dismissed H-1B Case: Education

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
t ' 
FILE: SRC 03 18 1 5 1 180 ORice: TEXAS SERVICE CENTER Date: @ $ fiO3 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 1 Ol(a)(l S)(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 
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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 private preschool and daycare business that seeks to employ the beneficiary as a teacher. 
The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupatiorl pursuant 
to § 101 (a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 IOl(a)(l 5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. 0:n appeal, 
counsel submits a brief. 
Section 2 14(i)(l) of the Act, 8 U.S.C. 5 1 184(i)(l), defines the term "specialty occupation" as an oc:cupation 
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. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
2 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. 
3 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is 
directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a teacher. Evidence of the beneficiary's duties includes: 
the 1-129 petition; the petitioner's June 5, 2003 letter in support of the petition; and the petitioner's response 
to the director's request for evidence. According to this evidence, the beneficiary would perform duties that 
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entail: instructing students in activities designed to promote social, physical, and intellectual growth including 
communication through language development, reading, fine motor skills for writing, listening skills, and 
socialization. The petitioner indicated that a qualified candidate for the job would possess a bachelor's degree 
in teaching or a related field. 
The director found that the proffered position, which is that of a preschool teacher, was not a specialty 
occupation. Citing to the Department of Labor's Occupational Outlook Handbook (Handbook), 2002-2003 
edition, the director noted that the minimum requirement for entry into the position was not a bacc:alaureate 
degree or its equivalent in a specific specialty. The director found further that the petitioner failed to establish 
any of the criteria found at 8 C.F.R. 9 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the petitioner provided evidence that preschool is publicly funded in 
Georgia, and that the public school system in the county where the petitioner is located requires degrees for 
all its preschool teachers. Counsel states further that the petitioner normally requires a degree for the position. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO tunis first to the criteria at 8 C.F.R. 5 214,2(h)(4)(iii)(A)(l) and (2): a baccalaureate clr 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 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, I 165 (D. 
Minn. 1999)(quoting HirdBlaker Corp. v. Sava, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AAO does not concur with counsel that the proffered position is a specialty 
occupation. No evidence in the Handbook, 2004-2005 edition, indicates that a baccalaureate or higher degree, or 
its equivalent, is required for a preschool teacher. In a letter, dated February 6, 2004, the petitioner's president 
asserts, in part, that the county in which the petitioner is located requires a bachelor's degree for all Pre-K 
teachers. In support of her assertion, she submits a letter from the director of personnel of Whitfield County 
Schools, who states, in part: "The Whitfield County Board of Education requires that all teachers, including pre- 
school teachers, possess a bachelors degree from a four year college." The petitioner, however, is a private 
preschool and is not part of the Whitfield County Public School system.' The petitioner also asserts that the 
school is licensed as a Georgia Pre-K facility. There is no evidence of record of such license, or of what the 
1 It is also noted that an Internet article entitled "Georgia upgrades teacher standards" at the vliebsite 
http:llwww.catal~st-chica~o.or~/O2-04/0204georgia.htm states in part: "In 1999, Georgia education officials 
decided that the best way to prepare more preschool youngsters for kindergarten would be require their 
teachers to upgrade their own education. To that end, lead teachers were given three years to obtain at least an 
associate's degree in early childhood education or a related field such as child development, instead of'just a 
certificate." 
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educational requirements are for preschool teachers in licensed Pre-K facilities. 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. 1998) (citing Matter of Treasurtl Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The record does not include any evidence regarding parallel positions in the petitioner's industry. The record 
also does not include any evidence from professional associations regarding an industry standard, or 
documentation to support the complexity or uniqueness of the proffered position. The petitioner, therefore, 
has not established the criteria set forth at 8 C.F.R. $ 214,2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. On appeal, counsel states that the petitioner normally requires that its 
teachers hold a bachelor's degree. The record, however, does not contain any evidence of the petitioner's past 
hiring practices and therefore, the petitioner has not met its burden of proof in this regard. 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. 1998) (citing Mutter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Furthermore, CIS must examine the ultimate employment 
of the alien, and determine whether the position qualifies as a specialty occupation, regardless of the 
petitioner's past hiring practices. Cf. Defensor v. Meissner, 201 F. 3d 384 (5'h 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.~ In this regard, the petitioner fails to establish that the preschool teacher 
position it is offering to the beneficiary entails the theoretical and practical application of a body of highly 
specialized knowledge. 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(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. 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. 4 21 4.2(h)(4)(iii)(A)(4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. 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. S 1361. 
The petitioner has not sustained that burden. 
The court in Dvfenror v. Meissner observed that the four criteria at 8 C.F.R. 4 214.2(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. 
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ORDER: The appeal is dismissed. The petition is denied.