dismissed H-1B Case: Education

(b)(6)
DATE: 
MAR 1 8 2015 
IN RE : Petitioner: 
Beneficiary: 
OFFIC E: VER MONT SER VICE CENTE R 
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 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a )( 15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C . § llOl(a )(IS)(H)(i)(b) 
ON BEHALF OF PETITIONER : 
INSTRUC TIONS: 
Enclosed please find the decision of the Administrative Appeals Office (A AO ) 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 (F orm 
I-2908) 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. § 1 03.5. Do not file a motion directly with the AAO. 
www. uscis.gov 
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DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is 
before us on a combined motion to reopen and reconsider. Upon review, the combined motion will 
be dismissed and the petition will remain denied. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
The petitiOner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the Vermont 
Service Center. In the Form I-129 visa petition, the petitioner describes itself as a child 
development center established in In order to continuously employ the beneficiary in what it 
designates as a preschool teacher position, the petitioner seeks to classi fy her 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 reviewed the information and determined that the petitioner had not established 
eligibility for the benefit sought. The director denied the petition, concluding that the petitioner did 
not establish that the proff ered position qualifies as a specialty occupation in accordance with the 
applicable statutory and regulatory provisions. The director also questioned whether the petitioner 
had a preschool program and, therefore, sufficient work for the beneficiary to serve in the offered 
position. 
The petitioner submitted an appeal, which was summarily dismissed. Subsequently, the petitioner 
filed an untimely appeal. Thereafter, the petitioner submitted this combined motion to reopen and 
reconsider. 1 
1 On Ju ne 6, 2014, the director denied the petition . Thereafte r, on July 7, 2014, the petitioner submitted a 
Form I-290B (N otice of Appeal or Motion), which it marked as an appeal . Although 
the petiti oner stated that the director erred, it did not identify specifically any erroneou s conclusion of law or 
statement of fact. Moreove r, although the petitioner stated that a brief and/or additional evidence would be 
submitted to our office (the AAO ) within 30 calendar days of filing the appeal, our office did not receive a 
submission within the allotted timeframe. Theref ore, the appeal was summarily dismissed. 
On August 28, 2014, the petiti oner filed another Form I-290B , which it submitted to 
the US CIS Lockbox. The submission was received 83 days after the director's decision was issued and, thus, 
was untimely. 
On Octo ber 9, 201 4, the petitioner filed this combined motion ( . Upon review, the 
submission does not meet the requirements for a motion to reopen or a motion to reconsider. The regulation 
at 8 C.F.R . § 10 3.5(a)( l)(iii)( C) requ ires that motions be "[a]ccompanied by a statement about whethe r or not 
the validity of the unfav orable decision has been or is the subject of any judicial proceeding." In this matter, 
the motion does not contain the statement requ ired by 8 C.F.R. § 103.5(a)(1 )(iii)(C). The regulation at 
8 C.F.R. § 10 3.5(a)(4) states that a motion which does not meet applicable requ irements must be dismissed. 
Fu rther, the petiti oner has not demonstrated that our prior decision was based upon an incorrect application 
of law or policy and that the decision was incorrect on the evidence of record at the time of the decision. 
Furthe r, the submission does not state new facts that were previou sly unavailable. Fur the r, we reviewed the 
record of proceeding and determined that the petitioner has not established elibigility for the benefit sought . 
Theref ore, fo r these reasons the combined motion will be dismissed. Neve rtheless, for the purpose of 
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The record of proceeding contains: (1) the petitioner's Form I-129 and supporting documentation; 
(2) the director's request for evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the 
director's decision; (5) the Notice of Appeal or Motion (Form I-29 0B) ( ; (6) our 
decision; (7) the Form I-290B r and supporting documentation; (8) our 
decision; and (9) the Form I-290B \...__ ) and supporting documentation. We 
reviewed the record in its entirety before issuing our decision? 
For the reasons that will be discussed below, we find that the petitioner has not established 
eligibility for the benefit sought. The combined motion is dismissed and the petition remains 
denied. 
II. SPECIALTY OCCUPATION 
The primary issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. 
A. Legal Framework 
For an H -1 B petition to be granted, the petitioner must provide sufficient evidence to establish that 
it will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable 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.F.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 
assisting the petitioner in understanding the deficiencies in the reco rd, we are providing an analysis of the 
director 's grounds for denying the petitio n. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.Jd 143, 14 5 (3d Cir. 2004). 
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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. § 214.2(h)(4)(i ii)(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. 
As a threshold issue, it is noted that 8 C.F .R. § 214.2(h)( 4 )(i ii)( A) must logically be read together 
with section 214(i)( l) of the Act and 8 C.F.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. 28 1, 291 (19 88) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Jo int Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (19 89); 
Ma tter of W-F-, 21 I&N Dec. 503 (BIA 19 96). As such, the criteria stated in 8 C.F .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.F.R. 
§ 214.2(h)(4)(i ii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
F.3 d 38 4, 38 7 (5th Cir. 20 00) . To avoid this result, 8 C.F.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.F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F .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 13 9, 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-l B 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 
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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, fa irly represent the types of specialty occupations that 
Congress contemplated when it created the H-1B 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 proff ered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Me issner, 201 F. 3d 38 4. 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. 
In ascertaining 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 can determine the exact position 
offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 C.F .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.F.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." 
B. Proffered Position 
In a support letter dated December 17, 201 3, the petitioner states that the beneficiary will perform 
the following job duties in the proffered position: 
1. Supervises and ensures the saf ety and well-being of the children at all times, 
being alert for needs and/or problems of the children as individuals and as a 
group. 15% 
2. Plans and implements the monthly, weekly, and daily curriculum for the ass igned 
class, together with her/his assis tant teachers and aides. 15% 
3. Documents children's daily achievements, accomplishments, and developmental 
milestones, using the Creative Curriculum Goals and Objectives as guide and 
makes sure that her ass istants/aides do the same. 15% 
4. Collects, collates, shares, and discusses with her assistants/aides children's 
documentations and feedbacks for the purpose of the quarterly assess ment and 
evaluation. 15% 
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5. Meets and shares quarterly with the parents the group's assessment and evaluation 
of the children's developmental progress/needs and goals fo r the coming quarter. 
10 % 
6. Assists and supports his/her assistants and aides' personal as well as professional 
growth and development. 10% 
7. Schedules classr oom ftre drills, fteldtrips, co-workers' planning and evaluation 
meetings/trainings, and quarterly meetings/social gatherings with 
parent's! guardians. 10 % 
8. Updates the Director of any class room, children, and parents' concerns 
(developmental milestones, suspected abus e/neglect, special needs, unusual 
incidents/accidents, etc.). 10% 
* * * 
The duties of [the beneficiary] as a preschool teacher are so highly complex and so 
specialized such as that will require no less than a Bachelor's Degree. The 
requirement of a Bachelor's degree is a minimum requirement in our School and 
certainly it is also the standard minimum requirement in our industry. 
C. Labor Condition Application 
In support of the petition, the petitioner submitted a Labor Condition Application (LCA) stating that 
the proff ered position fa lls under the occupational category "Preschool Teachers, Except Special 
Education"- SOC (ONET/OES) code 25-201 1, at a Level I (entry) wage. 
When completing the LCA, wage levels should be determined only after selecting the most relevant 
Occupational Information Network (O*NET) code classi fication. Then, a prevailing wage 
determination is made by selecting one of four wage levels for an occupation based on a 
comparison of the employer's job requirements to the occupational requirements, including tasks, 
knowledge, skills, and specific vocational preparation (education, training and experience) generally 
required for acceptable performance in that occupation. 3 
Prevailing wage determinations start with a Level I (entry) and progress to a wage that is 
commensurate with that of a Level II (qualified), Level III (experienced), or Level IV (fully 
competent) after considering the job requirements, experience, education, special skills/other 
requirements and supervisory duties. Factors to be considered when determining the prevailing 
wage level for a position include the complexity of the job duties, the level of judgment, the amount 
3 For additional information on wage levels, see DOL, Employment and Training Administration's Prevailing 
Wage De termination Policy Guidanc e, Nonagricultural Immigration Programs (R ev. Nov. 2009), available 
on the lntemet at http://www .foreignlaborcert.doleta.gov/pdf/Pol icy _Nonag_Progs.pdf. 
(b)(6)
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and level of supervision, and the level of understanding required to perform the job duties.4 DOL 
emphasizes that these guidelines should not be implemented in a mechanical fashion and that the 
wage level should be commensurate with the complexity of the tasks, independent judgment 
required, and amount of close supervision received. 
The "Prevailing Wage Determination Policy Guidance" issued by the U.S. Department of Labor 
(DOL) provides a description of the wage levels. A Level I wage rate is described by DOL as 
follows: 
Level I (entry) wage rates are ass igned to job offers for beginning level employees who 
have only a basic understanding of the occupation. These employees perform routine 
tasks that require limited, if any, exercise of judgment. The tasks provide experience and 
fa miliarization with the employer's methods, practices, and programs. The employees 
may perform higher level work for training and developmental purposes. These 
employees work under close supervision and receive specific instructions on required 
tasks and results expected. Their work is closely monitored and reviewed for accuracy. 
Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Level I wage should be considered. 
U.S. Dep't of Labor, Emp't & Training Admin., Preva iling Wage De termination Policy Guidance , 
Nonagric. Immigration Programs (rev. Nov. 2009 ), available at http://www .f oreignlaborcert. 
doleta.gov/pdf/ NPWHC _Guidance_ Revised _1 1_ 2009 .pdf. 
DOL guidance further indicates that a requirement for years of education and/or experience that are 
generally required as described in the O*NET Job Zones would be an indication that a wage 
determination at Level II would be proper class ification for a position. 5 
4 A point system is used to assess the complexity of the job and assign the wage level. Step 1 requires a 11 I 11 
to represent the job's requirements. Step 2 addresses experience and must conta in a 11011 (fo r at or below the 
level of experience and SVP range), a 11111 (low end of experience and SVP), a "211 (h igh end), or 11311 (greater 
than range). Step 3 co nsiders educat ion required to perf orm the job duties, a 11111 (more than the usual 
educat ion by one category) or 11211 (more than the usual education by more tha n one category). Step 4 
accounts for Special Skills requirements that indicate a higher level of complexity or decision-making with a 
"1 "or a "2" entered as appropriate. Finally, Step 5 addresses Supervisory Duties, with a "I" entered unless 
supervision is generally required by the occupati on. 
5 A Level II wage rate is described by DO L as follows: 
Level II (q ualified) wage rates are assigned to job offers for qualified employees who have 
atta ined, either throu gh educat ion or experience, a good understanding of the occupat ion. 
They perf orm moderately complex tasks that require limited judgment. An indicator that the 
job request warrants a wage determination at Level ll would be a requirement for years of 
educat ion and/or experience that are generally required as described in the O*N ET Job 
Zones. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Det ermination Policy Guidance, Nonagric. 
Immigration Programs (rev . Nov. 2009), ava ilable at http://www .fore ignlaborcert. doleta .gov/pdf/ 
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The occupational category "Preschool Teachers, Except Special Education," has been assigned an 
O*NET Job Zone 3, which groups it among occupations for which medium preparation is needed. 
More specifically, most occupation in this zone "require training in vocational schools, related on­
the-job experience, or an ass ociate's degree." See O*NET OnLine Help Center, at 
http://www .onetonline.org/help/online/zones, for a discussion of Job Zone 3. 
In the instant case, the petitioner designated the proffered position as a Level I position. This 
suggests that the petitioner's academic and/or professional experience requirements for the position 
would be less than "training in vocational schools, related on-the-job experience, or an assoc iate's 
degree" as stated for occupations designated as O*NET Job Zone 3. Accordingly, the designation 
of the proffered position as a Level I (entry) position (relative to others within the occupational 
category) suggests that less than a bachelor's degree is sufficient to perform the tasks of the 
proffered position. 
D. Analysis 
In the instant case, the petitioner states that a bachelor's degree is the minimum entry requirement 
for the proffered position. To establish that the proff ered position is a specialty occupation, 
however, the petitioner must demonstrate that the proffered position requires a precise and specific 
course of study that relates directly to the position in question. See Royal Siam Corp. v. Chertoff, 
484 F.3 d at 147 (describing "a degree requirement in a specific specialty" as "one that relates 
directly to the duties and responsibilities of a particular position"). There must be a close 
correlation between the required specialized studies and the position; thus, the mere requirement of 
a degree, without further specification, does not establish the position as a specialty occupation. Cf 
Matter of Michael Hertz Ass ociates, 19 I&N Dec. 558 (Comm'r 19 88) (stating that "[t]he mere 
requirement of a college degree for the sake of general education, or to obtain what an employer 
perceives to be a higher caliber employee, also does not establish eligibility"). Thus, while a 
general-purpose degree or a degree in any discipline may be a legitimate prerequisite for a particular 
position, requiring such a degree, without more, will not justif y a finding that a particular position 
qualifies for classification as a specialty occupation. !d. Thus, the petitioner's claim that a general­
purpose degree is acceptable is tantamount to an admission that the proffered position is not in fact 
a specialty occupation. 
Nevertheless, we will continue our evaluation and analysis of the evidence provided by the 
petitioner. To that end we will first discuss the record of proceeding in relation to the criterion at 
8 C.F .R. § 214.2(h)(4)(i ii)(A)(l), which requires that a baccalaureate or higher degree in a specific 
specialty or its equivalent is normally the minimum requirement for entry into the particular 
position. 
USCIS recognizes DOL's Occupational Outlook Handboo k (Handbook) as an authoritative source on 
NPWHC_ Guidance_Revised_11_ 2009.pdf. 
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the duties and educational requirements of the wide variety of occupations that it addresses.6 We 
reviewed the chapter of the Handbook entitled "Preschool Teachers," and note that the subchapter 
of the Handbook entitled "How to Become a Preschool Teacher" states, in part, the following about 
this occupation: 
Education and training requirements vary based on settings and state regulations. 
They range from a high school diploma and certification to a college degree. 
Education 
In childcare centers, preschool teachers generally are required to have a least a high 
school diploma and a certification in early childhood education. However, employers 
may prefer to hire workers with at least some postsecondary education in early 
childhood education. 
Preschool teachers in Head Start programs are required to have at least an associate's 
degree. However, at least 50 percent of all preschool teachers in Head Start programs 
nationwide must have a bachelor's degree in early childhood education or a related 
field. Those with a degree in a related field must have experience teaching 
preschool-age children. 
In public schools, preschool teachers are generally required to have at least a 
bachelor's degree in early childhood education or a related field. Bachelor's degree 
programs teach students about children's development, strategies to teach young 
children, and how to observe and document children's progress. 
Licenses, Certifications, and Registrations 
Many states require childcare centers, including those in private homes, to be 
licensed. To qualify for licensure, staff must pass a background check, have a 
complete record of immunizations, and meet a minimum training requirement. Some 
states require staff to have certifications in CPR and first aid. 
Some states and employers require childcare workers to have a nationally recognized 
certification. Most often, states require the Child Development Associate (CDA) 
certification off ered by the Council for Professional Recognition. Obtaining the 
CDA certification requires coursework, experience in the field, a written exam, and 
observation of the candidate working with children. 
6 All references are to the 2014-2 01 5 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/OCO/. Excerpts of the Handbook regarding the duties and requirements of the 
referenced occ upational category are hereby incorporated into the record of proceeding. 
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Some states recognize the Child Care Profess ional (CCP) designation off ered by the 
National Early Childhood Program Accreditation. Candidates for the CCP must be 
18 years old, have a high school diploma, experience in the field, take courses in 
early childhood education, and pass an exam. 
In public schools, preschool teachers must be licensed to teach early childhood 
education, which covers preschool through third grade. Requirements vary by state, 
but they generally require a bachelor's degree and passing an exam to demonstrate 
competency. Most states require teachers to complete continuing education credits to 
maintain their license. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 20 14-15 ed., 
Preschool Teachers, available on the Internet at http://www .bls.gov/oohfeducation-training-and­
library/preschool-teachers. htm#tab-4 (last visited February 28, 201 5). 
The Handbook does not indicate that at least a bachelor's degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into this occupation. Rather, the 
Handb ook states that although there is a range of acceptable credentials, preschool teachers 
generally are required to have at least a high school diploma and a certification in early childhood 
education. The Handboo k further indicates that employers may prefer to hire workers with at least 
some postsecondary education in early childhood education. However, a preference for a particular 
level of education does not indicate a requirement for entry into the occupation. Moreover, the 
phrase "some postsecondary education" does not indicate that such education must be a 
baccalaureate or higher degree. 
The Handbook discusses the requirements for preschool teachers in Head Start programs and in 
public schools. The petitioner does not claim, and has not provided any documentation to support a 
finding, that it has a Head Start program or is a public school. 7 Thus, these paragraphs of the 
Ha ndbook are not relevant to the instant matter. 
Upon review, we find that the Handbo ok does not support the claim that the occupational category 
here is one for which no rm ally the minimum requ irement for entry is a bacc alaur eat e degree (or 
higher) in a specific specialty, or its equivalent. Even if it did (which it does not), the record lacks 
sufficient evidence to support a finding that the particular position proffered here - which the 
petitioner has indicated on the LCA is a Level I (entry) position in relation to others within the 
occupation)- would normally have such a minimum, specialty degree requirement or its equivalent. 
We also reviewed title 29 of the for teachers 
at child development faci lities. 8 The requirements are outlined below: 
7 The Handbook reports that in public schools, preschool teachers must be licensed to teach early childhood 
education, which covers preschool throu gh third grade. In response to the RF E, the petit ioner states that a 
license is not required for the proffered position (which it refers to as "child development staff') . 
8 The petitioner submitted a letter from the program manager for the child care licensing unit of the 
and claimed that it was relevant in the instant matter . The letter references the child 
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334 TEACHER QUALIFICATIONS 
334. 1 A teacher shall be at least twenty (20) years of age and meet one of the following 
requirements: 
(a) An ass ociate's degree or higher from an accredited college or university in 
early childhood education or early childhood development; 
(b) An ass ociate's degree or higher from an accredited college or university, at 
least fifteen (15) credit hours from an accredited college or university in early 
childhood education or early childhood development, and at least one (1) 
year supervised experience working with children in a licensed 
Child Development Center or its equivalent in another jurisdiction; 
(c) At least forty-eight ( 48) credit hours fr om an accredited college or university, 
at least fifteen (15) credit hours from an accredited college or university in 
early childhood education or early childhood development, and at least two 
(2) years supervised experience working with children in a licensed 
Child Development Center or its equivalent in another 
jurisdiction; 
(d) A valid Child Development Ass ociate (CDA) credential, specifying that the 
individual is qualified for the assigned age classification; 
(e) Satisfactory completion of a child care certification course of no less than 90 
hours from an accredited college or university, approved by the Director of 
the Department of Health or his/her designee, and at least three (3 ) years 
supervised experience working with children in a licensed 
Child Development Center or its equivalent in another jurisdiction; 
or 
(f) Monte ssori school teache r, at least forty-e ight (48) credit hours of suc cessful 
completion of course work from a regionally accredited or OSSE approved 
college or university; a Montessori certificate issued by a program accredited 
by any of the following: the Montessori Accreditation Commission for 
Teacher Education, National Center for Montessori Education, or the 
Ass ociation Montessori Internationale; and at least two (2) years supervised 
experience working with children in a licensed child 
development center or its equivalent in another jurisdiction. 
Title 29 334 . 1. The petitioner claims that a bachelor's degree is required for the proff ered 
position to ensure compliance with the municipal regulations; however, this assertion is not 
supported by the evidence in the record of proceeding or by our review of the 
development facilities section of the as outlining the requirements for such facilities. 
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municipal regulations. The regulations do not indicate that at least a bachelor's degree in a specific 
specialty (or its equivalent) is required for teacher positions at child development facilities, but 
rather there are a range of lesser credentials that are acceptable for such positions. 
In the instant case, the duties and requirements of the position as described in the record of 
proceeding do not indicate that this particular position proffered by the petitioner is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the petitioner has not satisfied the criterion at 8 C.P .R. 
§ 214.2(h)(4)(iii)(A)(l). 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.P.R. 
§ 214.2(h)(4)(i ii)(A)(2). This prong alternatively calls for a petitioner to establish that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for 
positions that are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional assoc iation 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 1151, 1165 (D. Minn. 
1999) (quoting Hird!Blaker Corp. v. Sava, 7 12 F. Supp. 1095, 1102 (S. D.N.Y. 19 89)). 
As previously discussed, the petitioner has not established that its proffered position is one for which 
the Handbook (or other independent, authoritative source) reports a standard industry-wide 
requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. Also, there are no submissions from 
the industry's professional ass ociation indicating that it has made a degree a minimum entry 
requirement. Furthermore, the petitioner did not submit any letters or affidavits from similar firms 
or individuals in the petitioner's industry attesting that such firms "routinely employ and recruit only 
degreed individuals." 
In support of the petition, the petitioner provided a few job postings placed in support of its 
ass ertion that the "a bachelor's degree is required for a Preschool Teacher."9 For the petitioner to 
establish that an organization is similar under this criterion of the regulations, it must demonstrate 
that the petitioner and the organization share the same general characteristics. Without such 
information, evidence submitted by a petitioner is generally outside the scope of consideration for 
this criterion, which encompasses only organizations that are similar to the petitioner. 
9 The petitione r's statement suggests that a general-purpose degree or a degree in any field is suffici ent for a 
preschool teacher. Although such a degree may be a legitimate prerequisite for a particular position, 
requiring such a degree, witho ut more, will not justify a finding that a particular position qualifies for 
classification as a specialty occupation. We here reiterates that the degree requirement set by the stat utory 
and regulatory framework of the H-lB program is not just a bachelor's or higher degree, but such a degree in 
a specific specialty that is directly related to the position. See 214(i)( l)(b) of the Act and 8 C.P.R. 
§ 214. 2(h)(4)(ii). 
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In the Form I-129, the petitioner stated that it is a child development center with 28 employees. The 
petitioner also reported its gross annual income as approximately $1. 3 million, and its net annual 
income at "$59,087. The petitioner designated its business operations under the North American 
Industry Classification System (NAICS) code 6244 10. 10 This NAICS code is designated for "Child 
Day Care Services." The U.S. Department of Co mmerce, Census Bureau website describes this 
NAICS code by stating the following: 
This industry comprises establishments primarily engaged in providing day care of 
infants or children. These establishments generally care for preschool children, but 
may care for older children when they are not in school and may also offer pre­
kindergarten educational programs. 
See U.S. Dep't of Commerce, U.S. Census Bureau, 2007 NAICS Definition, 6244 10-Child Day 
Care Services, on the Internet at http://www .census.gov/cgi-bin!sssd/naics/naicsrch (last viewed 
February 28, 201 5). 
We will briefly note that, without more, not all of the job postings appear to be from organizations 
similar to the petitioner. When determining whether the petitioner and the organization share the 
same general characteristics, such factors may include information regarding the nature or type of 
organization, and, when pertinent, the particular scope of operations, as well as the level of revenue 
and staffing (to list just a few elements that may be considered). It is not sufficient for the petitioner 
to claim that an organization is similar and in the same industry without providing a legitimate basis 
for such an assertion. 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, 16 5 (Comm'r 19 98) (citing Matter of Treasure Craft of Cal!fornia, 14 l&N Dec. 19 0 (Reg. 
Comm'r 19 72)). 
We further observe that some of the advertisements do not appear to be for parallel positions. For 
example, the posting from the states that the position is for a special 
education teacher. Likewise the announcement from 1 is for 
a position working with children with socia l and/or language challenges. More specifically, the 
school provides programs for children and young adults with special needs, including speech and 
language impairments, learning disabilities, intellectual disabilities, health impairments and Autism 
Spectrum Disorders. The petitioner classif ied its proffered position under the occupational category 
"Preschool Teachers, Except Special Education." Therefore, the advertised positions do not appear 
to be parallel to the proffered position. 
10 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used 
to classify business establishments according to type of economic activity and, each establishment is 
classified to an industry according to the primary business activity taking place there. See 
http://www .census.gov/eos/www/naics/ (last viewed Febru ary 28, 20 15). 
(b)(6)
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Further, some postings do not indicate that at least a bachelor's degree in a directly related specific 
specialty (or its equivalent) is required. 11 For instance, the following postings state that a degree is 
necessary, but they do not state that a specific specialty is required: 
• 
• 
• 
We also observe that the posting by provides 
inconsistent information regarding the requirements for the position. More specifically, in the 
section entitled "Job Requirements," the advertisement states that "candidates must have a 
bachelor's program in elementary education, reading, psychology, human development, early 
childhood education or a closely related field and one or more years of successful professional 
teaching experience'' and then continues by stating "Bachelor degree preferred." No explanation 
was provided. As previously discussed, a preference for a degree is not an indication of a 
requirement. 
The job postings suggest, at best, that a bachelor's degree is sometimes required for �reschool 
teachers, but not at least a bachelor's degree in a specific specialty (or its equivalent). 1 As the 
documentation does not establish that the petitioner has met this prong of the regulations, further 
analysis regarding the specific information contained in each of the job postings is not necessary.13 
That is, not every deficit of every job posting has been addressed. 
Thus, based upon a complete review of the record, the petitioner has not established that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common to 
11 
As discussed, the degree requirement set by the statutory and regulatory framework of the H-lB program 
is not just a bachelor's or higher degree, but one in a specific specialty that is directly related to the duties of 
the position. See 21 4(i)( l)(b) ofthe Act and 8 C.F.R. § 214.2(h)(4)(ii). 
12 
It must be noted that even if all of the job postings indicated that a bachelor's degree in a specific specialty, 
or its equivalent, is common to the industry in parallel positions among similar organizations (which they do 
not), the petitioner fails to demonstrate what inferences, if any, can be drawn from four advertisements with 
regard to determining the common educational requirement s for entry into parallel positions in similar 
organizations. See generally Earl Babbie, The Practice of Social Research 186-228 ( 1995) . 
As such, even if the job announcements supported the finding that the position required a bachelor's or higher 
degree in a specific specialty, or its equivalent (for organizations in the same industry that are similar to the 
petitioner), it cannot be found that such a limited number of postings that appear to have been consciously 
selected outweigh the findings of the Handbook published by the Bureau of Labor Statistics that such a 
position does not normally require at least a baccalaureate degree in a specific specialty, or its equivalent, for 
entry into the occupation in the United States. 
13 The petitioner did not provide any independent evidence of how representative the job postings are of the 
particular advertising employers' recruiting history for the type of job advertised. As the advertisements are 
only solicitations for hire, they are not evidence of the actual hiring practices ofthese employers. 
(b)(6)
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the petitioner's industry in positions that are (1) in the petitioner's industry, (2) parallel to the 
proffered position, and also (3) located in organizations that are similar to the petitioner. For the 
reasons discussed above, the petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)( 2). 
We will next consider the second alternative prong of 8 C.F .R. § 214.2(h)(4) (iii)(A) (2), which is 
satisfied if the petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
petitioner described the proffered position and its business operations. In addition, the petitioner 
submitted a "Parent's Handbook" regarding its programs. 
Upon review, we find that the petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. For instance, the petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform the duties it may believe are so complex and unique. 
While a few related courses may be beneficial in performing certain duties of the position, the 
petitioner has not demonstrated how an established curriculum of such courses leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the 
duties of the proffered position. The description of the duties does not specifically identify any 
tasks that are so complex or unique that only a specifically degreed individual could perform them. 
The record does not establish which of the duties, if any, of the proffered position would be so 
complex or unique as to be distinguishable from those of similar but non-degreed or non-specialty 
degreed employment. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four assignable 
wage levels. As previously mentioned, the wage-level of the proffered position indicates that 
(relative to other positions falling under this occupational category) the beneficiary is only required 
to have a basic understanding of the occupation; that she will be expected to perform routine tasks 
that require limited, if any, exercise of judgment; that she will be closely supervised and her work 
closely monitored and reviewed for accuracy; and that she will receive specific instructions on 
required tasks and expected results. 14 
Without further evidence, it is not credible that the petitioner's proffered position is complex or 
unique as such a position falling under this occupational category would likely be classified at a 
higher-level, such as a Level III (experienced) or Level IV (fully competent) position, requiring a 
significantly higher prevailing wage. For example, a Level IV (fully competent) position is 
designated by DOL for employees who "use advanced skills and diversified knowledge to solve 
14 As previo usly mentioned, DOL guidance indicates th a t a job offer for a research fellow, a worker in 
tr aining, or an internship are indicators that a Level I wage should be considered. 
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unusual and complex problems." 15 The evidence of record does not establish that this position is 
significantly different from other positions in the occupational category such that it refutes the 
Handbook 's information that a bachelor's degree in a specific specialty is not required for the 
proffered position. 
The petitioner claims that the beneficiary is well qualified for the position, and references her 
qualifications. However, the test to establish a position as a specialty occupation is not the 
education or experience of a proposed beneficiary, but whether the position itself requires at least a 
bachelor's degree in a specific specialty, or its equivalent. The petitioner has not satisfied the 
second alternative prong of 8 C.F .R. § 214.2(h)(4)(ii i)(A)(2). 
The third criterion of 8 C.F .R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a petitioner may assert that 
a proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the petitioner artificially 
created a token degree requirement, whereby all individuals employed in a particular position 
possessed a baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor 
v. Me issner, 201 F. 3d at 38 8. In other words, if a petitioner's stated degree requirement is only 
designed to artificially meet the standards for an H-IB visa and/or to underemploy an individual in 
a position for which he or she is overqualified and if the proffered position does not in fact require 
such a specialty degree or its equivalent, to perform its duties, the occupation would not meet the 
statutory or regulatory definition of a specialty occupation. See § 214(i)( l) of the Act; 8 C.F.R . 
§ 2 14.2(h)( 4)(ii) (defining the te rm " specialty occupatio n"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. user s must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Me issner, 201 F. 3d 38 4. In this pursuit, the critical element is not the title of 
15 For additional information regarding wage levels as defin ed by DOL, see U.S. Dep't of Lab or, Em p't & 
Training Admin ., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. 
Nov . 2009), available at http :/ /www .foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _1 1_ 
2009.pdf 
(b)(6)
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the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of 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. To interpret 
the regulations any other way would lead to absurd results: if USC IS were constrained to recognize 
a specialty occupation merely because the petitioner has an established practice of demanding 
certain educational requirements for the proffered position - and without consideration of how a 
beneficiary is to be specifically employed - then any alien with a bachelor's degree in a specific 
specialty could be brought into the United States to perform non-specialty occupations, so long as 
the employer required all such employees to have baccalaureate or higher degrees. See id. at 388 . 
In response to the RFE, the petitioner submitted a list, which contains the names of nineteen 
individuals. The petitioner claims that all of these individuals serve as preschool teachers. The 
petitioner further submitted copies of their educational credentials and FormW-2, Wage and Tax 
Statements. The petitioner states on the Form 1-129 petition that it employs 28 individuals. Thus, 
aside from the 19 preschool teachers and the owner/president (who signed the H-1B petition), it 
appears that the petitioner employs 8 individuals in other positions. The petitioner did not provide 
specific information regarding the work of these other employees (e.g., job titles, brief description 
of duties), but we note that elsewhere in the record, the petitioner states that each classroom consists 
of two teachers and two assistants/teacher aides. No further explanation was provided by the 
petitioner. 
Moreover, the petitiOner did not provide the job duties and day-to-day responsibilities of the 
positions that it claims are the same as the proffered position. That it, the petitioner did not submit 
any information regarding the complexity of the job duties, supervisory duties (if any), independent 
judgment required or the amount of supervision received. Accordingly, aside from the claimed job 
title, it is unclear whether the duties and responsibilities of these individuals are the same or related 
to the proffered position. We observe that the wages paid to these individuals vary significantly 
from each other, as well as from the offered wage to the beneficiary. For instance, the 
documentation indicates that the annual wages range from $10,839 to $54,95 8, suggesting that not 
all of these individuals serve in positions for which the tasks and responsibilities are the same. 
The petitioner claims that "[i]t is common in the industry that a Preschool Teacher need not be a 
Bachelor's Degree in Early Education" and that "[ o]ther professional[s ] with different major can 
also qualify to teach." However, the requirement of a general bachelor's degree is inadequate to 
establish that a position qualifies as a specialty occupation. A petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly to the position 
in question (or its equivalent). Since there must be a close correlation between the required 
specialized studies and the position, the requirement of a degree, without further specification, does 
not establish the position as a specialty occupation. Cf Matter of Mich ael He rtz Asso ciates, 19 I&N 
Dec. 558 (Comm'r 19 88). 
We note that the documentation indicates that the petitioner's employees,. possess academic 
credentials in diverse specialties including industrial engineering, secondary education with a 
concentration in a foreign language, mathematics, psychology, industrial education, as well as other 
(b)(6)
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disciplines. This further indicates that the petitioner does not require a degree in a specific specialty 
(or its equivalent). 
Without more, the evidence does not support the assertion that the petitioner normally requires at 
least a bachelor's degree in a specific specialty directly related to the duties of the position (or its 
equivalent) for the position. The petitioner has not satisfied the third criterion of 8 C.P.R. 
§ 214.2(h)(4)(iii)(A). 
The fourth criterion at 8 C.P.R . § 214.2(h)(4) (iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually assoc iated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The petitioner claims that the nature of the specific duties of the position in the context of its 
business operations is so specialized and complex that the knowledge required to perform them is 
usually asso ciated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. We reviewed the petitioner's statements regarding the proffered position and its 
business operations. However, relative specialization and complexity have not been sufficiently 
developed by the petitioner as an aspect of the proffered position. 
The petitioner ass erts that this is "a Petition for Extension of an already approved 1-129 for H-IB 
visa of the same beneficiary." 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. See, e.g., Afatter of Church Scientology International, 19 I&N Dec. 593 , 597 (Comm'r 
19 88 ). A prior approval also does not preclude USCIS 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 Cir. 2004). If a previous nonimmigrant 
petition was approved based on the same unsupported asse rtions that are contained in the current 
record, they would constitute material and gross error on the part of the director. 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 a nonimmigrant petition 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.), ajj'd, 248 F.3d 1139 (5th Cir. 
· 200 1) , cert. denied, 122 S. Ct. 51 (200 1). 
The petitioner also claims that the beneficiary was previously employed as a preschool teacher at 
in Philippines and is an experienced preschool teacher. However, the 
beneficiary's credentials to perform a particular job are relevant only when the jo b is found to be a 
specialty occupation. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (out of four 
assignable wage-levels) relative to others within the occupational category. Hence, without more, 
the position is one not likely distinguishable by relatively specialized and complex duties. That is, 
without further evidence, the petitioner's has not demonstrated that its proffered position is one with 
(b)(6)
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specialized and complex duties as such a position would likely be classified at a higher-level, such 
as a Level III (experienced) or Level IV (fully competent) position, requiring a substantially higher 
prevailing wage. 16 
Although the petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the petitioner has submitted inadequate 
probative evidence to satisf y the criterion of the regulations at 8 C.F .R. § 214.2(h)( 4 )( iii)(A)( 4). 
For the reasons related in the preceding discussion, the petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4) (iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The combined motion will be dismissed 
and the petition denied. 
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 29 1 of the Act, 8 U.S.C. § 13 61; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 20 13). Here, that burden has not been met. 
ORDER: The combined motion is dismissed. 
16 
As previo usly discussed, a Level IV (fully co mpetent) positio n is designated by DOL for employees who 
"use advanced skills and diversified knowledge to solve unusual and complex problems" and requires a 
significantly higher wage.