dismissed H-1B Case: Education

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-E-S- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 23, 2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a charter public elementary, middle, and high school, seeks to temporarily employ 
the Beneficiary as a "Charter School, Elementary & Middle, Assistant Principal" under the H-1B 
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, Vermont Service Center, denied the petition. The 
matter is now before us on appeal. The appeal will be dismissed. 
I. ISSUE 
The issue before us is whether the Beneficiary is qualified to perform the duties of the proffered 
. . I 
pOSitiOn. 
II. BENEFICIARY QUALIFICATIONS 
A. Legal Framework 
Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an individual applying for 
classification as an H-1B nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (1)(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
1 We conduct appellate review on a de novo basis. Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); see 
also 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); Dor v. INS, 891 F.2d 997, 
l 002 n.9 (2d Cir. 1989). 
Matter of D-E-S- Inc. 
In implementing section 214(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C) states 
that a beneficiary must also meet one of the following criteria in order to qualify to perform services 
in a specialty occupation: 
(1) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation from an 
accredited college or university; 
(3) Hold an unrestricted State license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately engaged 
in that specialty in the state of intended employment; or 
( 4) Have education, specialized training, and/or progressively responsible 
experience that is equivalent to completion of a United States baccalaureate or 
higher degree in the specialty occupation, and have recognition of expertise in 
the specialty through progressively responsible positions directly related to the 
specialty. 
In addition, 8 C.F.R. § 214.2(h)(4)(v)(A) states: 
General. If an occupation requires a state or local license for an individual to fully 
perform the duties of the occupation, an alien (except an H-1 C nurse) seeking H 
classification in that occupation must have that license prior to approval of the 
petition to be found qualified to enter the United States and immediately engage in 
employment in the occupation. 
Therefore, to qualify a beneficiary for classification as an H -1 B nonimmigrant worker under the Act, 
the petitioner must establish that the beneficiary possesses the requisite license or, if none is 
required, that the beneficiary has completed a degree in the specialty that the occupation requires. 
Alternatively, if a license is not required and if the beneficiary does not possess the required U.S. 
degree or its foreign degree equivalent, the petitioner must show that the beneficiary possesses both 
(1) education, specialized training, and/or progressively responsible experience in the specialty 
equivalent to the completion of such degree, and (2) recognition of expertise in the specialty through 
progressively responsible positions relating to the specialty. 
In order to equate a beneficiary's credentials to a U.S. baccalaureate or higher degree, the provisions 
at 8 C.F .R. § 214.2(h)( 4 )(iii)(D) require one or more of the following: 
(1) An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
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Matter of D-E-S- Inc. 
which has a program for granting such credit based on an individual's training 
and/or work experience; 
(2) The results of recognized college-level equivalency examinations or special 
credit programs, such as the College Level Examination Program (CLEP), or 
Program on Noncollegiate Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials;2 
( 4) Evidence of certification or registration from a nationally-recognized 
professional association or society for the specialty that is known to grant 
certification or registration to persons in the occupational specialty who have 
achieved a certain level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and 
that the alien has achieved recognition of expertise in the specialty occupation as 
a result of such training and experience .... 
In accordance with 8 C.P.R. § 214.2(h)(4)(iii)(D)(5): 
For purposes of determining equivalency to a baccalaureate degree in the 
specialty, three years of specialized training and/or work experience must be 
demonstrated for each year of college-level training the alien lacks . . . . It must 
be clearly demonstrated that the alien's training and/or work experience included 
the theoretical and practical application of specialized knowledge required by the 
specialty occupation; that the alien's experience was gained while working with 
peers, supervisors, or subordinates who have a degree or its equivalent in the 
specialty occupation; and that the alien has recognition of expertise in the 
specialty evidenced by at least one type of documentation such as: 
(i) Recognition of expertise in the specialty occupation by at least two 
recognized authorities in the same specialty occupation; 3 
2 
The Petitioner should note that, in accordance with this provision, we will accept a credential evaluation service's 
evaluation of education only, not training and/or work experience. 
3 Recognized authority means a person or organization with expertise in a particular field, special skills or knowledge in 
that field, and the expertise to render the type of opinion requested. 8 C.F.R. § 214.2(h)(4)(ii). A recognized authority's 
opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such opinions, citing 
specific instances where past opinions have been accepted as authoritative and by whom; (3) how the conclusions were 
reached; and ( 4) the basis for the conclusions supported by copies or citations of any research material used. !d. 
3 
(b)(6)
Matter of D-E-S- Inc. 
(ii) Membership in a recognized foreign or United States association or 
society in the specialty occupation; 
(iii) Published material by or about the alien in professional publications, trade 
journals , books, or major newspapers ; 
(iv) Licensure or registration to practice the specialty occupation in a foreign 
country; or 
(v) Achievements which a recognized authority has determined to be 
significant contributions to the field of the specialty occupation. 
It is always worth noting that, by its very terms, 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) is a matter strictly 
for application and determination by U.S. Citizenship and Immigration Services (USCIS), and that, 
also by the clear terms of the rule, experience will merit a positive determination only to the extent 
that the record of proceeding establishes all of the qualifying elements at 8 C.F.R. § 
214.2(h)( 4)(iii)(D)(5) , including, but not limited to, a type of recognition of expertise in the specialty 
occupation. 
B. The Proffered Position 
The Labor Condition Application (LCA) submitted to support the visa petitiOn states that the 
proffered position corresponds to Standard Occupational Classification (SOC) code and occupation 
title 11-903 2, "Education Administrators , Elementary and Secondary," from the Occupational 
Information Network (O*NET) . The LCA further states that .the proffered position is a Level I, 
entry-level , position . 
In a letter dated November 10, 2014, the Petitioner described itself as a "mathematics and science 
focused charter school" doing business as . With respect to the proffered 
position, the Petitioner expressed its "need for an Assistant Principal with at least a bachelor's and 
preferably a master's degree in education , or in a substantive science or mathematics discipline like 
chemistry[,] to assist and support the school's principal with the coordination and planning of 
academic and high-level administrative activities . ... " The Petitioner stated that the Beneficiary 
will assist the Principal in managing school operations , act in the capacity of the Principal during 
that individual 's absences , and perform "essential high-level administrative and supervisory 
activities for the school." The Petitioner listed specific job duties of the proffered position as 
including the following: 
• As delegated by the Principal, manage the daily operations and functions of the 
school consistent with the school policy and priorities; 
• Communicate the school's vision, mission, and priorities to the community; 
• Serve as a member of the Principal 's Leadership Team and participates in· the 
school's planning, development , and evaluation ; 
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Matter of D-E-S- Inc. 
• Keeps the Principal informed of current school critical issues and incidents about 
which he/she should be aware; 
• As designated by the Principal, supervise and assess teachers and staff in terms of 
their performance and responsibilities in the achievement of school goals and 
priorities; 
• In the absence of the Principal, assume the responsibility for the total operation of the 
school and welfare of the teachers, staff, and students; 
• Assist the Principal in the planning of workshops, faculty meetings, and other service 
education programs; 
• Supervise and evaluate classroom instruction to ensure that the highest standards of 
educational instruction are being met; 
• Supervise selected aspects of the extracurricular programs, including athletic and 
school activities, student government, assemblies, and contests; 
• Oversee or administer certain school auxiliary services which may include the safety 
programs, library service, audio-visual supplies, and textbooks; and 
• Assist in supervising the preparation of school communications such as bulletins, 
handbooks, annual, and newspapers. 
The Petitioner again highlighted the "high-level management activities" of the proffered position, 
stating that "the offered assignment of Assistant principal is considered a professional, managerial 
administrative occupation." The Petitioner then asserted that the Beneficiary is "well-qualified" for 
the proffered position by virtue of his bachelor's and master's degrees in chemistry. 
C. Analysis 
We find that the evidence of record does not sufficiently demonstrate that the Beneficiary's degrees 
in chemistry qualify him to perform the duties of the proffered position. The Petitioner must 
demonstrate that the Beneficiary obtained knowledge of the particular occupation in which he will 
be employed. See Matter of Ling, 13 I&N Dec. 35 (Reg'l Comm'r 1968). 
The Petitioner here is seeking the Beneficiary's services as an Assistant Principal. While the 
Beneficiary appears to be is qualified to perform the duties of a specialty occupation, the evidence of 
record does not demonstrate how the Beneficiary, by virtue of holding degrees in chemistry, is 
qualified to perform the duties of the Assistant Principal position proffered here. The Petitioner 
repeatedly emphasizes the administrative and managerial nature of the proffered duties which do not 
appear to encompass any duties directly related to his area of study. It is important to note that the 
Petitioner claims that the Beneficiary will be performing "essential high-level administrative and 
supervisory activities for the school." In this case, none of the listed duties are related to his specific 
area of study, chemistry. · 
5 
Matter of D-E-S- Inc. 
While we acknowledge that the Petitioner is a "mathematics and science focused charter school," the 
Petitioner expressly attests that "the Beneficiary's offered duties are administrative and not 
instructional." 4 Again, it is not readily apparent how degrees in chemistry are directly and closely 
related to a non-instructional, administrative position, even within the context of the Petitioner's 
operations as a "mathematics and science focused" school. 5 Further, the Petitioner has not submitted 
sufficient information in order for users to make an equivalency determination in accordance with 
8 C.P.R.§ 214.2(h)(4)(iii)(D)(5). As such, since evidence was not presented that the Beneficiary has 
at least a bachelor's degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the proffered position, the petition cannot be approved. The appeal will be 
dismissed and the petition denied for this reason. 
As a final matter, the Petitioner points out that "this Beneficiary was previously approved in the 
same offered assistant principal duties with another employer." However, we are not required to 
approve petitions where eligibility has not been demonstrated, merely because of prior approvals that 
may have been erroneous. See Matter of Church Scientology Int'l, 19 I&N Dec. 593, 597 (Comm'r 
1988). It would be "absurd to suggest that [USCIS] or any agency must treat acknowledged errors 
as binding precedent." Sussex Eng 'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). 
A prior approval does not compel the approval of a subsequent petition or relieve the Petitioner of its 
burden to provide sufficient documentation to establish current eligibility for the benefit 
sought. Temporary Alien Workers Seeking Classification Under the Immigration and Nationality 
Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) (to be codified at 8 C.P.R. pt. 214). A prior approval 
also does not preclude users from denying an extension of an original visa petition based on a 
reassessment of eligibility for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 F. App'x 
556 (5th Cir. 2004). Furthermore, our authority over the service centers is comparable to the 
relationship between a court of appeals and a district court. We are not bound to follow the 
contradictory decision of a service center. See La. Philharmonic Orchestra v. INS, 44 F. Supp. 2d 
800, 803 (E.D. La. 1999). 
4 More specifically, the Petitioner asserts that the proffered position is not an instructional position and therefore does 
not require certification. While some of the initially-listed duties involving evaluating classroom and teacher 
performances could possibly be seen as "instructional" or "academic," the Petitioner later clarified that these duties are 
"within the limited scope of ensuring teachers and staff are achieving the school's goals and priorities" and thus are 
administrative- not instructional - in nature. 
5 The U.S. Department of Labor's Occupational Outlook Handbook (Handbook), an authoritative source on the duties 
and educational requirements of the wide variety of occupations that it addresses, briefly addresses the occupation of 
assistant principals in its chapter titled "Elementary, Middle, and High School Principals." U.S. Dep't of Labor, Bureau 
of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., "Elementary, Middle, and High School Principals," 
http://www.bls.gov/ooh/management/elementary-middle-and-high-school-principals.htm#tab-2 (last visited Nov. I 0, 
20 15). We note that the stated duties of the proffered position generally overlap with the duties of principals as 
described in the Handbook. Thus, it follows that assistant principal positions and principal positions would require 
degrees in the same field of study. 
Matter of D-E-S- Inc. 
III. CONCLUSION 
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) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-E-S- Inc., ID# 14390 (AAO Nov. 23, 2015)