 letter submitted on appeal expands the beneficiary's job duties by stating that in addition to teaching 
the beneficiary will serve as a back-up program director. Counsel's January 23, 2004 letter, submitted in 
response to the request for evidence, also expanded the proposed duties by stating that the beneficiary will 
serve as a back-up program director. Counsel claims that a back-up program director requires a bachelor's 
degree. 
On appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, 
its level of authority within the organizational hierarchy, or the associated job responsibilities. The petitioner 
must establish that the position offered to the beneficiary when the petition was filed merits classification as a 
specialty occupation. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner 
may not make material changes to a petition in an effort to make a deficient petition conform to CIS 
requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Cornm. 1998). Therefore, the analysis of 
the proposed duties will be based on the job description described in the Form 1-129 petition. 
In addition, the purpose of the request for evidence is to elicit further information that clarifies whether 
eligibility for the benefit sought has been established. 8 C.F.R. 9 103.2(b)(8). When responding to a request 
for evidence, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, 
its level of authority within the organizational hierarchy, or its associated job responsibilities. The petitioner 
must establish that the position offered to the beneficiary when the petition was filed merits classification as a 
specialty occupation. Matter of Miclzelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). If significant 
changes are made to the initial request for approval, the petitioner must file a new petition rather than seek 
approval of a petition that is not supported by the facts in the record. The information provided in the 
response to the director's request for further evidence did not clarify or provide more specificity to the original 
duties of the position, but added a new duty to the job description. Consequently, the analysis of the proposed 
duties will be based on the job description submitted in the initial petition. 
In the February 26, 2004 letter, the petitioner states that it seeks the beneficiary's services to primarily teach 
and supervise children in lundergarten through the fifth grade; that of its 120 students, it has 55 to 60 children 
in lundergarten through the fifth grade; that it has licensure for this grade spread; that it is required to follow 
the same teaching standards that the Chesapeake public schools have for kindergarten through the fifth grade; 
and that the state of Virgnia requires a bachelor's degree for teaching school levels beyond kindergarten. 
The evidence does not support the petitioner's claim that the beneficiary will teach and supervise children in 
kindergarten through the fifth grade. Although the petitioner holds a license for a child day center for the 
ages of 16 months through 11 years, the evidence in the record reflects that the petitioner primarily serves 
EAC0401753620 
Page 5 
preschool children and that the beneficiary will be a preschool teacher. On the cover of the petitioner's 
submitted brochure describing its services, it is identified as a "pre schoollday care." The Form 1-129 petition 
indicates that the petitioner seeks to employ a "teacher preschool." In a January 23, 2004 letter, counsel 
references a chart describing a typical day for the beneficiary when teaching a "pre-school class." Counsel 
states that the beneficiary will teach skill sets, and counsel references exhibits 6, 7, 8, and 9 to demonstrate 
what will be taught. These exhibits, the AAO observes, relate to preschool children as the skills to be taught 
include fine motor skills such as shaking and grasping; language skills such as identifying the names of 
common objects and describing action in pictures; and describing a picture with three statements. 
Consequently, the evidence does not substantiate the petitioner's claim that the beneficiary will teach children 
in kindergarten through the fifth grade. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 
158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
A review of the Handbook, a resource that the AAO routinely consults, discloses that the proposed position 
resembles a preschool teacher, and that the director correctly determined that the Handbook reports that 
employers do not require a bachelor's degree in a specific specialty for a preschool teacher. The Handbook 
conveys : 
Preschool children learn mainly through play and interactive activities. Preschool teachers 
capitalize on children's play to further language and vocabulary development (using 
storytelling, rhyming games, and acting games), improve social skills (having the children 
work together to build a neighborhood in a sandbox), and introduce scientific and 
mathematical concepts (showing the children how to balance and count blocks when building 
a bridge or how to mix colors when painting). Thus, a less structured approach, including 
small-group lessons, one-on-one instruction, and learning through creative activities such as 
art, dance, and music, is adopted to teach preschool children. Play and hands-on teaching also 
are used in kindergarten classrooms, but there academics begin to take priority. Letter 
recognition, phonics, numbers, and awareness of nature and science, introduced at the 
preschool level, are taught primarily by kindergarten teachers. 
With regard to educational requirements of a preschool teacher, the Handbook reports: 
Licensing requirements for preschool teachers also vary by State. Requirements for public 
preschool teachers are generally higher than those for private preschool teachers. Some States 
require a bachelor's degree in early childhood education, others require an associate's degree, 
and still others require certification by a nationally recognized authority. The Child 
Development Associate (CDA) credential, the most common type of certification, requires a 
mix of classroom training and experience working with children, along with an independent 
assessment of an individual's competence. 
EAC 04 01 7 53620 
Page 6 
The Handbook states that the educational requirements of public preschool teachers is generally higher than 
of private school teachers, and that some states require a specific baccalaureate degree while others accept an 
associate's degree. The petitioner is a private childcare facility. Thus, according to the Handbook's 
information, the proposed position would not require a baccalaureate degree in a specific specialty. 
Consequently, the petitioner fails to establish the first criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A): that a 
baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular 
position. 
In the January 23, 2004 letter, counsel asserts that all pre-school teaching facilities in Virgnia must adhere to 
statutorily required standards. However, the record reflects no independent evidence showing that the state of 
Virginia requires that a facility such as the petitioner employ preschool teachers with a bachelor's degree in a 
specific specialty such as early childhood development. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
The petitioner submits no evidence to establish the first alternative prong at 8 C.F.R. $ 214,2(h)(4)(iii)(A)(Z) - 
that a specific degree requirement is common to the industry in parallel positions among similar 
organizations. 
The petitioner has not satisfied the second alternative prong at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2) as no 
evidence in the record shows the proffered position is so complex or unique that it can be performed only by 
an individual with a degree. As discussed earlier in this decision, the proposed position is similar to a 
preschool teacher, which is an occupation that the Handbook reveals does not require a baccalaureate degree. 
Counsel asserts that the petitioner establishes the criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(3): that the 
petitioner normally requires a degree or its equivalent for the position. The record contains the following: a 
master of arts in severe disabilities; two bachelor's degrees in early childhood education; three bachelor's 
degrees with an undisclosed major; bachelor's degrees in theatre, hospitality management, psychology, 
combined studies, elementary education, and early childhood education; an associate degree with an 
undisclosed major; associate degrees in education and early childhood; two associate degrees in early 
childhood development; a certificate from the Maryland State Department of Education indicating that the 
conferee of the certificate held a bachelor of science in early childhood nursery; an employment application 
indicating the applicant held a bachelor's degree in secondary art education; a transcript for a general studies 
major in the college of education and psychology at The University of Southern Mississippi; a partial 
transcript from the Tennessee Technical University; and a standard certificate from the Department of Public 
Instruction from the State of Delaware presenting the conferring with a license to hold the position of teacher 
of secondary social studies. 
In a February 26, 2004 letter, the petitioner refers to submitted degrees from fonner and present employees 
that occupied teacher positions, and states that the employees that held bachelor's degrees unrelated to 
teaching were assigned exclusively to pre-kindergarten children. The petitioner alleges that the beneficiary 
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will teach students in kindergarten through the fifth grade, thus she requires a bachelor's degree. However, 
the AAO has already conveyed that the evidentiary record reflects that the beneficiary will not occupy a 
position that involves teaching kindergarten through the fifth grade. The evidence shows that the beneficiary 
will be employed as a preschool teacher, which is an occupation that does not require a bachelor's degree. 
Accordingly, the petitioner fails to establish the third criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(3): that the 
petitioner normally requires a degree or its equivalent for the position. 
The fourth criterion at 8 C.F.R. 5 214,2(h)(4)(iii)(A) requires that the petitioner 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. As discussed earlier in this decision, the 
proposed position is similar to a preschool teacher as that occupation is described in the Handbook, and the 
Handbook reveals that this occupation does not require a specific baccalaureate degree. 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition on this 
ground. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.