dismissed H-1B Case: Education

ibdtfying data dew to 
vent clcady und P== iav&dpaolld- 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 188 5 14.57 Office: CALIFORNIA SERVICE CENTER Date: Am 2 9 2006 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. fj 1 10 l(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 04 188 51457 
Page 2 
DISCUSSION: The director of the California 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 staffing agency placing teachers, nurses and other professionals in schools, hospitals and 
healthcare facilities, with 17 employees listed on its organizational chart. It seeks to employ the beneficiary 
as a special education teacher pursuant to section lOl(a)(l 5)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. tj 1 lOl(a)(l5)(H)(i)(b). The director denied the petition because he determined that the 
record did not establish that the petitioner would employ the beneficiary in a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence; (3) the petitioner's response to the director's request for evidence; (3) the 
director's denial letter; and (4) Form I-290B, with additional evidence. The AAO reviewed the record in its 
entirety before issuing its decision. 
Section 214(i)(l) of the Act, 8 U.S.C. tj 1184(i)(l) defines the term "specialty occupation" as one that 
requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) 
as a minimum for entry into the occupation in the United States. 
The term "specialty occupation" is further defined at 8 C.F.R. tj 214.2(h)(4)(ii) as: 
An occupation which 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 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. tj 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a petitioner must establish that 
its position meets one of four 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; 
WAC 04 188 51457 
Page 3 
(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 above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
To determine whether a particular job qualifies as a specialty occupation, CIS 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. CIS must examine the ultimate employment of the 
alien, and determine whether the position qualifies as a specialty occupation. Cj Defensor v. Meissner, 201 
F. 3d 384 (5th Cir. 2000). 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. 
The petitioner states that it seeks the beneficiary's services as a special education teacher and that the position 
requires a bachelor of science in education. In response to the director's request for evidence, the petitioner 
provided a copy of an April 9, 2004 letter of employment sent to the beneficiary listing the following as the 
duties she would be required to perform: 
Teaching one or more subjects to students, using various methods such as lectures, 
demonstrations, and audiovisual aids and other materials to supplement 
presentations; 
Preparing course objectives and the outline for courses of study in line with 
curriculum guidelines or requirements; 
Assigning homework and conducting examinations; 
Maintaining discipline and good values; 
Keeping track of students' standings, academic and social; 
Meeting with parents to discuss student progress and problems; 
Assisting students in selecting courses of study; 
Counseling students in general adjustment and academic problems; 
Assisting in the implementation of school policies, regulations and new programs; 
Helping students improve their social and academic life; and 
Participating in faculty and professional meetings, educational conferences and 
teacher training programs. 
WAC 04 188 5 1457 
Page 4 
The evidence of record demonstrates that the petitioner will act as the beneficiary's employer in that it will 
hire, pay, fire, supervise, or otherwise control the work of the beneficiary.' See 8 C.F.R. (j 214.2(h)(4)(ii). 
However, the petitioner also initially indicated that the beneficiary could be employed under contract at any 
of the schools for which it provides staffing services. Therefore, pursuant to the language at 8 C.F.R. 
(j 214.2(h)(2)(i)(B), the director, in his request for evidence, asked for an itinerary of the beneficiary's 
employment, as well as contracts specifying the duties to be performed by the beneficiary at the facilities 
where she would work. In the Aytes memorandum cited at footnote 1, the director has the discretion to 
request that an employer who will employ a beneficiary in more than one location submit an employment 
itinerary. Upon review, the director properly exercised his discretion to request an itinerary. 
In response to the director's request for evidence, the petitioner submitted the letter of employment noted 
above, a list of 19 schools where the beneficiary might be employed and a professional service agreement 
with the New Design Charter School in Los Angeles. On appeal, the petitioner states that the beneficiary 
would be assigned only to the Pomona school district and submits letters from the Pomona and Montebello 
Unified School Districts, both of which indicate that the petitioner provides contract teaching staff to each 
school system. The evidence submitted by the petitioner on appeal does not, however, establish that the 
beneficiary would be assigned to the Pomona school district for the period of time requested on the Form I- 
129. The letter of employment addressed to the beneficiary does not indicate the school(s) where she would 
work as a teacher. The petitioner's staffing agreement with the Pomona Unified School District does not 
identify the beneficiary. Accordingly, the evidence submitted by the petitioner does not comply with the 
requirements at 8 C.F.R. $ 214.2(h)(2)(i)(B). The petition must, therefore, be denied.* 
The petitioner's failure to submit a contract describing the duties the beneficiary would perform as a teacher 
for the Pomona school district also precludes it from establishing the proffered position as a specialty 
occupation under any of the alternate criteria at 8 C.F.R. (j 214.2(h)(4)(iii)(A). 
The evidence of record establishes that the petitioner is an employment contractor in that the petitioner will 
place the beneficiary at multiple work locations to perform services established by contractual agreements for 
third-party companies. The petitioner, however, has provided no contracts, work orders or statements of work 
describing the duties the beneficiary would perform for its clients and, therefore, has not established the 
proffered position as a specialty occupation. 
The court in Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000) held that for the purpose of determining 
whether a proffered position is a specialty occupation, a business that acts as an employment contractor - an 
entity placing employees at third-party companies to perform services under contract - is merely a "token 
employer," while the entity for which the services are to be performed is the "more relevant employer." The 
Defensor court recognized that evidence of the client companies7 job requirements is critical where the work 
1 See also Memorandum from Michael L. Aytes, Assistant Commissioner, INS Office of Adjudications, 
Interpretation of the Term "Itinerary" Found in 8 C.F.R. 214.2(h)(2)(i)(B) as it Relates to the H-IB 
Nonimmigrant ClasslJication, HQ 7016.2.8 (December 29, 1995). 
As noted by Assistant Commissioner Aytes in the cited 1995 memorandum, "[tlhe purpose of this 
particular regulation is to [elnsure that alien beneficiaries accorded H status have an actual job offer and are 
not coming to the United States for speculative employment. 
WAC 04 188 5 1457 
Page 5 
is to be performed for entities other than the petitioner. The court held that the legacy Immigration and 
Naturalization Service had reasonably interpreted the statute and regulations as requiring the petitioner to 
produce evidence that a proffered position qualifies as a specialty occupation on the basis of the requirements 
imposed by the entities using the beneficiary's services. Therefore, it is not the duties listed by the petitioner 
in response to the director's request for evidence, but those established under agreement with its client school 
that must demonstrate a degree requirement or its equivalent for the proffered position. As the petitioner has 
failed to provide evidence of the specific contractual duties to be performed by the beneficiary, it has not 
established that the proposed position qualifies as a specialty occupation under any of the criteria at 8 C.F.R. 
5 214.2(h)(4)(A) or that the beneficiary would be coming temporarily to the United States to perform the 
duties of a specialty occupation pursuant to 8 C.F.R. 5 214.2(h)(l)(B)(I). 
The AAO also notes that the certified Labor Condition Application (LCA) submitted by the petitioner states 
that the location of the beneficiary's employment would be Los Angeles, while the petitioner, on appeal, 
indicates that the beneficiary would be employed in Pomona. Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(B)(2), a 
petitioner must comply with the terms of the certified LCA for the duration of the beneficiary's authorized 
stay in the United States. In that Pomona and Los Angeles are both covered by the same prevailing wage rate, 
the beneficiary's assignment to a school in Pomona would not compromise the petitioner's LCA compliance. 
The same is true for all but one of the 19 possible assignment locations listed by the petitioner in response to 
the director's request for evidence. However, the Mexican American Community Services Agency 
(MACSA), Inc. is located in San Jose, a city in Santa Clara County, which has a different prevailing wage 
rate. Accordingly, were the beneficiary to be assigned to San Jose, the petitioner would need to file an 
amended or new petition with the service center where the instant petition was filed. To reflect any material 
changes in the terms and conditions of employment or training or the alien's eligibility, a petitioner must file 
an amended or new petition, with fee, with the service center where the original petition was filed. See C.F.R. 
5 2 14.2(h)(2)(E). 
For reasons related in the preceding discussion, the record does not establish that the duties of the proffered 
position qualify as a specialty occupation under any of the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A), that the 
petitioner has met the filing requirements at 8 C.F.R. 5 214.2(h)(2)(i)(B) or that it has established compliance 
with the regulation at 8 C.F.R. 5 214.2(h)(4)(iii)(B)(2). Therefore, the AAO shall not disturb the director's 
denial of the petition. 
The AAO notes that certain aspects of its decision differs from the reasoning relied upon by the director. An 
application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afS'd 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
3 136 1. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.