dismissed H-1B Case: Education

identiQing dlatrt 
prevent elemly unwanan~ 
invasion of personal privaq 
, PUBLICCOPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm:A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 02 119 52767 Office: VERMONT SERVICE CENTER Date: MAR 3 2006 
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. 9 1 10 l(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 further inquiry must be made to that office. 
 . 
Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 02 1 19 52767 
Page 2 
DISCUSSION: The service center director 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 language school that seeks to employ the beneficiary as an English teacher. The petitioner 
endeavors to classify the beneficiary as a nonirnrnigrant worker in a specialty occupation pursuant to section 
10 1 (a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1 10 1 (a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position does not qualify as a specialty occupation. On 
appeal, the petitioner submits a kef stating that the offered position qualifies as a specialty occupation. 
The issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty 
occupation. 
Section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 8 1 lOl(a)(lS)(H)(i)(b), provides, in part, for the 
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform 
services in a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 
 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. 
The term "specialty occupation" is fkther defined at 8 C.F.R. $ 214.2(h)(4)(ii) as: 
[A]n 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 hlgher 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. 8 214.2(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; 
EAC 02 1 19 52767 
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(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties are 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. 
8 214.2(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 MO contains: (1) the 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 
director's denial letter; and (5) the Form I-290B with supporting documentation. The MO reviewed the 
record in its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as an English teacher. Evidence of the beneficiary's duties 
includes the Form 1-129 petition with attachment and the petitioner's response to the director's request for 
evidence. According to this evidence the beneficiary would spend 90 per cent of her time teaching students 
English as a second language, and 10 per cent of her time translating documents and other materials from 
Polish to English. 
The petitioner states that it requires a minimum of a bachelor's degree, plus either completion of an English 
as a second language training program or one year of teaching experience in English as a second language for 
entry into the proffered position. 
Upon review of the record, the petitioner has failed to establish that a baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry into the offered position, or that a degree 
requirement is common to the industry in parallel positions among similar organizations, as asserted by the 
petitioner. Factors often considered by CIS when determining these criteria include: whether the Department 
of Labor's Occupational Outlook Handbook (Handbook) reports that the industry requires a degree; whether 
an industry 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, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for information about the duties and educational requirements of 
particular occupations. The majority of the duties of the proffered position fall within those noted for teachers 
of adult literacy, remedial and self-enrichment education. The Handbook notes that educators who work with 
adult English-language learners are usually called teachers of English as a second language (ESL) or teachers 
of English to speakers of other languages (ESOL). ESOL teachers help adults to speak, listen, read, and write 
in English, often in the context of real-life situations to promote learning. More advanced students may 
concentrate on writing and conversational skills or focus on learning more academic or job-related 
communications skills. ESOL teachers teach adults from varied cultural and educational backgrounds. The 
Handbook states that requirements for teaching adult literacy and basic and secondary education vary by State 
EAC 02 1 19 52767 
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- 
 and by program. Most State and local governments and educational institutions require that adult teachers 
have at least a bachelor's degree and, preferably, a master's degree. A few States require a certificate in 
ESOL or adult education. Teaching experience is also preferred or required. In this instance, the State of 
New York requires that ESOL teachers have a baccalaureate degree and have completed either an English as a 
second language training program or have one year of teaching experience in an English as a second language 
program. A degree in a specific specialty is not required. The petitioner has not, therefore, established the 
criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A) with respect to the teachng responsibilities of the position. 
Ten per cent of the beneficiary's duties would involve translating documents fiom Polish to English. The record 
does not describe the type or purpose of the material to be translated. There is no requirement in the Handbook 
that a translator have a degree in a specific specialty to work as a translator. The petitioner has also failed to 
establish the first criterion of 8 C.F.R. tj 214.2(h)(4)(iii)(A) with regard to these duties. 
The petitioner states that a bachelor's degree in a specific specialty is common to the industry in parallel 
positions among similar organizations, and in support of that assertion submits copies of job advertisements 
and a teacher handbook from a competitor company. The advertisements and the handbook indicate that a 
bachelor's degree is required for ESLIESOL teachers. They do not, however, indicate that a degree in any 
particular discipline is required. This is consistent with the Handbook's statements concerning the 
educational requirements for the position. The petitioner has failed to establish the referenced criterion at 
8 C.F.R. tj 214.2(h)(4)(iii)(A)(2). 
The petitioner states that it normally requires a degree for entry into the proffered position. In support of that 
assertion the petitioner lists 30 degreed teachers employed by it. The degrees listed for those teachers 
include: English; education; history; science; psychology; economics; linguistics; East Asian studies and 
literature; political science; philosophy; anthropology; civil engineering; communications; communicative 
disorders; human communicatio; Yugoslav literature and Serbo-Croat language; German; mass 
communications; and literature. Thus, it is clear that the petitioner does not require a degree in any specific 
discipline to teach at its facilities. The petitioner states, on appeal, that its teachers of advanced English 
courses have degrees in linguistics or TESOL, pedagogy, or education. The record does not establish, 
however, that these teachers are the only two teachers who teach advanced level English courses. The 
petitioner states that it offers nine levels of ESL courses and courses in TOEFL preparation, as well as 
translation services, and that each year it teaches more than 15,000 students from over 75 countries the 
English language. Further, 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 or 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 ~ct.' To interpret the regulations any other way would lead to absurd 
results: if CIS were limited to reviewing a petitioner's self-imposed employment requirements, then any alien 
' The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387. 
EAC 02 1 19 52767 
Page 5 
with a bachelor's degree could be brought into the United States to perform menial, non-professional, or an 
otherwise non-specialty occupation, so long as the employer required all such employees to have 
baccalaureate or higher degrees., See id at -388. The petitioner has failed to establish the criterion at 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A)(3). 
The duties to be performed by the beneficiary are not so specialized or complex that knowledge required to 
perform them is usually associated with the attainment of a baccalaureate or higher degree in a specific 
specialty. Nor are the duties so complex or unique that they can be performed only by an individual with a 
degree in a specific specialty. The duties are routine for the position in the industry and regularly performed 
by individuals with education in a wide range of educational disciplines. The petitioner has failed to establish 
the referenced criteria at 8 C.F.R. 88 214.2(h)(4)(iii)(A)(2) or (4). 
Finally, the petitioner notes that the Dictionary of Occupational (DOT) classifies the position as "professional 
and kindred." This designation does not establish that the positions classified require a degree in any.specific 
specialty. 
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. 5 1361. 
The petitioner has failed to sustain that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.