dismissed H-1B Case: Education

(b)(6)
DATE: FEB 2 4 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: VERMONT SERVICE CENTER FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion 
(Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
www.uscis.gov 
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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. 
I. INTRODUCTION 
On the Form I-129 visa petition, the petitioner describes itself as a 48-employee learning center1 
established in In order to employ the beneficiary in what it designates as a lead teacher 
position at a salary of $11 per hour,2 the petitioner seeks to extend her classification 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. § 1101(a)(15)(H)(i)(b). 
The director denied the petition, concluding that the evidence of record did not establish that the 
proffered position qualifies for classification as a specialty occupation. 
The record of proceeding before us contains the following: (1) the Form I-129 and supporting 
documentation; (2) the director's request for additional evidence (RFE); (3) the petitioner's response 
to the RFE; (4) the director's letter denying the petition; and (5) the Form I-290B, Notice of Appeal 
or Motion, and supporti�g documentation. 
': 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the director's basis for denying this petition. Accordingly, the appeal will be dismissed, and the petition 
will be denied. 
II. STANDARD OF REVIEW 
In the exercise of our administrative review in this matter, as in all matters that come within our 
purview, the AAO follows the preponderance of the evidence standard as specified in the 
controlling precedent decision, Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), unless the law 
specifically provides that a different standard applies. In pertinent part, that decision states the 
following: 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of evidence 
that he or she is eligible for the benefit sought. 
1 The petitioner provided a North American Industry Classification System (NAICS) Code of 624410, "Child 
Day Care Services." U.S. Dep't of Commerce, U.S. Census Bureau, North American Industry Classification 
System, 2012 NAICS Definition, "624410 Child Day Care Services," http://www.naics.co m/naics-code­
description/?code=624410 (last visited Feb. 5, 2015). 
2 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was certified 
for use with a job prospect within the "Teachers and Instructors, All Other" occupational classification, 
SOC (O*NET/OES) Code 25-3099, and a Level II (qualified) prevailing wage rate. 
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* * * 
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The "preponderance of the evidence" of "truth" is made based on the factual 
circumstances of each individual case. 
* * * 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof. See INS v. Cardoza-F oncesca, 480 U.S. 421, 431 (1987) 
(discussing "more likely than not" as a greater than 50% chance of an occurrence 
taking place). If the director can articulate a material doubt, it is appropriate for the 
director to either request additional evidence or, if that doubt leads the director to 
believe that the claim is probably not true, deny the application or petition. 
!d. at 375-76. 
We conduct our review of service center decisions on a de novo basis. See Soltane v. DOl, 
381 F.3d at 145. In doing so, as noted above, we apply the preponderance of the evidence standard 
as outlined in Matter of Chawathe. Upon our review of the present matter pursuant to that standard, 
however, we find that the evidence in the record of proceeding does not support counsel's 
contentions that the evidence of record requires that the petition at issue be approved. Applying the 
preponderance of the evidence standard as stated in Matter of Chawathe, we find that the director's 
grounds for denial were correct. Upon our review of the entire record of proceeding, and with close 
attention and due regard to all of the evidence, separately and in the aggregate, submitted in support 
of this petition, we find that the petitioner has not established that its claims are "more likely than 
not" or "probably" true. As the evidentiary analysis of this decision will reflect, the petitioner has 
not submitted relevant, probative, and credible evidence that leads us to believe that its claims are 
"more likely than not" or "probably" true. 
III. PRELIMINARY OBSERVATIONS 
Before addressing the director's grounds for denying the petition, we will first make two 
preliminary observations which are material to our determination of the merits of this appeal. 
First, it is noted that counsel states on appeal that "[t]he beneficiary has been promoted to the role of 
a First Grade teacher." Counsel further states that "[a]lternatively the petitioner would like to 
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submit a new LCA with the proper SOC code 25 -2021, Elementary School Teacher." 3 However, a 
petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its 
level of authority within the organizational hierarchy, or the associated job responsibilities on 
appeal. The petitioner must establish that the position offered to the beneficiary when the petition 
was filed merits classification for the benefit sought. Matter of Michelin Tire Corp., 17 I&N Dec. 
248, 249 (Reg. Comm'r 1978). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to US CIS requirements. See Matter of Izummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). If significant changes are made to the initial request for 
approval, the petitioner must file a new petition with applicable fees4 rather than seek approval of a 
petition that is not supported by the facts in the record. Therefore, we will not consider the new 
position claimed for the beneficiary in making our determination in this case. 5 
We also note the discrepancy between the NAICS code provided on the petition and counsel's 
statements on appeal. As stated earlier, on the petition, the petitioner provided a NAICS code of 
624410, Child Day Care Services. On appeal, however, counsel states that the petitioner is 
"comprised of two educational programs - Infants to Preschool and pre-Kindergarten, private 
Kindergarten, and private 1st Grade." Counsel states that we should concentrate on "the second level 
program that primarily deals with the private Kindergarten, private 1st grade and the expansion into 
higher grade-levels." However, according to the NAICS, "[e]stablishments primarily engaged in 
providing preschool or prekindergarten education are classified in Industry 624410, Child Day Care 
Services." The petitioner's self-classification of its business falling under the "624410, Child Day 
Care Services" category indicates that it is primarily engaged in child day care services, and not in 
kindergarten and first glade education as asserted by counsel. Furthermore, the petitioner submitted 
a printout of its website, in which it states that it is "a preschool of academic excellence, not just a 
daycare" and that its objective "to provide your child with an outstanding preschool education in a 
loving child care environment." The evidence in the record of proceeding suggests that the 
petitioner is primarily a day care center providing preschool programs. In addition, the undated 
"Terms and Condition of Employment Agreement" signed by the petitioner's president states that 
the beneficiary's "[w]ork assignments may vary based on current personnel consensus or whenever 
[the beneficiary's] service is needed," which suggests that the educational level at which the 
beneficiary would primarily provide her services is not clear. Therefore, we are not persuaded by 
the suggestion that we should focus on the petitioner's kindergarten and first grade programs when 
conducting our analysis. 
3 On the petition, the petitioner stated that the job title is "Lead Teacher," and the LCA was certified for use 
with a job prospect within the "Teachers and Instructors, All Other" occupational classification, 
SOC (O*NET/OES) Code 25-3099. 
4 See 8 C.P.R. § 214.2(h)(2)(i)(E). 
5 Even if we were to accord counsel's request any weight, the petition would be denied because the new LCA 
would not have been certified prior to the filing of the petition. See 8 C.P.R. § 214.2(h)(4)(i)(B)(J); 
214.2(h)( 4)(iii)(B)(J). 
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PageS 
IV. ANALYSIS 
We now turn to the director's determination that the evidence of record does not demonstrate that 
the proffered position is a specialty occupation. To meet the petitioner's burden of proof in 
establishing the proffered position as a specialty occupation, the evidence of record must establish 
that the employment the petitioner is offering to the beneficiary meets the following 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: 
(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.P.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.P.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. 
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As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.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 of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.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.P.R. 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.P.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)(l) of the Act and the regulation at 8 C.P.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.P.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. users 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. 
When determining whether a position is a specialty occupation, we must look at the nature of the 
business offering the employment and the description of the specific duties of the position as it 
relates to the particular employer. To ascertain 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 
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can determine the exact position offered, the location of employment, the proffered wage, etc. 
Pursuant to 8 C.P.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.P.R. § 214.2(h)(4)(iv) 
provides that "[a]n H-1B 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." 
That is, for H-1B approval, the evidence of record must demonstrate that a legitimate need for an 
employee exists and to substantiate that the petitioner has H-1B caliber work for the beneficiary for 
the period of employment requested in the petition. It is incumbent upon the petitioner to 
demonstrate it has sufficient work to require the services of a person with at least a bachelor's 
degree in a specific specialty, or its equivalent, to perform duties at a level that requires the 
theoretical and practical application of at least a bachelor's degree level of a body of highly 
specialized knowledge in a specific specialty for the period specified in the petition. 
The record of proceeding contains inconsistent information regarding the nature of the proffered 
position, which undermines the petitioner's credibility with regard to the services the beneficiary 
will perform for it. When a petition includes numerous discrepancies, those inconsistencies will 
raise serious concerns about the veracity of the petitioner's assertions. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to-explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). 
In the "Letter of Employment" dated October 9, 2013, the petitioner stated that as a Lead Teacher, 
the beneficiary would: 
Plan and coordinate educational policies for a specific subject area or grade level. 
She will develop programs for in-service education of teacher's aide and other 
teaching personnel. She will confer with the organization's officials to develop 
curricula and establish guidelines for the educational program. She will also confer 
with land [sic] & professional groups to disseminate and receive inputs on teaching 
methods. She will study and prepares [sic] recommendations on instructional 
materials and teaching aides. She will conduct research into areas as teaching 
methods and techniques for dissemination to other teaching personnel. 
The petitioner also submitted a "Lead Teacher Job Description" with the filing of the petition. 
According to this job description, the beneficiary would perform the following duties: 
1. Promote high standards and expectations for all students for academic 
performance and developmental growth while utilizing the mission 
statement 
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2. To implement the curriculum effectively while working towards the 
common goal of improving every students [sic] social, academic and 
developmental level. 
3. To integrate various activities throughout the day assuring our students will learn 
even during plan. 
4. Recognizing and recording the efforts of every student throughout the school 
year, meeting with parents regularly for parent/teacher conferences to relay each 
students [sic] developmental growth and academic progress. 
5. Maintaining an open line of communication with parents. 
6. Ensuring that all assistant teachers maintain the same level of standard as 
yourself, being a team leader and promoting a positive learning environment for 
all students. 
7. Complete the required staff and child development hours annually. 
8. Any other responsibility as given to you by a member of the management staff, 
including the Owner, Director or Curriculum Coordinator. 
The director found the initial evidence insufficient to establish eligibility for the benefit sought, and 
issued an RFE. The petitioner was asked to submit probative evidence to establish that the 
proffered position is a specialty occupation. The director outlined the specific evidence to be 
submitted. In response to the director's RFE, the petitioner submitted, inter alia, a letter from 
counsel dated February 26, 2014, a revised job description for the Lead Teacher position, and an 
additional job description for a Kindergarten and First Grade Lead Teacher. According to the 
revised job description, the beneficiary would perform the following duties: 
1. Promote high standards and expectations for all students for academic 
performance and developmental growth while utilizing the mission 
statement 
2. To implement the curriculum effectively while working towards the 
common goal of improving every students [sic] social, academic and 
developmental level. This includes but is not limited to the following: 
Posting and following the lesson plans each week 
Providing literary and supplemental materials in learning stations 
each week 
Ensuring each student is given the opportunity to participate in 
daily activities, in small and large group settings 
Organizing two circle times per day 
Assessing each student daily utilizing formal curriculum 
assessments as well as informal empirical assessments 
3. To integrate various activities throughout the day assuring our students will learn 
even during plan. 
4. Recognizing and recording the efforts of every student throughout the school 
year, meeting with parents regularly for parent/teacher conferences to relay each 
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students [sic] developmental growth and academic progress. Completing 
quarterly report cards to send home with each student. 
5. Maintaining an open line of communication with parents throughout the day. 
This may include speaking with parents over the phone at any time during the 
day, or meeting with parents face to face. 
6. Ensuring that all assistant teachers maintain the same level of standard as 
yourself, being a team leader and promoting a positive learning environment for 
all students. 
7. Maintaining all required rules as mandated by the states Minimum Standards. 
This includes but is not limited to, properly supervising children at all times, 
maintaining state specific ratios, maintaining a healthy and safe classroom 
environment, ensuring proper supervision during outdoor play, ensuring proper 
toileting procedures, and if applicable to your age group, ensuring proper diaper 
changing procedures. 
8. Enforcing appropriate disciplinary actions in the classroom at all times. 
has a specific discipline procedure that must be followed and if you are 
unsure of these procedures it is your responsibility to clarify with management. 
9. Document any injury or accident as it occurs in your classroom. This must be 
signed by a member of management as well as the parent. 
10. Complete the required staff and child development hours annually. 
11. Any other responsibility as given to you by a member of the management staff, 
including the Owner, Director or Curriculum Coordinator. 
The duties of the Kindergarten and First Grade Lead Teacher include the following: 
1. Plan lessons that teach students subjects, such as reading and math, and skills, 
such as studying and communicating with others. 
2. Assess students to evaluate their abilities, strengths, and weaknesses. 
3. Teach lessons planned to an entire class of students or to smaller groups. 
4. Grade students' assignments to monitor their progress. 
5. Communicate with parents about their child's progress. 
6. Work with students individually to help them overcome specific learning 
challenges. 
7. Prepare students for standardized tests required by the state. 
8. Develop and enforce classroom rules to teach children proper behavior. 
9. Supervise children outside of the classroom- for example, during lunchtime or 
recess. 
We note first that the duties described by the petitioner in the employment offer letter are 
inconsistent with the duties described in the job description. The duties as described in the 
employment offer letter primarily focus on developing teaching curricula and the professional 
development of staff. The duties described in the job description, on the other hand, appear to focus 
on the hands-on teaching of children and the development of children through the implementation 
of various teaching and disciplinary methods. It is incumbent upon the petitioner to resolve any 
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inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho at 591-92. 
On appeal, counsel equates the duties of the proffered position to those of kindergarten or first grade 
teacher and submits excerpts from the U.S. Department of Labor's (DOL's) Occupational Outlook 
Handbook (hereinafter the Handbook) for kindergarten and elementary school teachers. Counsel 
further states that "this Lead Teacher position is broken down to 75% of the time assessed to 
teaching responsibilities and the remaining 25% of the time to business development (or closely 
related to job duties of a curriculum coordinator or education administrator)" and submits the 
"Summary Report for: 11-9031.00 - Education Administrators, Preschool and Childcare 
Center/Program" from DOL's Occupational Information Network (O*NET). 
Furthermore, counsel asserts that there are similarities between the duties of the Lead Teacher 
position at "Level 4" and the duties of Kindergarten and Elementary School Teachers described in 
the Handbook. We note that the "Letter of Employment Offer," "Terms and Conditions of 
Employment Agreemen!," "Lead Teacher Job Description," and the revised job description for the 
Lead Teacher position do not indicate the level of the proffered position as described in Exhibit A.6 
Counsel also asserts that there are "similarities between Lead Teacher and Education 
Administrator." However, the LCA was certified for SOC code "25-3099, Teachers and Instructors, 
All Other" and not for Kindergarten Teachers, Except Special Education (SOC code 25-2012), for 
Elementary School Teachers, Except Special Education (SOC code 25-2021), or for Education 
Administrators, Preschool and Childcare Center/Program (SOC code 11-9031). If the petitioner 
believes that its proffered position falls within one of these occupational categories, it should have 
classified the position under the appropriate occupation.7 
Counsel states "[t]o pigeonhole Lead Teachers, for the second level program, in one position stifles 
the business flexibility required for a small business to excel." However, the petitioner bears the 
burden of documenting what portion of the beneficiary's duties will be in teaching pre-kindergarten, 
kindergarten, and first grade. The petitioner has failed to establish any clear distinctions between 
the levels of the proposed teaching duties of the beneficiary. Specifically, the petitioner has not 
established the percentage of time the beneficiary would spend teaching the various age and grade 
levels. 
6 Counsel directs our attention to Exhibit A, entitled "Teacher Credentialing System," which lists the job 
duties of "Teacher One" through "Teacher Four." The source of this document is unknown. 
7 It is noted that, even if the proffered position were established as being that of a preschool and childcare 
center administrator, a review of the Handbook does not indicate that, simply by virtue of its occupational 
classification, such a position qualifies as a specialty occupation in that the Handbook does not state a normal 
minimum requirement of a U.S. bachelor's or higher degree in a specific specialty or its equivalent for entry 
into the occupation of preschool and childcare center administrator. See U.S. Dep't of Labor, Bureau of 
Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., "Preschool and Childcare Center Director," 
http://www.bls.gov/ooh/management/preschool-and-chi ldcare-center-directors.htm#tab-4 (last visited Feb. 4, 
2015). 
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Moreover, the petitioner indicates that 25 percent of the beneficiary's time would be spent on 
"Business Development" and lists curriculum development, parent/teacher conferences, speaking 
with prospective parents, and testing prospective students as part of the business development 
duties. However, the petitioner does not indicate how much time the beneficiary would spend 
performing non-teaching duties such as diaper changing, monitoring students during recess and 
lunch, and "any other responsibility as given to [the beneficiary] by a member of the management 
staff," which are listed by the petitioner in the lead teacher job descriptions. We note that the record 
of proceeding does not contain the petitioner's organizational chart for us to determine the 
breakdown of its staffing. There is no mention in the record of how many administrative support 
staff and management level employees there are in the petitioner's organization. 8 Collectively, this 
brings into question how much of the beneficiary's time would actually be devoted to teaching and 
non-teaching duties. Furthermore, as stated earlier, the petitioner stated on the "Terms and 
Conditions of Employment Agreement" that the beneficiary's "work assignments may vary based on 
current personnel consensus or whenever [the beneficiary's] service is needed." We also note that 
the beneficiary's "Direct Deposit Voucher" indicates that a portion of her earnings came from her 
provision of "cleaning services." The record of proceeding is ambiguous not only with regard to the 
age-level children the beneficiary would instruct when she teaches but also to the actual percentages 
of time she would spend in teaching versus non-teaching duties. Therefore, the record of 
proceeding does not contain sufficient evidence for us to make a determination regarding the 
primary and essential nature of the duties of the proffered position. 
The record of proceeding lacks sufficient, and consistent, information regarding the nature and 
scope of the beneficiary's employment and substantive evidence regarding the specialty occupation 
work that she would perform. Without a consistent and meaningful job description, the record lacks 
evidence sufficiently concrete and informative to demonstrate that the proffered position requires 
the theoretical and practical application of a body of highly specialized knowledge and the 
attainment of a bachelor's or higher degree in the specific specialty, or its equivalent, as a minimum 
for entry into the occupation. The tasks as described fail to consistently communicate (1) the 
substantive nature and scope of the beneficiary's employment within the petitioner's business 
operations; (2) the actual work that the beneficiary would perform; (3) the complexity, uniqueness 
and/or specialization of the tasks; and/or (4) the correlation between that work and a need for a 
particular educational level of highly specialized knowledge in a specific specialty. 
Therefore, we are precluded from finding that the proffered position is a specialty occupation under 
any criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for entry into the particular position, 
8 As noted, the petitioner stated on the Form I -129 that it is a 48-employee learning center. The petitioner 
submitted documents indicating the number of teachers, lead teachers, and teacher's aides. A document 
entitled "Lead Teacher and Assistant Teacher Count" indicates that there are a total of 34 lead teachers and 
assistant teachers in the petitioner's organization. The document entitled "Teacher levels by Classroom" 
indicates that there are 39 "teachers." The record does not make clear whether the list of "teachers" includes 
the lead teachers accounted in the "Lead Teacher and Assistant Teacher Count" document. 
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which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position 
and thus appropriate for review for a common degree requirement, under the first alternate prong of 
criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of 
the second alternate prong of criterion 2; (4) the factual justification for a petitioner normally 
requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of 
specialization and complexity of the specific duties, which is the focus of criterion 4. Thus, the 
petitioner has failed to satisfy any of the criteria under the applicable provisions at 
8 C.P.R. § 214.2(h )(4)(iii)(A). 
Finally, it is noted that the beneficiary currently holds H-1B status. However, we are not required 
to approve applications or petitions where eligibility has not been demonstrated, merely because of 
prior approvals that may have been erroneous. If the previous nonimmigrant petition was approved 
based on the same unsupported assertions that are contained in the current record, it would 
constitute material and gross error on the part of the director. We are not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See, e.g., Matter of Church Scientology International, 19 
r&N Dec. 593, 597 (Comm'r 1988). It would be absurd to suggest that users or any agency must 
treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montg omery, 825 F.2d 1084, 
1090 (6th eir. l987), cert. denied, 485 U.S. 1008 (1988). A prior approval does not compel the 
approval of a subsequent petition or relieve the petitioner of its burden to provide sufficient 
documentation to establish current eligibility for the benefit sought. 55 Fed. Reg. 2606, 2612 (Jan. 
26, 1990). A prior approval also does not preclude USers from denying an extension of an original 
visa petition based on a reassessment of eligibility for the benefit sought. See Texas A&M Univ. v. 
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th eir. 2004). Furthermore, our authority over 
the service centers is comparable to the relationship between a court of appeals and a district court. 
Even if a service center director had approved nonimmigrant petitions on behalf of a beneficiary, 
we would not be bound to follow the contradictory decision of a service center. Louisiana 
Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), 
cert. denied, 122 s.et. 51 (2001). 
V. CONCLUSION AND ORDER 
The petition will be denied and the appeal dismissed for the above stated reason. 9 In visa petition 
proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.e. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied. 
9 As the issues discussed above are dispositive of the petitioner's eligibility for the benefit sought in this 
matter, we will not address and will instead reserve our determination on the numerous additional issues and 
deficiencies we observe in the record of proceeding with regard to approval of the H-lB petition.