dismissed H-1B Case: Education

U.S. Department of IIomeland Security 
20 Mass Ave., N.W.. Rm. 3000 
Washington. DC 20529 
idcaifying data deleted to 
 u.S. Citizenship 
pevent clearly unwa-ted 
 and Immigration 
invasion of pcdonal prhracy 
puE%IC copy 
FILE: WAC 04 206 5 1766 Office: CALIFORNIA SERVICE CENTER Date: .I1 11 2 1 2006 
Immigration and Nationality Act, 8 U.S.C. $ 1 101(a)(l 5)(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, Chief 
Administrative Appeals Office 
WAC 04 206 51766 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant 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 pre-school and kindergarten that seeks to employ the beneficiary as a kindergarten teacher. 
The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty 
occupation pursuant to section IOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 9 1 10 1 (a)( 1 5)(H)(i)(b). 
The director denied the petition finding that the proffered position is not a specialty occupation. Counsel 
submits a timely appeal. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 11 84(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. 9 214.2(h)(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 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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 
8 C.F.R. 9 214.2(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 
WAC 04 206 5 1766 
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director's denial letter; and (5) Form I-290B and the brief. The AAO reviewed the record in its entirety 
before issuing its decision. 
The petitioner is seeking the beneficiary's services as a kindergarten teacher. Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the company support letter; 
and the petitioner's response to the director's request for evidence. According to the petitioner's July 14, 
2004 letter, the beneficiary would perform duties that entail teaching kindergarten students whose curriculum 
includes literacy, mathematics, science, art, process skills, and technology. The beneficiary will observe 
children and guide their learning, direct activities, interact with children to promote learning, and teach 
children who are gifted. The petitioner's response to the request for evidence elaborated on the proposed 
duties. The petitioner seeks to employ the beneficiary because she possesses the equivalent of a U.S. 
bachelor's degree in early childhood education and has over 15 years of experience in early childhood 
education. 
The director determined that the proffered position is not a specialty occupation. Referring to the Department 
of Labor's Occupational Outlook Handbook (the Handbook), the director stated that it reveals that the 
proposed duties reflect those of a preschool teacher, which is an occupation that does not require a specific 
baccalaureate degree. The director questioned whether the petitioner operates an approved private school in 
California, and he found that the evidence of record suggests that the petitioner operates a childcare center. 
The director stated that if the petitioner operates a childcare center, the beneficiary's duties correspond to 
those of a childcare worker, as that occupation is depicted in the Handbook, and that the Handbook reports 
that a childcare worker does not require a bachelor's degree in a specific specialty. The director found the 
submitted job postings unpersuasive in establishing the offered position as a specialty occupation. According 
to the director, the proposed job duties are generic in nature and fail to provide detail showing the unique or 
complex nature of the offered position. The director stated that although the petitioner asserts that it normally 
requires a baccalaureate degree in education for the proposed position, the position does not require a 
baccalaureate degree in a specific specialty. The director found the evidence failed to establish how the 
proposed duties are complex and specialized. 
On appeal, counsel states that the proffered position is that of a kindergarten teacher and that it qualifies as a 
specialty occupation. Counsel asserts that the Handbook and the Occupational Information Network 
(O*NET) indicate that a kindergarten teacher continues the social skills taught to children at the preschool 
level, and is primarily responsible for instructing children in academia. A preschool teacher, counsel states, 
"capitalizes on how children play in order to introduce them to language and vocabulary development, social 
skills, and basic scientific and mathematical concepts." According to counsel, preschool teachers do not 
instruct in academia. He maintains that the evidence reflects that the beneficiary will instruct students in 
academia, thus requiring a bachelor's degree. According to counsel a kindergarten teacher in a Montessori- 
style learning environment must provide instruction equivalent to instruction provided to kindergarten-aged 
children in public schools. Counsel refers to a prior AAO decision involving a preschool teacher in a private 
school. Counsel asserts that the petitioner operates as a private school and that other than the filing of the 
private school affidavit, private schools do not require licensure. Counsel refers to the previously submitted 
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job postings stating that they show it is common in the private school industry to require a bachelor's degree 
for a kindergarten teacher. 
Upon review of the record, the petitioner has not established that the proffered position is a specialty 
occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
The AAO first considers the criteria at 8 C.F.R. $5 214.2(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 ofien 
considered by CIS when determining these criteria include: whether the 2006-2007 edition of 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 1 15 1, 
1 165 (D.Minn. 1999)(quoting Hird/Blaker Corp. v. Sava, 7 12 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determines, from 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 evidence of record reveals that the proposed duties reflect those of a preschool teacher as that occupation 
is described in the Handbook: 
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 by kindergarten teachers, but academics begin to take priority in kindergarten 
classrooms. Letter recognition, phonics, numbers, and awareness of nature and science, 
introduced at the preschool level, are taught primarily in kindergarten. 
The director correctly noted that the submitted Private School Affidavit, which is to be filed annually by the 
petitioner with the California Department of   ducat ion,' is not current as it does not reflect the petitioner's 
1 
 California private schools serving kindergarten through grade twelve are required by state law 
to file an informational affidavit with the Specialized Programs Division of the California Department of 
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enrollment from October 1-15, 2003; the affidavit describes the enrollment of 14 kindergarten pupils from 
October 1-15, 2002. Moreover, the curriculum in the record reflects that of a pre-school education. The 
beneficiary will teach language and vocabulary such as shaping a heart and the letters G and H; motor skills 
of painting, cutting, and coloring; perception such as drawing a person; gross motor skills of eye tracking, 
working on snaps and buttons; and pre-math. The curriculum activities do not include academics, which 
correspond to a kindergarten education. Consequently, the evidence of record reveals that the proffered 
position is similar to a preschool teacher. 
With regard to educational requirement for a preschool teacher, the Handbook reports: 
All 50 States and the District of Columbia require public school teachers to be licensed. 
Licensure is not required for teachers in private schools in most States. Usually licensure is 
granted by the State Board of Education or a licensure advisory committee. Teachers may be 
licensed to teach the early childhood grades (usually preschool through grade 3); the 
elementary grades (grades 1 through 6 or 8); the middle grades (grades 5 through 8); a 
secondary-education subject area (usually grades 7 through 12); or a special subject, such as 
reading or music (usually grades kindergarten through 12). 
Requirements for regular licenses to teach kindergarten through grade 12 vary by State. 
However, all States require general education teachers to have a bachelor's degree and to 
have completed an approved teacher training program with a prescribed number of subject 
and education credits, as well as supervised practice teaching. Some States also require 
technology training and the attainment of a minimum grade point average. A number of 
States require that teachers obtain a master's degree in education within a specified period 
after they begin teaching. 
Private schools are generally exempt from meeting State licensing standards. 
Preschool teachers usually work their way up from assistant teacher, to teacher, to lead 
teacher-who may be responsible for the instruction of several classes-and, finally, to 
director of the center. Preschool teachers with a bachelor's degree frequently are qualified to 
teach kindergarten through grade 3 as well. Teaching at these higher grades often results in 
higher pay. 
Education each year by October 15. 
 Private Instruction Fact Book 2004 - Handbook of Education 
Information. 
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The Handbook does not indicate that a preschool teacher in a private school requires a bachelor's degree or 
teacher certification in a specific specialty. 
The submitted AAO decision dated August 13, 1998, found that a Montessori preschool teacher is a specialty 
occupation. This record of proceeding does not, however, contain all of the supporting evidence submitted to 
the California Service Center in the prior case. In the absence of all of the corroborating evidence contained 
in that record of proceeding, the submitted AAO decision is not sufficient to determine whether the H-1B 
petition that was approved is parallel to the one which is submitted here. 
Each nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. 5 103.8(d). In 
making a determination of statutory eligibility, CIS is limited to the information contained in the record of 
proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). 
For the foregoing reasons, the petitioner fails to establish 8 C.F.R. § 214.2(h)(4)(iii)(A)(I) as the Handbook 
does not indicate that a preschool teacher in a private school requires a bachelor's degree or teacher 
certification in a specific specialty. 
To establish the first alternative prong at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2), that a specific degree requirement 
is common to the industry in parallel positions among similar organizations, counsel refers to three job 
postings. The postings are not persuasive as they either relate to kindergarten teachers, or the educational 
requirements are for a state other than California, or both. The evidence of record indicates that the duties of 
the position that is offered here correspond to those of a private pre-school teacher, which is an occupation 
that the Handbook does not indicate requires a bachelor's degree in a specific specialty. As such, the 
petitioner fails to establish the first alternative prong, 8 C.F.R. 9 2 14.2(h)(4)(iii)(A)(2). 
The petitioner has not satisfied the second alternative prong at 8 C.F.R. 5 214.2(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. The evidence of record, including the curriculum, indicates that the proposed 
duties parallel those of a preschool teacher, which is an occupation that the Handbook reveals does not require 
a baccalaureate degree. Consequently, the petitioner fails to establish the second alternative prong, 
8 C.F.R. fj 2 14.2(h)(4)(iii)(A)(2). 
No evidence in the record establishes the regulation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3): that the petitioner 
normally requires a degree or its equivalent for the position. 
To satisfy the regulation at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(4), the petitioner must 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. Although the petitioner asserts that the 
proposed position is that of a kindergarten teacher, the evidence of record, including the curriculum, indicates 
that the proposed duties are analogous to those of a preschool teacher, which is an occupation that the 
Handbook reveals does not require a baccalaureate degree. No evidence of record demonstrates that the 
proposed duties entail primarily teaching academics. Thus, the nature of the proposed duties is not so 
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specialized and complex as to require knowledge that is usually associated with the attainment of a 
baccalaureate or higher degree in a specific specialty. Accordingly, the petitioner fails to establish the 
criterion at 8 C.F.R. 9 2 14.2(h)(4)(iii)(A)(4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. 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. 3 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.