dismissed H-1B Case: Education

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
FILE: WAC 04 077 50530 Office: CALIFORNIA SERVICE CENTER Date: OCT 2 ? m5 
IN RE: Petitioner: 
Beneficia 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any fix-ther inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 04 077 50530 
Page 2 
DISCUSSION: The director of the service center denied the nonirnmigrant 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 non-profit school that seeks to employ the beneficiary as an assistant teacher. The 
petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation 
pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
9 1 lOl(a)(l5)0(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. Counsel submits 
a brief and additional evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. 9 1184(i)(l), defines the term "specialty occupation" as an occupation 
that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. 3 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must 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. 
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) petitioner's response to the director's request; (4) the director's 
denial letter; and (5) Form I-290B and supporting documents. The AAO reviewed the record in its entirety 
before issuing its decision. 
WAC 04 077 50530 
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The petitioner is seeking the beneficiary's services as an assistant 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 this evidence, the 
beneficiary would perform duties that entail working with small groups of kindergarten students to reinforce 
reading and math concepts; supervising recess and lunch for the kindergarten students and integrate art into 
the curriculum with projects; supervising fifteen kindergarten students and be a lead teacher in the after 
school program; planning and implementing the program for after school program for kindergarten summer 
camp; acting as lead teacher and responsible for closing the facility during the summer; supervising extra 
curriculum activities and accompanying students on field trips; and participating in education conferences and 
workshops. The petitioner indicated that it was its policy to actively seek individuals with excellent academic 
credentials in analyhcal, communication, and interpersonal skills. The petitioner stated that the beneficiary 
had a bachelor's degree in psychology. 
The director issued a request for evidence that the proffered position meets one of the above listed criteria. 
The director requested a more detailed description of the work to be done, including specific duties. The 
director requested evidence that the school has filed a statement or affidavit with the Superintendent of Public 
Instruction pursuant to Section 33 190 of the California Education Code. 
In response, the petitioner stated that using the daily schedule, the percentage of time breakdown is as 
follows: 43% of time as assistant teacher in kindergarten; 15% of time as lunch supervisor; and 40% of time 
as lead kindergarten teacher in the after school program. The'petitioner stated that it filled out the private 
school affidavit online for the fall 2002. The petitioner stated thgt it filed another affidavit in April 2003. 
The director denied the petition and found that the proffered position of teacher assistant was not a specialty 
occupation. The director found the position reflects the duties of a teacher assistant as listed in the 
Department of Labor's Occupational Outlook *Handbook (the Handbook). The director found that the 
proffered position did not meet any of the above listed criteria and therefore was not a specialty occupation. 
On appeal, counsel contends that the petitioner has clearly demonstrated that 80% of its assistant teachers 
have a college degree. Additionally, counsel contends that the job duties are of such a complex or unique 
nature and they are so specialized that knowledge required to perform such duties is usually associated with 
the attainment of a baccalaureate or higher degree and it can be perfo'rmed only by an individual having said 
qualification. 
To determine whether a particular job qualifies as a spe'cialty occupation, CIS does not simply rely on a 
position's title. The specific duties of the proffered posifion, 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. Cf: 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 requited by the Act. 
CIS looks beyond the title of the position and determines, f?om a review of the duties of the position and any 
supporting evidence, whether the position actually requires the theoretical and practical application of a body 
of highly specialized knowledge, and the attainment of 6 baccalaureate degree in a specific specialty as the 
WAC 04 077 50530 
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minimum for entry into the occupation as required by the Act. CIS must be satisfied that the ultimate 
employment of the alien is in a specialty occupation, regardless of the position's title. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 214.20(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. 
Factors often considered by CIS when determining these criteria include: whether the Handbook reports that the 
industry requires a degree; whether the industry's professional association has made a degree a minimum entry 
requirement; and whether letters or affidavits from fms or individuals in the industry attest that such fums 
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 
@.Minn. 1999)(quoting Hird/Blaker COT. v. Suva, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements 
of particular occupations. With reference to teacher assistants, the Handbook does not indicate that such 
teacher assistant are required to have a baccalaureate degree in a specific specialty. The Handbook indicates 
that teaching assistant duties include: 
Teacher assistants provide instructional and clerical support for classroom teachers, allowing 
teachers more time for lesson planning and teaching. Teacher assistants tutor and assist 
children in learning class material using the teacher's lesson plans, providing students with 
individualized attention. Teacher assistants also supervise students in the cafeteria, 
schoolyard, and hallways, or on field trips. They record grades, set up equipment, and help 
prepare materials for instruction. . . . . 
Some teacher assistants perform exclusively noninstructional or clerical tasks, such as 
monitoring nonacademic settings. Playground and lunchroom attendants are examples of such 
assistants. Most teacher assistants, however, perform a combination of instructional and 
clerical duties. They generally provide instructional reinforcement to children, under the 
direction and guidance of teachers. They work with students individually or in small 
groups-listening while students read, reviewing or reinforcing class lessons, or helping them 
find information for reports. 
The Handbook reveals the following about training for teacher assistants: 
Educational requirements for teacher assistants vary by State or school district and range 
fi-om a high school diploma to some college training, although employers increasingly prefer 
applicants with some college training. Teacher assistants with instructional responsibilities 
usually require more training than do those who do not perform teaching tasks. In addition, as 
a result of the No Child Left Behind Act of 2001, teacher assistants in Title 1 schools-those 
with a large proportion of students from low-income households-will be required to meet 
one of three requirements: have a minimum of 2 years of college, hold a 2-year or higher 
* 
WAC 04 077 50530 
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degree, or pass a rigorous state and local assessment. Many schools also require previous 
experience in worlung with children and a valid driver's license. Some schools may require 
the applicant to pass a background check. 
Thus, the Handbook does not establish that the proffered position requires a baccalaureate degree in a specific 
specialty for entry into the position. 
The petitioner has not established the second criterion - that a specific degree requirement is common to the 
industry in parallel positions among similar organizations. 
No evidence is in the record that would show the proffered position is so complex or unique that it can be 
performed only by an individual with a degree. Counsel asserts that the duties of the position are complex. 
Again, the Handbook reveals that the proffered position is performed by teacher assistants, positions that do 
not require a bachelor's degree in a specific specialty 
The AAO now turns to the criterion at 8 C.F.R. $214.2&)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. The petitioner indicated that 80% of its teachers have degrees. 
However, as previously stated, CIS interprets the term "degree" in the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A) 
to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to 
the proffered position. In addition, the petitioner did not submit any documentation to establish the academic 
credentials of other teachers in its employ. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 
158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). Therefore the petitioner has not met this criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. $ 214.2(h)(iii)(A)(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. The petitioner provided no further detail as to any specialized or complex 
duties that the beneficiary would perform as a teacher assistant. Without more persuasive evidence, the 
petitioner has not established the fourth criterion of 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.