dismissed H-1B Case: Education

(b)(6)
DATEJ.4AY 1 3 2015 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOI (a)(IS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § llOl (a)( lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form l-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
REV 312015 www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the Vermont Service 
Center. In the Form I-129 visa petition, the petitioner describes itself as a child development center 
established in In order to employ the beneficiary in what it designates as a preschool teacher 
position, the petitioner seeks to classify her as a nonimmigrant worker in a specialty occupation 
pursuant to section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The director reviewed the information and determined that the petitioner had not established 
eligibility for the benefit sought. The director denied the petition, concluding that the petitioner did 
not establish that the proffered position qualifies as a specialty occupation in accordance with the 
applicable statutory and regulatory provisions. 
The record of proceeding contains: (1) the petitioner's Form I-129 and supporting documentation; 
(2) the director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the 
director's decision; and (5) the Notice of Appeal or Motion (Form I-290B/ and supporting 
documentation. We reviewed the record in its entirety before issuing our decision. 
For the reasons that will be discussed below, we find that the petitioner has not established eligibility 
for the benefit sought. The appeal is dismissed and the petition remains denied. 
II. SPECIALTY OCCUPATION 
The primary issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. 
A. Legal Framework 
For an H-1 B petition to be granted, the petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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(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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ ( 1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a 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(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
also meet one of the following criteria: 
(1) 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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214. 2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F .R. § 214.2(h)( 4 )(iii)( A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214. 2(h)(4)(iii)(A) but not the statutory or 
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regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214. 2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)( 1) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 proffered 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"). Applying this standard, USCIS regularly approves H-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty or its equivalent directly related to the duties and responsibilities of the 
particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
In ascertaining the intent of a petitioner, USCIS looks to the Form I-129 and the documents filed in 
support of the petition. It is only in this manner that the agency can determine the exact position 
offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 C.F .R. 
§ 214.2(h)(9)(i), the director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or ·she may independently require to assist his or her 
adjudication. Further, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-lB petition 
involving a specialty occupation shall be accompanied by [d]ocumentation ... or any other required 
evidence sufficient to establish .. . that the services the beneficiary is to perform are in a specialty 
occupation." 
B. Proffered Position 
In the H Supplement to the Form 1-129, the petitioner claimed that the beneficiary would "teach pre­
school pupils academic, social, and manipulative skills; prepare lesson plans to promote intellectual 
growth needed for primary school." No further information regarding the proffered position was 
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provided to USCIS. Moreover, the petitioner did not assert that there were any particular 
requirements for the position. 
Thereafter, the director issued an notice requesting additional information about the petitioner and 
the proffered position. In response, the petitioner provided inter alia the following jo b description: 
1. Teaches preschool pupils academic, social and manipulative skills in private 
educational system. 
2. Prepares lesson plan and teaching outline for course of study, lectures, 
demonstrates and uses audiovisual teaching aids to present subject matter to 
class. 
3. Supervises Teacher Assistants and childcare workers to ensure that proper 
care, instructions and supervisions are provided to children at all times. 
4. Prepares, administers and corrects tests and records result. 
5. Plans individual and group activities to stimulate growth in language, social 
and motor skills, such as learning to listen to instructions, playing to others. 
6. Discusses pupil's academic and behavioral problems with parents and suggests 
remedial action. 
7. Instructs children in act1v1t1es designed to promote social, physical and 
intellectual growth needed for primary school. 
8. Assigns lessons, corrects papers and hears oral presentation. 
9. Keeps attendance and grade records. 
10. Supervises and ensures the safety and well-being of the children at all times, 
being alert for needs and/or problems of the children as individuals and as a 
group. 
11. Documents children's daily achievements, accomplishments, and 
developmental milestones, using the Creative Curriculum Goals and 
Objectives as guide and makes sure that her assistants/aides do the same. 
12. Schedules classroom fire drills, fieldtrips, co-workers' planning and evaluation 
meetings/trainings, and quarterly meetings/social gatherings with 
parent's! guardians. 
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13. Updates the Director of any classroom, children, and parents' concerns 
(developmental milestones, suspected abuse/neglect, special needs, unusual 
incidents/accidents, etc.). 
* * * 
We would like also to clarify further our stand on the issue of requmng a 
Baccalaureate Degree on the position offered which is normally our minimum 
requirement for entry into this particular position. Bachelor's degree is also required 
in the industry. 
C. Labor Condition Application 
In support of the petition, the petitioner submitted a Labor Condition Application (LCA) stating that 
the proffered position falls under the occupational category "Pr eschool Teachers, Except Special 
Education" - SOC (ONET/OES) code 25-2011, at a Level I (entry) wage. 
When completing the LCA, wage levels should be determined only after selecting the most relevant 
Occupational Information Network (O*NET) code classification. Then, a prevailing wage 
determination is made by selecting one of four wage levels for an occupation based on a comparison 
of the employer's job requirements to the occupational requirements, including tasks, knowledge, 
skills, and specific vocational preparation (education, training and experience) generally required for 
acceptable performance in that occupation. 2 
Prevailing wage determinations start with a Level I (entry) and progress to a wage that is 
commensurate with that of a Level II (qualified), Level III (experienced), or Level IV (fully 
competent) after considering the job requirements, experience, education, special skills/other 
requirements and supervisory duties. Factors to be considered when determining the prevailing 
wage level for a position include the complexity of the job duties, the level of judgment, the amount 
and level of supervision, and the level of understanding required to perform the job duties.3 The 
2 For additional information on wage levels, see DOL, Employment and Training Administration's Prevailing 
Wage Determination Policy Guidance, Nonagricultural Immigration Programs (Rev. Nov. 2009), available on 
the Internet at http://www .foreignlaborcert.doleta.gov/pdf/Policy _ Nonag_Progs.pdf. 
3 A point system is used to assess the complexity of the job and assign the wage level. Step 1 requires a "1" to 
represent the job's requirements. Step 2 addresses experience and must contain a "0" (for at or below the level 
of experience and SVP range), a "1" (low end of experience and SVP), a "2" (high end), or "3" (greater than 
range). Step 3 considers education required to perform the job duties, a "1" (more than the usual education by 
one category) or "2" (more than the usual education by more than one category). Step 4 accounts for Special 
Skills requirements that indicate a higher level of complexity or decision-making with a "1 "or a "2" entered as 
appropriate. Finally, Step 5 addresses Supervisory Duties, with a "1" entered unless supervision is generally 
required by the occupation. 
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U.S. Department of Labor (DOL) emphasizes that these guidelines should not be implemented in a 
mechanical fashion and that the wage level should be commensurate with the complexity of the 
tasks, independent judgment required, and amount of close supervision received. 
The "Prevailing Wage Determination Policy Guidance" issued by DOL provides a description of the 
wage levels. A Level I wage rate is described by DOL as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees 
who have only a basic understanding of the occupation. These employees perform 
routine tasks that require limited, if any, exercise of judgment. The tasks provide 
experience and familiarization with the employer's methods, practices, and programs. 
The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored 
and reviewed for accuracy. Statements that the job offer is for a research fellow, a 
worker in training, or an internship are indicators that a Level I wage should be 
considered. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at http://www .for eignlaborcert. 
doleta.gov/pdf/ NPWHC_ Guidance_Revised_ll_2009.pdf. 
DOL guidance further indicates that a requirement for years of education and/or experience that are 
generally required as described in the O*NET Job Zones would be an indication that a wage 
determination at Level II would be proper classification for a position. 4 
The occupational category "Preschool Teachers, Except Special Education," has been assigned an 
O*NET Job Zone 3, which groups it among occupations for which medium preparation is needed. 
More specifically, most occupations in this zone "require training in vocational schools, related 
on-the-job experience, or an associate's degree." See O*NET OnLine Help Center, at 
http://www .onetonline.org/help/online/zones, for a discussion of Job Zone 3. 
4 A Level II wage rate is described by DOL as follows: 
Level II (qualified) wage rates are assigned to job offers for qualified employees who have 
attained, either through education or experience, a good understanding of the occupation. 
They perform moderately complex tasks that require limited judgment. An indicator that the 
job request warrants a wage determination at Level II would be a requirement for years of 
education and/or experience that are generally required as described in the O*NET Job 
Zones. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www .foreignlaborcert.doleta.gov/pdf/ 
NPWHC _Guidance_ Revised _11_ 2009. pdf. 
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In the instant case, the petitioner designated the proffered position as a Level I position. This 
suggests that the petitioner's academic and/or professional experience requirements for the position 
would be less than "training in vocational schools, related on-the-job experience, or an associate's 
degree" as stated for occupations designated as O*NET Job Zone 3. Accordingly, the designation of 
the proffered position as a Level I (entry) position (relative to others within the occupational 
category) suggests that less than a bachelor's degree is sufficient to perform the tasks of the 
proffered position. 
D. Analysis 
In the instant case, the petitioner states that a bachelor's degree is the minimum entry requirement for 
the proffered position. To establish that the proffered position is a specialty occupation, however, 
the petitioner must demonstrate that the proffered position requires a precise and specific course of 
study that relates directly to the position in question. See Royal Siam Corp. v. Chertoff, 484 F.3d at 
147 (describing "a degree requirement in a specific specialty" as "one that relates directly to the 
duties and responsibilities of a particular position"). There must be a close correlation between the 
required specialized studies and the position; thus, the mere requirement of a degree, without further 
specification, does not establish the position as a specialty occupation. Cf Matter of Michael Hertz 
Associates, 19 I&N Dec. 558 (Comm'r 1988) (stating that "[t]he 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"). Thus, while a general-purpose degree or a 
degree in any discipline may be a legitimate prerequisite for a particular position, requiring such a 
degree, without more, will not justify a finding that a particular position qualifies for classification as 
a specialty occupation. Id. Therefore, the petitioner's claim that a general-purpose degree is 
acceptable is tantamount to an admission that the proffered position is not in fact a specialty 
occupation. 
Nevertheless, we will continue our evaluation and analysis of the evidence provided by the 
petitioner. To that end we will first discuss the record of proceeding in relation 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. 
USCIS recognizes DOL's Occupational Outlook Handbook (Handbook) as an authoritative source on 
the duties and educational requirements of the wide variety of occupations that it addresses. 5 We 
reviewed the chapter of the Handbook entitled "Preschool Teachers," and note that the subchapter of 
the Handbook entitled "How to Become a Preschool Teacher" states, in part, the following about this 
5 All references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/OCO/. Excerpts of the Handbook regarding the duties and requirements of the referenced 
occupational category are hereby incorporated into the record of proceeding. 
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occupation: 
Education and training requirements vary based on settings and state regulations. 
They range from a high school diploma and certification to a college degree. 
Education 
In childcare centers, preschool teachers generally are required to have a least a high 
school diploma and a certification in early childhood education. However, employers 
may prefer to hire workers with at least some postsecondary education in early 
childhood education. 
Preschool teachers in Head Start programs are required to have at least an associate's 
degree. However, at least 50 percent of all preschool teachers in Head Start programs 
nationwide must have a bachelor's degree in early childhood education or a related 
field. Those with a degree in a related field must have experience teaching preschool­
age children. 
In public schools, preschool teachers are generally required to have at least a 
bachelor's degree in early childhood education or a related field. Bachelor's degree 
programs teach students about children's development, strategies to teach young 
children, and how to observe and document children's progress. 
Licenses, Certifications, and Registrations 
Many states require childcare centers, including those in private homes, to be 
licensed. To qualify for licensure, staff must pass a background check, have a 
complete record of immunizations, and meet a minimum training requirement. Some 
states require staff to have certifications in CPR and first aid. 
Some states and employers require childcare workers to have a nationally recognized 
certification. Most often, states require the Child Development Associate (CDA) 
certification offered by the Council for Professional Recognition. Obtaining the CDA 
certification requires coursework, experience in the field, a written exam, and 
observation of the candidate working with children. 
Some states recognize the Child Care Professional (CCP) designation offered by the 
National Early Childhood Program Accreditation. Candidates for the CCP must be 18 
years old, have a high school diploma, experience in the field, take courses in early 
childhood education, and pass an exam. 
In public schools, preschool teachers must be licensed to teach early childhood 
education, which covers preschool through third grade. Requirements vary by state, 
but they generally require a bachelor's degree and passing an exam to demonstrate 
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competency. Most states require teachers to complete continuing education credits to 
maintain their license. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Preschool Teachers, available on the Internet at http://www .bls.gov/ooh/education-training-and­
library/preschool-teachers.htm#tab-4 (last visited May 4, 20 15). 
The Handbook does not indicate that at least a bachelor's degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into this occupation. Rather, the 
Handbook states that although there is a range of acceptable credentials, preschool teachers 
generally are required to have at least a high school diploma and a certification in early childhood 
education. The Handbook further indicates that employers may prefer to hire workers with at least 
some postsecondary education in early childhood education. However, a preference for a particular 
level of education does not indicate a requirement for entry into the occupation. Moreover, the 
phrase "some postsecondary education" does not indicate that such education must be a 
baccalaureate or higher degree. 
The Handbook discusses the requirements for preschool teachers in Head Start programs and in 
public schools. The petitioner does not claim, and has not provided any documentation to support a 
finding, that it has a Head Start program or is a public school. 6 Thus, these paragraphs of the 
Handbook are not relevant to the instant matter. 
Upon review, we find that the Handbook does not support the claim that the occupational category 
here is one for which normally the minimum requirement for entry is a baccalaureate or higher 
degree in a specific specialty, or its equivalent. Even if it did (which it does not), the record lacks 
sufficient evidence to support a finding that the particular position proffered here - which the 
petitioner has indicated on the LCA is a Level I (entry) position in relation to others within the 
occupation - would normally have such a minimum, specialty degree requirement or its equivalent. 
We also reviewed title 29 of the Municipal Regulations � 
at child development facilities. The requirements are outlined below: 
334 TEACHER QUALIFICATIONS 
for teachers 
334.1 A teacher shall be at least twenty (20) years of age and meet one of the following 
requirements: 
(a) An associate's degree or higher from an accredited college or 
university in early childhood education or early childhood 
development; 
6 The Handbook reports that in public schools, preschool teachers must be licensed to teach early childhood 
education, which covers preschool through third grade. 
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(b) An associate's degree or higher from an accredited college or 
university, at least fifteen (15) credit hours from an accredited college 
or university in early childhood education or early childhood 
development, and at least one (1) year supervised experience working 
with children in a licensed Child Development 
Center or its equivalent in another jurisdiction; 
(c) At least forty-eight ( 48) credit hours from an accredited college or 
university, at least fifteen (15) credit hours from an accredited college 
or university in early childhood education or early childhood 
development, and at least two (2) years supervised experience working 
with children in a licensed Child Development 
Center or its equivalent in another jurisdiction; 
(d) A valid Child Development Associate (CDA) credential, specifying 
that the individual is qualified for the assigned age classification; 
(e) Satisfactory completion of a child care certification course of no less 
than 90 hours from an accredited college or university, approved by 
the Director of the Department of Health or his/her designee, and at 
least three (3) years supervised experience working with children in a 
licensed Child Development Center or its 
equivalent in another jurisdiction; or 
(f) Montessori school teacher, at least forty-eight ( 48) credit hours of 
successful completion of course work from a regionally accredited or 
OSSE approved college or university; a Montessori certificate issued 
by a program accredited by any of the following: the Montessori 
Accreditation Commission for Teacher Education, National Center for 
Montessori Education, or the Association Montessori Internationale; 
and at least two (2) years supervised experience working with children 
in a licensed child development center or its 
equivalent in another jurisdiction. 
Title 29 334.1. The local regulations do not indicate that at least a bachelor's degree in a 
specific specialty (or its equivalent) is required for teacher positions at child development facilities, 
but rather there are a range of lesser credentials that are acceptable for such positions. 
In the instant case, the duties and requirements of the position as described in the record of 
proceeding do not indicate that this particular position proffered by the petitioner is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2( h)(4)(iii) (A)(l). 
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Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2 (h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions that 
are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered position, and also 
(3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by US CIS 
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, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the petitioner has not established that its proffered position is one for which 
the Handbook (or other independent, authoritative source) reports a standard industry-wide requirement 
for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. Also, there are no submissions from the industry's 
professional association indicating that it has made a degree a minimum entry requirement. 
Furthermore, the petitioner did not submit any letters or affidavits from similar firms or individuals 
in the petitioner's industry attesting that such firms "routinely employ and recruit only degreed 
individuals." 
In support of the petition, the petitioner provided a few jo b postings in support of its assertion that a 
bachelor's degree is required for the proffered position." 7 For the petitioner to establish that an 
organization is similar under this criterion of the regulations, it must demonstrate that the petitioner 
and the organization share the same general characteristics. Without such information, evidence 
submitted by a petitioner is generally outside the scope of consideration for this criterion, which 
encompasses only organizations that are similar to the petitioner. 
In the Form 1-129, the petitioner stated that it is a child development center with 28 employees. The 
petitioner also reported its gross annual income as approximately $1.5 million, and its net annual 
income as approxim ately $85,000. The petitioner d esignated its business operations under the North 
American Industry Classification System (NAICS) code 6244 10.8 This NAICS code is designated 
7 The petitioner's statement suggests that a general-purpose degree or a degree in any field is sufficient for a 
preschool teacher. Although stich a degree may be a legitimate prerequisite for a particular position, requiring 
such a degree, without more, will not justifY a finding that a particular position qualifies for classification as a 
specialty occupation. We here reiterate that the degree requirement set by the statutory and regulatory 
framework of the H-IB program is not just a bachelor's or higher degree, but a degree in a specific specialty 
that is directly related to the position. See 214(i)(l )(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
8 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used 
to classifY business establishments according to type of economic activity and, each establishment is 
classified to an industry according to the primary business activity taking place there. See 
http://www.census.gov/eos/www /naics/ (last viewed May 4, 2015). 
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for "Child Day Care Services." The U.S. Department of Commerce, Census Bureau website 
describes this NAICS code by stating the following: 
· This industry comprises establishments primarily engaged in providing day care of 
infants or children. These establishments generally care for preschool children, but 
may care for older children when they are not in school and may also offer pre­
kindergarten educational programs. 
See U.S. Dep't of Commerce, U.S. Census Bureau, 2012 NAICS Definition, 624410-Child Day Care 
Services, on the Internet at http://www .census.gov/cgi-bin/sssd/naics/naicsrch (last viewed May 4, 
2015). 
We will briefly note that, without more, not all of the job postings appear to be from organizations 
similar to the petitioner. For instance, the petitioner included advertisements from a university, a 
county government entity, and a public charter school. When determining whether the petitioner and 
the organization share the same general characteristics, such factors may include information 
regarding the nature or type of organization, and, when pertinent, the particular scope of operations, 
as well as the level of revenue and staffing (to list just a few elements that may be considered). It is 
not sufficient for the petitioner to claim that an organization is similar and in the same industry 
without providing a legitimate basis for such an assertion. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof· in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Importantly, some of the postings do not indicate that at least a bachelor's degree in a specific 
specialty (or its equivalent) is required. 9 For example, the posting from states 
that a bachelor's degree (no specific specialty) is required. 
We observe that some of the advertisements do not appear to be for parallel positions. For example, 
the posting from _ indicates that the career level of the position is 
"experienced" and falls in the job category "admin or professional faculty." The advertisement 
indicates that the position will be responsible for supervising several people and will earn 
approximately $7, 900 more per year than the wage offered to the beneficiary. In the instant case, the 
petitioner designated the proffered position on the LCA as a Level I position (the lowest of four 
assignable levels), thus indicating that it is an entry-level position relative to others within the 
occupation. Furthermore, we note that some of the jo b postings do not provide descriptions of the 
duties for the advertised positions. Therefore, without further information, it does not appear that all 
of the advertisements are for parallel positions. 
9 As discussed, the degree requirement set by the statutory and regulatory framework of the H-lB program is 
not just a bachelor's or higher degree, but one in a specific specialty that is directly related to the duties of the 
position. See 214(i)( l )(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
(b)(6)
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The job postings suggest, at best, that a bachelor's degree is sometimes required for �reschool 
teachers, but not at least a bachelor's degree in a specific specialty (or its equivalent).1 As the 
documentation does not establish that the petitioner has met this prong of the regulations, further 
analysis regarding the specific information contained in each of the jo b postings is not 
necessary. 11 That is, not every deficit of every jo b posting has been addressed. 
Thus, based upon a complete review of the record, the petitioner has not established that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common to 
the petitioner's industry in positions that are ( 1) in the petitioner's industry, (2) parallel to the 
proffered position, and also (3) located in organizations that are similar to the petitioner. For the 
reasons discussed above, the petitioner has not satisfied the first alternative prong of 8 C.F .R. 
§ 214.2(h)( 4)(iii)(A)(2). 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
petitioner provided information regarding the proffered position and its business operations. Upon 
review, we find that the petitioner has not sufficiently developed relative complexity or uniqueness 
as an aspect of the proffered pos'ition. For instance, the- petitioner did not submit information 
relevant to a detailed course of study leading to a specialty degree and did not establish how such a 
curriculum is necessary to perform the duties it may assert are so complex and unique. 
10 
It must be noted that even if all of the job postings indicated that a bachelor's degree in a specific specialty, 
or its equivalent, is common to the industry in parallel positions among similar organizations (which they do 
not), the petitioner does not demonstrate what inferences, if any, can be drawn from these advertisements with 
regard to determining the common educational requirements for entry into parallel positions in similar 
organizations. See generally Earl Babbie, The Practice of Social Research 186-228 (1995). 
As such, even if the job announcements supported the finding that the position required a bachelor's or higher 
degree in a specific specialty, or its equivalent (for organizations in the same industry that are similar to the 
petitioner), it cannot be found that such a limited number of postings that appear to have been consciously 
selected outweigh the findings of the Handbook published by the Bureau of Labor Statistics that such a 
position does not normally require at least a baccalaureate degree in a specific specialty, or its equivalent, for 
entry into the occupation in the United States. 
11 
The petitioner did not provide any independent evidence of how representative the job postings are of the 
particular advertising employers' recruiting history for the type of job advertised. As the advertisements are 
only solicitations for hire, they are not evidence of the actual hiring practices of these employers. 
(b)(6)
NON-PRECEDENTDEC�ION 
Page 15 
While a few related courses may be beneficial in performing certain duties of the position, the 
petitioner has not demonstrated how an established curriculum of such courses leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the 
duties of the proffered position. 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. The 
record does not establish which of the duties, if any, of the proffered position would be so complex 
or unique as to be distinguishable from those of similar but non-degreed or non-specialty degreed 
employment. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four assignable 
wage levels. As previously mentioned, the wage-level of the proffered position indicates that 
(relative to other positions falling under this occupational category) the beneficiary is only required 
to have a basic understanding of the occupation; that she will be expected to perform routine tasks 
that require limited, if any, exercise of judgment; that she will be closely supervised and her work 
closely monitored and reviewed for accuracy; and that she will receive specific instructions on 
required tasks and expected results.12 
Without further evidence, it is not credible that the petitioner's proffered position is complex or 
unique as such a position falling under this occupational category would likely be classified at a 
higher-level, such as a Level III (experienced) or Level IV (fully competent) position, requiring a 
significantly higher prevailing wage. For example, a Level IV (fully competent) position is 
designated by DOL for employees who "use advanced skills and diversified knowledge to solve 
unusual and complex problems."13 The evidence of record does not establish that this position is 
significantly different from other positions in the occupational category such that it refutes the 
Handbook's information that a bachelor's degree in a specific specialty is not required for the 
proffered position. 
Although the petitioner claims that the beneficiary is qualified for the position and provided 
documentation regarding her credentials, the test to establish a position as a specialty occupation is 
not the education or experience of a proposed beneficiary, but whether the position itself requires at 
least a bachelor's degree in a specific specialty, or its equivalent. The petitioner has not satisfied the 
second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
12 
As previously mentioned, DOL guidance indicates that a job offer for a research fellow, a worker in 
training, or an internship are indicators that a Levell wage should be considered. 
13 For additional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & 
Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. 
Nov. 2009), available at http:/ /www .foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 
2009.pdf 
(b)(6)
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The third criterion of 8 e.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. To 
this end, we review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a· matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were users limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could be 
brought to the United States to perform any occupation as long as the petitioner artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor v. Meissner, 
201 F.3d at 388. In other words, if a petitioner's stated degree requirement is only designed to 
artificially meet the standards for an H-lB visa and/or to underemploy an individual in a position for 
which he or she is overqualified and if the proffered position does not in fact require such a specialty 
degree or its equivalent, to perform its duties, the occupation would not meet the statutory or 
regulatory definition of a specialty occupation. See§ 214(i)( l) of the Act; 8 e.F.R. § 214.2(h)(4)(ii) 
(defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. users must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the 
specific specialty as the minimum for entry into the occupation as required by the Act. To interpret 
the regulations any other way would lead to absurd results: if users were constrained to recognize 
a specialty occupation merely because the petitioner has an established practice of demanding 
certain educational requirements for the proffered position - and without consideration of how a 
beneficiary is to be specifically employed - then any alien with a bachelor's degree in a specific 
specialty could be brought into the United States to perform non-specialty occupations, so long as 
the employer required all such employees to have baccalaureate or higher degrees. See id. at 388. 
The petitioner stated in the Form I-129 petition that it has 28 employees and that it was established 
in 1990 (approximately 24 years prior to the H-IB submission). The petitioner did not report the 
total number of people that it currently or in the past has employed as preschool teachers. 
In response to the RFE, the petitioner submitted a list of six names, and claimed that all of these 
(b)(6)
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Page 17 
individuals were previously employed by it as preschool teachers. The petitioner further submitted 
copies of the individuals' educational credentials and Form W-2, Wage and Tax Statements. 
Upon review, we note that the petitioner did not provide the jo b duties and day-to-day 
responsibilities of these individuals. That it, the petitioner did not submit any information regarding 
the complexity of the jo b duties, supervisory duties (if any), independent ju dgment required or the 
amount of supervision received. Accordingly, aside from the claimed jo b title, it is unclear whether 
the duties and responsibilities of these individuals were the same or related to the proffered position. 
Notably, the wages paid to these individuals vary significantly from each other, as well as from the 
offered wage to the beneficiary. For instance, the documentation indicates that the annual wages 
range from $10,839 to $18,601, suggesting that not all of these individuals served in positions for 
which the tasks and responsi bilities were the same. 
Without more, the evidence does not support the assertion that the petitioner normally requires at 
least a bachelor's degree in a specific specialty directly related to the duties of the position (or its 
equivalent) for the position. The petitioner has not satisfied the third criterion of 8 C.P.R. 
§ 214.2(h)( 4)(iii)(A). 
The fourth criterion at 8 C.P.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. 
The petitioner claims that the nature of the specific duties of the position in the context of its 
business operations 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. We reviewed the petitioner's information regarding the proffered position and its 
business operations. However, relative specialization and complexity have not been sufficiently 
developed by the petitioner as an aspect of the proffered position. 
We further incorporate our earlier discussion and analysis regarding the duties of the prof fered 
position, and the designation of the proffered position in the LCA as a Level I position (out of four 
assignable wage-levels) relative to others within the occupational category. Hence, without more, 
the position is one .not likely distinguishable by relatively specialized and complex duties. That is, 
without further evidence, the petitioner's has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position would likely be classified at a higher-level, such as 
a Level III (experienced) or Level IV (fully competent) position, requiring a substantially higher 
'1' 14 
preva1 mg wage. 
14 As previously discussed, a Level IV (fully competent) position is designated by DOL for employees who 
"use advanced skills and diversified ·knowledge to solve unusual and complex problems" and requires a 
significantly higher wage. 
····· ··-······ ···· ·-·-- --- -- -------
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
Although the petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the petitioner has submitted inadequate 
probative evidence to satisfy the criterion of the regulations at 8 C.P.R. § 214 .2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed and the 
petition denied. 
III. BENEFICIARY'S QUALIFICATIONS 
We do not need to examine the issue of the beneficiary's qualifications, because the petitioner has 
not provided sufficient evidence to demonstrate that the proffered position is a specialty occupation. 
In other words, the beneficiary's credentials to perform a particular job are relevant only when the 
job is found to be a specialty occupation. 
IV. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 29 1 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.